APHC010141212020

IN THE HIGH COURT OF ANDHRA

PRADESH :: AMARAVATI

(Special Original Jurisdiction)

THURSDAY ,THE FIRST DAY OF

FEBRUARY

TWO THOUSAND AND TWEN TY

FOUR

3396

PRESENT

THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

CRIMINAL PETITION NO: 1888 OF 2020

Between:

1. GATTINENI VIJAYA SAI, Father Name Ramesh Aged about 25yrs R/o.

Enugupalem Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

2. Bandarupalli Satyanarayana, S/o. Jaganadam, aged about 48yrs, R/o

Sathuluru Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

...PETITIONER/ACCUSED(S)

AND

1. THE STATE OF AP, Rep by its Public Prosecutor High court of Andhra

Pradesh at Amaravathi, Guntur District.

2. THE SHO, Chilakaluripeta Town PS, Guntur Dt, Andhra Pradesh.

...RESPONDENT/COMPLAINANTS

Petition under Section 437/438/439/482 of Cr.P.C praying that in the

circumstances stated in the Memorandum of Grounds of Criminal Petition, the

High Court pleased to Quash the proceeding in Crime No. 72 of 2020 of

Chilakaluripet Town P.S, U/S 188, r/w34 IPC, Sec 34(A) of AP Excise ACT and

Section 19 (A), 211, 212, of Ordinance no 2/2020 of APPR Amendment ACT

1994 by invoking the inherent jurisdiction conferred U/S 482 of Cr.P.C and

pass

I.A. NO: 1 OF 2020

Petition under Section 482 of Cr.P.C praying that in the circumstances

stated in the Memorandum of Grounds of Criminal Petition,the High Court may

be pleased pleased to stay of arrest of the petitioner/Accused no 2 in Crime

No. 72 of 2020 of Chilakaluripet Town P.S, U/S 188, r/w 34 IPC, Sec 34(A) of

AP Excise ACT and Section 19 (A), 211, 212, of Ordinance no 2/2020 of APPR

Amendment ACT 1994, until disposal of the quash petition and pass

2

I.A. NO: 2 OF 2020

Petition under Section 482 of Cr.P.C praying that in the circumstances

stated in the Memorandum of Grounds of Criminal Petition,the High Court may

be pleased

This Petition coming on for hearing,upon perusing the Memorandum of

Grounds of Criminal Petition and upon hearing the arguments of Sri

SRINIVASA RAO NARRA ,Advocate for the Petitioner and the Public

Prosecutor (TG/AP) on behalf of the Respondent No. and of Sri_Advocate for

the Respondent No.

The Court made the following:

ORDER:

The instant petition under Section 482 of the Code of Criminal Procedure,

1973

1

has been filed by the Petitioners/Accused Nos.1 and 2, seeking quashment

of the proceedings against them in Crime No.72 of 2020 on the file of

Chilakaluripet Town Police Station, Guntur District, registered for the offences

under Section 188 r/w 34 of the Indian Penal Code

2

and Section 34(a) of A.P.

Excise Act and Sections 19-A, 211 and 212 of Ordinance No.2/2020 of

A.P.Panchayat Raj Amendment Act, 1994.

2. Brief facts of the case are as follows:

a. On 12/13.03.2020 at about 1.30 a.m., while the Sub-Inspector of Police

along with his staff was on night rounds to prevent any untoward incidents with

regard to ensuing Municipal Elections, and while they were checking the vehicles,

at Patha Santha, Narasaraopet Road, Chilakaluripet Town, they found a car

bearing No. AP 39 AB 2444 and Accused No.1 sitting in the said vehicle. On

1

in short ‘Cr.P.C’

2

in short ‘IPC’

3

seeing the Police, Accused No.1 perturbed and tried to flee away. Police caught

hold him and on questioning, he disclosed his identity particulars and confessed

that he is a resident of Endugumpalem Village, Nadendla Mandal; that he and his

father were working as Sub-Contractors in Panchayat Raj Department of

Chilakaluripet; that he was a party worker of Telugu Desam Party. He stated that

Accused No.2 asked him to distribute the same to the voters in view of the

Municipal Elections. He also opened the dickey of the car and showed them 83

bottles of 180 ml Green Choice Whisky each.

b. When Accused No.1 was asked as to whethe r he had permission or

licence to keep the bottles with him, he replied that he was not having such

things. Then, the S.I of Police seized the liquor bottles and the car bearing

No.AP 39 AB 2444 in which the said bottles were kept, from the possession of

Accused No.1, arrested Accused Nos.1 and 2 for violation of Election Code and

registered the present crime.

Grounds Sought for Quashment

3. Being aggrieved by the registration of said crime against them,

Petitioners/Accused Nos.1 and 2 filed the present petition on the following

grounds:

a. The present complaint is not maintainable either in law or on facts as prima

facie ingredients are not made out against the accused.

b. The Police with the pressure of local MLA and her husband, preferred to

give a false report against the accused attributing false allegations without any

iota of material against the accused.

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c. The Petitioners had never been in possession of the alleged liquor and

Petitioner No.2 never cooperated to Petitioner No.1 either to possess the liquor or

to distribute the same to anybody

d. The alleged confession of Accused No.1 before the Police is not valid in

the eye of law and the confession itself is false. Basing on the inadmissible

confession, Petitioner No.2 was falsely implicated in the case.

e. Petitioner No.2 filed a nomination for ZPTC, Nadendla Mandal and though

MLA and her husband warned him to withdraw the nomination and as Petitioner

No.2 has not withdrawn the nomination, this false case was foisted against the

petitioner.

Arguments Advanced at the Bar

4. Heard Sri Narra Srinivasa Rao, learned counsel for the Petitioners and

Ms.D.Prasanna Lakshmi learned Assistant Public Prosecutor for

State/Respondent Nos.1 and 2.

5. Learned counsel for the Petitioners/Accused Nos.1 and 2 in elaboration to

what was stated in the Petition, would submit that the present complaint was

lodged based on the police proceedings, which is not tenable under law. He

would further submit that Accused No.2 and the father of Accused No.1 were

contesting members in ZPTC elections and to eliminate them from the contest,

the present case was foisted against the Petitioners. It is also stated that the

case against Accused No.2 was registered only based on the confession of

Accused No.1, which is not valid in the eye of law. He would thus contend that

the continuation of proceedings against the Petitioners is an abuse of process of

law.

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6. Refuting the arguments referred to above, learned Assistant Public

Prosecutor would submit that there are no grounds to quash the case against

petitioner. She would submit that the allegations made against the Petitioners

would squarely attract the offence alleged against them and therefore, the

criminal proceedings should not be quashed against Petitioners. Hence, prayed

to dismiss the petition.

Point for Determination

7. Having heard the submissions of the learned counsels, now the point that

would emerge for determination is:

Whether there are any justifiable grounds for quashment of

proceedings against the Petitioners/ Accused Nos.1 and 2 in

Crime No.72 of 2020 on the file of Chilakaluripet Town Police

Station, Guntur District, registered for the offences under

Section 188 read with 34 IPC, Section 34(a) of A.P.Excise Act

and Sections 19-A, 211 and 212 of Ordinance No.2/2020 of

A.P.Panchayat Raj Amendment Act, 1994?

Determination by the Court

8. A perusal of Section 482 Cr.P.C. makes it clear that the Code envisages

that inherent powers of the High Court are not limited or affected so as to make

orders as may be necessary; (i) to give effect to any order under the Code or, (ii)

to prevent abuse of the process of any Court or, otherwise (iii) to secure ends of

justice. A court while sitting in Section 482 jurisdiction is not functioning as a

court of appeal or a court of revision. It must exercise its powers to do real and

substantial justice, depending on the facts and circumstances of the case. These

powers must be invoked for compelling reasons of abuse of process of law or

glaring injustice, which are against sound principles of criminal jurisprudence.

6

9. Perusal of the record would disclose that the offences alleged against the

Petitioners are under Section 188 read with 34 IPC and Section 34(a) of

A.P.Excise Act and Sections 19-A, 211 and 212 of Ordinance No.2/2020 of

A.P.Panchayat Raj Amendment Act, 1994.

10. At this juncture for better appreciation, it is relevant to extract Section 188

IPC which reads as under:

“Section 188. Disobedience to order duly promulgated by public servant.—

Whoever, knowing that, by an order promulgated by a public servant lawfully

empowered to promulgate such order, he is directed to abstain from a certain

act, or to take certain order with certain property in his possession or under his

management, disobeys such direction, shall, if such disobedience causes or

tends to cause obstruction, annoyance or injury, or risk of obstruction,

annoyance or injury, to any persons lawfully employed, be punished with simple

imprisonment for a term which may extend to one month or with fine which may

extend to two hundred rupees, or with both; and if such disobedience causes or

tends to cause danger to human life, health or safety, or causes or tends to

cause a riot or affray, shall be punished with imprisonment of either description

for a term which may extend to six months, or with fine which may extend to one

thousand rupees, or with both.

Explanation.—It is not necessary that the offender should intend to produce

harm, or contemplate his disobedience as likely to produce harm. It is sufficient

that he knows of the order which he disobeys, and that his disobedience

produces, or is likely to produce, harm.‖

11. As far as the offence under Section 188 IPC is concerned, it is relevant to

refer to the decision rendered by this Court in Gade Venkateswara Rao v. State

of A.P.

3

, wherein, it was held as follows;

“13. In catena of decisions, a coordinate bench of this Court in Crl.P. No.

4633 of 2023, Crl.P. No. 5323 of 2009, 3670 of 2013, 8597 of 2018 and 9236

of 2018 clearly held that the Police are not empowered to investigate into the

offence punishable under Section 188 of IPC and file charge sheet basing on

a police report.

14. In the light of the language employed in the legal provision and the

precedents referred supra, it is vivid that there is a clear bar under Section

195(1)(a)(1) of Cr. P.C. for taking cognizance of any offences punishable

under Sections 172 to 188 of IPC, except on the complaint, in writing, of the

Public Servant concerned or of some other Public Servant to whom he is

3

2023 SCC OnLine AP 4021

7

administratively subordinate. It is apt to refer to the definition of complaint as

contemplated in Cr. P.C., vide Section 2(d)

―Section 2 (d) of Criminal Procedure Code, 1973

―complaint‖ means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under this Code, that some

person, whether known or unknown, has committed an offence, but

does not include a police report.

Explanation.- A report made by a police officer in a case which

discloses, after investigation, the commission of a non-cognizable

offence shall be deemed to be a complaint; and the police officer by

whom such report is made shall be deemed to be the complainant;‖

15. Admittedly, in the present case, without there being a complaint by the

authority concerned, the learned Magistrate took cognizance of the offence

punishable under Section 188 of IPC basing on a charge sheet filed by the

police, which is in utter violation of Section 1951(a)(i) of Cr. P.C. Meaning

which, the cognizance taken by the Magistrate is not in accordance with law

and continuation of the proceedings against the petitioner for the offence

under Section 188 of IPC would amount of abuse of process of the Court.‖

12. Since the present case was registered based on the police proceedings, in

view of the above decision, continuation of the impugned proceedings against the

Petitioners for the offence under Section 188 IPC, is nothing but an abuse of

process of Court.

13. Regarding the offence under Sections 19-A, 211 and 212 of Ordinance

No.2/2020 of A.P. Panchayat Raj Amendment Act, 1994, for better

understanding, said sections are extracted hereunder:

“19.A Disqualification on ground of corrupt practice or election

offences:- Any person who is convicted of any offence punishable under

Chapter IX A of the Indian Penal Code, 1860, and any person against

whom a finding of having indulged in any corrupt practice is recorded in the

verdict in an election petition filed in accordance with section 233, or any

person convicted of an offence punishable under Chapter II of Part V of

this Act, for a period of six years from the date of such conviction or verdict,

as the case may be.‖

211. Corrupt practices:- The following shall be deemed to be corrupt

practices for the purposes of this Act:–

(1) Bribery, that is to say,–

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(A) any gift, offer or promise by a candidate or his agent or by

any other person with the consent of a candidate or his election

agent, of any gratification, to any person whomsoever, with the

object, directly or indirectly, of inducing –

(a) a person to stand or not to stand as or to withdraw or not to

withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as

a reward to-

....................

212. Punishment for corrupt practice:- If any person is guilty of any such

corrupt practices as specified in section 211 or in connection with an

election he shall be punishable with imprisonment for a term which may

extend to three years and with fine which may extend to three thousand

rupees.‖

14. Coming to the offence under Section 34(a) of A.P.Excise Act, it is apposite

to extract said section which reads thus:

“34. Penalties for illegal import etc. - Whoever, in contravention

of this Act or of any rule, notification or order made, issued or

passed thereunder or of any licence or permit granted or issued

under this Act,-

(a) imports, exports, transports, manufactures, collects or

possesses or sells any intoxicant;

15. The allegation against the Petitioners was that Accused No.1 was in

possession of intoxicants i.e., 83 bottles of 180 ml Green Choice Whisky each,

which exceed the permissible limit. The contention of the Petitioners is that Police

with the pressure of local MLA and her husband preferred to give a false report

against the Petitioners attributing false allegations without any iota of material. It

is further contended that the Petitioners never had been in possession of the

alleged liquor. But considering the fact that a large quantity i.e., 83 bottles of 180

ml Green Choice Whisky each were seized as per the FIR, which were more than

permissible limit and the Petitioners have to prove their innocence, with

necessary evidence before the Court. As there is no bar under Excise Act to

register a complaint on the police proceedings, the proceedings against the

9

Petitioners under Section 34(a) of A.P. Excise Act cannot be quashed at the

inception.

16. Therefore, in view of the foregoing discussion, this Court considered that it

is a fit case to quash the proceedings against the Petitioners for the offences

under Section 188 IPC only, and to dismiss the quash petition for the offence

under Section 34(a) of A.P.Excise Act and Sections 19-A, 211 and 212 of

Ordinance No.2/2020 of A.P.Panchayat Raj Amendment Act, 1994.

17. In the result, the Criminal Petition is partly allowed quashing the

proceedings in Crime No.72 of 2020 on the file of Chilakaluripet Town Police

Station, Guntur District for the offence under Section 188 IPC and the criminal

petition is dismissed for the offence under Section 34(a) of A.P. Excise Act and

Sections 19-A, 211 and 212 of Ordinance No.2/2020 of A.P. Panchayat Raj

Amendment Act, 1994

Pending applications, if any, shall stand closed.

_____________________________________

JUSTICE VENKATA JYOTHIRMAI PRATAPA

Date: 01.02.2024

Note: L.R.Copy to be marked

Dinesh

10

HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

Crl.P.No.1888 of 2020

Dt.01.02.02024

Note: L.R.Copy to be marked

Dinesh

11

IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI

CRIMINAL PETITION No.1888 of 2020

Between:

1. GATTINENI VIJAYA SAI, Father Name Ramesh Aged about 25yrs R/o.

Enugupalem Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

2. Bandarupalli Satyanarayana, S/o. Jaganadam, aged about 48yrs, R/o

Sathuluru Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

...PETITIONER/ACCUSED(S)

AND

1. THE STATE OF AP, Rep by its Public Prosecutor High court of Andhra

Pradesh at Amaravathi, Guntur District.

2. THE SHO, Chilakaluripeta Town PS, Guntur Dt, Andhra Pradesh.

...RESPONDENT/COMPLAINANTS

DATE OF JUDGMENT PRONOUNCED : 01.02.2024

SUBMITTED FOR APPROVAL :

THE HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

1. Whether Reporters of Local Newspapers

may be allowed to see the judgment? Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters / Journals? Yes/No

3. Whether Her Lordship wish to

see the fair copy of the Judgment? Yes/No

____________________________________

JUSTICE VENKATA JYOTHIRMAI PRATAPA

12

* THE HON’BLE SMT.JUSTICE VENKATA JYOTHIRMAI PRATAPA

+ CRIMINAL PETITION No.1888 of 2020

% 01.02.2024

Between:

1. GATTINENI VIJAYA SAI, Father Name Ramesh Aged about 25yrs R/o.

Enugupalem Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

2. Bandarupalli Satyanarayana, S/o. Jaganadam, aged about 48 yrs, R/o

Sathuluru Village, Nadendla Mandal, Guntur Dt. Andhra Pradesh

...PETITIONER/ACCUSED(S)

AND

1. THE STATE OF AP, Rep by its Public Prosecutor High court of Andhra

Pradesh at Amaravathi, Guntur District.

2. THE SHO, Chilakaluripeta Town PS, Guntur Dt, Andhra Pradesh.

...RESPONDENT/COMPLAINANTS

! Counsel for Petitioners : Sri Narra Srinivasa Rao

^ Counsel for Respondents : Assistant Public Prosecutor for R.1

< Gist:

> Head Note:

? Cases referred:

1. 2023 SCC OnLine AP 4021

This Court made the following: