The High Court · 2025

Order

This Crirninal Petition has been filed under Section 482 ol the Code of Crirninal Procedure, 1973 (for strort, 'Cr.P.C.') by the petitioners, ll.ho are arrayed as accused Nos.1 to 4,6 and 7, seeking to quash the proceedings in C.C. No.715 of 20l5 on the lile of the XVI Additional Chief Metropolitan Magistrate, Hyderabad

2. Hcard Sri D.Prakash Rcddy, learned Senior Counsel, representing Ms. Vladirneer Khatoon, learned counsel for the petitioners, Sri S.Sorneshwar Rao, learned counsel for re spondent No.2/de facto complainant and Sri M.Vivekananda Reddy, learncd Assistalt Public Prosecutor, appearing on behalf of respondent No.1-State

3. Brief facts ofthe case: 3.1. Respondent No.2 hets fiIed a cornplaint on 22.O2.2OO9 at about 14-1O hours, stating that he is the owner and sole developer of a residential property admeasuring all square yerrds, bearing Mr.nicipal Nos. 11-3-848 to LLS-a4A/5, situated at Mallepally, Hyderabad. Ttre property consists of 25 flats, which had \ 2 been sold over the past fdur years, and the purchasers were in peacefi-rl possession. He further stated that he had engagect security staff fron-r Sha}. security Services and otl'rer maintenance personnel for the building's upkeep. Despite receiving the entire sale consideration, the land owner had hled a civil suit O.S. No. 665 of 2OO8 before the II Additional Chief Judge, City Civil Court, Hyderabad, seeking an injunction that was not granted as the purchasers were already in possession. Flowever, on the night ol 22.O2.2OO9 at about 12:30 a.m.. petitioners, along with their associates assaulted the security guard Mr. Shektrar, confined him in a room, darnaged the building, zrnd attempted to trespass into the property. Based on this cornplaint, Crime No. 39 ol 2OO9 under Sections 418, 427, 342, 323 read with Section 34 of the IPC has becn registered. Based on the said complaint, the Investigatir-rg Officer after conducting detailed investigation Iiled charge sheet and the sarne was taken cognizance and numbered as C.C. No.7l5 of 2015.

4. Subtnissions of learned Senior Counsel appearing on behalf of the petitioners:

4.1 Lr:arned Senior Cor.rnsel subrnitted that respondent J No. 2 lodged a complaint against the petitioners on 22.O2.2OO} ald basing on the same, Crime No.39 of 2OO9 was registered by the Police, Habeebnagar Police Station, Hyderabad. On 25. 10.2O12, the Investigating Ofhcer flled final report. The Investigating officer hled application on

19. 1 1.2O 13 before the Iearned XVI Additional Chief Metropolitan Magistrate, Hyderabad seeking condonation of delay in filing frnal report and the learned Magistrate passed Order in S-R.No.6i of 2013 in Crl.M.P. No.475 1 of 2015 on 03.12.2073 condoning the delay in frling frnal report and directed the oflicc to nurnber the case. The learned Magistrate without giving notice ald opportunity to the petitioners passed the order, dated 03.12.2073, and condoned the delay and ttre sarne is gross violation of the principles of natural justice and taking cognizance against the petitioners is also clear abuse of ttre process of law.

4.2 He further subrnitted that ttre trial Court issued notice to respondent No.2 on 19.O9.2013 ca-lling for objections if any with regard to filing of linal report by the Investigating Officer. Pursuant to the sarne, respondent No.2 fried protest petition on 26.12.2OL3 deleting accused No.3 anh *;vhen the said application was pending, learned 4 Magistrate issr-red another 'notice to respondent No.2 on

20.O3.2OL5 directing him to appear before the trial Court with counsel on iO.O4.2O15 for filing objections about final report especially deleting the name of accused No.3. Accord.ingly, respondent No.2 hled memo on O8.O5.2O15 stating theit tre is not having any objection for deleting accused No.3, in the final report. Taking into consideration the above said rnemo, the learned Magistrate closed the proceedings on OB.O5.20 15. Subsequently, respondent No.2 frled a.pplication on

18.O9.2O15 to reopen the case and proceed with the trial. The learned Magistrate allowed the application and reopened the case against accused Nos.1, 2 and 4 to 7.

4.3 He vchemently contended that by virtue of the closure of the proceedings through order, dated Oa.05.20 15;, the learned Magistrate becomes ftrnctus ofhcio and he is not having jurisdiction to entertain the application and reopen the case in view of the bar under Section 36'2 of Cr.P.C.

4.4 In support of his contention, he relied on the following judgrnents; 5 i) State of Kerala ws. M.M.Manikantal Nairl; ii) Hari Singh Mann vs. Harbhajan Singh Bajwa and others2; and iii) Shiwa Sankar Baba vs. State Crl.O.P.No.238O6 of 2O2L of Madras High Court.

5. Subrnission of learned counsel for respondent No.2:

5. I Learned cotrnsel for respondent No.2 subrnitted that the Investigating Oflicer filed fina-l report against accused Nos. 1, 2 and 4 to 7 and deleted the narne ol accused No.3. Pursuant to the same, learned Magistrate issued notice to respondent No.2 calling for objections about frnal report irled by ttre Investigating Officer. Pursuant to ttre sarne, respondent No.2 filed merno on O8.O5.2O15, wherein he specifically stated that he is not having any objection for deletion of accused No.3. In view of the sarne, learned Magistrate closed the proceedings against accused No.3 only. However, in the order, dated

08.05.20 15 inadvertently mentioned that proceedings L (2001) 4 SCC 7s2 , (2001) l SCC 169 6 closed.

5.2 He further submitted ttrat respondcr-it No.2 is not having right or power to seek closure of case against the other accused except accused No.3. Respondent No.2 with a prudent rnanner filed application on 18.O9.2015 to reopen the case and proceed with ttre trial insofar as the other accused is concerneci, the learned Magistrate after hearing both the parties, allowed the application on

23.1O.2O15. Aggrieved by the above said order, the petitioners have approached this Court ancl fiied Cri.R.C. No.33 10 of 2015, which was disrnissed as infmctr-rous basing upon the submissions rnade by the learned I I counsel appearing on behalf of the petitioners on

05.O2.2016. The above said order, dated 23.1O.2O15, was rnerged in the Crl.R.C. and the sarre has become final.

5.3 He further submitted that under Section 473 of Cr.P.C., learned Magistrate is having power to condone the delay at any point of time. Not giwing opportunity to the petitioners while condoning the delay irr entertaining the final report is only a curable defect. Basing on the sarne, therpetitioners are not entitled to seek quashing of 1 {1 the proceedings. The petitioners filed ttre present crirninal petition insofar as taking cognizance and the petitioners have not questioned the orders passed by the learncd Magistrate, dated 03.12.2O13. Hence, the petitioners are not er-rtitlcd to scek quashing of the proceedings.

5.4 In support of his contention, he relied on the judgment ol the Hon'b1e Apex Court in Vanka Ftadtrarnanohari w. Vanka Venk.rta Reddys. Analysis: 6 Having considered ttre rival subrnissions rnade by the respective partics and after pemsal of ttre rnaterial available on record, it reveals that basing upon the cornplaint lodged by respondent No.2, Crirne No.39 of 2OOg was registered again st the petitioners for the offences ptrnishable under Sections 448, 427, 342, 323, t/w 34 ot IPC on 22.02.2OO9 and the Investigating Officer after conductir-rg investigation filed a final report before the learned Magistrate on 25. LO.2012. 7 . The record hrrther revea-ls that ttre Investigating Ofhcer frled final report after expiry of the statr. tory period \ 3 (1993) 3 SCC 4 of limitati<>n for thc above said offences. lJowever, the Investigating ofhcer hled an application before the learned Magistrate st:ekir-rg condonation ol delalz 1n fiiing final report and the sarrre was allowed by the le arned Magistrate orr 03.12.2013 wirile exercising the powers conferred rrnder Section 473 Cr.P.C. a. The record further reveals that the learned Magistrate before passing the order dated 03 . 12 .2O 1 3 has rlot given any notice and opportunity to the petitioners and passed the order in their absence.

9. In Suktrdev Raj v. State of Punjaba, the Honlcle Suprerne Court held that an application for condonation of delay rrrrder Section 473 Cr.P.C. can be r--ntertained at any stage before the conch.rsion of the trial il the delay is properly explained or if condonation is neccssary in the interest of justice. Ttre Court further observcd ttrat before passing order of condonation of the delay, r-rotice and an opportr:nity of being heard must be given to the opposite party. This requ.irement ensures fairness irr lrrocedurre ald prevents any prejudice to ttre accused, rezrlfrrrning that a 1994 Supp (D sd39B I l s R orders condoning delay without such opportunity would nol be proper in law.

10. In Shiva Sankar Baba supra, High Cor.rrt of Madras held that the provisions relating to lirnitation in crirninal prosecutions under Sections 468 ard 473 of ttre Cr.P.C rnr.rst be interpreted in light of the object of justice, the Court reiterated that while the bar of lirnitation applies to offences pr-rnishable witLr imprisonrnent not exceeding three years, the courl is ernpowered under Section 473 Cr.P.C to condone the delay if it is properly explained or if such condonation is necessary in the interest of justice. The High Court further clarified that it is not rnaldatory for the prosecution to hle an application for condonation of delay at thc tirne of hling the charge sheet; sr.ch delay may be condoned at any stage before the conclusion of the trial, provided the court records its satisfaction that the delay has been duly explained and that condonation is warranted to serve the ends of justice.

11. In Vanka Radharnanohari supra, ttre Hon1:le Suprerne Court explained that wkrile Section 468 of Cr.P.C prescribes limitation periods for taking cognizance of certain offences to prevent stale prosecutions and ensrlre l0 timely justice, Section 473 Cr.P.C errrpowers the Court to take cognizance even after expiry of the prescribed period, if the delay is properly explained or if doing so is thc interests of justice. The Court emphasized that Section 473 of Cr.P.C., being a non- necessary in obstante provision, has an overriding effect on Section 468 of Cr.P.C., thereby allowing Courts to condone the delay not only upon satisfactory explanation but also when the ends of justice so require.

12. In the case on hand, the learned Magi strate without giving any notice and reasonablc opportunity to the petitioners condoned the delay in hling final report. Hence, ttris Court is of the considcrcd view b1'virtue of the principle laid down by the Hon'lcle Apex Cour-t in Sukhdev Raj supra that the petitioners are entitled for notice and opportunity.

13. Insofar as the other contentions raised by the learned Senior Cor.rnsel that the learned Magistrate does not ha"ve jurisdiction to reopen the case is concerned, the Investigating Officer filed final report against the accused Nos. 1, 2 and 4 to 7 and deleted the narne of accused No.3. Pursuant to the sarne, learned Magistrate issued notice to r /l 2 .l I respondent No.2 o11 20 .O3 .2O 1 5 directing him to frle objections if any in respect of final report insofar as deletion of the narne of accused No.3. Respondent No.2 filed a memo on 08.O5.2015 wherein he specifically rnentioned that he is not having any objection for deletion of the name of accused No.3 in the final report. Taking into consideration the said memo, the learned Magistrate ought to have closed tLre proceedings against accused No.3 only through order, dateci Oa.O5.2O15, however, the learned Magistrate passed the following order on

08.O5.2O15, which reads as under: "Defacto Complainant present. Memb frled reported no objections against final report (Charge Sheet). Hence ttre proceecling closed."

14. The said order revea-ls that the learned Magistrate taking into consideration the rnerno hied by respondent No.2, closed the proceedings. T}:.e de-f<tcto cornplainant has not filed merno for closure of the proceedings against all the accused. It is also pertinent to mention that ttre respondent No.2 is not having power/authority seeking closure of the case against all lhe accused. \ \ t2

15. The record further reveals that on 18.09.2015 respondent No.2 hled a petition in Cr1.M.P.No.25l4 of 20 15 seeking to reopen the case, wLrereir-r he specifica-ily rnentioned that he is not having any objcction for delcting the narne of accr.rsed No.3 and hc has not given any consent for closure of proceedings against other accused. Even respondent No.2 is not traving such right to seek closure of proceedings against other accused. The learned Magistrate after due verification of the records, allowed the appliczrtion on 23.1O.2O15, wherein it was specifically rnentioned that the prosecution hled charge shcet against accused Nos.1 to 7 by deleting the narne of accused No.3 only. The de-facto complainant filed merno reporting no objection for closure of the proceedings against the accused No.3 only and reopened thc case against accused Nos.1, 2 and 4 to 7.

16. The record further discloses that aggrieved by the above said order dated 23.1O.2O15, the petitioners have approached this Court and filed Crl.R.C.No.33 10 of 2015 and the same was disrnissed as infmctuous on

05.02.2016 basing upon the submissions rnade by the learned counsel for the petitioners therein. 2 By virtue of - the dismissal of the Cr1.R.C., the impugned order passed by the learned Magistrate dated 23.1O.2O15 was merged in the Cr1.R.C. and the petitioners are not entitled to contend that the learned Magistrate is not having jurisdiction to reopen the case in the present crirninal petition.

17. In M.M. Manikantan Nair suprd, the Hon'ble Sr.rprerne Court held that the Code of Crirninal Procedure does not confer any power t-rpon the High Court to review or alter its judgrnent or final order once it has been signed, except to correct a clerical or arithrnetical error as provided under Section 362 of Cr.P.C. . The Court ernphasized that this prohibition is absolute and that no criminal Court can reopen or reconsider its own final order. In that case, the High Court, after having earlier rejected a petition for qr.ashing criminal proceedings, subseqr.rently reversed its own decision on the sarne issue, which the Suprerne Court held to be an imperrnissible review contrarJr to the express bar contained in Section 362 Cr.P.C.

18. In Harl Singh Mann supra, the llon'lcle Sr.rprerne Court held ttrat Section 362 erlbodies the well-established t4 doctrine that once a court has fi.nally disposed of a rnatter, it becornes fitnctus officio th,at is, it ceases to have jr.rrisdiction over that case and cannot entertain a fresh prayer for the sarne relief unless the earlier order is set aside by a court of competent jurisdiction. The above decisions affirrn that once a criminal court has signed its judgrnent or final order, it cannot review, modify, or recall it, except for correcting clerical or arithmetical mistakes, ensuring the finality of judicial decisions in crirninal proceedings.

19. ln Vikrann Bakshl o. R.P. Khoslas, the I-[on'ble Suprcme Corrrt reiterated that under Section 362 of Cr.P.C, 1973, a criminal court, including a Magistrate under Section 6 of Cr.P.C, 1!)73, has no authority to alter or revieu, its judgment once it has been signed, except for the correction of a clerical or arithmetical error. The Hon'ble Suprerne Court, however, clarified that this lirnitation does not prevent the rectifrcation of a procedr.rral or t5rpographical rnistake, which is a mechanical or inadvert.ent error cornmitted by the court itself, not involving the court's reasoning or discretion, where the 5 2025 SCC OnLine SC 1783 r l5 order as recorded does not truly reflect wflat was intended or sr.rpported by the record. Such correction does not amount to a review on merits but only ensures that the judicial record speaks the truth.

20. In the present case, the Magistrate, by oversight, closed proceedings against ali the accused though the de-facto complainant had given no objection only for accused No. 3. Ttris mistake was purely clericai and procedural mistake only and did not arise from the Court's reasoning or discretion., as tfre order went beyond what was intended or warral-rted by the record. Hence, this Court is of the considered view that the said mistake falls within the scope of a clerica,l or procedural error, which the Magistrate, being a criminal Colrrt, was cornpetent to rectify the same to in order to prevent miscarriage of justice, and also ttre said mistake would camse prejudice to the parties and to uptrold the principle that no party should suffer due to the mistake of the Court.

21. The judgrnents which are relied upon by the learned counsel for the petitioners in M.M. Manikantan Nair supra and llari Singh Mann supra, are not applicable to I I l6 the facts and circurnstances of the case, especially in wiew of the st- bseqrrent principle laid down by the Hon'blc Apex Cor.rrt in Vikrarn Bakshi supra, it was sp<:ciflcally held tLrat thc provisions of Section 362 of Cr.l).C. does not prevent the rectification of a procedural or typographical rnistake, rvhictr is a rnechanical or inadr.ertent error committed by ttre Court itself, not involving the Court's reasoning or discretion where the order as recorded does not truly reflcct what was intended or supported by the record. Strch correction does not arnount to a review on rnerits br.t only ensllres that the judicial r:cord speaks the truth.

22. For thc foregoing reasons this Court does not find aly gror-rn<ls to quastr the proceedings in C.C. No.715 of 2015 on the hle of the XVI Additional Chief Metropolitdn Magistrate. Hyderabad. However, taking consideration of peculiar facts and circumstances of the case and also in view of the principle laid down by the Hon'ble Apex Court in Sukhdev Raj supro, this Court is of the considered view that the learned Magistrate ought to have given opportr-rnity rnuch less reasonable opportlrnity to the petitioners before passing the t>rd.er dated

03.12.2013 while condoning the delay in filing a final report by the Investigation Officer. Hence, ttre order dated

03.12.2013 passed by the learned Magistrate is liable to be set aside and accordingly set aside. The learned Magistrate is directed to decide the application i.e., S.R.No.61 of 20l3 liled by the Investigating Ofhcer seeking condonation of delay in filing the finzrl report afresh after giving opportunity to the respective parties and pass appropriate orders in accordance with law as expeditiously as possible, _preferably within a period ol two (2) rnonths from ttre date of receipt of a copy ol this order.

23. Accordingly, the crirninal petition is disposed of As a sequel thereto, miscellaneous applications, if any, pending in this petition stand closed. t //TRUE COPY// SD/. K.BHAVANI SWAMY ASSISTANT REGISTRAR 6 SECTION OFFICER One Fair Copy to Hon,ble Sri Justice J.Sreenivas Rao (For His Lordships Kind perusal) To, 1 . '1. The XVI Additionat Chief Metropolitan Magistrate, Hyderabad. ! llqS-HO, P.S. Habeebnagar, Hyderabad. 3. 7 LR Copies. 4 The Under secretary, union of rndia, Ministry of Law, Justice and company Affairs, 5. The Secretary,Telangana High Court Advocates Association, Library, High Court 6 One CC to SRI VLADIMEER KHATOON Advocate tOpUCl 7 pne CC to THE PUBLTC PROSECUTOR, High Court for the State of Buildings, Hyderabad. New Delhi. Telangana, Hyderabad.[OUT]

8. Two CD Copies u HIGH COIJRT DATED:1811112025 R0 Ti{E S t C) 2 i iloll zut es'# ai$, 7 ORDER I CRLP.No.14109 of 2015 DTSPOSING 0F THE CRLP 1I@ crD Lf