Dr Sunkara Suresh v. 1. The State of Telangana

3. Dr. C.R.P.S. Krishna, Sri Lalitha Padmavathi Nursing Home Rl/o. 6-12-48, Ganesh Basthi Kothagudem - 5O7101 Khammam District. ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praylng that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ of Certiorari or any other appropriate Writ, Order or Orders, Direction or DireOtions to quash the FIR No.66 of 2016, dated 10.03.20't6 on the file of the 2nd respondent by declaring dm sane as illegal and amounting to abuse of legal process. l.A. NO: 2OF 2016(WPMP. NO : 11971 OF 2016) Petition under Section 1 5 l CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in FIR No.66 of 2016 dated 10.O3.2O16 on the file of the 2nd respondent including the arrest ol he petitioner, pendingy disposal of the writ petition. l.A. NO: 1 OF 2016 P. NO: 2057 O 016 BETWEEN: 1 . The State of Telangana, Rep. by its Principal Secre&r Secreteriat, Hyderabad.

2. The Station House Officer, Kothagrudem lll Town polir - 5O71O1 Khammam District. y, Home Depa(ment, e Station, Kothagudem ....PETITIONER:; RESPONDENTS 1 & 2 AND

1. Dr. Sunkara Suresh, S/o. Ranga Rao, Aged about Ganesh Basthi, Kothagudem Town and Mandal, Khar )6 years, eJo. 6-12-47, mam District. ..... RESF ONDENT/PETITIONER 2 Dr.C.RP.S. Krishna, Sri Lalitha Padmavathi Nursir 3 Home, R/o 6-12-48, Ganesh Basthi, Kothagudem-S07 101, Khammam Di:; ict. (R2 is not necessary party to this petition) ........RESPONDETI TRESPONDENT NO.3 Petition under Section 151 CPC praying that in fl- r circumstances stated in the affidavit filed in support of the petition, the High Cc urt may be pleased to vacate the interim order passed interim orders passed r WpMp.No.1 19lt of 2O16 in WP.No.9462 of 2016 dated22.i.2O16. Counsel for the Petitioner: MS VEDULA CHITRALEKHA Counsel for the Respondents No.l & 2: SRI MAHESH RA. E, Gp FOR HOME Counsel for the Respondent No.3: - The Court made the following: ORDER THE HON'BLE SRIJUSTICE N. TUKARAMJI WRIT PETITION No.9462 OF 2016 ORDER: This Writ Petition is filed with the following relief: 'To issue a Wit of Ceftiorari or any other appropiate Writ, Order or Orders, Direction or Directions to quash the FIR No.66 of 2016 dated 10.03-2016 on the fite of ld respondent by declaring the same as illegal and amounting to abuse of legal process and pass such other order or orders as this Coutt may deem fit and proper.

2.1 Ms. Vedula Chitralekha, learned Counsel for the petitioner, contends that the averments in the report merely describe the involvement of two tall individuals, and apart from a vague apprehension, there is nothing in the material to indicate the petitioner's participation in the alleged offence. lt is therefore urged that implicating the petitioner as an accused is ex facie arbitrary and unsustainable.

2.2. Further submits that the crime was registered without any legal foundation. The learned Magistrate, by order dated

08.01.2016, directed the police to "take cognizance" of the matter 2 and issue an FIR-an approach, it is argued, tha. :ontravenes the procedure prescribed under the Code of Crirr nal procedure, 1973 ("Cr.P.C."), particularly in relation to non-cognizable offences, where the police are prohibited fr: n investigating without the Magistrate's prior permission under Section 15S(2) Cr.P.C.

2.3. Additionally points out a procedural discretr ancy, while the official memo bears the date 09.01.2016, tte s gnature of the learned Magistrate is dated 07.01.2016. Thi:; inconsistency, according to the petitioner, is improbable arr I indicative of procedural impropriety. On these grounds, she prays that the proceedings be quashed.

3.1 . Mr. Mahesh Raje, Learned Government p r ader for Home submits that the report disclosed a non_cognizab t offence under Section 427 of the lndian penal Code, 18€( ("lpC"), and accordingly, the Station House Officer ("S.H.{) ,,) placed the mafter before the Magistrate as required under iection 155(2) Cr.P.C. The learned Magistrate thereafter issuerJ the impugned official memo directing registration of a case and in ,estigation. (' { 3 It is contended that the expression 'take cognizing" in the 3.2 official memo is a misnoner and should be understood contextually as "granting permission to investigate'" The substanceoftheorder,readasawhole,reflectstheMagistrate's intent to authorize registration of an FIR and investigation under Section 427 lPC, rather than taking cognizance in the judicial sense contemplated under Section 190 Cr'P'C'

3.3. The learned Government Pleader further submits that the discrepancy in the dates beneath the Magistrate's signature and the memo's body is a clerical or inadvertent error and' in the absence of any allegation of mala fides or personal interest' cannot constitute a ground for quashment of proceedings' lt is argued that since the police report discloses a prima facie occurrence of an offence, the petitioner's involvement' if any' can only be ascertained upon investigation' lnterference at this preliminary stage would, there{ore, stifle the process of investigation and frustrate the ends of justice Hence' dismissal of the petition as PraYed for. I have perused the record and the submissions made by

4. both parties. \ \ 4

5. The report filed by respondent No.3 rlleges that the windshield of his car was broken and that two tal individuals were seen fleeing the scene. His watchman further stated that the petitioner, along with two tall persons, woS r,arlier observed surveying the buirding. These averments indicat , an occurrence of mischief within the meaning of Section 421 lpC. The petitioner's primary grievance is that he was irr rlicated without material basis. However, the record reflects that I re police report contained information sufficient to justihT invest gation into the alleged act. At the inception, the extent of inv: vement of any individual cannot be conctusively determined; tti ; determination must await proper investigation. Thus, a pr;t la facie case warranting investigation is clearly made out. 6. As regards compliance with the procedure f rr investigating non-cognizable offences, the record reveals tr rt the S.H.O. endorsed the matter on, 04.01.2016 and placec it before the learned lll Additional Judicial Magistrate ot First Class, The official memo dated 08.01.2C.6 reflects the direction to the police to register a case and Kothagudem Magistrate's "eognizing" the offence under Section 427 lpc 5

7. Section 427 IPC deals with mischief causing damage to propefty and is classified as a non-cognizable and bailable offence under the First Schedule to the Cr'P'C' Under Section 155(2) Cr.P.C,, the police cannot investigate a non-cognizable offence without the prior order of a Magistrate having power to try such a case. ln this context, the order dated 08'01'2016' though employing the phrase "cognizing the offence'" substantively conveys the Magistrate's permission to the police to register and investigate the case- B. The use of inappropriate terminology' by itself' does not vitiate the order if the intention is discernible' This view finds support in Sfafe of Haryana v. Bhaian Lal' 1992 Supp (1) SCC 335, where the Hon'ble Supreme Court observed that the courts must look to the substance rather than the form of administrative or judicial acts when determining procedural validity' Similarly' Devarapatli Lakshminarayana Reddy v' V' Narayana ReddY' (1976) 3 SCC 252, darified that "taking Magistrate implies a judiciat act under Section 190 Cr'P.C'' distinct from granting permission to investigate under Seclion 155(2). Accordingly, the impugned memo' when read in its cognizance" bY a entirety, is not contrary to law' 6

9. As regards the discrepancy between the I lte mentioned in the memo and that beneath the Magistrate,s sigr ature, this Court finds it to be a clerical or typographical error inc;t >able of causing prejudice or rendering the order invatiO. tn the rbsence of any specific allegation of impropriety or mala fi,i :s against the Magistrate, such a defect is merely inadvertent i nd curable and the clerical mistakes do not vitiate otherwise va i I administrative acts unless they occasion failure of justice. 10. Having regard to the above discussion, thrs Court finds no merit in the contention that the registration of re FIR or the Magistrate's order suffers from legal infirmity. I he petitioner,s plea for quashment is therefore untenable. The p rwer to quash criminal proceedings at the threshold is to be exer ;ised sparingly and only where the compraint fairs to discrose ar' offence or is manifestly attended with mala fides, as held in Sfai of Telangana v. Habib Abduttah Jeelani, (2011) 2 SCC 279 and , rmit Kapoor v. Ramesh Chander, (2012) 9 SCC 460. No re of these circumstances are present in the case at hand. Accordingry, the porice are directed to pr(n eed with the investigation stricfly in accordance with law, followirrr due process .) 1 7 under the Cr.P.C. However, as the alleged offence under Section 427 IPC is bailable in nature, and considering that the petitioner has been under the protection of this Court during the pendency of this petition, the investigating agency is directed not to take any precipitative action against the petitioner unless sufficient material emerges during investigation to justify such action.

12. With these observations and directions, the Writ Petition stands dismissed- No order as to costs- All misceltaneous petitions, if any, pending in this writ petition, shall stand closed. That the Rule Nisi has been made Absolute as stated above' Witness the Hon'ble The CHIEF JUSTICE SRI- APARESH KUMAR SINGH' on October' Two Thousand and Twenty this Monday, The Twenty sI'lrrtft O"V "f Five //TRUE COPY/I Sd,. AHMED ABDULLA KHAN --' Asslsrarur RFISTRAR SECTtfi OFFICER l() I To

1. One CC to Ms. VEDULA CHITRALEKHA' Advocate IOPUCI 2. Two CCs to GP for HOME, High Court for the State of Telangana at Hyderabad. [OUTI

3. Two CD Copies DANA,{P HIGH COURT I DATED:2711012025 ORDER WP.No.9462 ot 2016 [: kr1 o o 1 1 -::'r f q;,i:Sl, ). ( \ 6) * IS i)/ i ,,r t DISMISSING THE WRIT PETITION WITHOUT COSTS t n l