KANAKANAMPATI NAGAYYA Vs. STATE

JUDGEMENT

(1.) This is a petition to quash the committal order which was made by the Judicial Second Class Magistrate, Sattenapalli, in the following circumstances. The accused, three in number, are residents of Dechavaram village, a village said to be predominantly faction-ridden. P.Ws. 5 to 11 belong to one party and the accused to the other party. On 3oth September, 1959, Kanakampati Setharamamma, wife' of A-1 met her death by drowning in a well. According to the prosecution, that day the deceased and her brother-in-law fell out on some matter in their field, and, as a result, while returning home at about 10 A.M., she jumped into a well to commit suicide. Dandakoti Subbarao who happened to see her jumping into the well, raised an alarm immediately. Thereupon some persons came running to the well, but it took sometime for them to take her out of the well, and by that time her life had become extinct. A-1 and A-2 were made aware of the facts leading to the death of the deceased. They were convinced and even sent messages to the relatives through certain persons to the effect that the deceased had committed suicide by falling into the well. But then it occurred to them that this was the opportune moment to wreak vengeance on the opposite factionists. The panchayat elections were brewing. It was high time that some of the important members of the opposite faction are arrested. They had also fresh in mind that P.W. 10 and his partisans had tried to implicate them and others for an offence of murder during the investigation of the police when P.W. 1 's wife had committed suicide. A-2 therefore instigated A-1 and A-3 also told them that he will be an eye-witness. At the instigation of both, A-1 made a report to the Village Munsif falsely charging P.Ws. 5 to 11 that they forcibly threw the deceased into the well while she was returning from her field. This is the prosecution version of the case.

(2.) The Village Munsif, on the information given by A-1, sent the reports to the police and the Magistrate. The police investigated into the matter and found that the deceased had committed suicide, and that the accused had falsely charged P.Ws. 5 to 11 with ulterior motive. They (the police) referred the charge as false and after investigation into the offence of section 211, Indian Penal Code, which was made without the order of the Magistrate, (probably on the assumption that an express order was unnecessary), lodged a report for an offence under section 211, Indian Penal Code, against A-1 and under section 211 read with section 109, Indian Penal Code, against A-2 and A-3. On this report, the Magistrate took cognisance of the case and started proceedings under section 207-A, Criminal Procedure Code. The accused were furnished with copies of the documents referred to in section 173 (4), Criminal Procedure Code. Eight witnesses were examined on behalf of the prosecution. The learned Magistrate, on the basis of the material on record, namely, the evidence (recorded) of some of the prosecution witnesses and the statements of the witnesses recorded under sectiors 162 and 164, Criminal Procedure Code, came to the conclusion that the case should be tried by the Sessions Court, and committed the accused accordingly. It is against this order the accused have come up in revision to this Court.

(3.) The learned counsel for the petitioners has attacked the committal order on more than one ground. The first ground taken is that the offence with which the accused were charged only fell within the first part of section 211, Indian Penal Code, and was therefore not exclusively triable by the Sessions Court and the order of committal on that ground is bad in law. The next ground is that inasmuch as it was a non-cognizable offence, the report filed by the prosecution was only in the nature of a complaint and even if at all the Magistrate could take cognizance of the case on the basis of such report, it was obligatory on him to follow the procedure whirh is prescribed for cases other than those instituted on a police report. The procedure actually followed being thus in contravention of the provisions of law, the proceedings of the learned Magistrate are vitiated and liable to be quashed. The last ground taken is that since A-3 had stated that he was an eye-witness, in the statement recorded by the Magistrate under section 164, Criminal Procedure Code, and he said so in connection with an offence of murder triable by the Sessions Judge, the Court could not have taken cognizance of the offence under section 211 read with section 109, Indian Penal Code, brought against him in the absence of a complaint of the Court under the mandatory provisions of section 195 (1) (b), Criminal Procedure Code.