THE HON’BLE SMT. JUSTICE JUVVADI SRIDEVI CRIMINAL PETITION No.4409 of 2024

O R D E R:

This Criminal Petition is filed by the petitioners-accused Nos.1 and 2 under Section 482 of Cr.P.C. seeking to quash the docket order dated 27.12.2023 passed in Crl.M.P.No.996 of 2023 in C.C.No.10515 of 2023 by the learned Chief Metropolitan Magistrate at Nampally, Hyderabad (for short ‘trial Court’) for taking cognizance against the petitioners under Sections 406, 420, 468, 471, 384, 447 and 506 r/w Section 34 of IPC.

2. Heard learned counsel for the petitioners, learned counsel for respondent No.2-complainant and Mr.M.Ramachandra Reddy, learned Additional Public Prosecutor appearing for respondent No.1-State.

Perused the record.

3. The complainant filed a private complaint alleging that the petitioners-accused Nos.1 and 2, his own sister and brother, have fabricated a false gift settlement deed bearing document No.2198 of 2016, dated 11.04.2016, purportedly executed by their mother for 50 square yards of property already gifted by their father to the complainant and petitioner-accused No.2 in the year 2002. It is alleged that the petitioners are trespassing into his house and causing nuisance. Basing on the said complaint, the trial Court referred the same to the Police Charminar for investigation. After completion of investigation, the Police filed final report referring the crime as ‘civil in nature’. On knowing the same, the complainant has filed protest petition against the petitioners. After recording the sworn statement of complainant, the trial Court has taken cognizance against the petitioners and issued summons to them by order, dated 27.12.2023, which reads as follows:

“Complainant present. Heard the counsel for the complainant and perused the sworn statements of the complainant and other witnesses and also perused the documents filed on behalf of the complainant, perusing the same prima facie case is made out against A1 and A2. Therefore, case is taken on file as C.C.No.10515/2023 against A1 and A2 for the offences under Sections 406, 420, 468, 471, 384, 447 and 506 r/w 34 of IPC against the accused Nos.1 and 2. Issue summons to A1 and A2 on payment of process. Call on 08.03.2024.”

4. Learned counsel appearing for petitioners submitted that the disputes between the parties are purely civil in nature, but the present complaint is lodged giving a cloak of criminal offence. Suits are pending between both the parties. The Police have rightly referred the crime as ‘civil in nature’. Without issuing notice and affording an opportunity of hearing to the petitioners, the learned Magistrate has taken cognizance against them, without application of her mind into the material on record and assigning any valid reasons. Hence, prayed to set aside the cognizance order, dated 27.12.2023 and to quash the proceedings against the petitioners.

5. On the other hand, learned counsel appearing for respondent No.2-complainant as well as learned Additional Public Prosecutor in one tone contended that there are specific allegations against the petitioners and the truth or otherwise of the allegations levelled against them can only be known after conducting full-fledged trial before the trial Court.

Hence, they prayed to dismiss the petition.

6. In Lalankumar Singh and others v. State of Maharashtra, 2022 LiveLaw (SC) 833, the Hon’ble Supreme Court held as follows:

28. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Inves