HIGH COURT OF ANDHRA PRADESH AT AMARAVATI **** CRIMINAL REVISION CASE No.1816 OF 2017 Between:- Kilari Anand Paul ...PETITIONER Versus The State of AP Rep PP ...RESPONDENT **** DATE OF ORDER PRONOUNCED : 04.04.2025 2 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 SUBMITTED FOR APPROVAL: THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO 1. Whether Reporters of Local Newspapers may be allowed to see the Judgment? Yes/No 2. Whether the copy of Judgment may be marked to Law Reporters/Journals? Yes/No 3. Whether His Lordship wish to see the fair copy of the Judgment? Yes/No _________________________ Dr. Y. LAKSHMANA RAO, J 3 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 * THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO + CRIMINAL REVISION CASE No.1816 OF 2017 % 04.04.2025 # Between: Kilari Anand Paul ...PETITIONER AND The State of AP Rep PP ...RESPONDENT ! Counsel for the Petitioners : PARTY IN PERSON ^ Counsel for the Respondent : PUBLIC PROSECUTOR (AP) < Gist: > Head Note: ? Cases referred: 1) (2008) 2 SCC 492 2) (1977) 4 SCC 551 3) AIR ONLINE 2021 SC 239 4) 2022 SCC OnLine All 976 5) (2023) 14 SCC 576 6) (2019) 8 SCC 27 7) (2014) 6 SCC 495 8) (1876) 1 AlI 316 9) (1853) I E & B 435 10) (1899) 1 Bom LR 689 11) AIR 1961 SC 1698 4 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 12) 1961 (2) Cri LJ 848 (SC) 13) 1996 CrLJ 344 (Ori) 14) (1881) 3 Mad 4, 5 15) (1948) Pak LR 155 16) (1872) 4 NWP 46, 48 17) (1902) PR No.25 of 1902 18) (1882) PR No.45 of 1882 19) (1884) 8 Mad 5 20) (1899) 2 Bom LR 286 21) (1899) 2 Bom LR 304 22) (1969) 72 Bom LR 575 23) (1950) Cut 75 5 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 1816 of 2017 ORDER: This Criminal Revision Case has been filed under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the order dated 14.02.2017 in R.C.No.1816 of 2017 in Cr.No.229 of 2012, passed by the learned III Additional Judicial Magistrate of First Class, Ongole, in taking cognizance against the petitioner/Accused No.1 and Accused Nos.2 to 4. 2. It should be pointed out at the threshold that the learned III Additional Judicial Magistrate of First Class, Ongole, instead of taking cognizance against the offence, has taken cognizance against the accused. The Hon’ble Apex Court in S.K.Sinha, Chief Enforcement Officer v. Videocon International Limited1 held at paragraph No.20 that cognizance is taken of an offence and not of an offender. The learned Magistrate missed this fundamental principle in Criminal Cases while taking cognizance. 3. The revision case is maintainable as per decision of Hon’ble Supreme Court in Madhu Limaye v. State of Maharashtra2, wherein at Paragraph Nos.9 and 10, it is held as under: 1 (2008) 2 SCC 492 2(1977) 4 SCC 551 6 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 “9. …Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court…” “10. …Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercises for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial.” 4. The Sub-Divisional Police Officer, Ongole, on 30.03.2016 filed a final report in Cr.No.229 of 2012 at Ongole Taluka Police Station, requesting the learned Magistrate to treat the case as "Action Dropped" and issue Referred Charge Sheet (RCS) proceedings. 5. Originally, the Station House Officer, Taluka Police Station, Ongole, registered a case in Cr.No.229 of 2012 for the alleged offences punishable under Sections 116, 120(B) and 307 read with 109 of the Indian Penal Code, 1860 (for short ‘the I.P.C’) and Section 12 of the Prevention of Corruption Act, 1988 (for short ‘the P.C.Act’) against the petitioner herein, who was arrayed as Accused No.1 and Accused Nos.2 to 4. 7 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 6. The facts and events that transpired in this case are required to be mentioned vividly to understand the entire gamut of the case. 7. The impugned order refers that the petitioner is a Renowned Evangelist Pan India and global and running Charitable Trust in the name of Global Peace Initiative Ministries and serving the poor and needy. The petitioner had some disputes with his brother, by name David Raju, in regard to distribution of properties. It was alleged that petitioner was responsible for killing his brother. In that connection, a case was registered against the petitioner in Cr.No.10 of 2010 for the offence punishable under Section 302 of ‘the IPC.,’ in Addakula Police Station of Mahabubnagar District. 8. LW-1- Indla Srinivasan, earlier worked as Inspector Police, Ongole Taluka Police Station. LW-2-Borigala Koteswara Rao is resident of Krishnalanka, Vijayawada, who earlier worked as in-charge of charitable school belongs to the petitioner at Sadasivapeta. LW-2 was also an accused in Cr.No.10 of 2010 under Section 302 of ‘the IPC.,’ at Addakula Police Station, Mahabubnagar District along with the petitioner. 9. The witnesses LW-3/Vemarthy Srihari @ Hari, LW-4/Madduluri Ravindra Babu, LW-5/Makkena Ratnam @ Bujji, LW-10/Dudekula Khasim, LW-11/Chitapaneni Durgarao, and LW-12/PalugundlaVenkatareddy, being real estate business agents met LW-2 on 18.05.2012 at about 7.30 PM at Mourya Hotel, Ongole, in order to discuss and dispose of 210 acres of land 8 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 located at Bacharam Village, Ranga Reddy District and they dispersed after their discussion. 10. LW-1 on 20.05.2012 at about 19.00 hours lodged a complaint with the Station House Officer, Taluk Police Station, Ongole Town that he received a phone call from the Superintendent of Police, Prakasam District, Ongole, at 10.00 PM on 18.05.2012 and the Superintendent of Police, Prakasam District, Ongole, asked him to enquire into the complaint of petitioner, who apprehended danger in view of chasing the car of his brother-in-law by L.W.2/ Borigala Koteswara Rao with his car bearing No AP 16 TV 9651, therefore he contacted the petitioner and his brother-in-law Yesupadam on phone and Yesupadam informed that LW.2, who was an accused in the murder case of David Raju, who is the brother of petitioner, was chasing their car when they were proceeding to Ongole, and they apprehended danger from him. 11. It was further reported by the complainant that the petitioner had asked him to meet him in the Hotel Central Park, Ongole, where the petitioner stayed. Accordingly, after repeated requests of petitioner complainant met the petitioner. Complainant operated a spy camera pen to know the criminal intention of petitioner. Petitioner had offered him bribe and requested him either to do away the life of LW.2 or hand over him to his personnel, so that they would do away the life of LW.2. The complainant conveyed the evil intention of petitioner to LW.2, who informed him that LW.2 and others 9 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 committed murder of David Raju, the brother of petitioner at the request of petitioner due to financial disputes between them and that petitioner might be taking steps to kill him so as to suppress his role in the murder case of his brother. Once again, the complainant met petitioner in Room No. 302 of Hotel Central Park, Ongole, where petitioner offered huge amount for commission of offence and as an advance he gave cash of Rs.3,00,000/- to him to hand over L.W.2. After collecting total information from the petitioner, complainant lodged a report in Taluk Police Station. The report of complainant was registered as a case in Cr.No.229/2012 under Sections 120(B) and 307 of ‘the IPC.,’ on 20.05.2012 at 19.00 hours by the Sub Inspector of Police, Ongole Taluk Police Station. 12. As per the instructions of the Superintendent of Police, Prakasam District, Ongole, the investigation in this case was entrusted to N. Ashok Kumar, the then Sub-Divisional Police Officer, Kandukur. He took up investigation on 20.05.2012, examined complainant, recorded his statement and seized the Spy camera bearing No.10238 having 4 G.B. memory and cash of Rs.3,00,000/- from complainant which amount was purportedly given by petitioner to complainant for executing the alleged deal. 13. The Investigating Officer arrested A.2 to A.4 and seized two knives one each from A.2 and A.3, a nylon rope from A.4 on 21.5.2012 and quails car AP 9 AK 2222. Later, the petitioner was also arrested and seized Nokia Cell 10 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 phone from his possession on 21.5.2012 and forwarded petitioner and A.2 to A.4 to the learned Magistrate for judicial remand. 14. On 23.05.2012 the Sub-Divisional Police Officer, Kandukur, filed a memo before the learned III Additional Munsif Magistrate, Ongole, adding Section 12 of ‘the P.C. Act.,’ and Section 116 of ‘the IPC.,’ requesting the learned Magistrate to transfer the entire record to the Special Judge, ACB Court, Nellore. Another memo was also filed before the learned III Additional Munsif Magistrate, Ongole, praying to record the voice of the petitioner for comparing with the voice records of petitioner which were collected from the complainant and LW-2 by the A.P.Forensic Science Laboratory (FSL), Hyderabad, for expert opinion. However, the memo was returned with objections to file the same before the Special Judge ACB Court, Nellore. 15. The learned III Additional Munsif Magistrate Court sent the entire record to the Special Court for trial of offences at Nellore, but the same was remitted back to the learned III Additional Munsif Magistrate Court, Ongole, with an objection that sanction orders were not obtained. 16. On 24.05.2012 the learned Principal Junior Civil judge, Ongole recorded the statement of LW-2 under Section164 of ‘the Cr.P.C.,’ on the requisition of the Sub-Divisional Police Officer, Kandukur. The petitioner and other accused were enlarged on bail on different dates by various Courts. 11 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 17. On 13.07.2012 the Sub-Divisional Police Officer, Kandukur, filed another memo before the learned III Additional Munsif Magistrate, Ongole, with a prayer to record the voice of petitioner for comparing with the voice records which were collected from the complainant and LW-2 by the experts of FSL Hyderabad. 18. On 20.07.2012 the Sub-Divisional Police Officer, Kandukur, filed a preliminary charge sheet against the petitioner, A2 to A4 pending the investigation that the voice of petitioner has to be got recorded in the Court for sending the same to FSL for comparison with the voice of petitioner available in the Spy camera. 19. The memo was allowed by the learned III Additional Munsif Magistrate, Ongole vide order R.No.1079/2012, dated 19.11.2012 directing the petitioner to appear before the FSL, Hyderabad on the dates given by the investigating agency for giving his sample voice. The Director, FSL, Hyderabad, was directed to fix up a date as early as possible for recording the voice of petitioner and production of petitioner to record the same and compare with the Audio CD and spy camera produced before him. 20. Subsequently, on 26.11.2012 the Sub-Divisional Police Officer, Kandukur, prepared a letter of advice and addressed a letter to the learned III Additional Munsif Magistrate, Ongole, requesting to give authorization to PC.1126-K.Ankaiah, of Ongole Taluk Police Station, in order to forward the 12 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 material objects i.e., 1-Pen Spy Camera containing Video and Audio voice of petitioner and Nokia Cell phone of LW.2 containing voice conversation between LW.2 and petitioner and also recorded the voice in CDs. Accordingly, the learned III Additional Munsif Magistrate Court forwarded the material objects to FSL, Hyderabad vide Dis.No.71 dated 10.1.2013 and the same was returned by the FSL, Hyderabad vide file No.FSL/PEU/RJT/2013/2014, dated 11.3.2013 with remarks, "Without specimen voice it is not possible to identify the voice of the accused. Hence please resubmit the case along with specimen voice." 21. Similarly, the Sub-Divisional Police Officer, Kandukur, filed a memo before the learned III Additional Munsif Magistrate, Ongole, seeking permission for sending the seized spy camera and CD to FSL, Hyderabad for the purpose of comparison with the voice of petitioner. The memo was allowed in R.No.1219/2012 dated 13.08.2012 directing the office to send the audio CD and Spy camera to FSL, Hyderabad for comparison with the voice of the petitioner. The petitioner filed a Criminal Petition No.10/2013 against the order dated 19.11.2012 in R.No.1079/12 wherein he was directed to give voice sample. Another petition vide Crl.P.No.11/2013 was also filed by him against the order dated 19.11.2012 in R.No 1219/2012 for forwarding Spy camera and CD to FSL, Hyderabad and both the petitions were dismissed by the learned Sessions Judge, Ongole, on 15.4.2013. 13 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 22. The petitioner moved a Petition before the High Court of A.P in Crl.P.No.4701 of 2013 to grant stay of all proceedings in pursuance of the orders in Crl.P.No.11 of 2013 dated 15.04.2013 on the file of the learned Sessions Judge, Prakasam District at Ongole, and stay was granted. 23. On 29.06.2013 the Sub-Divisional Police Officer, Kandukur received Memorandom vide C.No.33/C1/DCRB/2013, dated 25.6.2013 from the Superintendent of Police, Ongole, in pursuance of his letter dated 23.4.2013 for according permission to investigate the case under Section 12 of ‘the P.C. Act’. It was returned vide C.O Memo No. Rs 3017-complts-2/013, dated 22.5.2013 that as per Section 17(C) of ‘the P.C. Act’, an officer above the rank of Deputy Superintendent of Police can investigate the case after getting orders from Superintendent of Police, Ongole. Later, the Superintendent of Police, Ongole, instructed the Sub-Divisional Police Officer, Kandukur, to proceed with the investigation. As there was a stay granted by the High Court of A.P in Crl.M.P.No.4701 of 2013, the Investigating Officer could not proceed further to investigate in this Case. 24. The petitioner filed Crl.P.No.4702 of 2013 on the file the High Court of A.P and later he withdrew it vide a letter dated 27.07.2014 and the stay granted by the High Court of A.P was vacated. The Sub-Divisional Police Officer, Ongole, who filed final report (referred charge sheet), after receiving instructions from the Superintendent of Police, Prakasam, Ongole vide Memo 14 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 C.No.45/SDPO/Camp/2015, dated 07.09.2015 had taken up the investigation, examined and recorded the statements of LW-14-K.Raghurami Reddy, the Superintendent of Police, Prakasam District at Ongole. 25. The Sub-Divisional Police Officer, Ongole, in his investigation came to conclusion that complainant was more enthusiastic in eliciting some information from the petitioner which was not relevant and unwarranted. The Investigating Officer further concluded that from the conversation, it was clear that complainant allowed the petitioner to take more irrelevant facts which were nothing to do with the instructions given by the Superintendent of Police, Ongole. Further, the promise to pay one Crore rupees by the petitioner and accepting Rs.3,00,000/- by complainant for performance of illegal act as requested by the petitioner went a long way. 26. Furthermore, the complainant ought not to have accepted that amount without express permission in writing from his superior officers who are authorized to grant such an accord. Detention of TATA Indica Car which was used by LW-2 and others for travelling and keeping LW-2 in the Police Station was excessive act of the complainant. Complainant going all the way to Central Park Hotel where the petitioner was staying, without taking any respectable mediators or his subordinate officers gave rise to a doubt in the genuiness of the seizure of the cash. The investigating officer further opined that the conversation said to have taken place in between the complainant 15 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 and the petitioner recorded by the complainant goes to show that the complainant himself prolonged the conversation where several un-necessary things came which were neither useful for investigation nor given benefit to the petitioner. 27. The Sub-Divisional Police Officer, Ongole, submitted that the ingredients that are required to attract the Section 307 of ‘the IPC.,’ are missing, and even as per the contents of FIR no offence was made out. Originally, an FIR was registered for the alleged offence under Sections 120(B) and 307 read with 109 of ‘the IPC’. It is opined that abatement by conspiracy is not contemplated under the definition of abatement. During investigation, Section 116 of ‘the IPC.,’ and Section 12 of ‘the P.C. Act’ were added. Section 116 of ‘the IPC.,’ has no application to the facts on record as there was no further act done and at best, it may be at the stage of preparation. It was further opined that Section 12 of ‘the P.C. Act’ is also not applicable as the complainant failed to take required steps as contemplated under law in cases of traps. Thus, it was opined by the Investigating officer that no prima facie case was made out against the petitioner and other accused to charge them before the Court. 28. Therefore, the Investigating Officer sought the legal opinion of Legal Advisor, T.Purushotama Rao, District Police Office, Ongole, to proceed further. The Legal Advisor opined that no prima facie was made out to 16 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 prosecute the petitioner in the Court of Law. Therefore, the Investigating Officer, Ongole, submitted the entire record to the Superintendent of Police, Prakasam District, Ongole, for orders to drop further action in this Case. The Superintendent of Police, Prakasam District, Ongole, passed orders vide C.No.136/C1/DCRB /UN/2015, dated 14.12.2015 permitting to refer the case as “Action Dropped”. Hence, a notice was served to the complainant on 08.02.2016 informing him about referring the case as “Action Dropped”. 29. LW-20/the Sub Divisional Police Officer, Kandukur, earlier prepared Form-60 on 20.05.2012 and submitted it to the Jurisdictional Magistrate on 25.12.2012 handing over the case property i.e., Crime vehicle (Qualis No.AP9 AK 2222). It was returned by the learned III Additional Munsif Magistrate, Ongole, vide Dis.No.914, dated 06.05.2013 with a direction to produce the property later. Similarly, LW-20 prepared a Form in Form-60 on 20.05.2012 submitted to the Court on 18.08.2012 handing over the cash of Rs.3,00,000/- seized by the complainant from the petitioner and it was returned with a remark by the learned III Additional Judicial Magistrate of First Class, Ongole, vide Dis.No.906, dated 06.05.2013 that the property to be produced. 30. The Sub-Divisional Police Officer, Ongole, further submitted that a notice was served on LW-20 to produce the case property-cash of Rs.3,00,000/- and after receipt of the cash, he would submit to the learned Court. 17 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 31. Pursuant to filing of the referred charge sheet by the Sub-Divisional Police Officer, Ongole, the learned Magistrate recorded the sworn statement of complainant. In his sworn statement, the complainant stated that the competent investigating officer dropped the investigation as “Action Dropped”, for which, he had no objection in dropping the case against the petitioner. In his sworn statement the complainant further stated that the investigation reveals that the petitioner never committed any offence, hence the case was referred as “Action Dropped”. 32. Similarly, L.W.9/Reddy Yesupadam, a Paster of Visakhapatnam, gave a sworn statement that he had no objection in closing the case as an “Action Dropped”. 33. The Crucial witness LW-2, was also examined by the learned Magistrate about taking cognizance, in his sworn statement LW-2 clearly deposed as under:- “…I was present in Mourya Hotel at Ongole on pursuance of my real estate work. By the time the C.I of police came to the hotel and lifted me and taken me to Ongole Taluk Police Station along with my friends. I have a car bearing No.AP.16 TV 9651. The police searched my car and enquired my purpose of visit. I disclose my purpose of visit that I came to Ongole for real estate work. Simultaneously some of the people came from Nellore to Ongole to pursue their real estate work. They are also called by police and enquired. I was detained by the Police in the police station itself. It was happened on 18-05-2012. On very next day also the Police did not allow me go out. My friends also detained in police lockup along with me. My mobiles were taken by the C.I of Police. On 19-05- 2012 I was taken to the DSP Ongole. He asked me that why K.A.Paul asked him to encounter. I replied that I do not know why K.A.Paul targeted me that I came to Ongole on perusal of my real estate work. 18 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 DSP further stated me that K.A.Paul offered 1 crore rupees to C.I by name Srinivasan for encountering me for that we refused to do so even they requested to hand over me if encounter is not possible. The DSP further enquired the disputes between myself and K.A.Paul. I disclosed that I do not have any issues with K.A.Paul in fact I was very much layer to him but expressed my anxiety whyK.A.Paul tried to kill me. The Police did not shown Spy Camera and voice recorder of K.A.Paul. The DSP further informed me that brother-in-law of K.A. Paul by name Yesupadam expressed apprehension against me and K. Paul in that juncture I was caught by the Police. I stated that I do not have any grudges withK.A.Paul and his brother-in-law. I was just extended my services to them. After enquiry by the DSP again we were brought to the police station. In spite of that the police did allow us to go. Mid-night 12.00 clock the police shifted to CCS police station. C.I warned me that K.A.Paul requesting to encounter me for that he refused to do so and he further informed at least K.A.Paul requested to hand over me to his followers if such thing is happened I was killed by them inhumanly. The Police further apprehended me if I made a statement against K.A.Paul I will be free out of the case otherwise warned me many cases foisted against me. As there is no other way I have stated before the Hon'ble Judge against the accused during my 164 Cr.P.C statement. As stated by the C.I of Police I depicted before Court. After came out I came to know that K.A.Paul was arrested. In fact myself and K.A.Paulwas not responsible for murder of his brother and we were unnecessarily suspected and implicated in this case. On the same day the police released us by obtaining some of the signatures in white paper.” 34. It is important to note that the very same witness LW-2 on earlier occasion i.e., on 25.04.2012 gave a statement under Section 164 of ‘the Cr.P.C.,’ stating that the complainant informed him that the petitioner persuaded to do away his life in an encounter, for which, the petitioner lured complainant to one Crore and as an advance, he offered Rs.5,00,000/- and disclosed the conversation that happened in between the petitioner and complainant recorded in Spy Camera and the said Spy Camera recordings were given by LW-2 and complainant to the Sub-Divisional Police Officer, Kandukur. Even as per the earlier statement recorded under Section 164 of 19 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 ‘the Cr.P.C.,’ by the learned Principal Junior Civil Judge, Ongole, LW-2, was not a direct eyewitness. 35. In his sworn statement, LW-2 supported the petitioner, and he further stated that the complainant had gone beyond his powers and kept him in wrongful detention for a while. The complainant persuaded LW-2 to depose against the petitioner. Lw-2 in his sworn statement stated that the petitioner was un-necessarily suspected and implicated in the case. 36. It is more important to note that when the Sub-Divisional Police Officer, Ongole, filed a final report with a request to further “Action Dropped” touching the ingredients of Section 12 of ‘ the P.C. Act’ , the learned Magistrate ought not to have entertained the final report and record the statement of the witnesses to take cognizance against the petitioner inasmuch as the learned Magistrate was neither empowered nor authorized to take cognizance, without looking into any of the relevant aspects, especially when Section 12 of 'the P.C. Act' was also invoked in the case, in addition to the offences under ‘the IPC’. The right or proper course available to the learned Magistrate was to return the final report with an endorsement that the final report be submitted before the appropriate Special Judge, having jurisdiction under ‘the P.C. Act’. On this ground also the impugned order of the learned Magistrate is not at all sustainable. 20 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 37. The learned Magistrate ought to have verified thoroughly the final report referring the case as an “Action Dropped” before proceeding further against the petitioner and other accused. Even after recording of the sworn statements of complainant, LWs-2 and 9, who deposed that there was no case against the petitioner and other accused, the learned Magistrate ought not to have further proceeded in the matter. 38. The learned Magistrate miserably failed to understand in a correct and proper perspective whether a prima facie case made out against the petitioner and other accused as rightly pointed out by the Sub-Divisional Police Officer, Ongole, in his final report. The transaction that ensued in between the petitioner and the complainant, of course, the complainant only invited the petitioner to drag further the conversation leading to an unwarranted discussion to do away the life of LW-2. The conduct of the complainant leaves much to be desired. He has gone beyond his limitations and powers. He was expected to obtain prior permission in writing and take along with him respectable mediators or his subordinate officers before detecting a case or apprehending any accused. 39. The complainant was given permission by the then Superintendent of Police, only to an extent of apprising some information and that information/instruction was carried out on 18.05.2012 at about 10:50 PM. The 21 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 complainant was not expected to act beyond this limited scope without expressly obtaining prior permission from his Superintendent of Police. 40. The learned Magistrate observed that there was a prima facie case against the petitioner and other accused, whereas the opinion of the Investigating Officer was that no prima facie case found against the petitioner and other accused. 41. The Hon’ble Apex Court in Sanjay Kumar Rai v. State of Uttar Pradesh3, held that discharge is a valuable right provided to the accused; the Courts below ought not to have examined the fairness of criminal investigation and other related aspects concerning improvement of witness statements and it was necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. The Hon’ble Apex Court in Sanjay Kumar Rai at paragraph No.16 observed that it is well settled that the Trial Court while considering the discharge petition was not to act as a mere post office. The Court must sift through the evidence in order to find out whether there were sufficient grounds to try the suspect. 42. The party-in-person relied on the decision of the High Court of Allahabad in Dabeer v. State of U.P 4, wherein the order passed by the learned Magistrate on the protest petition filed by the informant therein, was 3AIR ONLINE 2021 SC 239 4 2022 SCC OnLine All 976 22 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 quashed. However, the Judgment in Dabeer was reversed by the Hon’ble Apex Court in Zunid v. State of U.P5. The Hon’ble Apex Court in Vishnu Kumar Tiwari v. State of Uttar Pradesh,6 held that cognizance was taken without any basis and accordingly, the said order was set aside. 43. The Hon’ble Apex Court in Rajat Prasad v. C.B.I7, dealt with the aspect of the sting operation, and at paragraph No. 10, it is held as under:- “10…The expression ‘sting operation’ seems to have emerged from the title of a popular move called “The Sting” which was screened sometime in the year 1973. The movie was based on a somewhat complicated plot hatched by two persons to trick a third person into committing a crime. Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement. Another issue that arises from such an operation is the fact that the means deployed to establish the commission of the crime itself involves a culpable act.” 44. On a careful perusal of the entire material on record, the conversation in between the petitioner and the complainant and alleged exchange of Rs.3,00,000/- would not make out any prima facie case attracting the ingredients of Section 307 of ‘the IPC.,’ or Sections 116, 120-B and 307 read with 109 of ‘the IPC’., let alone Section 12 of ‘the P.C. Act’. Even assuming for 5 (2023) 14 SCC 576 6 (2019) 8 SCC 27 7 (2014) 6 SCC 495 23 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 a moment argument’s sake, though not admitted by the petitioner, the fact that the petitioner persuaded or requested the complainant to do away with the life of LW-2, and parted with an amount Rs.3,00,000/- to the complainant, would be only at the stage of preparation. This preparation had not reached to the stage of an attempt as contemplated under Section 307 of ‘the IPC’. The transaction in between the petitioner and the complainant is only an incomplete or inchoate one for which the Courts would not take cognizance. 45. In every crime, it has to be remembered that there is first intention to commit it; secondly, preparation to commit it; thirdly, attempt to commit it. If the third stage i.e., attempt is successful, and then the crime is complete. If the attempt fails, the crime is not complete but the law punishes the person attempting the act. An ‘attempt’ is made punishable, because every attempt, although it fails of success, must create alarm, which, of itself, is an injury, and the moral guilt of the offender is the same as if he had succeeded. 46. In Peterson8, it is held that an attempt to commit a crime must be distinguished from an intention to commit it, and from preparation made for its commission. In Dugdale9, it is held that the law does not take notice of an 8 (1876) 1 AlI 316 9 (1853) I E & B 435 24 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 intention without an act. In Baku10, it held that mere intention to commit an offence, not followed by any act, cannot constitute and offence. 47. In Abhayanand v. State of Bihar11, and Om Prakash v. State of Punjab12, the Hon’ble Apex Court held that a culprit first intends to commit the offence, and then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence - the act need not be the penultimate act towards the commission of the offence but it must be an act during the course of committing the offence. 48. In Damodar Behera v. State of Orissa13, it is held that will is not to be taken for the deed, unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and affecting it. In an attempt to commit an offence, there must be intention to 10 (1899) 1 Bom LR 689 11 AIR 1961 SC 1698 12 1961 (2) Cri LJ 848 (SC) 13 1996 CrLJ 344 (Ori) 25 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 commit the crime combined with doing of some act adapted to, but falling short of its actual commission. 49. Quoted with approval from Mayne’s Criminal Law in Peterson’s supra and Padala Venkatasami14, and Ashad Hussain15, it is held that preparation consists in devising or arranging the means or measures necessary for the commission of an offence. In Ramsarun Chowbey16 and Piara Ram17 it is held that the provisions of section do not extend to make punishable as attempts acts done in the mere stage of preparation. 50. In Padal Venkatasami supra it is held that the law allows a locus poenitentiae and will not hold that a person has attempted a crime until he has passed beyond the stage of preparation. Indeed, preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India), Section 126 (preparation to commit depredation on the territories of any Power at peace with the Government of India) and Section 399 (preparation to commit dacoity). 51. In Data Ram 18 , the accused, on quarrelling with the complainant, fetched a sword, but was seized and disarmed by others before he could use 14 (1881) 3 Mad 4, 5 15 (1948) Pak LR 155 16 (1872) 4 NWP 46, 48 17 (1902) PR No.25 of 1902 18 (1882) PR No.45 of 1882 26 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 it; he, however, asserted, while under restraint, his intention of killing the complainant if he were let go; it was held that fetching a sword was not an attempt under this section; it is quite possible that although the prisoner fetched the sword, he might not after all have actually used it against the complainant who was his own brother. 52. In Ramakka19 a woman ran to a well stating she would jump into it, and she was caught before she could reach it; it was held that she could not be convicted of an attempt to commit suicide as she might have changed her mind before jumping into the well. 53. Quoted with approval from Mayne’s Criminal Law in Peterson supra, and in Padala Venkatasami supra it is held that attempt is the direct movement towards the commission after the preparations are made. 54. In Luxman20, it is held that an ‘attempt’ is an intentional preparatory action which fails in object – which so fails through circumstances independent of the person who seeks its accomplishment. In Vinayek21 and Yusuf Abdulla v. R.N. Shukla 22 , it is held that when a man does an intentional act with a view to attain a certain end and fails in his object through some circumstances independent of his own will, then that man has attempted to effect the object at which he aimed. 19 (1884) 8 Mad 5 20 (1899) 2 Bom LR 286 21 (1899) 2 Bom LR 304 22 (1969) 72 Bom LR 575 27 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 55. In Tustipada Mandal23, it is held that the test for determining whether the acts constitute attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such as, if not prevented by any extraneous cause, would fructify into commission of an offence, it would amount to an attempt to commit that offence. 56. In the instant case the complainant being a responsible Police Officer ought not to have entertained an unwarranted kind of conversation with the petitioner for doing an alleged illegal act. The learned Magistrate has gone beyond his jurisdiction and also not properly understood the case and misguided himself in taking cognizance against the petitioner and other accused. Taking cognizance for an offence and issuing process to the accused without there being legally permissible prima facie material or evidence would certainly violate the fundamental rights of the petitioner and other accused. 57. Furthermore, as per Section 17(C) of ‘the P.C. Act’, only an officer of or above the rank of Deputy Superintendent of Police (DSP) from the Anti- Corruption Bureau is authorized to investigate such cases, and not regular DSP from the general police unit. Without there being a special government 23 (1950) Cut 75 28 Dr. YLR, J Crl.R.C.No.1816 of 2017 Dated 04.04.2025 order, a Deputy Superintendent of Police from the regular Police Department is neither permitted nor authorized to conduct the investigation under the provisions of ‘the P.C. Act’. 58. In this case there was no sufficient prima facie material available against the petitioner to proceed against him for the offences punishable under Sections 116,120-B and 307 read with 109 of ‘the IPC’. Undoubtedly, the impugned order of the learned Magistrate is perverse, suffers from material irregularity, miscarriage of justice and amounts to a flagrant violation and abuse of procedure. It is, therefore, unsustainable and liable to be interfered with and set aside. 59. Accordingly, the impugned order dated 14.02.2017 in R.C.S. No.1816 of 2017, arising out of Cr. No.229 of 2012, is set aside. 60. In the result, the Criminal Revision Case is allowed. There shall be no order as to costs. As a sequel, Miscellaneous petitions, if any pending, shall stand closed. _________________________ DR. Y. LAKSHMANA RAO, J Date: 04.04.2025 Note: LR copy to be marked B/o RSI/VTS