Karnataka High Court
Motisham Mohammed Ismail vs Central Bureau Of Investigation on 1 September, 2003
Equivalent citations: 2003CRILJ4763, ILR2003KAR4059, 2003(6)KARLJ375, 2003 CRI. L. J. 4763, 2003 AIR - KANT. H. C. R. 2824, (2003) ILR (KANT) (4) 4059, (2004) 2 ALLCRILR 781, (2003) 6 KANT LJ 375, (2004) 1 RECCRIR 614, (2004) 1 KCCR 42, (2004) 1 CRIMES 54, 2004 (1) ANDHLT(CRI) 232 KAR, (2004) 1 ANDHLT(CRI) 232
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
ORDER Veerabhadraiah, J.
1. This revision is by the accused being aggrieved of the order passed in CC No. 2121/2002 dated 21.2.2003 by the Ist Addl. CMM Bangalore City, framing charges for the offence under Section 420 IPC and under Section 12(i)(b) of Passport Act, 1967.
2. The brief facts of the case are as follows:
The accused was charge sheeted for the offence under Section 420 IPC and under Section 12(i)(b) of Passport Act, 1967 on the allegation that with dishonest intention of cheating, furnished false information about his real date of birth, residential address and willfully suppressed the material information about his arrest and conviction and sentence of imprisonment, induced the Regional Passport Office, Mumbai and obtained a passport bearing No. A. 741209 on 11.4.1997and thereby committed offences punishable under Section 420 IPC and under Section 12(i)(b) of Passport Act, 1967. Originally the charge sheet came to be filed before the First Additional Chief Metropolitan Magistrate, 19th Court, Mumbai in Case No. 11/CP/2000. The accused preferred a transfer petition (Cri.) No. 176/2000 before the Apex Court. The Supreme Court after hearing both sides passed the following order transferring the entire proceedings to the Metropolitan Magistrate Court, Bangalore City.
"Having heard the learned Counsel for the petitioner and Mr. Mariarputham for the CBI, Mumbai and in view of the assertion that the same witnesses will be examined in this proceeding who have already been examined in the pending proceeding at Bangalore, it would meet and proper that the pending criminal proceeding at Mumbai is transferred to an appropriate Court at Bangalore. We accordingly so direct.
The Transfer Petition stands disposed of accordingly."
3. The learned I Additional Chief Metropolitan Magistrate,Bangalore City registered it as CC No. 2121/2002. After hearing the learned Counsel for the CBI and the learned Counsel for the accused passed the impugned order to frame charges for the offence under Section 420 IPC and under Section 12(i)(b) of Passport Act, 1967. It is in so far as ordering for framing of charges, the accused has come up with this revision.
4. Learned Counsel Sri Nissar Ahmed contended that the filingof the charge sheet itself is bad in law as there is no FIR registering the case. He secondly contended that in respect of the similar offence under Section 419 and 420 IPC and under Section 12(i)(b) of Passport Act, 1967, on the basis of the FIR dated 5.1.1998 that a charge sheet was filed and registered in CC No. 2068/99 before the learned I Additional Chief Metropolitan Magistrate, Bangalore City. The accused was arrested and released on bail. While the proceedings were pending before the learned I Additional Chief Metropolitan Magistrate, Bangalore City, the very same Investigating Officer filed Charge Sheet before the Mumbai Court which is not sustainable. As per Section 173(8) of the Code of Criminal Procedure. If the Investigating Officer were to find any materials he can file additional charge sheet. But the Investigating Officer cannot file any fresh charge sheet. Lastly contended that an accused cannot be tried twice for the same offence and it violates Article 21 of the Constitution. For the foregoing reasons, prayed to quash the proceedings in CC No. 2121/2002.
5. On the otherhand, the learned Counsel Sri Taranath Shetty for the CBI contended that the CBI registered a case in No. RC 1(S)/98/CBI/SCB/ Chennai dated 5.1.1998. The FIR is that the accused Motisham Mohammed Ismail obtained passport No. 337828 from the Regional Passport Office on 14.11.1990 by impersonating himself as Badashah Abdul Khadir Ismail suppressing his real identity and that a case was registered for the offence under Section 419 and 420 IPC and under Section 12(i)(b) of Passport Act, 1967. Learned Counsel Sri Taranath Shetty further contended that in the course of investigation 10 passports were seized from the custody of the accused. 8 passports pertaining to his family members. They were returned whereas one passport is in respect of passport bearing No. 337838 issued by the Bangalore Passport Office on 14.11.1990 whereas the other passport was issued by the Bombay Passport Authority bearing No. 2741209 in the name of Badashah Abdul Khadir Ismail by suppressing his real identity and also by suppressing the material information. As the Bombay Passport Authority issued passport, the charge sheet came to be filed before the jurisdictional Magistrate at Bombay. Secondly contended that the accused moved the Hon'ble Supreme Court by filing Transfer Petition (Crl.) No. 176/2000. On his application, the Criminal Case that was pending before the Bombay Court came to be transferred to the learned I Additional Chief Metropolitan Magistrate, Bangalore City. When the transfer petition was moved, no such preliminary objection was raised regarding filing of the charge sheet. Therefore, the accused is estopped from contending that the filing of the charge sheet before the Bombay Court came to be transferred to the learned I Additional Chief Metropolitan Magistrate, Bangalore City. Nextly contended that there is no error apparent on the face of the record in ordering framing of charges for the offence under Section 420 IPC and under Section 12(i)(b) of Passport Act, 1967.
6. It is no doubt true that there is no separate FIR for filing thecharge sheet before the Bombay Court. But the first FIR filed in the Bangalore Court and the investigation papers clearly go to show that he was found in possession of 10 passports wherein the accused by suppressing the material information and also his identity was able to obtain one more passport bearing No. 2741209 from the Bombay Passport Authority. It is also clear from the charge sheet papers that by suppressing material information, impersonating himself, he has obtained passport from the Passport Authority bearing No. 337838 dated 14.11.1990. Nextly contended that there is no bar under law to file a separate charge sheet when there is already an FIR in respect of the commission of the offence. Lastly contended that the offences alleged are distinct and separate, one pertains to obtaining passport from the Bangalore Passport Authority on 14.11.1990 for which a charge sheet is filed and pending trial in CC No. 2068/99 is not in question whereas in respect of the passport obtained from the Bombay Passport Authority dated 11.4.1997, charge sheet came to be filed before the Bombay Magistrate Court which itself show that it is a distinct and separate offence. Therefore, the question of double jeopardy does not arise. Accordingly, justified the impugned order and prayed to dismiss the revision.
7. In the light of the submissions, the point for considerationthat arises is:
Whether the filing of the charge sheet before the Bombay Court which came to be transferred to the learned I Additional Chief Metropolitan Magistrate, Bangalore City and registered as CC No. 2121/2002 suffers from infirmity for want of FIR and thereby the impugned order is liable to be interfered with?
8. It is an admitted fact that the accused has been chargesheeted by the CBI for the offence under Section 419 and 420 IPC and under Section 12(i)(b) of Passport Act, 1967 in respect of obtaining passport No. 337838 from Bangalore Passport Office on 14.11.1990. The charge is that the accused impersonating himself as Badashah Abdul Khadir Ismail has obtained the passport. After completion of the investigation, charge sheet is filed in CC No. 2068/99. In so far as the above charge is concerned, absolutely theaccused has no grievance so far as registering the case and filing of the charge sheet in CC No. 2068/99. The grievance of the accused is that filing charge sheet before the Bombay Court which came to be transferred to the learned I Additional Chief Metropolitan Magistrate, Bangalore City registered as CC No. 2121/2002 is in respect of the passport obtained from Bombay Passport Authority bearing No. 2741209 dated 11.4.1997.
9. The short question that has to be examined is, whether inall the cases FIR is required for the purpose of filing the charge sheet?
My answer is 'No' for the following reasons:
10. When a complaint is lodged and the FIR is sent to Court,in the course of the investigation and interrogation of the accused, if it is revealed commission of the several offences, on the basis of such information itself, the investigating officer shall proceed with the investigation and file charge sheet with the jurisdictional Magistrate. In the present case, it is clear that by impersonating himself, the accused managed to obtain a passport from Bangalore Passport Authority on 14.11.1990 for which he is undergoing trial. The other case in which charge sheet is filed is in respect of the accused obtaining passport from Bombay Passport Authority on 11.4.1997. Thereby, a charge sheet came to be filed, on the basis of the very same FIR which was lodged by the Inspector of Police, CBI. When several offences are disclosed in the FIR of a particular accused, the law requires to proceed with the investigation and file charge sheet. That apart, when the matter was before the Apex Court in which the accused moved for a transfer of the criminal case pending before the Bombay Magistrate Court, the accused did not raise any such plea. Nevertheless, it is open for the accused to seek for a discharge while hearing on the question of framing of charges. But in the present case, the offences alleged are distinct and separate, one arising within the jurisdiction of the learned Metropolitan Magistrate, Bangalore City wherein the passport was issued by the Bangalore Passport Authority on 14.11.1990 and another passport came to be issued by the Bombay Passport Authority on 11.4.1997. When the offences are distinct and separate, merely because of the reason that in both the cases witnesses are the same, materials are also the same and identical is of no consequence. If the offences were to be proved, the accused is liable to be prosecuted in accordance with law.
11. For the foregoing reasons, I do not find any infirmity assuch to interfere with the impugned order. Accordingly, the revision is dismissed.