Andhra Pradesh High Court - Amravati
National Investigation Agency vs Tajamul Saikh Bhoot A4 on 25 October, 2019
Bench: C.Praveen Kumar, Cheekati Manavendranath Roy
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL APPEAL No. 638 of 2019
AND
CRIMINAL APPEAL No. 639 of 2019
COMMON JUDGMENT:(Per the Hon'ble Sri Justice C.Praveen Kumar)
1) Heard counsel for the Appellant. In-spite of service of notice, there is no representation on behalf of the Respondents.
2) Assailing the Order, dated 03.07.2019, in Crl. M.P. Nos.823 & 893 of 2019 in R.C. No. 1 of 2018/NIA/Hyd, wherein, the application filed by NIA under Section 173(8) of Cr.P.C., requesting the investigation agency to obtain voice samples of the Respondent/Accused Nos. 3 and 4 for comparison with the voice said to have been recorded during interception of voice call made from a cell phone to 2nd Accused was rejected. The said application came to be rejected in view of the Orders passed by the High Court for the State of Telangana and for the State of Andhra Pradesh in the case of M. Radhika and Another v. The State of A.P. and another1 and the Judgment of the Hon'ble Apex Court in Ritesh Sinha v. State of Uttar Pradesh2.
3) The averments in the charge-sheet discloses that, on 31.03.2018, the Officers of DRI, Regional Unit, Viskhapatnam seized 510 numbers of Fake Indian Currency Notes ['FICN'] in the 1 Crl. Petition No. 2119/2015, dated 02.03.2015 2 AIR 2013 SC 1132 2 denomination of Rs., 2000/- having a total face value of Rs., 10,20,000/- from the possession of one Mohammed Mahaboob Baig @ Ashar Baig [A1] and Syed Imran [A2] at Visakhapatnam Railway Station, while both the Accused were travelling in S-10 Compartment Train of Howrah-Hyderabad Eat Coat Express. On interrogation, both of them confessed that FICN were smuggled into India from Bangladesh and were to be handed over to them at an unidentified village near Farakka, West Bengal, by a courier sent by a person named Tajamul. It was further disclosed that the Accused were carrying the fake currency notes to Bengaluru for circulation.
ii) The counterfeit notes were seized and sealed and the Accused were arrested, on 01.04.2018. The counterfeit notes were forwarded by DRI Visakhapatnam to the Currency Note Press, Nasik, vide letter dated 02.04.2018. An Examination Report, dated 16.04.2018, came to be received stating that "denomination are counterfeit Notes". The mobile phones and SIM cards seized from Accused No. 1 and 2 were forwarded by DRI, Visakhapatnam to CFSL, Hyderabad, vide letter dated 03.04.2018 for forensic analysis. Accordingly, a FIR came to be registered for the offences punishable under Section 120B, 489B and 489C of IPC.
iii) During the course of examination of the Report, a photograph was found in the data extracted from the mobile phone of A2 in which A1, A2, A3 and A5 were seen together. The investigation revealed that this photograph was taken in March 2018 at the house 3 of Hazrat Ali during the visit of A1 and A2 to Faraka, West Bengal to receive FICN.
iv) The investigation further revealed that, A4 provided two bank account numbers to A1, in January - February 2018, for receiving advance payment of FICN. Accordingly, the amounts were deposited in the accounts. The charge-sheet further reveal that, on 28.03.2018, A1 and A2 alighted at Gourmalda Railway Station, West Bengal, where they were received by A3 and A5 and all four of them proceeded to the house of the brother-in-law of A5, and halted there for that night. On the next day, A3 and A5 handed over 510 numbers of FICN to A1 and A2 which were concealed in a pillow belonging to A1. Subsequently, the Accused were intercepted.
v) The investigation further discloses that, based on disclosure statement made by A4, while in police custody, mobile number 9663664384 used by A2 and A6 was put on legal interception for unearthing the entire gang of FICN traffickers, after obtaining prior approval of the Ministry of Home Affairs, Government of India, dated 23.02.2018. The voice calls made to and from the above mobile number were recorded and transcription thereof was made. The transcripts of the legally intercepted calls reveal that on 02.03.2018, A2 talked to A4 on his mobile number 7865910496 about providing FICN. Further, on 28.04.2019, A3 was arrested from West Bengal and on a personal search conducted in the presence of independent witnesses, fake currency notes came to be seized from his possession.
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vi) A comprehensive charge-sheet came to be filed showing the role of A3 and A4 in the commission of offence. Later on an application came to be filed for getting the voice recording test conducted with that of the accused, which is subject matter of dispute in the present Criminal Appeal.
4) As stated earlier, though notices were served on the respondents/accused, but, there is no representation on their behalf.
5) The main ground urged by the learned Standing Counsel for the Appellant is that, in order to establish the conspiracy and the link between the accused, conducting the voice recording test is very much necessary. According to him, the gang dealing with distribution and supply of fake currency notes was busted and a large scale conspiracy to defraud the economy of the country was unearthed. He pleads that, the Trial Court erred in not considering the Judgment of the Apex Court in proper perspective.
6) As stated earlier, the application came to be rejected basing on the Judgment of the Apex Court in Ritesh Sinha v. State [supra]. But, subsequently, on August 2, 2019, a Three Judge Bench of the Apex Court in Ritesh Sinha v. State of Uttar Pradesh & Another3 took a view different and held that, "until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such 3 Crl. Appeal No. 2003 of 2012 5 power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. From the Judgment of the Apex Court, referred to above, it is very clear that, till explicit provision are incorporated in the Cr.P.C. by the Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice.
7) The next question would be whether the trial court would be justified in ordering further investigation after filing of charge sheet? It is no doubt true that a charge-sheet has been filed in the present case, but, that by itself does not debar the court from ordering further investigation. After analyzing the authorities on the subject, the Hon'ble Apex Court in Vinubhai Haribhai Malaviya vs The State Of Gujarat4, held as under:
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.4
Criminal Appeal Nos.478-479 of 2017 6
18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.
23. It is thus clear that the Magistrates power under Section 156(3) of the CrPC is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. To ensure that a proper investigation takes place in the sense of a fair and just investigation by the police - which such Magistrate is to supervise - Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation which, without doubt, would include the ordering of further investigation after a report is received by him under Section 173(2); and which power would continue to ensure in such Magistrate at all stages of the criminal proceedings until the trial itself commences. Indeed, even textually, the investigation referred to in Section 156(1) of the CrPC would, as per the definition of investigation under Section 2(h), include all proceedings for collection of evidence conducted by a police officer; which would undoubtedly include proceedings by way of further investigation under Section 173(8) of the CrPC.
29. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 is an important judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held:
11. Coming to the question whether a further investigation is warranted, the hands of the investigating agency or the court should not be tied down on the ground that further investigation may delay the trial, as the ultimate object is to arrive at the truth.
12. Sub-section (8) of Section 173 of the Code permits further investigation, and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a police report earlier submitted. All the more so, if as 7 in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted.
13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322: 1979 SCC (Cri) 479 : AIR 1979 SC 1791] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court.
When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.
31. In Samaj Parivartan Samudaya (supra), a Three Judge Bench of this Court, while dealing with illegal mining in Andhra Pradesh and Karnataka, issued directions to the CBI to investigate the entire matter (despite private complaints already pending and being investigated by one or other competent Court or investigation agency), as a Central Empowered Committee Report disclosed fresh facts as to illegal mining in these States.
In a review of the machinery of criminal investigations under the CrPC, this Court held:
27. Once the investigation is conducted in accordance with the provisions of CrPC, a police officer is bound to file a report before the court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such court or commit the case to the Court of Session. It is significant to note that the provisions of Section 173(8) CrPC open with non obstante language that nothing in the provisions of Sections 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge- sheet has been filed, that court also 8 enjoys the jurisdiction to direct further investigation into the offence. (Ref. Hemant Dhasmana v. CBI [(2001) 7 SCC 536 : 2001 SCC (Cri) 1280] .) This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made.
40. Having analysed the provisions of the Code and the various judgments as afore-indicated, we would state the following conclusions in regard to the powers of a Magistrate in terms of Section 173(2) read with Section 173(8) and Section 156(3) of the Code:
40.1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report.
40.2. A Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173(6) of the Code.
40.3. The view expressed in Sub-para 40.2 above is in conformity with the principle of law stated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537 : 1985 SCC (Cri) 267] by a three- Judge Bench and thus in conformity with the doctrine of precedent.
8) From the judgment of the Apex Court, it is clear that, further investigation can be ordered before commencement of trial. The learned Public Prosecutor submits that trial has not commenced. If the trial is not commenced till date, the Trial Court may proceed with conducting voice recording test, as sought for by the Appellant, in view of the law laid down by the Supreme Court in the Judgment of Vinubhai Haribhai Malaviya vs The State Of Gujarat [supra].
9) Having regard to the above, we feel it is just and proper to direct the Trial Court to take steps for sending voice recordings for comparison with the disputed voice samples, in accordance with the law laid down in the Judgments referred to above.
10) Accordingly, the Criminal Appeals are allowed. No Order as to Costs.
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11) Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR ________________________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date: 25.10.2019.
SM.
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI CHEEKATI MANAVENDRANATH ROY CRIMINAL APPEAL No. 638 of 2019 AND CRIMINAL APPEAL No. 639 of 2019 (Per the Hon'ble Sri Justice C.Praveen Kumar) Date: 25.10.2019 SM.