Andhra Pradesh High Court - Amravati
Golla Syamala vs State Of Ap., on 15 June, 2022
Author: K.Sreenivasa Reddy
Bench: K.Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY
CRIMINAL PETITION No.3954 OF 2018
ORDER :
This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, is filed to quash the Order dated 12.03.2018 passed in C.C. No.1051 of 2016 on the file of the II Additional Judicial Magistrate of First Class, Tanuku.
2. A charge sheet has been filed as against the petitioner for the offences punishable under Sections 419 and 420 of the Indian Penal Code, 1860 (for short, 'IPC') and 12 (1) (b), 12 (1) (d) and 12 (3) of the Passports Act, 1967. The learned Magistrate took cognizance of the case and framed charges against the accused for the offences punishable under Sections 419 and 420 IPC and 12 (1) (d) of the Passports Act, 1967. After completion of trial, the matter was heard on 05.03.2018 and posted to 12.03.2018 for judgment. On 12.08.2018, the learned Magistrate passed the impugned Order observing that investigation was not done in all material aspects, which shows that it is incomplete investigation, and accordingly, directed the Inspector of Police, Tanuku Town Circle to further investigate the case and file report.
3. Brief facts of the case that led to filing of the present Criminal Petition are as follows: 2
The petitioner/accused is a native of Razole, East Godavari district. Her marriage was performed with one Golla Rajasekhar about 18 years back and she was blessed with two children. The said Golla Rajasekhar was staying in Dubai working as Car Driver and used to come home now and then. As her husband is staying in Dubai, petitioner/accused got the passport No.B0641285 with date of issue as 15.09.1999. She went to Dubai and stayed with her husband for a few days and later returned to her house and started staying at the house of her father in Sivakodu village.
It is alleged that as the old passport of petitioner/accused was misplaced somewhere, with a view to obtain a new passport, with criminal intention, the petitioner/accused came down to Tanuku and started residing in house bearing D.No.6-3-12, Municipal Office Road, Old Town, Tanuku, and changed her name as Bonam Maha Lakshmi, w/o. Satyanarayana Murthy and impersonated in the name of Bonam Maha Lakshmi. Thereafter, she applied for a new passport on 10.05.2016 vide application No.VS2069241268316 in the name Bonam Maha Lakshmi, s/o. Satyanarayana Murthy, resident of H.No.6-3-12, Municipal Office Road, Tanuku, and the said application was sent to Special Branch, Tanuku area for enquiry. After verification, petitioner/accused received a passport with impersonated name Bonam Maha Lakshmi, 3 w/o. Satyanarayana Murthy vide passport No.N8448330 with date of issue 13.05.2016. However, on receiving information that her real name is Golla Syamala, w/o. Rajasekhar, she had earlier a passport, she went abroad and returned, and in respect of that, a report was lodged, in Tanuku Town police station on 27.07.2016 at 9.30 PM, requesting to take necessary action against her. Pursuant to the same, case in crime No.173 of 2016 of Tanuku Town police station was registered, and after completion of investigation, charge sheet was filed, which was taken on file by the learned Magistrate as C.C. No.1051 of 2016. After completion of trial, when the case was posted for judgment, the impugned order came to be passed by the learned Magistrate directing the police to conduct further investigation on the ground that the investigation done by the Investigating Officer is incomplete. Aggrieved by the same, the present Criminal Petition is filed.
4. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for respondent-State.
5. Learned counsel for the petitioner relied on a decision in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others,1 the Hon'ble Supreme Court held as under: (paragraph No.49) 1 (2017) 4 SCC 177 4 "On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and the accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand."
6. Per contra, the learned Additional Public Prosecutor relied on the following decisions.
(i) In Vinubhai Haribhai Malaviya and others v. State of Gujarat and another,2 wherein it is held thus: (paragraph No.47) "We, therefore, set aside the impugned High Court judgment [Nitinbhai Mangubhai Patel v. State of Gujarat, 2013 SCC OnLine Guj 8980] insofar as it states that post-cognizance the Magistrate is denuded of power to order further investigation. However, given 2 (2019) 17 SCC 1 5 that the facts stated in the application for further investigation have no direct bearing on the investigation conducted pursuant to the FIR dated 22-12-2009, we uphold the impugned High Court judgment insofar as it has set aside the judgment of the Second Additional Sessions Judge dated 10-1- 2012 which had ordered further investigation, and also the consequential order setting aside the two additional interim reports of the IO Munshi. So far as Criminal Revision Application No. 346 of 2011 is concerned, we set aside the impugned High Court judgment which remanded the matter to the Revisional Court. Consequently, the judgment of the learned Additional Sessions Judge dated 23-4-2016 upon remand is also set aside, rendering Special Criminal Application No. 3085 of 2016 infructuous."
(ii) In Kishan Lal v. Dharmendra Bafna and another3, wherein it is held thus: (paragraph15).
"An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel v. State of Gujarat [(2009) 6 SCC 332 : (2009) 2 SCC (Cri) 1047 : (2009) 7 Scale 559] in the following terms: (SCC pp. 336-37, paras 12-13) "12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code 3 (2009) 7 SCC 685 6 can pray before the Court and may be granted permission to investigate into the matter further.
There are, however, certain situations, where such a formal request may not be insisted upon.
13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J.
in Ramachandran v. R. Udhayakumar [(2008) 5 SCC 413 : (2008) 2 SCC (Cri) 631] , opined as under: (SCC p. 415, para 7) '7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.' "
We have referred to the aforementioned decision only because Mr Tulsi contends that in effect and substance the prayer of the appellant before the learned Magistrate was for reinvestigation but the learned Magistrate had directed further investigation by the investigating officer inadvertently."
7. A perusal of the aforesaid judgments goes to show that the integration of sub-section (8) in Section 173 is evidently subsequent to the 41st Report of the Law Commission of India conveying its recommendations that 7 after submission of a final report under Section 173 Cr.P.C., the competent police officer, in the event of availability of evidence bearing on the guilt or innocence of the accused, ought to be permitted to examine the same and submit a further report to the Magistrate concerned. Conspicuously, though the officer in-charge of a police station is empowered thereby to conduct further investigation and to lay a supplementary report assimilating the evidence, oral or documentary. No such authorization has been extended to the Magistrate as the Court is in seisin of the proceedings. A reading of the said provision would go to show that the investigating agency/ investigating officer alone has been authorized to conduct further investigation without limiting the stage of the proceedings relating thereto.
8. On an overall perusal of the judgments of the Hon'ble Apex court, the investigating agency has got power to investigate into the case after obtaining instructions or orders from the Court. But, no such power is available therefor to the Magistrate, once the Magistrate has taken cognizance on the basis of the earlier report and process has been issued and the accused entered into appearance in response thereto. At that stage, neither the Magistrate suo motu nor on an application filed by the complainant, further investigation can be ordered. Such a course of action would be open only on the request of the 8 investigating agency, and that too, in the circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial.
9. In the case on hand, investigation in the subject Calendar Case has been completed and jurisdictional Court had taken cognizance of the offence, and after entire full- fledged trial had taken place and when the case is posted for judgment, the learned Magistrate, suo motu, directed for further investigation. It is axiomatic that once the Magistrate has no power to refer the case to police for further investigation, the impugned order passed by the learned Magistrate would be void ab initio. Once cognizance has been taken, the Magistrate would be bereft of any competence to direct further investigation either suo motu or acting on the request/prayer of the complainant/ informant. Catena of decisions would go to show that when the case is posted for judgment, the Magistrate has no power to direct police officials to further investigate into the said matter. View of mine has been fortified by the decision of the High Court of Patna in Rajesh Kumar Jaiswal v. State of Bihar, through Secretary Home and others4.
10. In view of the foregoing discussion, the Criminal Petition is allowed. The impugned Order dated 12.03.2018 passed in C.C. No.1051 of 2016 on the file of the II Additional Judicial Magistrate of First Class, Tanuku is set 4 2021 SCC OnLine Pat 618 9 aside. The learned Magistrate is directed to proceed with the Calendar Case in accordance with law.
Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.
_________________________________ JUSTICE K. SREENIVASA REDDY 15.06.2022 DRK 10 THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY CRIMINAL PETITION No.3954 OF 2018 15.06.2022 DRK