Andhra HC (Pre-Telangana)
Operation Mobilization India, Rep. By ... vs The State Of Telangana, Rep. By Its ... on 3 April, 2017
Author: A.Ramalingeswara Rao
Bench: A.Ramalingeswara Rao
THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO
Writ Petition No. 40742 of 2016
03-04-2017
Operation Mobilization India, rep. by Dr. Joseph DSouza and others--
Petitioners
The State of Telangana, rep. by its Principal Secretary, Home Department,
Secretariat, Hyderabad and others. ---- Respondents
Counsel for the Petitioners:Sri V. Pattabhi
Counsel for the Respondents 1 to 4: GP for Home
Counsel for the Respondent No.5 : Sri J. Sudheer
<Gist :
>Head Note :
? Cases referred
1. (1992) Supp (1) SCC 335
2 (1994) 4 SCC 260
3 (2000) 4 SCC 168
4 (2001) 6 SCC 181
5 (2002) 1 SCC 714
6 (2007) 6 SCC 171
7 (2010) 12 SCC 254
8 (2013) 5 SCC 148
9 (2013) 5 SCC 762
10 (2013) 6 SCC 348
11 (2013) 6 SCC 384
12 (2013) 6 SCC 740
13 (2014) 2 SCC 1
14 (2014) 8 SCC 273
15 (2015) 6 SCC 287
16 (2015) 6 SCC 439
17 (2016) 3 SCC 8
18 (2016) 11 SCC 703
19 (1979) 2 SCC 322
20 (2011) 5 SCC 79
21 (2010) 9 SCC 567
22 (2010) 2 SCC 200
23 (2009) 1 SCC 441
24 (2004) 13 SCC 292
25 (2016) 3 SCC 135
26 (1962) Supp 2 SCR 297 : AIR 1962 SC 876
27 AIR 2003 SC 702
28 AIR 1918 Mad 494
29 AIR 1946 Mad 167
30 AIR 1949 Bom 384
31 AIR 1949 Pat 256
32 AIR 1930 Lahore 879
33 AIR 2005 SC 38
HONBLE SRI JUSTICE A. RAMALINGESWARA RAO
Writ Petition No.40742 of 2016
Order:
Heard learned counsel for the petitioners, learned Government
Pleader for the respondents 1 to 4 and learned counsel for the fifth
respondent.
In this case, this court is called upon to examine a century old
settled law by relying on some subsequent judgments decided on facts of
those cases and laying down law applicable to those circumstances.
The first petitioner is a Religious Trust registered under the
Bombay Public Trusts Act, 1950 and running different Charities/NGOs
from the same office premises with a turn over of more than Rs.200
Crores. The second petitioner is a Moderator of these organizations and a
Bishop also. The third petitioner is the son of the second petitioner. The
fifth respondent lodged a complaint on 29.09.2016 with the third
respondent and the third respondent directed the registration of the
complaint. Accordingly, the fourth respondent registered the complaint as
Crime No.22 of 2016. In the complaint, the fifth respondent claimed that
he worked as Chief Financial Officer and in other roles in the first
petitioner organization from 1989 to 2012. He listed out various acts and
omissions by the petitioners.
The petitioners filed the present Writ Petition stating that, on an
earlier occasion, on the basis of complaint of one Mr. Ratnakar, an
associate of the fifth respondent, on reference from the court, Crime
No.350 of 2012 was registered and ultimately the complaint was closed
due to lack of evidence after a final report was filed in the Court. After
filing the final report, no action was taken by the de facto complainant
therein, but, however, he submitted representations to the Commissioner
of Police, Cyberabad in November 2013 and again in August 2015
requesting the Commissioner of Police, Cyberabad to entrust the case to
the CBCID. Apart from the above, he sent anonymous complaints to the
Director of Enforcement, Hyderabad, and an enquiry was made pursuant
to the said complaints, and it did not reveal anything. He also lodged
complaints with the Labour Department, but the Labour Department
disposed of the complaints advising him to approach appropriate forum.
He was also addressing the foreign christian communities by e-mail by
repeating the false allegations against the first petitioner and its
management. The Writ Petition was filed on the ground that in respect of
the same allegations the second complaint is not maintainable, the
complainant earlier worked as Group Finance Director and he was
suspended from service due to gross misconduct, sexual abuse, wife
abuse and breach of other organizational policies. Since the time of his
suspension, he started a dissident group, started indulging in the acts of
mudslinging, false complaints and was indulging in the acts of
destabilization of the organization. The fifth respondent and his
colleagues, with the support of one Mr. Vasanth Kumar, who styled
himself as a Director General of Police, Hyderabad, and the earlier
complainant Ratnakar Kanapala, created an organization by the name
Christian Bureau of Crimes Information Desk (CB CID) and started
addressing various christian societies abroad affiliated to the first
petitioner institution. In fact, when the said Ratnakar was confronted, he
accepted the same and tendered his resignation to the employment on
03.05.2012. Thereafter, he approached the Magistrate by filing a private
complaint which was referred, registered as Crime No.350 of 2012 and
closed as aforesaid. However, he filed another complaint with the Police
at Pet-Basheerabad Police Station and the same was registered as Crime
No.384 of 2012 against the second petitioner and six (6) others. The said
complaint was lodged with the allegation that the second petitioner and
others threatened him and forcibly took his resignation on 03.05.2012.
Though the police tried to investigate the said complaint, when the
complainant did not cooperate with them, a final report was filed on
30.11.2013 closing the complaint for lack of evidence. The said complaint
was not pursued. The petitioners earlier faced investigation by the
Enforcement Directorate and other agencies and registration of the
present complaint is nothing but harassment of the petitioners for the self
same allegations.
The fourth respondent filed a counter affidavit stating that after
registration of Crime No.22 of 2016, under Sections 409, 420 and 477(A)
IPC and Section 37 of the Foreign Contribution (Regulation) Act, 2010, by
the CID PS, TS, Hyderabad, investigation was taken up. The investigation
revealed that the petitioners received funds from the foreign donors for
the benefit of Dalit children promising to provide free education and meals
to them, as they are studying in their Good Shepherd Schools, but the
petitioners intentionally did not reveal the information with regard to
collection of fee and donation from each student who wished to study in
the Good Shepherd School which is supposed to provide free education.
The said School is organized by OM Group of Charities, Hyderabad. The
investigation further revealed that the foreign donors were donating $ 27
to $ 33 for education per month per child and separate funds for uniform.
Besides the foreign donors, the OM Group of Charities is obtaining huge
amounts from the Indian donors for Dalit children education, but the said
amounts were not credited to Operation Mercy India Foundation which
runs the Schools and they were shown in the accounts of Good Shepherd
Community Society which runs Churches. Even after receiving donations
they have been collecting fee and donation from each child who was
studying in the Good Shepherd School. Thus, they have cheated Dalit
people by manipulating the records and committed breach of trust of the
foreign donors, Indian donors and Dalit downtrodden people with a
criminal intention to swallow and siphon off the funds to gain wrongfully
and misappropriated huge funds of OM Group of Charities. Thus, a prima
facie case was established against the petitioners 1 to 8 under the
registered sections of the crime. In view of the same, notices were issued
for production of certain records and information, but the petitioners are
not co-operating with the investigating agency and they have been
replying that the complainant and others are trying their best to
destabilize and ruin the organization. It is noticed that the police on
earlier occasions, did not collect any documentary evidence, being busy
with law and order duties, non-cooperation of the petitioners and simply
referred the cases as lack of evidence. The earlier cases have nothing to
do with the present case as the complainant is different and allegations
are not similar. When the petitioners were asked to furnish information,
they replied that they could not provide details required for investigation
in relation to the Good Shepherd Schools, OM Group of Charities as the
present Writ Petition would be coming up for hearing before this Court.
There are apparent differences between the allegations contained in
Crime No.350 of 2012 and the present crime. The petitioners, instead of
co-operating with the investigating agency, have attacked one Sardar
Sathpal Singh and his staff of CID, TS, Hyderabad, and a case was
registered for obstructing the investigating agency in discharging their
legitimate duties in FIR No.109 of 2016. The earlier case in Crime No.350
of 2012 was closed after issuing notice under Section 91/160 Cr.P.C and
due to lack of response from the complainant. But, in the present case,
the CID collected oral and documentary evidence which prima facie
established the case against the petitioners. Still investigation has to be
continued as several witnesses have to be examined and documentary
evidence has to be collected. The investigation took a different turn after
thorough interrogation and upon revelation of new facts which are
alarming. The accused being Directors/Employees of OM Group of
Charities have misappropriated huge amounts of the Trust and Charities
and established themselves as a big power with the help of their
associates and their wealth. The investigating agency (CID) is having
documentary evidence against the petitioners to prove their guilt, illegal
activities against poor Dalit people and their children and for their
dishonest and fraudulent misappropriation of funds. The investigation
revealed wide spread network of the offenders and illegal receipt of
money in the guise of OM International Dalit Freedom Network.
The fifth respondent filed a separate counter affidavit stating that a
reading of the earlier two FIRs and the present FIR would show that the
allegations are not same. However, it is admitted that three allegations
raised earlier by K. Ratnakar included in Crime No.350 of 2012 are also
raised by the fifth respondent herein and besides the said three
allegations four more allegations were raised. Though the earlier crime in
respect of three allegations was closed for lack of evidence, a perusal of
final report would show that no proper investigation was done. In fact,
the petitioners filed a false case against K. Ratnakar under Cyber Laws
and he was acquitted later on. The closure of the earlier complaint does
not mean that the present complaint is not maintainable. What is material
is the evidence gathered during the process of investigation and, when it
is the duty of the police to investigate a crime they should be allowed to
continue the investigation. The fifth respondent is not a disgruntled
employee as made out, but he was thrown out of the organization.
A reply affidavit running into 44 pages is filed by the petitioners
stating that the CID branch of the State Police is not a regular Police
Station like any other law and order Police Station in the State and the
same is evident from Para 861(1) of the A.P. Police Manual and PSO 1028
and 1031 read with Official Memorandum in RC No.6774/Compts-3/2012,
dated 05.12.2012. The CB CID conducts investigation under the orders of
the Supreme Court or High Court or on direction under Section 156(3)
Cr.P.C from a designated CID Court in the State. Thus, they have no
power to entertain the complaint. The very allegation in the counter
affidavit that the earlier investigation in Crime No.350 of 2012 by Pet
Basheerabad Police Station was not done properly clearly shows that it is
reinvestigating the said allegations and it has no jurisdiction to do the
same. The other averments made by the police in their counter that they
are proceeding with the investigation in consultation with legal advisors
clearly shows that the investigation is not independent or impartial and
was manipulated and misdirected by interested agencies. Even the Court
has no power to entertain a fresh complaint, when the investigation is
pending in relation to a particular set of facts and circumstances and this
could be seen from Section 210 of Cr.P.C. In view of this, the CID should
have called for a report with regard to investigation in Crime No.350 of
2012 and then should have considered with regard to maintainability of
the present complaint before registering it as a crime. The investigating
agency is not investigating fairly, as could be seen from their act of not
allowing the petitioners 7 and 8 to come to Hyderabad. On the
sameness test/principle also the registration of second FIR is not
permissible. The fifth respondent is accustomed to speaking falsehoods,
as, even though he never occupied the position of Chief Finance Officer,
he claimed that he worked as such and in different roles from 1989 to
2012. In fact, the fifth respondent was behind Ratnakar who lodged a
complaint earlier resulting in registration of Crime No.350 of 2012. The
fifth respondent bore grudge against the first petitioner Trust and
Mr. Joseph D Souza who was operating it. The petitioners are running
103 schools having 26,000 students and they have been filing income tax
returns. The Ministry of Home Affairs has been renewing the registration
of the first petitioner for the purpose of Foreign Contribution Regulation
Act. The renewals were granted only after scrutiny of the accounts of the
first petitioner. There are no complaints against the petitioners except
from the fifth respondent. In order to constitute an offence under Section
420 IPC, the ingredients mentioned in Section 415 IPC should be made
out. In the instant case, there is nothing on record to show that there is
any aggrieved person falling within the definition of Sections 405 or 409
IPC claiming that the property was entrusted by that person to the
petitioners and he suffered breach of trust at the hands of the petitioners.
On the other hand, all the foreign organizations who were the contributors
have given letters reposing faith and trust in the first petitioner Trust and
its management. The first petitioner trust is being maintained by the
employees and there is no question of falsification of accounts. The
Ministry of Home Affairs, Foreigners Wing issued a notice on 23.08.2013
to the first petitioner Trust and sent an inspection team also. They
conducted a thorough investigation by inspecting all books of accounts
and records and after such thorough inspection the inspection team did
not find any illegality or irregularity in the books of accounts and records
of the first petitioner Trust and its management. Thus, it is stated that
the complaint is vindictive, false, frivolous, misconceived and intended to
continue the vendetta against the petitioners.
Learned counsel appearing for the petitioners submitted that the
second complaint on the same set of allegations is not maintainable and
the police should not have registered a crime on the basis of such second
complaint. He relied on the decisions reported in State of Haryana v.
Bhajanlal , Joginder Kumar v. State of UP , Hridaya Ranjan
Prasad Verma v. State of Bihar , T.T. Antony v. State of Kerala ,
Kari Choudhary v. Sita Devi , Aleque Padamsee v. Union of
India , Babubhai v. State of Gujarat , Surender Kaushik v. State
of UP , Vinay Tyagi v. Irshad Ali , Amitbhai Anilchandra Shah v.
CBI , Anju Chaudhary v. State of UP , Chandran Ratnaswamy v.
K.C. Palanisami , Lalita Kumari v. Govt. of UP , Arnesh Kumar v.
State of Bihar , Priyanka Srivastava v. State of UP , Ramdev
Food Products Pvt. Ltd. v. State of Gujarat , Awadesh Kumar Jha
v. State of Bihar and Rini Johar v. State of MP . Learned counsel
for the petitioners further submitted that the present complaint is nothing
but a replica of the previous brief note submitted to the Commissioner of
Police in 2013 and he did not choose to take any action, but, for the
reasons best known to the present Additional Director General of Police,
the complaint was directed to be registered. He further submitted that
when a final report was filed, the earlier complainant did not choose to file
any objections/protest petition and he allowed it to become final. The
earlier complainant and the present complainant are disgruntled
employees who wanted to bring bad name to the organization and have
been repeatedly lodging complaints in order to settle their personal
scores.
Learned Government Pleader as well as learned counsel for the
fifth respondent submitted that the earlier complaint was not properly
investigated but a final report was filed. Though three of the allegations
in the present complaint are similar to the earlier complaint, three more
allegations are included in the present complaint which require
investigation. Learned Government Pleader produced voluminous material
before this Court and submitted that the investigation revealed prima facie
case for continuing the investigation and the closure of earlier crime is not
a bar for continuing the investigation. He relied on a decision of the
Honble Supreme Court reported in Ram Lal Narang v. State (Delhi
Administration) .
Learned counsel appearing for the de facto complainant/fifth
respondent brought to the notice of this Court the perfunctory manner of
conducting the investigation pursuant to registration of Crime No.350 of
2012 and submitted that in view of such investigation the Court should
not stall the present investigation. He relied on the decisions reported in
T.T. Antonys case (supra), Babubhais case (supra) and Awadesh
Kumar Jhas case (supra).
On the basis of the above pleadings and submissions made, the
following points arise for consideration:
1. Whether the CID Police, TS, Hyderabad can register a complaint
on the endorsement made by the fourth respondent?
2. Whether registration of FIR No.22 of 2016 on 29.09.2016, even
after submission of a closure report, pursuant to registration of
FIR No.350 of 2012 on 10.03.2013 containing some of the
allegations in the present complaint, is valid or not?
The undisputed facts in the instant case are that the first petitioner
is a Trust registered under the Bombay Public Trusts Act, 1950. The third
petitioner is the son of the second petitioner. The second petitioners
daughter was appointed as Director of Health Initiative, daughter-in-law
as Skin Specialist and his relatives are also actively associated with the
trust activities. The second petitioner is stated to be its principal trustee,
whereas the petitioners 3 to 6 are adhoc trustees and petitioners 7 and 8
are consultants. The first petitioner trust is managing different non-
governmental organizations viz; (1) Operation Mercy India Foundation, (2)
OM Books Foundation, International Bible Society (Biblica), (3) Good
Shepherd Community Society, (4) All India Christian Council, (5) Mercy
Community Development Foundation, (6) Dayspring Enterprises of India
and (7) Kadwell Consultancy Private Limited etc. It obtained seven
permissions from the Government of India under the Foreign Contribution
(Regulation) Act, 2010 and its activities involved around Rs.200 Crores.
One K. Ratnakar filed a complaint before the learned Metropolitan
Magistrate, Medchal Courts, Ranga Reddy District on 09.07.2012 stating
that he was an ex-employee of the first petitioner Trust which was initially
registered under the provisions of the Bombay Public Trusts Act, 1950 at
Bombay by the international charity SEND THE LIGHT on 21.08.1971 in
the name and style of Operation Mobilization India. Later on, the office
was shifted to Hyderabad during the year 1989-90. The nomenclature of
the international organization SEND THE LIGHT is also changed to OM
INTERNATIONAL. He further stated that while working in the post of
Zonal Manager, he came to know several financial irregularities and
misappropriations of trust funds to a tune of more than Rs.80.00 lakhs.
Having noticed the same, he requested the Chief Financial Officer, who
was shown as second witness in his complaint, to initiate departmental
enquiry into the entire episode. Basing on the departmental enquiry, a
confidential report was prepared by the second witness and submitted the
same to the petitioners 1 and 3 herein, but no action was taken by them.
He also stated that the second witness also observed several irregularities
and fraud during Tsunami relief operations undertaken by the Operation
Mercy India. There was embezzlement to the tune of Rs.13,26,000/-. He
further stated that the property belonging to the subsidiary of OM Books
situated in Jubilee Hills was sold to some third parties in the year 2011
and the entire sale proceeds were received in cash and transmitted to
USA under hawala transaction without accounting the same in the books
of accounts of the organization. The third petitioner herein received an
amount of Rs.40.00 lakhs towards commission for the services rendered
by him. A part of the said commission was used to buy a flat in his sons
name. There is a whistle blower policy in the first petitioner organization
and as per the said policy the complaints against the organizations
misdeeds were welcome. Though the accused Nos. 4 and 5 shown in the
complaint were at the helm of the affairs, they have not taken any action.
Though, as per the proceedings of the Chief Commissioner of Land
Administration dated 26.07.2005, no property belonging to the Christian
missionaries should be sold without obtaining NOC from the concerned
Collectors, the fourth accused in connivance with the accused Nos.1 and 3
executed sale deed bearing document No.4368 of 2010 dated 08.11.2010.
Part of the sale proceeds were utilized for purchase of Flat No.302, Prithvi
Ganga Vihar, Jeedimetla, Hyderabad in the name of son of the third
accused and the document was registered as document No.12493 of 2010
dated 28.12.2010. When the illegalities came to the knowledge of the
complainant on 20.06.2012, he was unceremoniously sent off by dictating
the resignation and accepting the same by putting pressure. Though he
lodged a complaint on 28.05.2012 before the Pet-Basheerabad Police
Station, the same was not entertained. Thus he lodged the complaint
with the magistrate who referred it to the police for investigation and was
registered by the police as FIR No.350 of 2012 on 24.08.2012, under
Sections 406, 420 read with Sections 120-B and 34 IPC. A final report
was filed on 28.10.2013 stating that there was no evidence. The details
of the final report will be dealt with later.
The said K. Ratnakar also lodged a complaint with the Station
House Officer, Pet-Basheerabad Police Station, Cyberabad on 04.09.2012
stating that OM International has a whistle blowing policy and
encouraged its members to bring in any complaints with respect to
financial irregularities, leadership abuses and such other concerns. In
order to use that opportunity, he created an anonymous mail ID as
[email protected] (Christian Bureau of Crimes Information Desk) and
informed the international members with regard to alleged frauds and
irregularities committed by the second petitioner and his team members.
He further states that on his complaints the international members came
to India, conducted enquiries and the matter was pending in the Head
Office. Later on, a meeting was called on 30.04.2012, wherein 70
employees attended and asked for the confession of the person who sent
the e-mail to the international authorities. The complainant, K. Ratnakar
confessed to have sent the e-mails. He named seven persons responsible
for his harassment and sought action against them. On the basis of the
said complaint, Crime No.384 of 2012 was registered under Sections 384
and 506 IPC. On 03.05.2012 he was taken to a room where he was
threatened by a stranger who identified himself as a CBI Officer. He
further states that resignation was obtained from him on 03.05.2012.
However, the said complaint was closed by filing a final report on
30.11.2013 stating that there was lack of evidence. The report was filed
stating that though the complainant was contacted and was requested to
produce evidence, he never responded to the calls nor replied to the
notices issued under Section 91/160 Cr.P.C.
A complaint was lodged by one G. Jonathan claiming to be a
trustee of OM Books Foundation on 08.11.2012 to the Station House
Officer, Cyber Crime Police Station, Cyberabad stating that they have been
receiving spate of threatening, extorting, blackmailing and defamatory
messages from one e-mail address [email protected] and it is an
impersonation of a Government organization. The said complaint was
registered as Crime No.50 of 2012 under Section 66 (A & D) of the
Information Technology Act and a charge sheet was filed against
K. Ratnakar and he was arrested on 08.05.2013. However, he was
acquitted by the learned XVI Metropolitan Magistrate, Cyberabad,
Kukatpally, at Miyapur on 13.01.2015.
Thereafter, the said K. Ratnakar lodged a complaint on 20.11.2013
with the Commissioner of Police, Cyberabad alleging that the investigation
in Crime No.350 of 2012 was perfunctory, the Investigating Officer
connived with the accused and accordingly sought necessary action. He
enclosed a brief note of facts on the embezzlement of public funds by the
accused. The same was received in the office of the Commissioner on
16.12.2013. It appears that some employees separately lodged a
complaint with the Assistant Commissioner of Police, Pet-Basheerabad,
Hyderabad on 28.10.2015 alleging threat to their lives by the petitioners
herein. No action appears to have been taken on the said complaints.
One Gowripaga Albert Lael, the fifth respondent herein, who stated
to be a former Chief Financial Officer for OM Group of Charities and
former National Director for Dalit Education, OMIF Founding Director of
several groups of OM Group of Charities, lodged a complaint with the
Additional Director General of Police, Crime Investigation Department,
Telangana State, Hyderabad on 29.09.2016 reiterating the earlier
allegations and adding three more allegations and specifically stated that
the petitioners 2 and 3 herein had appointed retired police officials as
advisors by paying exorbitant consultation charges to avoid police action
and the closure of the case in Crime No.350 of 2012 was a result of such
interference of the retired police officials. It is pertinent to notice that
the
present complainant is none other than the second witness shown in the
earlier complaint lodged by the complainant in Crime No.350 of 2012
which was closed. After receipt of the said complaint, a memo appears to
have been issued by the Additional Director General of police, CID,
Hyderabad and in pursuance of the same the complaint was registered as
Crime No.22 of 2016 under Sections 409, 420, 477-A IPC and Section 37
of the Foreign Contribution (Regulations) Act 2010 at CID PS, Telangana
State, Hyderabad and the copy of the FIR was sent to DSP, CID
(Economic Offences Wing), Telangana State, Hyderabad for further
investigation. Challenging the registration of the said crime, this Writ
Petition was filed on 22.11.2016 and this Court while adjourning the
matter on 02.12.2016 for filing counter directed the official respondents
not to arrest the writ petitioners. The said order was extended from time
to time and lastly on 09.03.2017.
The allegations in the two complaints are as follows:
Allegations in
Crime No.350 of 2012
Allegations in
Crime No.22 of 2016
1. Allegation of Sale of Bible
Books and encashment of
the same without
accounting.
2. Purchase of boats and
nets in connection with
Tsunami and
misappropriation of the
same.
3. Sale of building at Jubilee
Hills and transmitting
entire amount to USA
through HAWALA and
also purchase of flat by
one of the accused.
Indulging in illegal
activities such as
receiving black
money contrary to
Income Tax, flouting RBI
guidelines etc., in the
guise of running a
charitable organization.
1. Misappropriation of Rs.80.00 Lakhs to
Rs.2.00 Crores in sale of Bibles, which
are to be distributed free of cost.
2. Embezzlement of trust funds
(Tsunami Relief Fund) to the tune of
Rs.4.00 Crores to Rs.5.00 Crores.
3. Embezzlement of funds of Rs.4.00
Crores from the funds of the trust by
the Chairman and his son by showing
falsification of records with the active
connivance of others.
4. Diversion of donations worth of $
400,000 US dollars meant for dalit
education centers in India through
Hawala contrary to Foreign
Contribution Regulation Act, Foreign
Exchange Management Act and public
trust acts/laws.
5. Diversion of Trust funds into private
investments.
6. Accumulation of funds in Fixed
Deposits (over Rs.100.00 Crores)
meant for Dalit Schools/Dalit
community.
7. Using retired police officials to save
their skin.
At this stage, it is relevant to notice the reasons for submitting a
final report in respect of Crime No.350 of 2012 on 28.10.2013. In the said
report it was stated that out of twelve (12) witnesses cited including the
complainant therein, eleven (11) witnesses were examined and their
statements were recorded. Eight (8) witnesses out of eleven (11)
witnesses denied the allegations and the remaining three (3) witnesses
are none other than the terminated/resigned employees including the
complainant. No summary of the statement of the witnesses, who
supported the case of the complainant, was submitted and no
investigation appears to have been done on the basis of their statements.
It was simply stated that the first witness was the complainant, second
witness was an ex-employee and third witness corroborates the said
witnesses but their statements were not recorded. With regard to rest of
the witnesses it was merely stated that their names were cited as
witnesses without their consent. Only three (3) witnesses, witnesses 8, 9
and 10 were stated to have denied the allegations. The Investigating
Officer opined that there was no sale of Bibles, there was free distribution
of boats to the Tsunami affected people and the sale consideration of
property was available in the form of fixed deposit with Indian Oversees
Bank. Thus, it was held that the allegations were not supported by
substantial evidence. This investigation was found fault with by the
second witness of the said final report who lodged a separate complaint
now with the Additional Director General of Police, which was registered
as Crime No.22 of 2016.
In the light of the above facts, the points framed as above have to
be answered.
So far as the first point is concerned, G.O.Ms.No.438, Home
(Police-D) Department, dated 05.10.1988, was issued by the erstwhile
Government of Andhra Pradesh declaring the office of the CID as a Police
Station for the entire State of Andhra Pradesh under Section 2(s) of the
Code of Criminal Procedure, 1973 and directed that one of the Deputy
Superintendent of Police (DSP) working in the said office nominated for
this purpose shall be the Station House Officer within the meaning of said
Section. After bifurcation of the State, the Government of Telangana
issued G.O.Ms.No.17, Home (Legal) Department, dated 07.08.2014,
declaring the Crime Investigation Department, Telangana, Hyderabad as a
Police Station. In view of the same, it cannot be said that the Crime
Investigation Department cannot register a complaint.
The only point that remains for consideration is whether a second
FIR, containing the earlier allegations, which resulted in submitting a final
report as false, and adding few more allegations, is maintainable in law.
At this stage, it is not for this Court to go into the merits of the
case, except to the limited extent of perusing the nature of allegations
covered by Crime No.350 of 2012 and Crime No.22 of 2016 and they were
already extracted above.
Chapter 12 of the Code of Criminal Procedure, 1973 deals with
information to the police and their powers to investigate. Section 154
Cr.P.C deals with information as to cognizable cases, whereas Section 155
Cr.P.C deals with information as to non-cognizable cases. The police
officers power to investigate non-cognizable cases and the procedure for
investigation is provided in Sections 156 and 157 of the Code. The Crime
No.350 of 2012 was registered under Sections 406, 420 read with
Sections 120-B and 34 IPC. The present FIR No.22 of 2016 was
registered under Sections 409, 420 and 477A IPC read with Section 37 of
the Foreign Contribution (Regulations) Act, 2010. The Sections under
which the crime was registered are cognizable offences. In the case of
cognizable offences, as held by the Honble Supreme Court in Lalita
Kumaris case (supra), the police are bound to register the crime.
In Ram Lal Narangs case (supra) the Honble Supreme Court
was considering the statutory right of the police to further investigate
after submitting the report under Section 173(1) Cr.P.C., when the
Magistrate had already taken cognizance of the offence. In the said case,
consequent to the registration of FIR by the CBI and filing a charge sheet
on 30.12.1972, the learned Special Magistrate directed framing of charges
against two accused. Thereafter, the Public Prosecutor filed an
application under Section 494 Cr.P.C seeking permission to withdraw the
case against them. The learned Special Magistrate passed an order on
16.05.1977 permitting withdrawal of the case and discharged the accused.
Thereafter, another case was registered and a charge sheet was filed
before the Chief Judicial Magistrate, Delhi against some other accused.
The accused in the case before the Delhi High Court took a plea that the
earlier case before Ambala Court covers the same facts and the
prosecution in the subsequent case is unwarranted. When the learned
Magistrate refused to quash the proceedings, the matter was taken to the
High Court of Delhi. In the meanwhile, a supplementary charge sheet
was filed against the accused, who were discharged by the Ambala Court
in the Delhi case. The Delhi High Court refused to quash the proceedings
and the matter was taken to the Supreme Court. The Supreme Court held
that the power of the police to further investigate was not exhausted by
the Magistrate by taking cognizance of the offence and they can exercise
such right as often as necessary when fresh information came to light.
But, when a further investigation is required, the police should seek
formal permission to make further investigation. It was also observed
that, when a second investigation is started independently of the first,
which discloses a wide range of offences including those covered by the
first investigation, and the report of the second investigation is submitted
to a Magistrate other than the Magistrate who has already taken
cognizance of the first case, it is for the prosecuting agency or the
accused concerned to take necessary action by moving the appropriate
superior Court to have the two cases tried together or the Magistrates
may themselves take action suo motu . The Supreme Court on the facts
of that case came to the conclusion that the investigating agency did not
act out of any malice and accordingly held that there was no illegality.
The said case arose out of the application of the provisions of Section 482
of Cr.P.C and though a subsequent investigation was allowed, the facts
are not identical.
In T.T. Antonys case (supra) the Supreme Court explained the
meaning of FIR and the course of action to be taken, if further information
pertaining to the same incident comes to light. In the said case, in
connection with an incident involving the Minister for Cooperation and
Ports of UDF Government in Kerala, where five persons died, six persons
were injured in the police firing resorted to for protection of the Honble
Minister, two crimes were registered on the same day, viz., 353 and 354
of 1994. When LDF Government came to power, another crime was
registered as Crime No.268 of 1997 against three persons including the
erstwhile Minister but the earlier cases were closed as being false and
undetected. When a fresh investigation was ordered by the High Court
pursuant to the challenges made to the registration of the crime, the
matter went up before the Supreme Court. The Supreme Court after
examining Section 154 Cr.P.C held that the scheme of Cr.P.C provides that
an officer in-charge of a Police Station has to commence investigation as
provided in Section 156 or 157 Cr.P.C on the basis of entry of the first
information report, and on coming to know of the commission of the
cognizable offence. On completion of investigation and on the basis of
the evidence collected, he has to form an opinion under Section 169 or
170 Cr.P.C and forward his report to the Magistrate concerned under
Section 173(2) Cr.P.C. However, even after filing such a report, if he
comes into possession of further information or material, he need not
register a fresh FIR, but he is empowered to make further investigation,
normally with the leave of the Court and where during further
investigation if he collects further information, oral or documentary, he is
obliged to forward the same with one or more further reports. In view of
the scheme of the provisions of Sections 154 to 173 Cr.P.C, only the
earliest or the first information with regard to commission of a cognizable
offence satisfies the requirements of Section 154 Cr.P.C. Thus, there can
be no second FIR and consequently there could be no fresh investigation
on receipt of every subsequent information in respect of the same
cognizable offence or the same occurrence or incident giving rise to one
or more cognizable offences. In the said case, Ram Lal Narangs case
(supra) was cited by the counsel and after considering the case law the
Supreme Court summarized the position for exercise of power by this
Court to interfere with the investigation. It observed that a just balance
between the fundamental rights of the citizens under Articles 19 and 21 of
the Constitution and the expansive power of the police to investigate a
cognizable offence has to be struck by the Court. It was held that though
in Ram Lal Narangs case (supra) it was held that the police have power
to conduct further investigation with the permission of the Court, but the
sweeping power of the investigation does not warrant subjecting a citizen
each time for fresh investigation by the police in respect of the same
incident, giving rise to one or more cognizable offences, consequent upon
filing of successive FIRs whether before or after filing the final report
under Section 173(2) Cr.P.C. It was further held that in such cases, this
Court can intervene in exercise of power under Section 482 Cr.P.C or
under Article 226 or 227 of the Constitution of India. In the said case, the
Supreme Court took note of the fact that the offences mentioned in the
crimes of 1994 and 1997 are same and in such circumstances the correct
course of action should have been to take note of the findings and the
contents of the report, streamline the investigation to ascertain the true
and correct facts, collect the evidence in support thereof, form an opinion
under Sections 169 and 170 Cr.P.C and forward the report under Section
173(2) or Section 173(8) Cr.P.C. to the Magistrate concerned. It was
categorically held that the registration of information as the second FIR in
regard to the same incident and making a fresh investigation is not
permissible under the scheme of the provisions of Cr.P.C. Therefore, the
investigation undertaken was held not valid.
The said Ram Lal Narangs case (supra) and T.T. Antonys case
(supra) came up for consideration in Babubhais case (supra). The
Supreme Court held that the courts interference with the investigation is
warranted only in extraordinary or exceptional cases of gross abuse of
power and failure of justice. It was held that the Court would direct de
novo investigation to prevent miscarriage of justice, if investigation is
tainted and biased, suffers from illegalities and conducted in mala fide
exercise of power by police causing serious prejudice and harassment to
any party.
In Amitbhai Anilchandra Shahs case (supra) the Supreme
Court considered the permissibility of second FIR. The said case arose
out of a writ petition filed by the first accused challenging the fresh FIR
dated 29.04.2011 by the CBI and charge sheet dated 04.09.2012
consequent to the entrustment of case from Gujarat Police to CBI relating
to the death of one Tulsiram Prajapati, a material witness to the killings of
Sohrabuddin and his wife Kausarbi. The Supreme Court in Narmada Bai
v. State of Gujarat , took note of the fact of filing a charge sheet by
the State of Gujarat and after going through the same rejected the
investigation conducted/concluded by the State Police and directed the
State Police to hand over the case to CBI. After investigation, the CBI
filed a fresh FIR on 29.04.2011 against various police officials of the
States of Gujarat and Rajasthan and others for acting in furtherance of a
criminal conspiracy to screen themselves from legal consequences of
their crime by causing the disappearance of human witness i.e., Tulsiram
Prajapati, by murdering him on 28.12.2006 and showing it off as a fake
encounter. On behalf of the petitioner reliance was placed on C.
Maniappan v. State of Tamil Nadu , wherein it was held that when
two separate complaints had been lodged, it does not mean that they
could not be clubbed together and one charge sheet could not be filed. A
stand was taken by the CBI by relying on Section 218 of the Code and
was submitted that a distinct charge has to be framed for a distinct
offence and each distinct charge has to be tried separately. It was also
submitted that there is no concept of joint investigation. It was stated
that the only exception is under Sections 219 and 220 of the Code that a
person can be tried at one trial for more offences than one committed
within a period of one year. But, there is no bar in law to filing a separate
FIR/complaint in respect of two distinct offences and similarly there is no
bar to file two separate charge sheets for seeking prosecution of accused
in two distinct offences. It was also submitted that in T.T. Antonys case
(supra) the principle laid down was that there cannot be second FIR only
in respect of the same incident or occurrence. It was submitted that
whether the offences are distinct or the same would necessarily have to
be examined in the facts and circumstances of each case. On the above
pleas, the Supreme Court went through the record in Narmada Bais
case (supra) and Rubabbuddin Sheikh v. State of Gujarat , and
noticed that the CBI took a stand that killing of two individuals and killing
of the third person who was Tulsiram Prajapati was part of the very same
conspiracy and since the same series of acts was connected, they will
have to be tried in one trial under Section 220 of the Code. The Supreme
Court also perused the charge sheet dated 04.09.2012 filed pursuant to
registration of second FIR and observed that what the CBI conducted was
mere further investigation and the alleged killing of Tulsiram Prajapati
was in continuance of and inseparable part of conspiracy which
commenced in November 2005 and hence the second charge sheet, in law
and on facts, deserves to be treated as supplementary charge sheet in
the first FIR. Then it examined the permissibility or impermissibility of
the second FIR. It approved the ratio laid down in T.T Antonys case
(supra) that a second FIR in respect of an offence or different offences
committed in the course of same transaction is not only impermissible but
it violates Article 21 of the Constitution. It further observed that the
declaration of law in the said case has never been diluted in any
subsequent judicial pronouncements even while carving out exceptions.
The decisions cited by the learned Additional Solicitor General on Anju
Chaudharys case (supra), Babubhais case (supra), Surender
Kaushiks case (supra), Nirmal Singh Kahlon v. State of Punjab ,
Ram Lal Narangs case (supra), Upkar Singh v. Ved Prakash and
Kari Choudharys case (supra), in support of his contention that the
second FIR is maintainable, were held not to be applicable. The Supreme
Court ultimately summarized its findings as follows.
Summary:
58.1. This Court accepting the plea of CBI in Narmada Bai
(supra) that killing of Tulsiram Prajapati is part of the same
series of cognizable offence forming part of the first FIR
directed the CBI to take over the investigation and did not
grant the relief prayed for i.e., registration of a fresh FIR.
Accordingly, filing of a fresh FIR by the CBI is contrary to
various decisions of this Court.
58.2. The various provisions of the Code of Criminal
Procedure clearly show that an officer-in-charge of a police
station has to commence investigation as provided in Section
156 or 157 of the Code on the basis of entry of the First
Information Report, on coming to know of the commission
of cognizable offence. On completion of investigation and on
the basis of evidence collected, Investigating Officer has to
form an opinion under Section 169 or 170 of the Code and
forward his report to the concerned Magistrate
under Section 173(2) of the Code.
58.3. Even after filing of such a report, if he comes into
possession of further information or material, there is no
need to register a fresh FIR, he is empowered to make
further investigation normally with the leave of the Court
and where during further investigation, he collects further
evidence, oral or documentary, he is obliged to forward the
same with one or more further reports which is evident from
sub-section (8) of Section 173 of the Code. Under the
scheme of the provisions of Sections
154, 155, 156, 157, 162, 169, 170 and 173 of the Code, only
the earliest or the first information in regard to the
commission of a cognizable offence satisfies the
requirements of Section 154 of the Code. Thus, there can be
no second FIR and, consequently, there can be no fresh
investigation on receipt of every subsequent information in
respect of the same cognizable offence or the same
occurrence or incident giving rise to one or more cognizable
offences.
58.4. Further, on receipt of information about a cognizable
offence or an incident giving rise to a cognizable offence or
offences and on entering FIR in the Station House Diary, the
officer-in-charge of the police station has to investigate not
merely the cognizable offence reported in the FIR but also
other connected offences found to have been committed in
the course of the same transaction or the same occurrence
and file one or more reports as provided in Section 173 of
the Code. Sub-section (8) of Section 173 of the Code
empowers the police to make further investigation, obtain
further evidence (both oral and documentary) and forward a
further report(s) to the Magistrate. A case of fresh
investigation based on the second or successive FIRs not
being a counter case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and in
respect of which pursuant to the first FIR either investigation
is underway or final report under Section 173(2) has been
forwarded to the Magistrate, is liable to be interfered with by
the High Court by exercise of power under Section 482 of
the Code or under Articles 226/227 of the Constitution.
58.5. First Information Report is a report which gives first
information with regard to any offence. There cannot be
second FIR in respect of the same offence/event because
whenever any further information is received by the
investigating agency, it is always in furtherance of the first
FIR.
58.6. In the case on hand, as explained in the earlier paras,
in our opinion, the second FIR was nothing but a
consequence of the event which had taken place on
25/26.11.2005. We have already concluded that this Court
having reposed faith in the CBI accepted their contention
that Tulsiram Prajapati encounter is a part of the same chain
of events in which Sohrabuddin and Kausarbi were killed and
directed the CBI to take up the investigation.
58.7. For vivid understanding, let us consider a situation in
which Mr. A having killed B with the aid of C, informs the
police that unknown persons killed B. During investigation,
it revealed that A was the real culprit and D abetted A to
commit the murder. As a result, the police officer files the
charge sheet under Section 173(2) of the Code with the
Magistrate. Although, in due course, it was discovered
through further investigation that the person who abetted
Mr. A was C and not D as mentioned in the charge sheet
filed under Section 173 of the Code. In such a scenario,
uncovering of the later fact that C is the real abettor will
not demand a second FIR rather a supplementary charge
sheet under section 173(8) of the Code will serve the
purpose.
58.8. Likewise, in the case on hand, initially the CBI took a
stand that the third person accompanying Sohrabbuddin and
Kausarbi was Kalimuddin. However, with the aid of further
investigation, it unveiled that the third person was Tulsiram
Prajapati. Therefore, only as a result of further investigation,
the CBI has gathered the information that the third person
was Tulsiram Prajapati. Thus a second FIR in the given facts
and circumstances is unwarranted; instead filing of a
supplementary charge sheet in this regard will suffice the
issue.
58.9. Administering criminal justice is a two-end process,
where guarding the ensured rights of the accused under
Constitution is as imperative as ensuring justice to the
victim. It is definitely a daunting task but equally a
compelling responsibility vested on the court of law to
protect and shield the rights of both. Thus, a just balance
between the fundamental rights of the accused guaranteed
under the Constitution and the expansive power of the
police to investigate a cognizable offence has to be struck by
the court. Accordingly, the sweeping power of investigation
does not warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same incident,
giving rise to one or more cognizable offences. As a
consequence, in our view this is a fit case for quashing the
second F.I.R to meet the ends of justice.
58.10. The investigating officers are the kingpins in the
criminal justice system. Their reliable investigation is the
leading step towards affirming complete justice to the
victims of the case. Hence they are bestowed with dual
duties i.e. to investigate the matter exhaustively and
subsequently collect reliable evidences to establish the
same.
On the facts of the said case, the Supreme Court held that filing of second
FIR and fresh charge sheet is violative of fundamental rights under
Articles 14, 20 and 21 of the Constitution since the same related to
alleged offence in respect of which an FIR had already been filed and the
Court had taken cognizance. Accordingly, the second FIR was quashed,
but the charge sheet filed on 04.09.2012 was directed to be treated as
supplementary charge sheet in the first FIR.
The above decision was considered in Awadesh Kumar Jhas
case (supra) and para 58.3 of the above summary was extracted. The
facts of the said case are that originally FIR No.111 of 2008 (first FIR) was
registered on 04.05.2008 against both the appellants along with other
persons for the offences punishable under Sections 3 to 7 of the Immoral
Traffic (Prevention) Act, 1956. After investigation, a report was filed
under Section 173 Cr.P.C before the concerned Magistrate and the same
was taken cognizance on 06.08.2008. In the meantime, when the
appellants moved applications for grant of bail, they furnished wrong
information regarding their names, fathers name and address and on the
complaint of the Inspector of Police another FIR No.183 of 2008 was
registered on 03.07.2008 for the offences punishable under Sections 419
and 420 IPC. The charge sheet was filed before the concerned Magistrate
and he took cognizance of the same on 11.09.2008. It appears that the
criminal proceedings arising out of first FIR were already set aside, but
when the trial was to take place consequent to the second FIR, the same
was challenged on the ground that the second FIR was absolutely
untenable in law and liable to be quashed. The Supreme Court did not
agree for quashing the second FIR and upheld the order of the High Court
with the following observations.
26. However, this principle of law is not applicable to
the fact situation in the instant case as the substance of the
allegations in the said two FIRs is different. The first FIR
deals with offences punishable under Sections 3, 4, 5,
6 and 7 of the Act, whereas, the second FIR deals with the
offences punishable under Sections 419 and 420 of IPC
which are alleged to have committed during the course of
investigation of the case in the first FIR. This Court is of the
view that the alleged offences under the second FIR in
substance are distinct from the offences under the first FIR
and they cannot, in any case, said to be in the form of the
part of same transaction with the alleged offences under the
first FIR. Therefore, no question of further investigation
could be made by the investigating agency on the alleged
offences arisen as the term further investigation occurred
under sub-Section (8) to Section 173 of Cr.P.C. connotes the
investigation of the case in continuation of the earlier
investigation with respect to which the charge sheet has
already been filed. The reliance is placed on the judgment of
this Court in the case of Rama Chaudhary v. State of
Bihar ((2009) 6 SCC 346), the relevant para 17 reads thus:
(SCC p.349)
17. From a plain reading of sub-section (2)
and sub-section (8) of Section 173, it is evident that
even after submission of the police report under sub-
section (2) on completion of the investigation, the
police has a right to further investigation under sub-
section (8) of Section 173but not fresh investigation
or reinvestigation. The meaning of further is
additional, more, or supplemental. Further
investigation, therefore, is the continuation of the
earlier investigation and not a fresh investigation or
reinvestigation to be started ab initio wiping out the
earlier investigation altogether.
(emphasis supplied)
In Pooja Pal v. Union of India , the Supreme Court was
considering the scope of fresh investigation/reinvestigation or further
investigation by the same or different agency. In the said case, the
Supreme Court was considering the case of a widow of slain Raju Pal, who
was a sitting MLA of Uttar Pradesh State Assembly seeking investigation
by the CBI into the murder of her husband. Her plea for CBI investigation
before the High Court failed. By the time the Supreme Court took up the
case, the case of murder was investigated and a charge sheet was filed
against the accused. It was committed to the Court of Sessions and the
trial had begun, but it was stayed by the Supreme Court. On the facts of
that case, the case was entrusted to CBI with a direction to undertake de
novo investigation in the incident of murder of Raju Pal.
The other decisions cited by the learned counsel for the petitioners
are not directly on the point and are not relevant for the purpose of
consideration of the present point of law.
However, the case in Pramatha Nath Taluqdar v. Saroj Ranjan
Sarkar , is required to be considered in the facts of the present case. In
the said case, a complaint was lodged on 17.03.1954 against the
appellants before the Supreme Court and two others and the same was
dismissed under Section 203 of the Code by the then Chief Presidency
Magistrate on 06.08.1954. He preferred a revision to the High Court of
Calcutta and the same was dismissed on 08.07.1955 by a learned single
Judge. Thereafter, he lodged another complaint before the Chief Judicial
Magistrate, Calcutta on 03.04.1959 on more or less identical allegations.
In the second complaint certain other allegations were also made. The
learned Chief Presidency Magistrate thought it fit to proceed further and
issued processes against the appellants before the Supreme Court. Before
going to the Supreme Court, the appellants filed revision petitions before
the Division Bench and in view of the importance of the matter, the
matter was placed before the Full Bench and in view of the difference in
the Full Bench, it was referred to a Special Bench of three judges. One of
the questions considered by the Special Bench was with regard to
entertainment of the second complaint on the same allegations when his
predecessors had dismissed the first complaint. The Special Bench held
the complaint maintainable. When the matter came up before the
Supreme Court, it was considered by three judges and all the learned
Judges were of the view that dismissal of an earlier complaint is not a bar
for entertainment of a second complaint on the same facts, but it will be
entertained only in exceptional circumstances, e.g., where the previous
order was passed on an incomplete record or on a misunderstanding of
the nature of the complaint or it was manifestly absurd, unjust or foolish
or where new facts which could not, with reasonable diligence, have been
brought on the record in the previous proceedings have been adduced.
However, on facts, Justice J.L. Kapur and Justice M. Hidayatullah held that
bringing of the fresh complaint is a gross abuse of the process of the
Court and is not with the object of furthering the interests of justice,
whereas Justice S.K. Das held that the order of the learned Chief
Presidency Magistrate as affirmed by the High Court was correct. Thus,
the law laid down by the Supreme Court is to the effect that the second
complaint is maintainable.
In Mahesh Chand v. B. Janardhan Reddy , which went from
this Court to the Supreme Court, a three Judge Bench of the Supreme
Court examined the maintainability of the second complaint. The
appellant before the Supreme Court was a complainant who lodged the
First Information Report against the respondent on 19.07.1997. Having
been not satisfied with the investigation carried out by the police
authorities, he filed a criminal complaint in the Court of the Additional
Judicial Magistrate of First Class, Saroornagar in the district of Ranga
Reddy against the respondent. The Investigating Officer came to the
conclusion that the dispute between the parties was a civil dispute and
accordingly a final report was filed before the learned Magistrate. The
complainant filed a protest petition on 02.09.1998. The final report was
accepted by the learned Magistrate. The complaint case filed by the
appellant was also closed and it has become final. On 08.11.2002, a third
complaint was filed by the appellant under Section 200 of Cr.P.C
whereupon summons were issued to the respondent. Challenging the
same, the respondent filed an application under Section 482 Cr.P.C and a
learned single Judge of this Court, having regard to the police report in
Crime No.206 of 1997 dated 29.07.1997 holding that the dispute between
the parties was of civil in nature and further having regard to dismissal of
the protest petition filed by the appellant on 02.09.1998, held that a fresh
complaint on the self same allegations was barred. In the back drop of
the above facts, the Supreme Court was considering the maintainability of
the fresh complaint. Before the Supreme Court the learned counsel for
the respondent placed an authenticated copy of the complaint with a
petition to show that the same was almost a verbatim reproduction of the
earlier complaint petition. The Supreme Court placed reliance on
Pramatha Nath Taluqdars case (supra), In re: Koyassan Kutty ,
Kumaraiah v. Chinna Naicker , Hansabai Sayaji v. Ananda
Ganuji , Ram Narain Choubey v. Panachand Jain; Ramanand v.
Sheri and Allah Ditta v. Karam Baksh and held that the second
complaint was not barred and the relevant observations are as follows.
19. Keeping in view the settled legal principles, we
are of the opinion that the High Court was not correct in
holding that the second complaint was completely barred. It
is settled law that there is no statutory bar in filing a second
complaint on the same facts. In a case where a previous
complaint is dismissed without assigning any reasons, the
Magistrate under Sec. 204 Cr.P.C. may take cognizance of
an offence and issue process if there is sufficient ground for
proceeding. As held in Pramatha Nath Taluqdar's case
(supra) second complaint could be dismissed after a decision
has been given against the complainant in previous matter
upon a full consideration of his case. Further, second
complaint on the same facts could be entertained only in
exceptional circumstances, namely, where the previous
order was passed on an incomplete record or on a
misunderstanding of the nature of complaint or it was
manifestly absurd, unjust or where new facts which could
not, with reasonable diligence, have been brought on record
in the previous proceedings, have been adduced. In the
facts and circumstances of this case, the matter, therefore,
should have been remitted back to the learned Magistrate
for the purpose of arriving at a finding as to whether any
case for cognizance of the alleged offence had been made
out or not.
Accordingly, it set aside the order of the learned single Judge of this Court
and remanded the matter to the learned Magistrate. This judgment was
rendered by three Judge Bench of the Supreme Court, but unfortunately
this judgment was not brought to the notice of the Supreme Court when it
rendered the opinion in Amitbhai Anilchandra Shahs case (supra)
which led to rely on T.T. Antonys case (supra) and make an observation
that the declaration of law made therein was never diluted in any
subsequent judicial pronouncements even while carving out exceptions.
The decision in Pramatha Nath Taluqdars case (supra) was followed in
Poonam Chand Jain v. Fazru .
In the instant case, as stated above, one K. Ratnakar initially
lodged a complaint which was registered as FIR No.350 of 2012 on
24.08.2012 and a final report was filed treating the said case as lack of
evidence. The said case was referred on a private complaint filed before
the learned Metropolitan Magistrate, Medchal, R.R. District. As per the
averments in the counter affidavit of the fifth respondent herein, the
complainant therein could not take up the matter any further as his wife
was suffering from abdominal Cancer. Added to that, he was implicated
as accused in Crime No.50 of 2012, wherein he was ultimately acquitted
by the competent Criminal Court. Thereafter, though efforts were made
to seek further investigation in the year 2013, it did not fructify. As could
be seen from the final report filed in FIR No.350 of 2012, no books of
accounts of the first petitioner organization were verified nor the
witnesses in support of the complaint were examined. A reading of the
final report shows that it was perfunctory. The crucial witness in the said
complaint, who was shown as second witness, lodged the present
complaint adding three more allegations and during the process of
investigation so far done by the Investigating Officer a prima facie case is
established. Hence, I am of the opinion that this case falls squarely within
the parameters laid down by the Supreme Court in Pramatha Nath
Taluqdars case (supra), which is a three Judge Bench decision, followed
in Mahesh Chands case (supra) which is also another three Judge
Bench case and the ratio laid down therein is applicable to the facts of the
present case. Accordingly, I hold that the second complaint is
maintainable and the investigation should proceed, as finding the truth is
the ultimate aim of any criminal investigation. It is not out of place to
quote the observations of the Supreme Court in Pooja Pals case (supra)
in this connection.
89. Prior thereto, in the same vein, it was ruled
in Samaj Parivartan Samudaya and others vs. State of
Karnataka and others ((2012) 7 SCC 407) that the basic
purpose of an investigation is to bring out the truth by
conducting fair and proper investigation, in accordance with
law and to ensure that the guilty are punished. It held
further that the jurisdiction of a court to ensure fair and
proper investigation in an adversarial system of criminal
administration is of a higher degree than in an inquisitorial
system and it has to take precaution that interested or
influential persons are not able to misdirect or hijack the
investigation, so as to throttle a fair investigation resulting in
the offenders, escaping the punitive course of law. Any
lapse, it was proclaimed, would result in error of jurisdiction.
..
92. That the pre-eminence of truth is the guiding star
in a judicial process forming the foundation of justice had
been aptly propounded by this Court in Maria Margarida
Sequeira Fernandes and others vs. Erasmo Jack De
Sequeira (dead) through L.Rs ((2012) 5 SCC 370). It
was ruled that the entire judicial system had been created
only to discern and find out the real truth and that the
Judges at all levels have to seriously engage themselves in
the journey of discovering the same. Emphasizing that the
quest for truth is the mandate of law and indeed the
bounden duty of the courts, it was observed that the justice
system will acquire credibility only when the people will be
convinced that justice is based on the foundation of the
truth. While referring with approval, the revealing
observation made in Ritesh Tewari and another vs.
State of U.P. and others ((2010)10SCC 677) that every
trial is voyage of discovery in which truth is the quest, the
following passage of Lord Denning scripted in Jones vs.
National Coal Board ((1957) 2 All ER 155(CA) was
extracted in affirmation: (Maria Margarida case (supra),
SCC p.384, para 39)
39Its all very well to paint justice
blind, but she does better without a bandage round
her eyes. She should be blind indeed to favour or
prejudice, but clear to see which way lies the truth.
(Jones case (supra), QB p.64)
95. Adverting to the role of the police to be one for
protection of life, liberty and property of citizens, with
investigation of offences being one of its foremost duties, it
was underscored in Manohar Lal Sharma vs. Principal
Secretary and others ((2014) 2 SCC 532) that the aim of
investigation is ultimately to search for truth and to bring the
offender to book. The observations of Lord Denning in his
rendering in The Due Process of Law, First Indian Reprint
1993, page 102 were alluded to as under: (SCC p.553, para
25)
25.In safeguarding our freedoms, the
police play a vital role. Society for its defence needs a
well-led, well-trained and well-disciplined force of police
whom it can trust; and enough of them to be able to
prevent crime before it happens, or if it does happen,
to detect it and bring the accused to justice.
The police, of course, must act properly. They
must obey the rules of right conduct. They must not
extort confessions by threats or promises. They must
not search a mans house without authority. They must
not use more force than the occasion warrants.
96. The avowed purpose of a criminal investigation
and its efficacious prospects with the advent of scientific and
technical advancements have been candidly synopsized in
the prefatory chapter dealing with the history of criminal
investigation in the treatise on Criminal Investigation Basic
Perspectives by Paul B. Weston and Renneth M. Wells:
Criminal investigation is a lawful search for
people and things useful in reconstructing the
circumstances of an illegal act or omission and the
mental state accompanying it. It is probing from the
known to the unknown, backward in time, and its
goal is to determine truth as far as it can be
discovered in any post-factum inquiry.
Successful investigations are based on fidelity,
accuracy, and sincerity in lawfully searching for the
true facts of an event under investigation and on an
equal faithfulness, exactness, and probity in reporting
the results of an investigation. Modern investigators
are persons who stick to the truth and are absolutely
clear about the time and place of an event and the
measurable aspects of evidence. They work
throughout their investigation fully recognizing that
even a minor contradiction or error may destroy
confidence in their investigation.
The joining of science with traditional criminal
investigation techniques offers new horizons of
efficiency in criminal investigation. New perspectives
in investigation bypass reliance upon informers and
custodial interrogation and concentrate upon a skilled
scanning of the crime scene for physical evidence and
a search for as many witnesses as possible. Mute
evidence tells its own story in court, either by its own
demonstrativeness or through the testimony of an
expert witness involved in its scientific testing. Such
evidence may serve in lieu of, or as corroboration of,
testimonial evidence of witnesses found and
interviewed by police in an extension of their
responsibility to seek out the truth of all the
circumstances of crime happening. An increasing
certainty in solving crimes is possible and will
contribute to the major deterrent of crime the
certainty that a criminal will be discovered, arrested
and convicted.
(emphasis supplied)
..
101..We take this view, conscious about
the parameters precedentially formulated, as in our
comprehension in the unique facts and circumstances of the
case any contrary view would leave the completed process
of crime detection in the case wholly inconsequential and
the judicial process impotent. A court of law, to reiterate has
to be an involved participant in the quest for truth and
justice and is not expected only to officiate a formal ritual in
a proceeding farseeing an inevitable end signaling travesty
of justice. Mission justice so expectantly and reverently
entrusted to the judiciary would then be reduced to a
teasing illusion and a sovereign and premier constitutional
institution would be rendered a suspect for its existence in
public estimation. Considering the live purpose for which
judiciary exists, this would indeed be a price which it cannot
afford to bear under any circumstance.
The Writ Petition is, accordingly, dismissed. There shall be no
order as to costs.
As a sequel thereto, the miscellaneous petitions, if any, pending in
this Writ Petition shall stand closed.
___________________________
A.RAMALINGESWARA RAO, J
Date: 03rd April, 2017