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2010 DIGILAW 700 (AP)

A. v. Dharma Reddy VS State of A. P.

2010-08-02

SAMUDRALA GOVINDARAJULU

body2010
JUDGMENT (1) These two criminal petitions are filed by newly added accused Nos. 2 to 4/A-2 to A-4 questioning order dated 14-6-2010 passed by the II Additional Judicial Magistrate of the First Class, Tirupati in Criminal M.P. No. 1842 of 2010 in C.C.No. 306 of 2009 by which the lower court allowed the said petition filed by the Assistant Public Prosecutor impleading the petitioners as A-2 to A-4 in that criminal case in exercise of powers under Section 319 Cr.P.C. (2) ORIGINALLY. Charge sheet was filed by the Sub-Inspector of Police, II Town Police Station, Tirumala against three persons who are A-1, A-3 and A-4 herein showing them as A-1 to A-3 respectively alleging offences punishable under Sections 420, 408, 120-B/ 34 IPC. The Magistrate returned the charge sheet with the following objections: "(1) When A-1 only taken amount for getting Poorabhishikam to the concerned party through recommendation letter and the said amount also deposited into the account of the wife of A-1, how the case registered against A-2 and A-3 and also sanctioned Poorbhishikam by J.E.O. only and also at least there is no confession statement of A-1 with regard to collusion of A-2 and A-3 in granting the said Seva ticket. (2) When A-2 and A-3 are responsible for issuing Seva ticket in collusion with A-1, why sanctioning authority has not included as co-accused." The Sub-Inspector of Police represented the chargesheet on 12-5-2009 answering the above two objections in the following manner: "(1) As per the written report of the pilgrim party K. Rajendra Prasad (L.W.I) the names of A-2 and A-3 are included, the said report clearly shows the role played by A-2, A-3. The investigation clearly reveals the involvement of A-2, A-3 in the offence as such they are charge sheeted. (2) The investigation did not reveal the involvement of issuing authority which issued the Seva tickets. As such the sanctioning authority is not added as accused." On the original charge sheet, there is again another resubmission endorsement by the Sub-Inspector on 27-5-2009 to the following effect: "Resubmitted after compliance and file another charge sheet against A-1 u/s.420 IPC." The said another charge sheet was filed by another police officer, viz., Circle Inspector of Police, Tirumala (LandO). After filing another charge sheet, the original first charge sheet filed by the Sub-Inspector of Police, Tirumala II Town Police Station was endorsed as cancelled. After filing another charge sheet, the original first charge sheet filed by the Sub-Inspector of Police, Tirumala II Town Police Station was endorsed as cancelled. (3) When the final report/charge sheet is filed, the Magistrate has no power or jurisdiction either under Cr.P.C. or under Criminal Rules of Practice to return the charge sheet/final report questioning propriety of the investigating officer of filing the same against one or more accused. If for any reason, the Magistrate is not satisfied with complicity of any of the persons shown as the accused persons, then it is open to the Magistrate to take cognizance of the case for the offences against only one or some of the accused and not against all the persons shown as the accused in the charge sheet, by giving reasons therefore. In case the Magistrate is not satisfied with the complicity of all the accused persons or the only accused person mentioning in the charge sheet, then it is open for the Magistrate not to take cognizance for any offences against any of them and to reject the final report/charge sheet by giving reasons therefore. Returning a charge sheet or final report by the Magistrate arises only when there are any clerical or typographical or arithmetical errors apparent in the charge sheet/final report. (4) There can be no return of a charge sheet on judicial objection. Judicial objection is matter for decision by the Magistrate and it cannot be a matter for return of the charge sheet. Section 190(1) Cr.P.C. reads as follows: "190. Cognizance of offences by Magistrates:- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Simply because a police report under Section 173(2) Cr.P.C. is filed before the Magistrate, it is not always incumbent on the Magistrate to take cognizance of the same for the offences mentioned therein against all or any of the persons shown as the accused persons therein. Simply because a police report under Section 173(2) Cr.P.C. is filed before the Magistrate, it is not always incumbent on the Magistrate to take cognizance of the same for the offences mentioned therein against all or any of the persons shown as the accused persons therein. Just as in the case of receiving a complaint, when the Magistrate applies his mind on all these aspects before taking cognizance of the same, duty is cast on the Magistrate to apply his mind while taking cognizance of an offence on filing final report by the police. The words "may take cognizance" undoubtedly denote that the Magistrate has got discretion either to take or not to take cognizance. But, the said discretion has to be exercised judiciously and not arbitrarily. Therefore, when the Magistrate finds that there is no material placed by the police for taking cognizance of offences against any of the accused mentioned in the final report, then it is open for the Magistrate not to take cognizance of the offences against those persons against whom no supporting legal material is produced by the investigating officer along with the final report. The Magistrate cannot delegate that power or duty to the investigating officer by way of returning the charge sheet questioning propriety of the investigating officer filing final report against those accused persons in respect of whom there is no supporting legal evidence collected by the police during investigation. This subject can also be viewed from the angle of the police who investigated into the case. Under Section 173 Cr.P.C, the police, as soon as investigation is completed, shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government mentioning the statutory particulars therein. There can be only one final report under Section 173(2) Cr.P.C. When once a final report under Section 173(2) Cr.P.C. is filed before the Magistrate, then the police have no power or jurisdiction to amend the same or to change the same by way of deleting any accused persons or penal sections of law or any other material particulars therefrom. Thereafter, the police can only file addition report or further report before the Magistrate under Section 173(8) Cr.P.C. if the police collected any further evidence during further investigation. Thereafter, the police can only file addition report or further report before the Magistrate under Section 173(8) Cr.P.C. if the police collected any further evidence during further investigation. At the same time, there is no provision empowering a police officer to change a final report filed under Section 173(2) Cr.P.C. after the police officer forwarded the same to the Magistrate. (5) In the case on hand, the above mentioned exercise of filing final report under Section 173(2) Cr.P.C, by one police officer before the Magistrate, returning the same by the Magistrate with objections, resubmitting the same by the same police officer answering the objections and finally filing another second final report by another police officer deleting names of two accused persons from the first final report, is totally unwarranted by law. In the second final report/second charge sheet filed by the police it was mentioned that names of two accused persons were deleted from the list of the accused in the charge sheet "as per orders of the Addl. Supdt. Of Police, Tirupati vide Rc.No. 73/Addl.SP-T/2009, dt. 20-5-2009 (original proceedings enclosed to the charge sheet)". It is not known under what legal authority, the Additional Superintendent of Police, Tirupati gave such orders. The law does not empower an Additional Superintendent of Police to issue any such proceedings. The above Somersaults made by the Magistrate and the investigating officer undoubtedly suggest that none of them was interested to receive the blame; and both of them were throwing blame on the other and if possible on a third party like the Additional Superintendent of Police, Tirupati for their activity which has no sanction of law. (6) The entire above proceedings are discussed as they have some bearing on the further proceedings in the lower court as well as order being passed by this Court herein. When the case was taken up for trial by the lower court and when P.Ws. 1 and 2 were examined-in-chief, the Assistant Public Prosecutor conducting trial in the lower court filed Criminal MP No. 1842 of 2010 in C.C. No. 306 of 2009 under Section 319 Cr.P.C. to issue summonses to Dharma Reddy, Special Officer, K. Damodaram, Camp Clerk and N. Nagoji Rao, Assistant Shroff by impleading them as accused persons in this case. 1 and 2 were examined-in-chief, the Assistant Public Prosecutor conducting trial in the lower court filed Criminal MP No. 1842 of 2010 in C.C. No. 306 of 2009 under Section 319 Cr.P.C. to issue summonses to Dharma Reddy, Special Officer, K. Damodaram, Camp Clerk and N. Nagoji Rao, Assistant Shroff by impleading them as accused persons in this case. The lower court by order dated 14-6-2010 allowed the said petition and impleaded the above three persons mentioned in the petition as A-2 to A-4 respectively and issued summonses to them. The newly added A-3 and A-4 are the two accused persons who were deleted from the first final report/charge sheet by the police. Without filing any criminal revision petitions against the impugned order either in the Sessions Court or in this Court under Section 397 Cr.P.C, A-2 to A-4 preferred to approach this Court with these two petitions under Section 482 Cr.P.C. for quashing the impugned order. (7) It is contended by the Senior Counsel appearing for A-2 and also by the counsel for A-3 and A-4 that the impugned order is not sustainable having regard to several pronouncements of the Supreme Court prescribing the norms required for impleading an outsider as accused person while exercising power under Section 319 Cr.P.C. The Senior Counsel for A-2 took this Court through the relevant material filed herein. During the course of scrutiny of the material placed in these petitions, this Court entertained suspicion whether investigation of this case was made by the police on proper lines and in a comprehensive manner. When this Court expressed the same and ascertained views of both the parties about this Court's intention to order further investigation in this case, the Senior Counsel appearing for A-2 concurred with opinion of this Court that the investigation is not full- fledged and stated that A-2 has no objection for further investigation of this case on proper lines. The counsel for A-3 and A-4 also expressed the same. The Public Prosecutor though stated that he cannot have any objection for ordering further investigation in this matter by this Court, further expressed that no useful purpose may be served if it is ordered after lapse of two years of commission of the offence. (8) At this stage, brief reference to facts of this case becomes relevant. The Public Prosecutor though stated that he cannot have any objection for ordering further investigation in this matter by this Court, further expressed that no useful purpose may be served if it is ordered after lapse of two years of commission of the offence. (8) At this stage, brief reference to facts of this case becomes relevant. This scam occurred in Tirumala Tirupati Devasthanam (in short, TTD) in relation to selling of Poorabhishikam tickets to P.W. 2 K. Rajendra Prasad and N. Subba Rao of Tiruvuru, Krishna District by A-1 who is Dalari (broker). A-2 is the person who sanctions issue of Poorabhishikam tickets on discretionary basis one day prior to that Seva (ritual). Poorabhishikam tickets are sold through internet. It is of common knowledge that advance booking of Poorabhishikam tickets through internet by any devotee has to be made well in advance i.e., one decade or one and half decades prior to that date. Poorabhiskikam is performed to the main Idol of the Lord located in the Sanctum Sanctorum on every Friday only. Devotees who could not book Poorabhishikam tickets through internet well in advance, will seek tickets for that Seva from out of the discretion quota to be released one day in advance. Not only in the charge sheet but also in the statements/evidence of witnesses, A-2 is termed as Joint Executive Officer (JEO). When enquired by this Court about his designation, the counsel stated that A-2's designation is Special Officer in the office of JEO and he is not JEO himself. A-3 is Camp Clerk of A-2. A-4 is Assistant Shroff in A-2's office. A-2 to A-4 worked in their office at Tirumala. When enquired by this Court about his designation, the counsel stated that A-2's designation is Special Officer in the office of JEO and he is not JEO himself. A-3 is Camp Clerk of A-2. A-4 is Assistant Shroff in A-2's office. A-2 to A-4 worked in their office at Tirumala. It is alleged that on 15/16-5-2008 at about 00.30 a.m. at ATC Sub-Enquiry office, Tirumala, A-1 conspired with the present A-3 and A-4 with an intention to get wrongful gain by duping the innocent pilgrims by way of selling Poorabhishikam tickets for huge amounts and that the Assistant Vigilance and Security Officer, Tirumala (P.W. 1) who was keeping close watch on such brokers, noticed A-1, A-3 and A-4 talking to each other and that when enquired he came to now that A-1 is a broker and P.W. 2 and N. Subba Rao were pilgrims and that A-1 sold one Poorabhishikam ticket each to P.W. 2 and N. Subba Rao and that the Assistant Viigilance and Security Officer seized those tickets and cash under the cover of mediators report and that further investigation revealed that P.W. 2 on instructions of A-1 deposited Rs. 18,000/- towards black market value of tickets in State Bank of India, Lunger House Branch, Hyderabad in the name of L. Jeeva who is wife of A-1 on 22-5-2008 into her account in Chandragiri branch and that the same amount was withdrawn by the accused on the same day and that it is through A-3 and A-4, A-1 obtained Poorabhishikam tickets given to P.W. 2 and N. Subba Rao under the quota of Member of Trust Board of TTD through the present A-2 who is the sanctioning officer. (9) TTD is a mighty religious institution which manages affairs of the temple of Lord Sri Venkateswara @ Balaji at Tirumala and other temples at Tirumala, Tirupati and other places. The incident which is detected in the present crime is only a tip of the iceberg. When an opportunity came for investigating into illegal activity of brokers with the help of some of the staff, officers and others in TTD, the investigating officer should have made comprehensive investigation into the issue. The incident which is detected in the present crime is only a tip of the iceberg. When an opportunity came for investigating into illegal activity of brokers with the help of some of the staff, officers and others in TTD, the investigating officer should have made comprehensive investigation into the issue. Instead, the investigating officer made some window-dressing for the report given by Assistant Vigilance and Security Officer, TTD, Tirumala (P.W. 1) and dumped final report/charge sheet into the lower court originally against A-1, A-3 and A-4 without even collecting further evidence about the complicity of A-3 and A-4. Subsequently, when the Magistrate returned the charge sheet, the investigating officer and the police department of Tirupati usurped the opportunity to delete names of A-3 and A-4 from the case without a second thought and without collecting further evidence/material about the complicity of A-3 and A-4. Without the connivance or conspiracy or complicity of the personnel working in and concerned with TTD administration and management, a broker like A-1 could not have secured two Poorabhishikam tickets for being sold to outside pilgrims at exorbitant and oppressive price. From perusal of the entire record placed before me, it is prima facie evident that the local police who made the investigation into this case are not eager to unearth this scandal and to expose those corrupt staff and officers and also others connected with TTD administration and management for reasons better known to the local police. (10) EVEN though this Court does not find any faulty investigation as such in this case, this Court finds that there is hopelessly incomplete investigation which may be termed as faulty because of lack of completeness in the investigation. Some of the areas where the investigating officer did not collect possible and available material in support of the case, can be appreciated with some illustrations which are not exhaustive. P.W.2 is stated to have recorded his talk with A-1 through his cell phone. In the lower court, P.W. 2 produced compact disc (CD) containing the said talk recorded through his cell phone. The investigating officer did not seize the said cell phone sim card from that cell phone containing the original recorded version. The investigating officer did not examine L. Jeeva who is wife of A-1 in whose bank account at Chandragiri branch P.W. 2 is stated to have deposited Rs. The investigating officer did not seize the said cell phone sim card from that cell phone containing the original recorded version. The investigating officer did not examine L. Jeeva who is wife of A-1 in whose bank account at Chandragiri branch P.W. 2 is stated to have deposited Rs. 18,000/- through State Bank of India, Lunger House Branch, Hyderabad is neither examined nor interrogated during investigation. None of the bank personnel of Chandragiri branch and of Lunger House branch, Hyderabad was examined. End destination of the deposited amount which was withdrawn by the accused, is neither reached nor pursued during investigation. The Investigation did not focus attention towards that aspect. Complicity of L.Bodi Reddy (witness No. 8 in the charge sheet) who is styled as P.A. to TTD Board Member on whose requisition two Poorabhishikam tickets were sanctioned to be issued by A-2, is not determined. The investigating officer did not examine that TTD Board Member to whom L. Bodi Reddy was attached, in order to find out truth of the requisition. According to the prosecution case, L. Bodi Reddy is stated to have recommended over phone for two Poorabhishikam tickets in the names of P.W. 2 and another on request of A-3 and A-4. It is not known as to how A-2 sanctioned two Poorabhishikam tickets in the names of P.W. 2 and N. Subba Rao each on that alleged oral request of L. Bodi Reddy, A-2 and A-3. The investigating officer did not search and seize any records or registers from the office of JEO or from the Section of A-2 with regard to availability of any written requisitions from TTD Board Member or other requisitionists. Apart from the above grey areas in the investigation, which occurred to surface of my mind, if the investigating officer who is trained in investigation, if interested to unearth the real culprits, would not have failed to collect evidence on the above lines and could have delved deep into investigation to nab main culprits who are in TTD administration and management, without whose connivance, conspiracy, and complicity, brokers like A-1 could not have secured two Poorabhishikam tickets for selling the same in black market. This Court is of the opinion that this is a subject in which the entire public and more particularly those belonging to Hindu Religion in this country who have faith in the Lord have curiosity. This Court is of the opinion that this is a subject in which the entire public and more particularly those belonging to Hindu Religion in this country who have faith in the Lord have curiosity. When crimes are being committed in front of the Lord and under the nose of the Lord, it is a matter having considerable public importance. This cannot be viewed lightly and cannot be allowed to be investigated superficially by producing window-dressed material. This Court is of the opinion that local police at Tirumala and in Chittoor District are not able to raise to the occasion for their own reasons. Therefore, it is necessary that premier crime investigation agency in the State like Crime Investigation Department (CID) of the State has to investigate further into this matter in a comprehensive manner and to submit a report to this Court and thereafter additional final report before the Magistrate under Section 173(8) Cr.P.C. In Popular Muthiah v. State (1) 2007 (1) ALT (Cr1.) 4 (SC) = (2006) 3 SCC (Cri.) 245 the Supreme Court quoting State v/s Navjot Sandhu (2) 2005 (3) ALT (Crl.) 125 (SC) = 2005 (6) SCJ 210 = 2003 SCC (Cri.) 1545 with approval, held that inherent jurisdiction of the High Court under Section 482 Cr.P.C. can be exercised even when there is a bar under Section 397 or some other provisions of Cr.P.C. (11) NO doubt, fresh investigation cannot be ordered while invoking Section 173(8) Cr.P.C. but further investigation alone has to be ordered if Section 173(8) Cr.P.C. is invoked. In Ramachandran v/s R. Udhayakumar (3) (2008) 5 SCC 413 of the Supreme Court, order of the High Court ordering fresh investigation under Section 173(8) Cr.P.C. shall in question. The Madras High Court while dealing with a Miscellaneous Petition Under Section 482 Cr.P.C, found that there is need to direct investigation in that case by C.B.C.I.D. The Supreme Court clarified in Ramachandran that only further investigation can be order under Section 173(8) Cr.P.C. and not fresh investigation as such. (12) In Kishan Lai v/s Dharmendra Bafna (4) (2009) 7 SCC 685 the Supreme Court opined that order of further investigation can be made at various stages including the stage of trial. (12) In Kishan Lai v/s Dharmendra Bafna (4) (2009) 7 SCC 685 the Supreme Court opined that order of further investigation can be made at various stages including the stage of trial. In the words of the Supreme Court, the relevant passage is follows: "(15) 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/s State of Gujarat 2009 (7) SCALE 559 in the following terms: "12. This Court while passing the order in exercise of its jurisdiction under Article 32 of constitution of India did not direct re-investigation. 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 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 're- investigation' 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 re-investigation, 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 , opined as under: "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. 16. 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. 16. The Investigating Officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/ or otherwise, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary." In Mithabhai Pashabhai Patea v. State of Gujarat (5), (2009)2SCC (Cri) 1047, the Supreme Court held: "Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code 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." In the light of the above judicial pronouncements of the Apex Court, there are no illegal fetters for this Court to order further investigation of this case under Section 173(8) Cr.P.C. by C.I.D. of the State. Pending further investigation, this Court is of the opinion that trial of C.C.No. 306 of 2009 in the lower Court cannot go on and the present criminal petition Nos. 5470 and 5770 of 2010 in this Court cannot be logically disposed of. (13) Hence, trial of C.C.No 306 of 2009 on the file of II Additional Judicial Magistrate of the First Class, Tirupati is stayed pending further orders on these two petitions. Further, the Additional Director General of Police, C.I.D. Hyderabad is directed to take up further investigation of this case and entrust the same to a team of competent investigating officers constituting Special Investigation Team. Further, the Additional Director General of Police, C.I.D. Hyderabad is directed to take up further investigation of this case and entrust the same to a team of competent investigating officers constituting Special Investigation Team. Further investigation in this case need not necessarily be confined to the grey areas pointed out in this order and the C.I.D. may also enlarge scope of investigation depending upon the material to be unearthed during further investigation. During the course of further investigation of this case, the C.I.D. is at liberty to examine or if necessary to interrogate or to take into custody any person in T.T.D. connected with this offence irrespective of his/her status, in order to come to a logical conclusion touching core aspects of this case. The investigating officer shall file periodical monthly reports of the further investigation being conducted in this case, in this Court; and ultimately file additional final report before the Magistrate after conclusion of further investigation. Post these petitions for report on 3/9/2010.