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2014 DIGILAW 429 (KAR)

B. Aswathamma v. State

2014-04-01

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. 1. The complainant in C.C. No. 1923/2010 pending on the file of JMFC, Devanahalli, has come up in this petition seeking to set aside the chargesheet filed in the aforesaid proceedings and to order de novo investigation or reinvestigation of the complaint submitted by her. 2. The brief facts leading to this petition are as under:- The complainant, Smt. B. Aswathamma, is said to be wife of Rajanna and daughter of late Krishnappa. It is her case that her father disposed off joint family property and gave a sum of Rs. 25,00,000/- i.e., Rs. 20,00,000/- by way of cheque and another Rs. 5,00,000/- in the form of D.D. towards her share in the sale proceeds of joint family property. According to her, respondent No. 5 herein, Sri Sriramaiah (accused No. 1), assisted her in opening a S.B. account bearing No. 29245 with Canara Bank, Devanahalli Branch and after the account was opened, the said amount under D.D. and cheque was credited to her account. However, account was operated by Sriramaiah, who kept the cheque book with him. Respondent No. 5, by getting the signature of the complainant on the cheque, is said to have withdrawn an amount of Rs. 25,00,000/- from her account with an intention to cheat her. It is also her case that when she went and enquired with the Bank about the balance available, she was given to understand that the entire amount in her account had been withdrawn. On enquiry, Sriramaiah informed her that from out of the said amount, he will be buying a Site in her name in Yelahanka and from 2007, he went on making such promise. According to the complainant, respondent No. 5 neither accounted for Rs. 25,00,000/- that was withdrawn by him nor purchased site in her name as promised, instead he threatened her by making repeated calls over her mobile phone to the effect that she should leave her husband and children and come and live with him as a concubine in a house, which would be set up by him. Further, respondent No. 6, D.M. Keshava (accused No. 2) is said to have assisted respondent No. 5 in siphoning off the funds of the petitioner and made calls to her insisting her to fall in line with the advice of 5th respondent. Further, respondent No. 6, D.M. Keshava (accused No. 2) is said to have assisted respondent No. 5 in siphoning off the funds of the petitioner and made calls to her insisting her to fall in line with the advice of 5th respondent. Hence, she filed criminal complaint against respondents 5 and 6 in International Airport Police Station, Devanahalli. 3. Incidentally, 4th respondent herein, Vydyanath, Police Inspector, is the Investigating Officer, who has investigated into the offence as per the complaint, which is submitted by the petitioner herein. It is seen that on the basis of the complaint, a F.I.R., is registered in Crime No. 46/2010 in International Airport Station, Devanahalli, on 29.06.2010 for the offences punishable under Sections 415, 420, 499, 504, 506 and 509 of I.P.C. It is seen that chargesheet is filed by respondent No. 4 on 15.11.2010 for the offences punishable under Sections 504, 506 and 509 read with Section 34 of IPC, and taking cognizance of the same, case is also registered in C.C. No. 1923/2010. It is also stated that the charges are framed in the said proceedings and the matter is at the stage of trial. At this stage, the complainant has come up before this Court seeking to set aside the chargesheet, which is filed by 4th respondent in C.C. No. 1923/2010 on the file of JMFC, Devanahalli and to order for de novo investigation or reinvestigation into the matter. 4. It is seen that the petitioner, after filing this petition, has also approached the Commissioner of Police and Director of prosecution for reinvestigation of the case for the reason that though serious allegations were made by her against respondents 5 and 6 herein of offences punishable under Sections 415, 420, 499, 504, 506 and 509 of IPC, respondent No. 4 - Inspector has chosen to give up the offences alleged under Sections415, 420, 499 and has restricted to offences punishable under Sections 504, 506 and 509read with Section 34 of IPC. Since no action was taken either by Department of prosecution or Commissioner of Police, it is stated that she has approached this Court. In these proceedings, respondents 1 to 3 are represented by learned Government Pleader; respondent No. 4 is represented by learned counsel, Sri S.N. Sameer and respondents 5 and 6, accused Nos. 1 and 2 in the Court below, are represented by learned counsel, Sri T. Prakash. 5. In these proceedings, respondents 1 to 3 are represented by learned Government Pleader; respondent No. 4 is represented by learned counsel, Sri S.N. Sameer and respondents 5 and 6, accused Nos. 1 and 2 in the Court below, are represented by learned counsel, Sri T. Prakash. 5. Heard the learned counsel appearing for the parties. Perused the complaint. On going through the same, it is clearly seen that the allegations made in the complaint are serious in nature and prima facie, there is enough material to show that the complainant, who received a sum of Rs. 25,00,000/- from her father towards her share in the joint family property, was assisted by respondent No. 5 in opening an account with the Canara Bank and entire management of funds right from opening of the account till withdrawal of the same is said to have managed by respondent No. 5, Sriramaiah. It is stated right from the day of opening of the account, entire cheque book with the signature of complainant affixed on few cheques was with the custody of 5th respondent - Sriramaiah and 6th respondent is said to have assisted him in siphoning off the funds of the petitioner beside making threatening calls to her. In addition to that, it is seen that from 2009 onwards, respondent No. 5 has been repeatedly making threatening calls to the complainant in the form of abusing her character and also attempting to entice her to leave her family i.e., husband and children and inviting her to come and live with him in a house, which he has offered to set up for her away from her matrimonial house. When such serious allegations are made available in the complaint, it is surprising that 4th respondent, Police Inspector, has lost complete track of the same and the chargesheet, which is filed by him does not speak of any of these allegations. It is seen that there is an attempt on the part of the 4th respondent to simplify the complaint to such an extent as if it involves a mere dispute between the complainant and respondent No. 5 with regard to parking and withdrawal of money, which has resulted in respondents 5 and 6 giving a threat to the life of the complainant. Thereby, reducing the tenor of allegations made by the petitioner against respondents 5 and 6, respondent No. 4 has attempted to ensure that offences alleged against them are compoundable in nature and lesser punishment is imposed on them. 6. It is seen that in the proceedings before the learned Magistrate, cognizance is taken for offences punishable under Sections 504, 506 and 509 read with Section 34 of IPC, and the matter is at the stage of trial. Even before cognizance is taken and charges are framed, it is seen several attempts were made by the petitioner to get the matter reinvestigated through the prosecution by making representations to the Commissioner of Police and the Director of Prosecution. It is seen that all the attempts by the petitioner had fallen to deaf ears and she being left with no option, has come up in this petition filed under Section 482Cr.P.C., seeking quashing of the chargesheet, which is erroneously filed by 4th respondent - Investigating officer and consequently, seeking reinvestigation into the matter or de novo investigation. 7. Learned counsel appearing for respondents 5 and 6 and also the 4th respondent - Investigating Officer tried to oppose this petition vehemently on the ground that the concept of reinvestigation of a case is alien to the Code of Criminal Procedure and is opposed to the very basis of the Code. Therefore, the same cannot be ordered. In the instant case, it is also their defence that the alleged offences are said to have commenced in the year 2007. However, the complaint is filed only in the month of June 2010 after a lapse of three years. It is also their case that chargesheet is filed way back in the month of December 2010 and subsequently, charges are also framed in 2011. However, the petitioner herein, nearly after two years from the date of filing of charges and after participating in the proceedings for some time, has filed the present petition impugning the chargesheet filed against respondents 5 and 6 for the offences punishable under Sections504, 506 and 509 read with Section 34 of IPC. In support of their contentions, the learned counsel appearing for respondents 4 to 6 relied upon the judgments rendered by the Apex Court in the matter of Mithabhai Pashabhai Patel and others Vs. State of Gujarat ( (2009) 6 SCC 332 ), wherein it is held at paras. In support of their contentions, the learned counsel appearing for respondents 4 to 6 relied upon the judgments rendered by the Apex Court in the matter of Mithabhai Pashabhai Patel and others Vs. State of Gujarat ( (2009) 6 SCC 332 ), wherein it is held at paras. 12 to 14 as under: 12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. This Court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon. 13. It is, however, beyond any cavil that "further investigation" and "reinvestigation" stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior could would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar ( (2008) 5 SCC 413 ) opined as under: 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 subsection (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. A distinction, therefore, exists between a reinvestigation and further investigation. 14. If the investigating authority, in terms of the provisions of the Code, could not ask for reinvestigation, we would have to proceed on the basis that this Court in its order dated 26-3-2008 only directed further investigation. We may notice that this aspect of the matter has also been considered by this Court in Nirmal Singh Kahlon v. State of Punjabi ( (2009) 1 SCC 441 ) wherein it has been opined: 63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end and after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta v. Union of India ( (1998) 1 SCC 226 ), loses all significance. 8. Learned counsel for respondents 5 and 6 has relied upon paras. 7 and 8 of the judgment of the Apex Court in the matter of Ramachandran Vs. R. Udhayakumar and Others ( (2008) 5 SCC 413 ), to substantiate their argument that the investigation cannot be reopened in a matter where the investigation is complete and cognizance is taken by the Magistrate and charges are also framed. Paras. 7 and 8 of the judgment read as under: 7. At this juncture it would be necessary to take note of Section 173of 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 subsection (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and Ors. ( 1998 (5) SCC 223 ). It was, inter alia, observed as follows: 24. The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; 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. In drawing this conclusion we have also drawn inspiration from the fact that sub-section(8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a further' report or reports--and not fresh report or reports regarding the 'further' evidence obtained during such investigation. 8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. 8. In view of the position of law as indicated above, the directions of the High Court for reinvestigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173(8) of the Code. The same can be done by the CB (CID) as directed by the High Court. 9. He also relied upon the judgment of the Apex Court in the matter of A. Nupur Talwar Vs. Central Bureau of Investigation and another ( AIR 2012 SC 1921 ), wherein it is observed as under with regard to further investigation: 34. The result of the aforesaid discussion is that the order dated 09.02.2011 of the Magistrate taking cognizance under Section 190Cr.P.C. and issuing process against the petitioner and her husband under Section 204 Cr.P.C. could not have been interfered with by the High Court in the Revision filed by the petitioner. Moreover, once the order of the Magistrate taking cognizance and issuing process against the petitioner and her husband was sustained, there is no scope for granting the relief of further investigation for the purpose of finding out whether someone other than the petitioner and her husband had committed the offences in respect of the deceased persons Aarushi and/or Hemraj. As has been held by this Court in Randhir Singh Rana v. State (Delhi Administration) ( (1997) 1 SCC 361 : ( AIR 1997 SC 639 )), once a Magistrate takes cognizance of an offence under Section 190Cr.P.C., he cannot order of his own further investigation in the case under Section 156(3) Cr.P.C. but if subsequently the Sessions Court passes an order discharging the accused persons, further investigation by the police on its own would be permissible, which may also result in submission of fresh charge-sheet. 10. Per contra, the learned counsel appearing for the petitioner by way of reply, would try to rely upon the judgment rendered by the Apex Court in the matter of Vinay Tyagi Vs. Irshad Ali alias Deepak and Others (2013 AIR SCW 220), wherein the Apex Court while discussing the power of the High Court under Section 482 Cr.P.C., for ordering de novo investigation and the precautions, which are required to be taken in that regard, in paras. Irshad Ali alias Deepak and Others (2013 AIR SCW 220), wherein the Apex Court while discussing the power of the High Court under Section 482 Cr.P.C., for ordering de novo investigation and the precautions, which are required to be taken in that regard, in paras. 14 to 18, has observed as under: In the case of a Thresh investigation', 'reinvestigation' or 'de novo investigation' there has to be a definite order of the Court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct fresh investigation'. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of 'fresh'/'de novo' investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a 'fresh investigation'. 11. On appreciation of the facts of the instant case in the background of the aforesaid judgments, it is clear that though normally, investigation cannot be reopened, it is only further investigation, which is permissible under Section 173(8) of Cr.P.C. and such restrictions are only to the Court of Magistrate. 11. On appreciation of the facts of the instant case in the background of the aforesaid judgments, it is clear that though normally, investigation cannot be reopened, it is only further investigation, which is permissible under Section 173(8) of Cr.P.C. and such restrictions are only to the Court of Magistrate. When it comes to higher judiciary i.e., High Court and Apex Court, under Section 482 Cr.P.C., the said Courts have vast power to decide either to quash proceeding, which is initiated on the basis of chargesheet, which is already filed or to order for reinvestigation of the matter by same Investigating Agency or by some other Investigating Agency depending on the facts and circumstances of the case. In the judgments relied upon by learned counsel for respondents 4 to 6, it is nowhere stated that the High Court does not have power to order for reinvestigation when it is convinced that the Investigating Agency has willfully ignored the serious allegations made in the complaint. In the case on hand, petitioner is an illiterate woman and she sought the assistance of respondent No. 5 in opening a bank account and depositing an amount of Rs. 25,00,000/-, which she received from her father towards her share in the joint family property, into her account. However, respondent No. 5, taking undue advantage of the innocence of the petitioner, is said to have withdrawn the entire amount from the account of the petitioner. The complainant, petitioner herein, has explained in the complaint the trauma she was subjected to by respondents 5 and 6. Respondent No. 4, for the reasons best known to him, has not even looked into the allegations in the complaint. When admittedly, the signature of respondent No. 5 is found on the self cheque issued by the complainant indicating possibility of he committing an offence for cheating, the fact as to how the Investigating Officer has completely turned a blind eye to the said material on record and ignored to invoke the said provision while foisting the charges against the accused in the chargesheet remain unexplained. When the entire complaint is looked into with reference to the chargesheet, it is clearly seen that there appears to be some nexus between respondent No. 4 - Investigating Officer, namely, Vydyanath and respondents 5 and 6, which has resulted in filing an incomplete chargesheet against respondents 5 and 6 with reference to the offences alleged against them by the complainant. 12. Hence, this Court feel that following the ruling laid down by the Apex Court in the matter of Vinay Tyagi's case (supra), in the instant case, in the interest of justice and fair play, half-hearted chargesheet, which is filed by 4th respondent, is required to be quashed in as much as the same appears to have been filed with an intention to see that respondents 5 and 6 would escape the clutches of law and even if they were found to be guilty, they would be handed down a lesser punishment as against an offence, which is likely to have been committed by them inviting higher punishment. 13. In that view of the matter, this Court feel that the chargesheet filed by 4th respondent is required to be set aside and to ensure that there is free and fair investigation into the matter, the same is required to be referred to C.I.D. of Police, Karnataka, for fresh investigation into the matter. 14. Accordingly, petition filed by the complainant in C.C. No. 1923/2010 is hereby allowed in the aforesaid terms and thereby, the chargesheet, which is registered as No. 1923/2010 is hereby quashed and the matter is referred to Criminal Investigation Department (C.I.D.) of Police, Karnataka, for fresh investigation. It is hereby ordered that the C.I.D. of Police, Karnataka, shall complete the investigation within one year from today and file proper chargesheet in the matter, if it is found that respondents Nos. 5 and 6 (accused Nos. 1 and 2) are involved in committing the offences referred to in the complaint filed by the petitioner.