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2015 DIGILAW 900 (AP)

Jerusalem Mathai v. State of Telangana

2015-12-02

B.SIVA SANKARA RAO

body2015
ORDER : 1. This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure (for short, the Cr.P.C.) by the petitioner/A-4 (Jerusalem Mathai, S/o Janaiah) out of five accused in Crime No. 11/ACB-CR/2015 of Anti Corruption Bureau Police Station, City Range-I, Hyderabad, registered on the report of one Elvis Stephenson, seeking to quash the proceedings in the above crime. 2. A memo is filed in this Criminal Petition by the learned Special Public Prosecutor-cum-Standing Counsel for A.C.B., Telangana, for the petitioner stating that the Criminal Petition is filed seeking to quash the proceedings in Crime No.11/ACB-CR/2015, dated 31-5-2015 on the file of Principal Special Judge for SPE and ACB Cases at Hyderabad and while pending the same, the ACB investigated the matter and filed charge sheet before said Court on 28-7-2015 and in view of the same, this Criminal Petition has become infructuous. 3. This Court, when the matter came up for hearing along with Crl.M.P. No. 5527 of 2015 for interim protection, after hearing the learned counsel for the quash petitioner and the learned Advocate General representing the State of Telangana for learned Standing Counsel for the Anti Corruption Bureau (for short A.C.B.) Cases and before notice to the de facto complainant, passed the order dated 18-6-2015 by posting the matter to 24-6-2015 (sic) as clarified. It is while so, the de facto complainant, who is 2nd respondent to the quash Crl.P.No. 5520 of 2015 filed recuse application in Crl.M.P.No. 5823 of 2015 and after hearing at length of the parties, this Court passed elaborate order dated 29-6-2015 running nearly 63 pages dismissing their recusal and for action against the de facto complainant under Section 14 of the Contempt of Courts Act and to conduct the proceedings with audio and video coverage by confining the permission under Section 327(1) proviso to Cr.P.C. to attend in the Court hall only those advocates on record and the Senior Counsel, with required assistants on permission and the learned Advocate General for the State of Telangana besides the Public Prosecutor concerned and the parties concerned without entry to others, while making clear of the Court is going to hear further by requesting parties and the learned counsel concerned to cooperate for fair hearing and impartial disposal. It was directed to place the matter before the Hon'ble the Chief Justice for necessary permission with also observation that the Hon'ble the Chief Justice if at all can withdraw the matter before this Bench and can post to another Bench. Pursuant to which, subsequently, there was a specific direction, the Hon'ble the Chief Justice on the administrative side as per the observation in the order posting the matter only before this Court to decide. This Court there from after receiving the order, fixed the date of hearing further of this matter. It was on 6-11-2015 the date fixed for hearing pursuant to the order in Crl. M.P. No. 5823 of 2015 observations and from the direction of the Hon'ble the Chief Justice on administrative side, the matter is taken up for further hearing. 4. It is on that day, the Standing Counsel-cum-Special Public Prosecutor for S.P.E. and A.C.B. Cases filed the memo and the learned Advocate General, represented by the said Standing Counsel before this Court pursuant to the memo. The memo reads as follows: "The present Memo is filed on behalf of the State of Telangana. The above Criminal Petition i.e., Crl. P.No. 5520/2015 was filed under Section 482 Cr.P.C. to quash FIR No. 11/ACB-CR. 1/2015, dated 31-5-2015, on the file of the Hon'ble Prl.Spl.Judge for SPE and ACB Cases at Hyderabad. While the matter is pending before this Hon'ble Court, the Anti Corruption Bureau (ACB) investigated the aforesaid matter and filed the Charge sheet before the Hon'ble Prl. Spl.Judge for SPE and ACB Cases at Hyderabad on 28-7-2015. In view of the above, Crl .Petition No. 5520/ 2015 has become infructuous. Hence, this Memo on behalf of the respondent No. 1." 5. The learned Advocate General submitted as per the memo that the quash petition in Crl.P.No. 5520 of 2015 has become infructuous, as police filed charge sheet as mentioned in the memo and the First Information Report culminated into final report thereby. Notice is received by the learned counsel for the quash petitioner and wanted time to file objections and the de facto complainant also represented by counsel there is no further say but for conquer with the view in the memo submitted by the learned Advocate General. Notice is received by the learned counsel for the quash petitioner and wanted time to file objections and the de facto complainant also represented by counsel there is no further say but for conquer with the view in the memo submitted by the learned Advocate General. It is pursuant to which in filing objections if any at request of the learned counsel for the quash petitioner, the matter is posted to 16-11-2015 and directed meanwhile to serve copy of charge sheet on the quash petitioner and to file objections by serving copy to the other side. 6. On 16-11-2015, the matter again came up for hearing and at the instance of the learned Standing Counsel for S.P.E. and A.C.B. Cases for the learned Advocate General is out of station, the matter wanted to be posted to another date and they want to file reply to the objections filed by the quash petitioner. It is pursuant to which to file any reply to the objections by serving copy to the other side on or before 20-11-2015 and at request of the date to take up on 2-12-2015, it is posted to 2-12-2015 and in the meanwhile directed to file the copy of charge sheet with the relevant material which is part and parcel before this Court. 7. On 2-12-2015 i.e., today as per the schedule taken up for hearing with reference to the memo and the objections from counter-affidavit in reply to the objections and also the certified copy of the charge sheet and the endorsement of the learned Special Judge on the said charge sheet on 11-8-2015. 8. Heard the learned Advocate General for State of Telangana representing on behalf of the Standing Counsel for S.P.E. and A.C.B. Cases, Sri V. Ravi Kiran Rao and also heard Sri G. Mohan Rao, advocate representing the de facto complainant and heard the learned Senior Counsel Sri K. Ravindra Kumar,' representing the learned counsel on record for the quash petitioner by name, Sri Ravi Kumar Ponakampalli. Perused the material with reference to the attention of the Court drawn by the learned Advocate General mainly to Sections 173(1), (2) and (8) of Cr.P.C. and also perused the expression of the Apex Court placed reliance by the quash petitioner vide Criminal Appeal No. 1251 of 2011 in Joseph Salvaraj A. v. State of Gujarat dated 4-7-2011. 9. Perused the material with reference to the attention of the Court drawn by the learned Advocate General mainly to Sections 173(1), (2) and (8) of Cr.P.C. and also perused the expression of the Apex Court placed reliance by the quash petitioner vide Criminal Appeal No. 1251 of 2011 in Joseph Salvaraj A. v. State of Gujarat dated 4-7-2011. 9. Now the points for consideration are:- (1) Whether the charge sheet stated to have been filed is a final report as contemplated by Section 173(2) Cr.P.C. and by virtue of its filing and despite the endorsement of the learned Spl. Judge for SPE and ACB Cases on 11-8-2015, which reads as "to avoid multiplicity of proceedings, await supplementary charge sheet or final report" and it is in fact pursuant to their calling final charge sheet filed by the investigating officer for SPE and ACB Cases in the memo (supra), even mentioning in the very charge sheet that the investigation in the case is still pending against A-5 and others and the prosecution is intending to file supplementary charge sheet and also any other material which comes to light during further investigation against A-l to A-4 and others and the same will be filed by filing supplementary charge sheet? (2) If so, whether the quash petition proceedings impugning the Crime No. 11/ACB-CR/2015, has become infructuous as contended by the learned Advocate General and learned counsel for de facto complainant and if so with what observations? (3) To what result? Points 1 and 2: 10. As these points 1 and 2 are required to answer by common discussion, both taken up together. 11. At the cost of repetition, the memo filed on 6-11-2015 in C.F.R. No. 8616 of 2015 speaks the A.C.B. investigated the aforesaid matter and Filed the charge sheet before the learned Principal Special Judge for S.P.E. and A.C.B. Cases, Hyderabad, on 28-7-2015. In view of the above, Crl.P.No. 5520 of 2015 has become infructuous. In fact, the very charge sheet filed by the investigating officer of Special Public Prosecutor for S.P.E. and A.C.B. Cases, mentioned that the investigation is still pending against A-5 and others and the prosecution is intending to file supplementary charge sheet and also any other material which comes to light during further investigation against A-l to A-4 and others and the same will be filed by filing supplementary charge sheet. It is in fact pursuant to the said mention in the charge sheet as can be seen from the endorsement of the learned Principal Special Judge for S.P.E. and A.C.B. Cases on 11-8-2015 made it clear that it is to avoid multiplicity of proceedings, await supplementary charge sheet or final report. The memo is silent about said investigation is not complete as per very charge sheet supra and also the endorsement of the Magistrate/Special Judge of charge sheet not taken on file as stated further investigation is pending. 12. Section 173(2)(i) Cr.P.C. speaks as soon as investigation is completed, the officer in charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report The very wording of Section 173(2) Cr.P.C. is very clear of filing of a final report only after completion of the investigation. However, surprisingly in the very so called charge sheet filed by the investigating officer as referred supra, to avoid repetition, made a mention of investigation is still pending. On its face suffice to say the investigation is not completed by the investigating officer, as categorically mentioned by the investigating officer as also observed by the learned Special Judge. In fact, the objections filed against said memo of the quash petition proceedings has become infructuous, is one of the said ground at para 1 by the learned counsel for the quash petitioner. No doubt, the learned Advocate General not only brought to the notice of the Court Section 173(2) Cr.P.C. referred supra but also Section 173(8) Cr.P.C. The law is clearly settled by catena of the expressions of the Apex Court oil the scope of Section 173(8) CT.P.C. that it is not at the prerogative of the investigating officer/though from the wording as it appears it is only with the leave of the Magistrate concerned, who can take cognizance. It is in fact, commencing with word, "nothing in the Section shall be deemed to preclude further investigation in respect of an offence, after a report under sub-section (2) has been forwarded to the Magistrate." 13. The stress laid even under Section 173(8) Cr.P.C. is the report as contemplated by Section 173(2) Cr.P.C. and by further saying even after forwarded by filing a final report there is still as window is open. The stress laid even under Section 173(8) Cr.P.C. is the report as contemplated by Section 173(2) Cr.P.C. and by further saying even after forwarded by filing a final report there is still as window is open. It does not mean the investigating officer can incomplete the investigation and file as if a final report and say that he can still investigate and file a final report. Section 173(8) Cr.P.C. is meant to serve the public purpose because that is not the be all and end all irrespective of Section 173(2) Cr.P.C. says as be all and all. It is to thus clear that even after filing of the final report by completing the investigation as per the requirements of Section 173(2) Cr.P.C., if there is any further material it can be investigated with the leave of the Court. Thereby, when the very so called final report not a final report in the eye of law supra even so stated, from their own saying also admitted in the reply counter affidavit as reply to the objections of the quash petitioner saying what is the endorsement of the learned Special Judge also for not taken cognizance. It is also important to mention in this context that unless a final report is filed to take cognizance by the Magistrate or the concerned Special Judge, as the case may be and unless cognizance is taken thereof as contemplated by Section 190(i)(b) Cr.P.C. the copies cannot be supplied to the accused as contemplated either under Sections 207 or 208 Cr.P.C. without which the accused cannot put forth any defence either to seek discharge or to impugn the final report and the cognizance by filing a separate application. This is the back ground of the position of law and the facts in the case on hand to answer the points 1 and 2 for consideration to that extent as referred above. 14. In this context, this Court cannot miss to make a mention the judgment of the Apex Court earlier referred even in the recuse application in Crl.M.P.No. 5823 of 2015 viz., the expression of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437 . 14. In this context, this Court cannot miss to make a mention the judgment of the Apex Court earlier referred even in the recuse application in Crl.M.P.No. 5823 of 2015 viz., the expression of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437 . In this judgment, no doubt in para 5 it is observed "since, charge sheet has been filed and cognizance has been taken, and on the facts of this case, in our opinion, this is no a fit case for quashing F.I.R." Even in this expression, but for on the facts not chosen to quash from the final report filed as subsequent development even the quash petition is filed impugning the registering of the crime, the matter was disposed of dismissing the quash petition; there is no observation therein in saying a final on filing of final report as contemplated by Section 173(2) Cr.P.C. even perse not a ground to say that the quash petition impugning FIR is infructuous. In fact, in this Court, there are instances to say where even seeking quashment of the FIR police filed investigation final report and the cognizance taken and case number allotted, from there the accused is entitled to the copies enclosing Part-II Case Diary impugning after hearing both parties, this Court is giving a fresh remedy where they want to file a fresh quash petition instead of filing additional material in the pending quash petition, and otherwise where specifically required, to continue the quash petition herein by permitting as additional material with additional grounds from the subsequent development of final report filed. Here it is not such a case of first contingency supra, as the quash petitioner in Crl.P.No. 5520 of 2015 is objecting to the memo saying it is infructuous and also objecting to close as it is his say that several aspects raised in the quash petitioner required a decision, for very FIR wont survive. 15. Having regard to the above, this Court cannot close the matter or dismiss by holding as infructuous or to say there are any further remedies left open unless it is after hearing and if submitted by counsel for quash petitioner of FIR to take that remedy to close and give a further relief to impugn the final report with such observation. 16. 16. The learned counsel for the petitioner, as referred supra in support of his submission above, placed reliance on Joseph (supra); where it is observed, particularly from Para 11 of the judgment running into 29 paras, that quash petition is filed seeking to quash FIR bearing C.R. No. 1-371/2006 and sought by miscellaneous petition for stay of further investigation and the same was considered before the learned Single Judge of the High Court on 11-1-2007. By that time, in fact charge sheet was already filed before the competent criminal Court. Thus, the learned Single Judge was of the opinion that it was not a fit case to be entertained and refused to hear the petition on merits, even though the appellant was given liberty to file an application for his discharge before the trial Court. It is also observed by the Apex Court that the learned Single Judge emphasised that he has not considered the case on merits while dismissing and vacating the interim order, it is said order passed by the learned Single Judge dated 11-1-2007 of the High Court is subject matter of challenge before the Apex Court in the appeal. In answering the same, the Apex Court observed, the First Information Report is registered for the offences under Sections 406 and 420 IPC. The contentions in the quash petition from the allegations in the FIR disclose a civil dispute between the parties and the FIR is filed with an intent to harass and as summary civil suit also filed for recovery of money of ? 10 lakhs and it is there from contended and found the case FIR deserves to be quashed to prevent any abuse of process of law. On the other hand, it is contended by the complainant in the stay vacate petition that the learned Single Judge was fully justified in rejecting the quash petition by invoking Section 482 Cr.P.C. and in the appeal impugning the same it no way requires interference. On the other hand, it is contended by the complainant in the stay vacate petition that the learned Single Judge was fully justified in rejecting the quash petition by invoking Section 482 Cr.P.C. and in the appeal impugning the same it no way requires interference. It is in the light of the above, the Apex Court answered at paras 24 to 27 that thus from the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainants FIR Even if the charge sheet had been fed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainants FIR Charge sheet, documents etc., or not. In para 25 it is observed that from the opinion of the Apex court it is purely a civil dispute from the perusal of the material and continuation of FIR is abuse of process of law, in para 26, it is observed that the Courts would not permit a person to be harassed although no case for taking cognizance of the offence is made out as held in Devendra v. State of U.P., (2009) 7 SCC 495 and at para 27 it is observed about the guidelines of the Apex Court in State of Haryana v. Bhajan Ltd, 1992 (Suppl) 1 SCC 335, saying where seven cardinal principles are carved out for the offence said to have been committed by the accused is taken. It is there from concluded that the prosecution of the appellant for commission of the alleged offences is a clear abuse of process and quashed the proceedings of FIR even charge sheet subsequently filed. It appears same is reported as (2011) 7 SCC 759. 17. Having regard to the above, the FIR proceedings impugned in Crl.P. No. 5520 of 2015 no way become infructuous and the Court is bound to follow as per the law of the land of the Apex Court. Accordingly points 2 and 2 are answered. Point No. 3: 18. In the result, U.S.R. (Memo) No. 8616 of 2015 is rejected as the quash petition proceedings are not infructuous and the parties are directed to submit their respective submissions on merits of the matter with reference to the material on record. Accordingly points 2 and 2 are answered. Point No. 3: 18. In the result, U.S.R. (Memo) No. 8616 of 2015 is rejected as the quash petition proceedings are not infructuous and the parties are directed to submit their respective submissions on merits of the matter with reference to the material on record. 19. At request of the learned Advocate General, post on 20-1-2016.