TMI Blog2010 (8) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... shable 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 Poorabhishikarn 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 Poorabhishikarn 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 A2 and A-3 are responsible for issuing Seva ticket in collusion with A1, why sanctioning authority has not included as co-accused. The Sub Inspector of Police represented the charge sheet on 12.05.2009 answering the above two objections in the following manner: 1) As per the written report of the pilgrim party K. Rajendra Prasad (LW. 1) the names of A2 and A3 are included, the said report clearly shows the role played by A2, A3. The investigation clearly reveals the involvement of A2, A3 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 sanctio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. 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. 9. 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. The lower court by order dated 14.06.2010 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 12. 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 Assista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmit a report to this Court and thereafter additional final report before the Magistrate under Section 173(8) Cr.P.C. 15. In Popular Muthiah v. State (2006) 3 SCC (Cri) 245, the Supreme Court quoting State v. Navjot Sandhu 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. 16. 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. R. Udhayakumar (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 ordered under Section 173(8) Cr.P.C. and not fresh investigation as such. 17. In Kishan Lal v. Dharmendra Bafna (2009) 7 SCC 685 the Supreme Court opined that order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 .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. 18. In Mithabhai Pashabhai Patel v. State of Gujarat (2009) 2 SCC (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 investig ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
