Thursday, July 11, 2013

Police SI initially removes parents in 498a. Then suddenly file fresh ch sheet & adds them. HC quashes case against parents; HC clearly says "...Apart from irregularity, illegality and impropriety committed by the Sub Inspector of Police, it also casts shadow on his integrity**..." BUT there is NO punishment for the sub inspector !!!

Wife Ablaa Naari files 498a against husband and parents. Police SI conduct investigation, neighbors, witness etc say parents are UN connected with the dispute and so Sub inspector removes the names of parents from the charge sheet. Ch. Sheet filed in court and court takes cognizance. Then suddenly all by himself police sub inspector says he has done additional investigation and adds names of parents. Lower court also adds these names !! HC quashes the case against parents and also gives a good dose to the lower court 

This is what the HC has to say about the Sub Inspector !!
".... He made a clean U-turn about complicity of A-2 and A-3 in this offence.  Apart from irregularity, illegality and impropriety committed by the Sub Inspector of Police, it also casts shadow on his integrity...."


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High Court of Andhra Pradesh at Hyderabad 

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU                

Criminal Petition No.3533 of 2010

22-06-2010 

Lanka Vani and another 

State of AP., rep. By the Public Prosecutor and another.

Counsel for the Petitioner : Sri Ravindra Bharati

Counsel for the 1st Respondent:  Public Prosecutor

Counsel for the 2nd respondent:        --

:ORDER:  

        The petitioners  1 and 2/A-2 and A-3 in C.C.No.588 of 2009 on the file of II Additional Chief Metropolitan Magistrate, Vijayawada are questioning order dated 04.01.2010 of the lower court passed therein, by which the lower court permitted  filing of additional report as prayed for.  Originally, on report given by the 2nd respondent/defacto-complainant, Gannavaram  police of Vijayawada city registered case in Crime No.283 of 2009 for offence punishable under Section 498-A IPC against A-1 to A-3.  A-1 is husband of the defacto- complainant.  The petitioners 1 and 2/A-2 and A-3 are parents of A-1.  After investigation, the Sub Inspector of Police, Gannavaram police station filed charge sheet against A-1 only as sole accused in the lower court.  In the charge sheet/final report, it is stated that the investigating officer who is the Sub Inspector of Police caused enquiries in the neighbourhood at Visakhapatnam where the defacto-complainant lead marital life with A-1, and examined two witnesses and that the said evidence reveals that there is no substantial evidence available against the petitioners 1 and 2 who are mother-in-law and father-in- law of the 2nd respondent and that they are in no way concerned with harassment as stated by the 2nd respondent and that therefore, their names are deleted from the list of accused.  Further, it is stated in the charge sheet that witnesses Nos.6 and 7 of the charge sheet stated that A-1 was only harassing the 2nd respondent and that A-2 and A-3 are in no way concerned and they never involved in harassment of their daughter-in-law.

        While so, the same Sub Inspector of Police, Gannavaram Police Station filed memo in C.C.No.588 of 2009 in the lower court requesting  the lower court to treat A-2 and A-3 as accused  in addition to A-1 as they also harassed their daughter-in-law mentally and physically in demanding additional dowry; and requesting the court to finalise the case as per additional charge sheet filed in this case.  No provision of law is quoted in that memo by the Sub Inspector of Police.  It is stated in that memo that during the course of further investigation after filing of charge sheet and taking cognizance by the court, he made further enquiry about involvement of A-2 and A-3 at Gannavaram and examined four more witnesses and recorded their detailed statements in Part-II case diary.  It is not stated in the memo at whose instance, he made further investigation in this case after filing of final report/charge sheet under Section 173(2) Cr.P.C in the lower court and after it was taken cognizance by the lower court. No permission is taken by the investigating officer from the lower court for making further investigation.  

At this juncture, it would be appropriate to refer to Hasanbhai Valibhai Qureshi v. State of Gujarat1  of the Supreme Court dealing with the present situation and it was held therein:

"12. Sub-section (8) of Section 173 of the code permits further investigation, and even dehors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted.  All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted..

13. In Om Prakash Narang and another v. State (Delhi Admn.,), (AIR 1979 SC 1791 it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective  investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted.  It would ordinarily be desirable and all the more  so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial  since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts.  In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law."

        After surveying case law on this subject including the above mentioned reported judgment of the Supreme court in Hasanbhai, Single Judge of this Court in Chetti Krishna Rao Vs. State of A.P.,2 upheld filing of additional charge sheet  by C.I.D., against two more accused persons in addition to three accused persons who were already charge sheeted by the local police.  It was held therein:-

"There is no provision in the Code, which requires a permission of the Magistrate to be obtained by the investigating agency before making further investigation after having laid the charge-sheet at the culmination of investigation.  On the other hand, sub-section (8) of Section 173 of the Code posits that further investigation can be made by the investigating agency and the provision does not require a previous permission of the Magistrate. However the Apex Court in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, held that it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation. The position seems to be obvious.  Notwithstanding the fact that the provision germane in the context for consideration does not explicitly obligate the police to obtain necessary permission from the Magistrate for making further investigation, having regard to the fact that already the Court has taken cognizance of the offence on the charge-sheet filed by the investigating agency, the agency before making further investigation in this case is expected to obtain formal permission from the Magistrate in the interest of purity of the administration of criminal justice and in the interest of the comity of various agencies and institutions entrusted with different stages of such administration. The question germane for consideration is the effect of failure to obtain necessary permission from the a Magistrate by the investigating agency before making further investigation and fi8ling a supplement charge-sheet.  Illegality, if any, in the investigation, in my considered view, may not affect the merits of the case in the final analysis. It is for the Court to convince from the facts in a given case about the truth or otherwise of the charge levelled against the accused.  Anyway, such an illegality has to be considered by the Trial court while appreciating the evidence let in on either side in a given case, so as to see whether it a affects the merits of the case or not.  But, in my considered view, that illegality, if any, cannot be the ground to quash the proceedings at the threshold."

        Thus, legal aspect under Section 173(8) Cr.P.C is clear to the effect that even though law does not prescribe any prior permission to be taken by the police officer from the Magistrate who already took cognizance of the case for further investigation,  but it is ordinarily desirable that the police to inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent about the matter.    In Chetti Krishna Rao (2 supra) local police filed charge sheet against A-1 to A-3 for offence under Section 304-A IPC as they were responsible for death of the deceased, as  coach for swimming in Hotel Baskara Palace, Hyderabad, Assistant  Manager of Health Club and security guard in the hotel posted near the swimming- pool.  It was a case relating to death of a boy who went for coaching for swimming.  Not satisfied with investigation of the local police, father of the deceased put in a petition, on which C.I.D., took up further investigation and filed additional charge sheet after further investigation against A-4 and A-5 for offences punishable under Sections 201, 202, 304-A, 336 and 338 IPC, as they were also involved in that case as Director and Managing Director of Hotel Baskara Palace where the incident occurred.

But, in the case on hand, originally the petitioners 1 and 2/A-2 and A-3 were also shown as accused persons in FIR in Crime No.283 of 2009. After investigation, the  Sub Inspector of Police who was the Investigating Officer deleted names of A-2 and A-3 from this case and gave clean chit  to them on the ground that witness Nos. 6 and 7 who are residents of Visakhapatnam where the 2nd respondent lived with A-1 to A-3, ruled out complicity of A-2 and A-3 in harassing the victim woman/2nd respondent.  Now the same Sub Inspector of Police makes somersault  by filing additional charge sheet with a memo by including A-2 and A-3 also as accused persons on the ground that he examined four more witnesses during the course of further investigation.  In the original charge sheet, the Sub Inspector of Police did not state that he was making further investigation in the matter and did not indicate to the court that he would file record relating to further investigation in this case at subsequent point of time.  Further, in the memo filed along with the additional charge sheet, he did not mention any circumstances which prompted him to take up further investigation in this case after he filed charge sheet under Section 173(2) Cr.P.C.  This is not a case where any petition was filed by the defacto- complainant to any higher police officers who directed the investigating officer to make further investigation in this case.  This is not a case where another superior or special investigating agency took up further investigation in this matter and collected further evidence over and above the evidence collected by the Sub Inspector of Police. Admittedly, no formal permission was taken by the Sub Inspector of Police to make further investigation in this case from the lower court after his final report/charge sheet was taken on file.  Thus, apart from irregularity or illegality in not obtaining prior permission of the lower court for further investigation, there is gross impropriety on the part of the Sub Inspector of Police in taking up further investigation suo motu  and come to a conclusion which is quite opposite to the conclusion which he arrived at during the original investigation in so far as A-2 and A-3 are concerned.  He made a clean U-turn about complicity of A-2 and A-3 in this offence.  Apart from irregularity, illegality and impropriety committed by the Sub Inspector of Police, it also casts shadow on his integrity.  If such things are allowed to happen, then it would open flood gates of corruption to some of the police officers who are corrupt and unscrupulous to conclude investigation in one way after accepting bribe from one side and thereafter to come to a just opposite conclusion if the other side passes on the bribe.  In the interest of justice, such wide and unilateral discretion cannot be allowed to be exercised by the investigating police officer in the administration of criminal justice though he is part of criminal justice system.  He can exercise such power of further investigation under Section 173(8) Cr.P.C only after obtaining former permission from the Magistrate.

        In the case on hand, though the investigating officer/ Sub Inspector of Police did not take prior former permission from the lower court for further investigation, he wanted a post facto    approval or permission from the lower court by filing the present memo.  The lower court also in a hurried manner gave its seal of approval by simply perusing the record and without giving any reasons for such approval.  In my opinion, the lower court also did not properly exercise its jurisdiction of scrutiny.  The lower court did not address itself as to why  the police officer did not take formal permission of the court prior to entering upon further investigation.  This court is of the opinion that the Sub Inspector of Police simply abused provisions of Section 173(8) Cr.P.C.  It is evident that the Sub Inspector of Police has tilted from one side to another side on some extraneous consideration.  The lower court also did not exercise its jurisdiction on this subject properly and legally which resulted the police officer abusing process of law.

        Further, on merits, in the light of evidence collected by the investigating officer from witness Nos.6 and 7 mentioned in the charge sheet which is totally in favour of A-2 and A-3, no Court is going to accept contrary version which cropped up at later point of time.  Thus, on merits also A-2 and A-3 have got fair chances of success even if trial of the case is allowed to be taken up against them.  Allowing trial against A-2 and A-3 in the light of above circumstances and above state of evidence, would only amount to legal and procedural harassment to A-2 and A-3. Hence, proceedings in the lower court against A-2 and A-3 are liable to be quashed.

        In the result, the petition is allowed quashing proceedings against the petitioners 1 and 2 /A-2 and A-3 in C.C.No.588 of 2009 on the file of II Additional Chief Metropolitan Magistrate, Vijayawada.

?1 2004 AIR SCW 2063   

2 2005(2) ALD (Crl.) 1 (AP)