Dismissed

N. Aravind Kumar, v. The State of Andhra Pradesh

Telangana HC22 Sept 2014CRLRC/236/2013

Case brief

AI extract

What is this about?

In Criminal Revision Case No. 236 of 2013, the High Court of Andhra Pradesh dismissed the petitioner's challenge to the Sessions Judge's order allowing further investigation. The court upheld the Sessions Judge's view that it is the prerogative of the police to conduct further investigation under Section 173(8) Cr.P.C. to implead a juristic entity, noting that courts should not interfere with this

What did the court decide?

The revision petition was dismissed, confirming the order dated 16.10.2012 passed by the learned I Additional Metropolitan Sessions Judge, Hyderabad.

N. Aravind Kumar, Vs The State of Andhra… — Civil Procedure and Limitation | Telangana HC (2014)

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*HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO + CRIMINAL REVISION CASE No.236 of 2013

%22-09-2014

#N.Aravind Kumar

….Petitioner Vs.

$ The State of Andhra Pradesh, rep. by P.P and another

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…. Respondents

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!Counsel for the Petitioner : Sri A.Dattanand Counsel for the Respondent No.1 : Public Prosecutor Counsel for the Respondent No.2 : Mr.S.R.Sanku.

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<Gist :

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>Head Note:

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? Cases referred:

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1. AIR 2005 SC 2622 = (2005)4 SCC 530 2. 2014(1) ALT (Crl.) 100 (SC) 3. (2003)6 SCC 175 4. (2006)3 SCC (Cri) 245 5. AIR 1945 PC 18 6. (1974)4 SCC 522 7. (1977)4 SCC 451 8. (1980)1 SCC 554 9. (1992)4 SCC 305 10. 1992 Supp (1) SCC 335 11. (2001)6 SCC 181

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THE HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO

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CRIMINAL REVISION CASE No.236 of 2013

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ORDER:

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1) The Revision Petition is filed by the Petitioner/2^nd respondent/2^nd accused under Section 397 and 401 of Cr.P.C seeking to set aside the order dated 16.10.2012 in Crl.R.P. No.188 of 2012 on the file of I Additional metropolitan Sessions Judge, Hyderabad under which the revision filed by the Sultan Bazar Police through State was allowed by setting aside the order dated 09.04.2012 passed in Crl.M.P.no.550 of 2012 in C.C. No.450 of 2008 on the file of II Additional Chief Metropolitan magistrate Court, Hyderabad.

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2) The Petitioner herein is Accused No.2 and the 2^nd respondent herein is the defacto complainant in C.C. No.450 of 2008. The 1^st respondent-State filed Crl.R.P.No.188 of 2012 before the I Additional Metropolitan Magistrate, Hyderabad against the order of the learned II Additional Chief Metropolitan Magistrate in dismissing the application seeking to permit the Station House Officer, Sultan Bazar Police Station, Hyderabad to conduct further investigation under Section 173(8) Cr.P.C in Crime No.464 of 2007 of Sultan Bazar Police Station, Hyderabad.

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3) As the revision is allowed, impugning the same, the present revision is maintained.

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4) The factual matrix relevant in this regard from the complaint based on which the crime was registered are that the complainant (defacto) who is R-2 to the present revision was cheated by M/s.K.P.Jewellery and Gems represented by its Director (A-1) and Manager (A-2) of the entity, within the jurisdiction of Sultan Bazar Police Station. The police after investigation laid charge sheet by mentioning that A-1, the Director that was arrayed instead of the entity represented by him died and by charging A-2. The A-2 is facing trial from the charge framed.

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5) It is during the pendency of the trial, the Station House

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Officer, Sultan Bazar representing the State filed the application for further investigation seeking permission in Crl.R.P.No.188 of 2012 supra which ended in dismissal with reasons, the A-1 is director and not the entity and the personal action dies with and no L.Rs muchless successors of his estate liable for penal consequences.

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6) Whereas, the revision was allowed by the Court of Sessions by sitting against holding the trial Court has not returned the charge sheet to implead the K.P. Jewellery and Gems Private Limited as A-1. In fact, it was arrayed as A-1, the Director and A-2 Manager of the entity and the entity also involved in another case in Crime No.130/2007 and the evidence collected show selling spurious and fake stones collecting huge amounts and the defacto-complainant is one of the persons cheated in that process when the prosecution want to investigate further and filed charge sheet if necessary against the entity. It has to be permitted within the power of the prosecution to investigate under Section 173(8) Cr.P.C. The same is impugned now in the second revision with the contention in the grounds of revision that in the present crime further investigation is not permissible under law, that the prosecution has come with the petition only after the death of A-1 and the prosecution could have taken the steps to implead the accused earlier, that Section 173(8) Cr.P.C does not permit the police to take up investigation after cognizance has been taken and the ingredients of the complaint or the actions of the accused do not constitute any criminal offence as alleged and that the case is almost at the fag end of the trial and at the juncture taking the situation wherein the A-1 expired and the prosecution wants to drag the matter by the petition having not sought the said relief on his death and prayed to allow the revision.

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7) The learned counsel for the Revision Petitioner reiterated the same, whereas the contention of the learned Public Prosecutor as well as the defacto-complainant is that the lower revisional Court order

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permitting further investigation which in fact is the prerogative of the police to conduct is no way requires interference by this Court while sitting in revision against it and hence to dismiss the revision.

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8) Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor and perused the material on record.

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9) Now the points for consideration are :

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1. Whether the impugned order dated 16.10.2012 allowing the prosecution to conduct further investigation pertaining to the case in Crime No.464/2007 by the learned Sessions Judge requires interference by this Court and to what extent while sitting in revision against the impugned order?

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2. To what result?

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10) It is an undisputed fact that the complaint filed was by array of the entity M/s.K.P.Jewellers and Gems Private Limited besides others. The investigation conducted and charge sheet filed as that was taken cognizance in C.C. No.450 of 2008 out of the above crime No.464/2007 is by showing as if the Director of the entity died and the other person responsible is the Manager/A-2 i.e., the present revision petitioner of the entity. There is no reason or meaning as rightly observed by the learned Sessions Judge in non-array of the entity. The entity is a juristic person that can be represented by some human agency undisputedly which is the A-1 as its Director, though the A-1 and A-2 being the Director and Manager of the entity also for the acts responsible personally and individually even i.e., apart from the liability of the entity. Merely because there is a provision in the event of establishing the offence under Section 420 I.P.C with which the accused charged or to be charged is with imprisonment that does not immune the entity for prosecution. The controversy was resolved by the Five Judge Bench expression of the Apex Court in Standard

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Chartered bank V. Directorate of Enforcemen t^[1] with the observation in the crime relating to F.E.R.A and Income Tax and other

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Economic offences, the person defined in Section 11 I.P.C and Section 3(42) of the General Clauses Act were taken in aid saying the entity is a juristic person and when such is the case for the criminal prosecution of the entity no immunity from the prosecution can be given merely because it is the irrespective of offences for which punishment of imprisonment is mandatory and even then in such cases in lieu of imprisonment, fine can be imposed by the Court. Once the entity is thereby arrayed as accused for its criminal liability, somebody either Director or Manager or whoever other at the time of the relevant period of commission of the offence in-charge of its affairs that alone responsible personally also though the entity can be represented even the person of the relevant period otherwise entitled to represent breathed the last to array somebody in-charge of the present affairs to represent but for to say the subsequent representation is not liable for any penal consequences, but for the entity apart from personal liability of the then persons in-charge of its affairs relating to the crime. From this, now coming to the right of the police for further investigation, in the recent expression of Five Judge

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Bench of the Apex Court in Lalita Kumari V. Govt. of U.P^[2] held that F.I.R is pertinent document in criminal law to set the law in motion from point of view of enforcement and so far as the investigating authorities to obtain information of the alleged criminal activity and irrespective of what is contained in the police manuals that will not override in case of inconsistency to the provisions of Cr.P.C but for the Code that will prevail and it is the duty of the police to make a G.D entry, where there is no cognizable offence made out and treat the G.D even as F.I.R in appropriate case, where it discloses commission of a cognizable offence as held by the Apex Court in Superintendent of Police, C.B.I

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V. Tapan Kumar Singh^[3] and as such registration of F.I.R is mandatory though arrest of accused immediately not mandatory since these are two different concepts. Where the F.I.R in not disclosing a

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cognizable offence, a preliminary enquiry prior to the registration of F.I.R is valid as per Tapan Kumar Singh supra but for to say if no cognizable offence is made out in the information given, F.I.R need not be given immediately but for conducting a preliminary verification or enquiry for the limited purpose for ascertaining whether a cognizable offence has been committed and if the same discloses to register F.I.R. It speaks once there is a cognizable offence registration of F.I.R and investigation is mandatory on the part of the police which is within

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their prerogative. The Apex Court in Popular Muthaiah V. State^[4] held at para Nos.41 to 43 and 46 that investigation of an offence is a statutory power of the police. The State in its discretion may get the investigation done by any agency unless there exists an extraordinary situation for the High Court within its inherent power even to direct enquiry or through a particular agency and that power can be exercised by the High Court against the persons who are not accused at the stage of trial even after the trial is over and so far as the further investigation by the police concerned held at para No.48 that under Section 173(8) Cr.P.C, it is the prerogative of the investigating agency and once the investigating agency exercises the power under Section 173(8) Cr.P.C, the Court ordinarily should not interfere with such statutory power of the investigating agency. Further, Privy Council

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way back in King Emperor V. Khawaja Nazir Ahmed^[5] (under the old Criminal Procedure Code) held that the statutory power of the police to investigate cognizable offence could not be interfered with by the Courts generally. Same was the view endorsed by the Apex Court in the subsequent expressions viz., Jehan Singh V. Delhi Administration^[6] , Kurukshetra University V. State of Haryana^[7] , State of Bihar V. JAC Saldanha^[8] holding that investigation of criminal cases is a field exclusively reserved for the executive, through the police department, the superintendence over which vested in the State, the Courts and judicial process should not interfere at the stage

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of investigation generally. It was also held reiterating the same in Janata Dal V. H.S.Chaudhary^[9] and another expression in State of Haryana V. Chaudhary Bhajan La l^[10] that investigation of offences is a field exclusively reserved for police officers whose powers in that field are unfettered so long as the power of investigation into the cognizable offences is legitimately exercised. The Magistrate is now in the picture at all stages of the police investigation but he is not authorized to interfere with the actual investigation or to direct the police how that investigation is to be conducted. It was also observed that law of the Country did not permit even the accused to control or interfere with the investigation and collection of material process therein. Thus, within the prerogative when the investigating officer want to investigate further either to array the entity which was not originally; needless to say while taking cognizance by the time the accused entity arrayed in the offence by subsequent and further investigation if there is a bar of limitation for not to take cognizance that is a different thing within the prerogative of the Court with reference to factual matrix not to take cognizance or the like. But premature to decide or to control when the investigating agency want to investigate further against the entity or even to show the entity by whom to represent within the area of limited further investigation by intimating the fact to the Court practically though it is the application filed in the form of leave, no leave is contemplated for the right of the police to further investigate but for at best to treat the same as an intimation. The learned Magistrate failed to consider the scope in dismissing the petition that was rightly interfered by the lower Revisional Court by sitting against and as such for this Court in sitting against that lower revisional Court’s order according permission for further investigation, when it is the prerogative of the police the area and scope of investigation further for this Court, there is nothing to interfere. As the Apex Court in T.T.Anthoni V. State of Kerala^[11] in paras 18 and 19

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by interfering to scheme of Cr.P.C in relation to registration of F.I.R, commencement of investigation and completion and filing of final report, further held that even after final report filed and taken cognizance of the offences by Court on the chargesheet; if the investigating officer comes into possession any further information or material, he need not and shall not register fresh F.I.R but being empowered to make further investigation. Normally in fresh cases in leave of Court, he is obliged to forward the same with further report(s) which is the enabling provision from the import of Section 173(8) Cr.P.C. At para No.27 further observed that there cannot be any controversy on the scope of the provision which empowers the police to make further investigation and obtain further material and forward to the Magistrate with further report. It was also observed that even quashing of the second F.I.R either under Article 226 of the Constitution of India or Section 482 Cr.P.C, for further investigation, does not preclude further investigation in the original crime/F.I.R and to file further report under Section 173(8) Cr.P.C.

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11) In the result, the revision is dismissed by confirming the order dated 16.10.2012 in Crl.R.C.No.188 of 2012 passed by the learned I Additional Metropolitan Sessions Judge, Hyderabad. Pending miscellaneous petitions, if any, shall stand closed.

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__________________________ Dr. B.SIVA SANKARA RAO J,

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22^nd September, 2014 NOTE: L.R copy to be marked. (b/o)ksh

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[1] AIR 2005 SC 2622 = (2005)4 SCC 530 [2] 2014(1) ALT (Crl.) 100 (SC) [3] (2003)6 SCC 175 [4] (2006)3 SCC (Cri) 245 [5] AIR 1945 PC 18 [6] (1974)4 SCC 522

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[7] (1977)4 SCC 451

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[8] (1980)1 SCC 554

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[9] (1992)4 SCC 305

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[10] 1992 Supp (1) SCC 335

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[11] (2001)6 SCC 181

N. Aravind Kumar, v. The State of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

N. Aravind Kumar, v. The State of Andhra Pradesh

Case brief

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What did the court decide?

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