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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
K. Sreenivasa Reddy, J.
Golla Syamala - Petitioner
Versus
State of AP. - Respondent
Criminal Petition No. 3954 of 2018
Decided On : 15-06-2022
Indian Penal Code, 1860 - Sections 419 and 420 - Passports Act, 1967 – Section 12 (1) (d) - Code of Criminal Procedure, 1973 - Section 482 – Offence of Cheating – Change of name in passport – Quash of Order - Alleged that as old passport of petitioner/accused was misplaced somewhere, with a view to obtain a new passport, with criminal intention, petitioner/accused came down to Tanuku and started residing in house bearing D, Municipal Office Road, Old Town, Tanuku, and changed her name as Bonam Maha Lakshmi and impersonated in name of Bonam Maha Lakshmi. Thereafter, she applied for a new passport vide application in name Bonam Maha Lakshmi, and said application was sent to Special Branch, Tanuku area for enquiry - Once Magistrate has taken cognizance on basis of earlier report and process has been issued and the accused entered into appearance in response thereto. At that stage, neither Magistrate suo motu nor on an application filed by complainant, further investigation can be ordered. Such a course of action would be open only on request of investigating agency, and that too, in circumstances warranting further investigation on detection of material evidence only to secure fair investigation and trial. (Para 8)
Finding of the Court: Once the Magistrate has taken cognizance on the basis of the earlier report and process has been issued and the accused entered into appearance in response thereto - In case on hand, investigation in subject Calendar Case has been completed and jurisdictional Court had taken cognizance of offence, and after entire full-fledged trial had taken place and when case is posted for judgment, the learned Magistrate, suo motu, directed for further investigation - It is axiomatic that once Magistrate has no power to refer case to police for further investigation, the impugned order passed by learned Magistrate would be void ab initio. Once cognizance has been taken, Magistrate would be bereft of any competence to direct further investigation either suo motu or acting on request/prayer of complainant/ informant.
Result: Criminal Petition allowed.
JUDGMENT :
This Criminal Petition, under Section 482 of the Code of Criminal Procedure, 1973, is filed to quash the Order dated 12.03.2018 passed in C.C. No.1051 of 2016 on the file of the II Additional Judicial Magistrate of First Class, Tanuku.
2. A charge sheet has been filed as against the petitioner for the offences punishable under Sections 419 and 420 of the Indian Penal Code, 1860 (for short, ‘IPC’) and 12 (1) (b), 12 (1) (d) and 12 (3) of the Passports Act, 1967. The learned Magistrate took cognizance of the case and framed charges against the accused for the offences punishable under Sections 419 and 420 IPC and 12 (1) (d) of the Passports Act, 1967. After completion of trial, the matter was heard on 05.03.2018 and posted to 12.03.2018 for judgment. On 12.08.2018, the learned Magistrate passed the impugned Order observing that investigation was not done in all material aspects, which shows that it is incomplete investigation, and accordingly, directed the Inspector of Police, Tanuku Town Circle to further investigate the case and file report.
3. Brief facts of the case that led to filing of the present Criminal Petition are as follows:
It is alleged that as the old passport of petitioner/accused was misplaced somewhere, with a view to obtain a new passport, with criminal intention, the petitioner/accused came down to Tanuku and started residing in house bearing D.No.6-3-12, Municipal Office Road, Old Town, Tanuku, and changed her name as Bonam Maha Lakshmi, w/o. Satyanarayana Murthy and impersonated in the name of Bonam Maha Lakshmi. Thereafter, she applied for a new passport on 10.05.2016 vide application No.VS2069241268316 in the name Bonam Maha Lakshmi, s/o. Satyanarayana Murthy, resident of H.No.6-3-12, Municipal Office Road, Tanuku, and the said application was sent to Special Branch, Tanuku area for enquiry. After verification, petitioner/accused received a passport with impersonated name Bonam Maha Lakshmi, w/o. Satyanarayana Murthy vide passport No.N8448330 with date of issue 13.05.2016. However, on receiving information that her real name is Golla Syamala, w/o. Rajasekhar, she had earlier a passport, she went abroad and returned, and in respect of that, a report was lodged, in Tanuku Town police station on 27.07.2016 at 9.30 PM, requesting to take necessary action against her. Pursuant to the same, case in crime No.173 of 2016 of Tanuku Town police station was registered, and after completion of investigation, charge sheet was filed, which was taken on file by the learned Magistrate as C.C. No.1051 of 2016. After completion of trial, when the case was posted for judgment, the impugned order came to be passed by the learned Magistrate directing the police to conduct further investigation on the ground that the investigation done by the Investigating Officer is incomplete. Aggrieved by the same, the present Criminal Petition is filed.
4. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for respondent-State.
5. Learned counsel for the petitioner relied on a decision in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others, (2017) 4 SCC 177) the Hon’ble Supreme Court held as under: (paragraph No.49)
Once cognizance has been taken, Magistrate would be bereft of any competence to direct further investigation either suo motu or acting on request/prayer of the complainant/ informant.
The Magistrate has the power to order further investigation even after cognizance is taken and accused appears, if the facts of the case demand so, in the interest of justice and to avoid miscarriage....
A Magistrate cannot direct further investigation after taking cognizance and the accused person appears pursuant thereto, as per the legal principles established by the Hon'ble Supreme Court.
The Magistrate cannot treat a case as a complaint after taking cognizance based on a charge-sheet; further investigation rights lie with the police.
The Magistrate cannot retroactively classify a case as a complaint after taking cognizance based on an investigation report, as further investigations are solely under the police's purview without re....
The main legal point established in the judgment is that the police have the right to conduct further investigation even after the submission of the charge sheet before the Magistrate, and there is n....
The main legal point established in the judgment is that further investigation is a statutory right of the police under Section 173(8) of Cr.P.C, and formal permission from the Court is required if t....
The investigation agency has the statutory right to conduct further investigation under Section 173(8) of the Code of Criminal Procedure without seeking permission from the Magistrate.
The Magistrate cannot order further investigation suo motu after taking cognizance, and can only do so in exceptional circumstances upon the request of the investigating officer.
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