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Patangay Pramod Kumar vs State Of Telangana, Rep. By Its … on 27 April, 2017

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO

WRIT PETITION No.2639 OF 2017

27-04-2017

Patangay Pramod KumarPetitioner

State of Telangana, rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad, And others. Respondents

Counsel for the Petitioner : Sri K.Sai Babu

Counsel for the Respondent Nos.1 to 3: G.P. for Home (Telangana) Counsel for Respondent No.4: Party-in-person P.Savithabai @

Gist :

Head Note :

? Cases referred

1. AIR 2003 SC 2612
2. (2016) 3 SCC 135
3. (1996) 2 SCC 199
4. AIR 1963 SC 447
5. 1999 (3) Crimes 117 (SC)
6. AIR 2008 SC 1414 (2008) 3 SCC 674
7. 1991 (2) Crimes (HC) 313
8. 2008 (2) RCR (Civ) 652 2008 (1) KerLT 992
9. 1999 LawSuit (Bom) 389

THE HONBLE SRI JUSTICE A.RAMALINGESWARA RAO

WRIT PETITION No.2639 OF 2017

ORDER:

Heard learned counsel for the petitioner, learned Government
Pleader for respondents 1 to 3, the fourth respondent in person. The
mother of the fourth respondent filed W.P.M.P.No.11927 of 2017 seeking
to implead herself as fifth respondent as she was also arrayed as
accused in the crime and the petition was ordered. The counsel for the
fifth respondent is also heard.

The case of the petitioner is that his marriage was performed on
26.05.2010 and the fourth respondent was practising as an advocate at
the time of marriage. At the time of marriage, the fourth respondent and
her mother represented that the date of birth of the fourth respondent is
08.08.1981 by showing their family ration card, but the date of birth of the
petitioner is 08.05.1980. In view of date of birth shown to the petitioner, he
married the fourth respondent. The fourth respondent applied for a
passport showing the date of birth as 08.08.1981 before marriage and the
same was issued to her. On the basis of the evidence of the passport, the
fourth respondent obtained learner’s licence in November, 2010 and also
applied for permanent two wheeler licence in December, 2010. In all the
above documents, her date of birth was shown as 08.08.1981. But
thereafter he came to know that the actual date of birth of the fourth
respondent is 26.02.1969. In those circumstances, he filed O.P.No.1279
of 2011 before the Family Court, City Civil Courts, Hyderabad, under
Section 12(1)(c) and 13(i)(i-a) of the Hindu Marriage Act for annulment of
his marriage with the fourth respondent on the ground of fraud or
alternatively, for dissolution of marriage on the ground of cruelty. The
fourth respondent filed her counter on 24.09.2013 in the said petition
admitting her date of birth as 26.02.1969 and stated that she gave
necessary papers to her father to obtain passport and she received the
passport with an incorrect date of birth. The petitioner’s father gave a
written complaint to the third respondent for taking action against the
fourth respondent and her mother and when no action was taken, a
private complaint was filed before the XI Metropolitan Magistrate under
Section 200 CrPC and the same was referred to the third respondent for
investigation. On receipt of the said complaint, the third respondent
registered it as F.I.R.No.527 of 2014 dated 07.11.2014 against the fourth
respondent and her mother, the fifth respondent for an offence under
Sections 211, 417, 419 and 420 IPC. The fourth respondent and her
mother filed criminal petition Nos.2478 and 2480 of 2015 to quash the
F.I.R., registered against them. They are pending. In view of the failure of
the third respondent to conduct investigation, the petitioner filed
W.P.No.15920 of 2015 seeking a direction to the third respondent to
complete the investigation in a time bound manner and the said writ
petition was disposed of 17.07.2015 directing the third respondent to
complete the investigation and file a report within three months from the
date of receipt of copy of the order. The investigation revealed that the
fourth respondent obtained the passport by filing a false affidavit before
the Passport Authority stating that she was illiterate and her date of birth
as 08.08.1981 on the basis of the family ration card containing the said
date. She obtained the passport in 2010. She was not illiterate as she
obtained B.Com., L.L.B., and L.L.M.degrees. The fourth respondent and
her mother gave false dates of birth even in the biodata given to
Community Matrimonial Souvenirs of 2004 and 2005 stating her date of
birth as 08.08.1977. After investigation, the third respondent filed a
charge sheet against the fourth respondent and her mother on
15.10.2015 for the offences under Sections 198, 199, 406, 420 IPC and
Section 12(1)(b) of the Passports Act and the said charge sheet was
taken cognizance vide C.C.No.1203 of 2015 dated 31.10.2015 by the
Court. Summons were issued to the fourth respondent and her mother.
Though a charge sheet was filed under Section 12(1)(b) of the Passport
Act, no sanction from the competent authority was filed. The petitioner
states that as a de facto complainant, he filed a petition before the learned
Magistrate under Section 302 of Code of Criminal Procedure (CrPC) to
permit him to conduct prosecution in the said case and he was permitted.
Challenging the said order, the fourth respondent filed a revision before
the learned II Additional District Judge, Ranga Reddy District, and the
matter is pending. He sent a letter through his counsel to the third
respondent on 15.11.2016 requesting the third respondent to obtain
proper sanction from the concerned authority and to file it in the pending
C.C.No.1203 of 2015, but the third respondent informed him that they
need not obtain permission from the learned Magistrate for further
investigation as the cognizance of the charge sheet was already taken by
the learned Magistrate.

The petitioner states that the power to sanction was delegated by
the Central Government to the State Government under the Passports Act
by Government Order vide Notification issued in G.S.R.662 (E), Ministry
of External Affairs, Government of India, dated 01.02.1979, and thus, the
first respondent is the competent authority to issue necessary orders
under Section 12 of the Passports Act.

The fourth respondent filed a separate counter affidavit indicating
the conduct of the petitioner in filing the petition and with regard to the
controversy in the case. She stated that her actual date of birth is
08.08.1981 only, but the date mentioned in the academic qualification is
another. So far as application for passport is concerned, it was the
petitioner who immediately after engagement applied for the passport
through an agent under the guise of taking the fourth respondent to
abroad for honeymoon. The application and other forms were never filled
up by her, but everything was filled up and arranged by the petitioner
himself, with an intention to involve her in criminal case in future. On
coming to know of the wrong date of birth and fraud played by the
petitioner, the passport was revoked. She further stated that it is the
responsibility of the petitioner to obtain sanction, but he managed the
third respondent to file charge sheet by including the provisions of law,
which were not alleged by the petitioner himself in his complaint. In fact,
the complaint was a counter blast to her complaint in Crime No.498 of
2014 before the same police station. There is a collusion between the
petitioner and the third respondent. The other allegations against her
were denied, but she made several allegations against the petitioner.
Since this Court is not concerned with all the allegations, they are not
reproduced here. She only stated that against the order in
Crl.M.P.No.1474 of 2015 permitting him to prosecute the case on his own,
the learned II Additional District Judge, Ranga Reddy District granted stay
in Criminal Revision Petition No.159 of 2016. She stated that the Civil
Supplies (Ration) Card contains the date of birth of all her family
members and the same would be indicating that she was born on
08.08.1981 only.

Learned counsel for the petitioner relied on Union of India v
Prakash P.Hinduja and Pooja Pal v Union of India and submitted that
this Court alone can direct the third respondent to obtain sanction and file
it before the competent Court and the present writ petition is
maintainable.

Learned counsel for the respondents 4 and 5 submits that the
present writ petition is not maintainable as no direction can be issued to
the third respondent to obtain sanction. The learned Government
Pleader, on the other hand, submits that the petitioner has to approach
the concerned Criminal Court and obtain necessary orders from the same
Court, but not by filing the present writ petition.

The points that arise for consideration in the present case is
whether this Court can direct the third respondent to obtain an order of
sanction in the pending prosecution against the fourth respondent under
Section 12(1)(b) of the Passports Act in C.C.No.1203 of 2015. In view of
the fact of taking cognizance of the case by the competent Court, whether
a writ of Mandamus can be issued to the third respondent for obtaining
sanction.

Section 12 of the Passports Act deals with the offences and
penalties and Section 15 of the said Act states that no prosecution shall
be instituted against any person in respect of any offence under the Act
without the previous sanction of the Central Government or such officer
or authority as may be authorised by the Government by Order in writing
in this behalf. Now it is stated by the learned counsel for the petitioner
that the Central Government authorised the State Government to issue
sanction under Section 15 of the Passports Act. Admittedly, no sanction
was obtained and a charge sheet was filed before the learned
XI Metropolitan Magistrate, Ranga Reddy District, where C.C.No.1203 of
2015 is pending.

Admittedly Section 15 of the Passports Act bars institution of the
case for violation of the provisions of the Passports Act before the
competent Court without obtaining proper sanction. Chapter XIV of the
CrPC deals with the conditions for initiation of proceedings. The
cognizance of offence by the Magistrates is provided under Section 190
thereof. In the instant case, the investigating officer completed the
investigation and submitted a report. The case was taken cognizance by
the learned Magistrate.

In Prakash P.Hinduja, the Central Bureau of Investigation (CBI)
registered a case and proceeded to investigate the matter. Thereafter, it
submitted a charge sheet No.1 under the provisions of IPC and
Prevention of Corruption Act in the Court of the Special Judge, New
Delhi. It was stated therein that the investigation concerning the role of
the Prakash Hinduja and others is continuing. The cognizance of the
offence was taken by the learned Special Judge and case was registered
in his Court. Thereafter, a supplementary charge sheet was submitted
against the said Prakash Hinduja and others. Thereafter, Hinduja, one of
the accused, moved an application before the Special Judge praying that
the charge sheet submitted by the CBI be dismissed and the cognizance
taken and process issued against the accused be revoked on the ground
that the case was never reported to Central Vigilance Commission (CVC)
and as such, there was no compliance of the directions issued by the
Supreme Court in the case of Vineet Narain v Union of India . The
application was rejected by the Special Judge. Against the said order, a
petition was filed before the High Court of Delhi under Section 482 CrPC
by the accused. The High Court held that in view of the mandate of the
Supreme Court, the Special Judge ought not to have entertained the
charge sheet filed in violation of the directives and accordingly allowed
the petition. The cognizance taken by the learned Special Judge and all
consequential proceedings were quashed. Against the said order, the
Union of India through CBI and CVC preferred the appeals to the
Supreme Court. While dealing with the power of the High Court under
Section 482 CrPC, the Supreme Court observed that there are some
statutes which create a bar on the power of the Court in taking
cognizance in absence of sanction by the competent authority like
Section 6 of the Prevention of Corruption Act, 1947 or Section 19 of the
Prevention of Corruption Act, 1948. Since the order of the High Court
does not refer to such a bar or an observation that the F.I.R., did not
disclose cognizable offence and since it was based on the only ground
that the opinion of CVC was not obtained, the Supreme Court considered
the issue whether the Court can go into the validity or otherwise of the
investigation done by the authorities charged with duty of investigation
under the relevant statutes and whether any error or illegality committed
during the course of investigation would vitiate the charge sheet so as to
render the cognizance taken thereon invalid. The Supreme Court held on
a reading of the provisions contained in Chapter XII of CrPC indicates
that there is no power vested in the Magistrate to interfere with the
investigation. Then it considered whether the High Court can exercise its
inherent powers. The Supreme Court noticed that once investigation is
completed and the investigating officer submits report requesting the
Court to take cognizance of the offence under Section 190 of CrPC, its
duty comes to an end. On the cognizance of the offence being taken by
the Court, the police function of the investigation comes to an end and
the adjudicatory function of the judiciary to determine whether an offence
has been committed and if so, whether by the person or persons charged
with the crime by the police in its report to the Court and to award
adequate punishment according to law for the offence proved to the
satisfaction of the Court commences. The Supreme Court also observed
that there is no similarity between mere executive order requiring prior
permission or sanction for investigation of the offence and the sanction
needed under the statute for prosecution. The requirement of sanction for
prosecution, when provided in the very statute which enacts the offence,
the sanction for prosecution is a pre-requisite for the Court to take
cognizance of the offence. On the facts of that case, the Court came to
the conclusion that absence of sanction from CVC before filing charge
sheet did not vitiate the investigation.

In the instant case, sanction is required under the statute for
prosecution and the Court has taken cognizance without submitting the
proper sanction.

The other decision relied on by the learned counsel for the
petitioner in Pooja Pal does not deal with the issue of taking cognizance
without obtaining proper sanction and hence, has no relevance to the
facts of the case. There is no quarrel with the proposition laid down in
State of West Bengal v S.N.Basak relied on by the learned counsel,
wherein it was held that the police has the statutory right to investigate
into the circumstances of any cognizable offence without order from a
Magistrate, but on the ground that the police have a right to investigate,
which right includes the filing of the charge sheet along with the requisite
sanction, this Court cannot direct the police to obtain sanction and it is for
the concerned Magistrate to return the charge sheet for lack of sanction.
The decision in Sri Bhagwan Samardha Sreepada v State of A.P. , only
states that the police have right to make further investigation by obtaining
prior permission from the Court. This case is not for further investigation
but absence of sanction. There is no direct authority for the issue raised
in the instant case.

The decision relied on by the learned counsel for the respondent
in Suresh Nanda v CBI is a case which dealt with the powers of the
passport authority vis–vis the general provisions of CrPC, wherein it
was held that the special law prevails over general law. There cannot be
any quarrel with the said proposition but the said decision does not throw
any light on the question that is being considered by this Court. The
decision in Chonary Ahmed Kutty v Special Police Establishment
deals with the point of limitation. Similarly the decision in Aboo
Chettaiyanthodi v Regional Passport Officer and Yogesh Indukumar
Patel v Union of India are the cases relate to the facts involved in the
present case, but they do not throw a light on the point raised in the
present writ petition. The other decisions are also inapplicable to the facts
of this case.

In view of the above legal position, no writ of mandamus can be
issued on the facts of the case to the investigating officer to obtain
sanction after the trial Court had taken cognizance of the offence, which
cognizance is invalid on the face of it. The only course left open to the
learned Magistrate is to return the charge sheet for not obtaining proper
sanction for proceeding with the case and for presentation of charge
sheet along with requisite sanction. It is for the investigating officer to
obtain necessary sanction and what the investigating officer is going to
do after the charge sheet is returned by the concerned Magistrate cannot
be predicted at this stage and it is open to the petitioner to take
appropriate proceedings as and when the cause of action arises.

The writ petition is accordingly dismissed. Miscellaneous petitions,
if any pending, in the writ petition, shall stand closed.

_
JUSTICE A.RAMALINGESWARA RAO
27.04.2017

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