Iqbal Ahmed vs C B I Scb
2022 Latest Caselaw 5144 Kant

                                                       R
 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22 N D DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.538 o f 2014


BETWEEN:

Iqbal Ahmed ,
S/o Late K. Abdul Khader
Aged about 49 years
R/at No.3/2, III Cross
Marapp a Garden, J.C. Road
Beng aluru-560002.                       ...Petitioner

(By Sri Hashmath Pasha, Senior Counsel, for
Smt. Budrannisa, Advocate)

AND:

C.B.I. SCB
Chennai-600001.                          ...Respondent

(By Sri P. Prasanna Kumar, Advocate)

      This Criminal Revision Petition is filed under
Section 397 of Cr.P.C. p raying to set aside the
judgment and ord er of conviction and sentence and
fine imposed/passed by the XVII A.C.M.M., Bang alore,
vide judgment d ated 27.11.2012 passed in C.C
No.33940/2011 and further b e pleased to set aside
the Judgment passed by the XXXII Addl. City Civil and
S.J. and Spl. Jud ge for CBI cases, Bangalore passed in
Crl. A No.761/2012 vid e Judgment d ated 30.04.2014
and further be p leased to acquit the petitioner.

    This Criminal Revision Petition having been
heard & reserved on 18.02.2022, coming on for
                             :: 2 ::


pronouncement this d ay, the Court pronounced the
following :


                           ORDER

The accused, convicted and sentenced for the

offences under sections 419, 420, 468 and 471 of

IPC, and section 12(1)(b) of the Passports Act,

1967, is the petitioner here.

2. That on 22.1.2009, the Inspector of

Sampigehalli Police Station received information

that some persons were involved in creation of

forged and fabricated passports for the purpose of

human trafficking and that they would be

approaching the employees of the IBM Company,

Manyata Tech Park, Bengaluru, for preparing

documents in the name of fictitious names. The

Inspector secured two panchas, formed a team

consisting of police constables, head constables

and Assistant Sub-Inspector and went to that

place around 4.00 p.m. As they kept watch, they :: 3 ::

saw five persons alighting from a red colour Maruti

Zen car. A person sitting next to the driver got

down from the car and told three other persons in

Hindi language to go inside the office of IBM and

enquire about the persons who were in need of

passports and visas. The police team entertained

suspicion, surrounded the car and all those

persons and subjected them to search. They could

recover a passport bearing number G2999124 from

a person called Syed Iqbal. That passport showed

that it had been used multiple times for visiting

countries viz., Malaysia, Singapore, Canada,

China, America, etc. The police team also

recovered some other items such as letter heads

of various offices, application for issuing tourist

visas, blank applications for obtaining visa etc.

Seizing all the items, the inspector drew up a

mahazar, arrested and brought them to Police

Station. Then he gave first information report to

the SHO as per Ex.P.1 and took up investigation.

:: 4 ::

During investigation, one of them gave voluntary

statement disclosing the involvement of Iqbal

Ahmed, i.e., the petitioner herein and then

brought the inspector to the house of the

petitioner. The petitioner was thus arrested and

brought to Police Station at 9.00 p.m. In the

presence of the panchas personal search of the

petitioner was conducted. The petitioner had with

him a passport bearing No.H1924155 and it was

seized by drawing a mahazar as per Ex.P.2. The

petitioner gave voluntary statement which led to

recovery of another passport bearing No.F9608954

that he had kept in his house. In this regard a

seizure panchanama was drawn as per Ex.P.6.

Thereafter the investigation was handed over to

CBI which filed the charge sheet against the

petitioner. After trial, the XVII Additional Chief

Metropolitan Magistrate: (Special Court for CBI

cases): Bengaluru, convicted the petitioner for the

offences aforesaid. The petitioner then preferred :: 5 ::

an appeal to the Court of Additional City Civil and

Sessions Judge and Special Judge for CBI cases,

Bengaluru. By judgment dated 30.04.2014, the

Sessions Court dismissed the appeal and thus the

petitioner has filed this revision petition.

3. I have heard the arguments of Sri.

Hashmath Pasha, learned senior counsel for the

petitioner and Sri. P.Prasanna Kumar, learned

counsel for the respondent. The elaborate

submissions made by learned counsel will be

referred to later, but Sri Hashmath Pasha mainly

raised the following points for being answered :

              (i)     FIR   was     not    registered    soon

     after          receiving       information         about

commission of cognizable offences and

therefore entire investigation was

vitiated.

(ii) Seizure of the passport Ex.P.5 is

not legally proved.

:: 6 ::

(iii) The prosecution failed to prove

that the petitioner used the alleged fake

passport, Ex.P5 and thus petitioner's

conviction for this offence under section

12(1)(b) of the Passports Act and other

IPC offences does not stand.

(iv) Mere marking of sanction order,

Ex.P21, did not amount to its proof, the

authority who issued sanction ought to

have been examined.

(v) While examining the petitioner

under section 313 Cr.P.C., he was not

questioned regarding sanction, therefore

this part of the evidence is required to be

eschewed, and thus the petitioner would

be entitled to be acquitted.

    (vi)    The   officer     who     lodged     FIR

himself    conducted    major        part   of   the

investigation     and         therefore      whole

investigation was vitiated.
                                 :: 7 ::

(vii) As the entire investigation was

done without following the procedure

established under law, the conviction of

the petitioner offends Article 21 of the

Constitution of India.

Point No. (i)

4. On this point, it was the argument of Sri

Hashmath Pasha by referring to the judgment of

the Supreme Court in Lalita Kumari vs

Government of Uttar Pradesh and Others

[(2014) 2 SCC 1], that PW1 received definite

information about a crime being committed when

he was in police station, therefore he should have

registered FIR before going to spot. The

information can be said to be definite because PW1

secured two panchas for taking them to spot.

Evidence of PW1 clearly shows that Syed Iqbal and

four others were subjected to personal search,

that they were also arrested and FIR was :: 8 ::

registered thereafter in the police station. In this

view, even though the petitioner was arrested

subsequently, entire action taken against him was

vitiated. Sri P.Prasanna Kumar countered this

argument by submitting that the information that

PW1 received was not a definite information; the

police informant gave the information to PW1 and

in that view it was not necessary that PW1 should

have registered FIR. He further submitted that

before the petitioner was arrested, FIR had been

registered and in this view the petitioner cannot

complain of non-registration of FIR.

5. The facts held to be proved disclose that

PW1 received information from his informant and

then he, along with his team went near the office

of IBM company at Manyata Tech Park, that he and

his team apprehended five persons, subjected

them to search, seized certain items, and brought :: 9 ::

them to police station. Thereafter FIR as per

Ex.P1 was registered.

6. The judgment of the Supreme Court in

Lalita Kumari must be properly understood. The

clear ratio laid down is that whenever information

discloses commission of a cognizable offence,

registration of FIR is mandatory. The sentence in

section 154(1) Cr.P.C commences thus, "Every

information relating to commission of a cognizable

offence ............." That means, by the time

information is given to a police officer, offence

should have been committed. It is in this context

that Lalita Kumari obligates a police officer to

register FIR first before taking up investigation.

Registration of FIR is a mandatory requirement to

rule out possibility of embellishments,

improvements and exaggeration of events in

course of time. A similar question arose before

me in the case of Tasleem N.P. vs State of :: 10 ::

Karnataka [2020 SCC Online KAR 1533], and it

was held that,

"10. Examined whether the ratio in Lalita Kumari (supra) is applicable in a situation where a police officer only receives a credible or secret information about an offence which is about to be committed, I may with great respect observe that the primary duty of police is to prevent an offence from happening; immediately after receiving the information, a police officer has to proceed to spot for averting the crime, and taking such other measures as the situation demands. In Lalita Kumari (supra), the focus is on the duty of Station House Officer once he receives information about commission of offence, that means the information should disclose a crime being already committed. And in such a situation, if the crime is cognizable, the Station House Officer is bound to register FIR without wasting time. But the secret information does not disclose a crime being committed, it only alerts the police about a crime which is about to occur. The police officer who receives such information has to proceed to spot for :: 11 ::

preventing the crime or to take such other measures that the situation demands. Thereafter if he prepares a report, it may be treated as FIR for further course of action. Sometimes, offences do take place in the presence of the police officer. In such a situation, his first duty is to arrest the accused and collect the evidence, and not registration of FIR".

7. The argument of Sri Hashmath Pasha was

that definite information was given to PW1.

Evidence does not disclose a definite and

unambiguous information being given to PW1.

What he has stated is that on 22.1.2009 at 3.00

PM, he received information that some persons

were running a racket of forged and fabricated

passports for the purpose of human trafficking.

True, in Ex.P1 it is written that PW1 received

definite information, and this sentence in Ex.P1

and also that securing of panchas are the reasons

for Sri Hashmath Pasha to argue like that. But

this line of argument cannot be considered, :: 12 ::

because PW1 did not receive any information that

an offence had already been committed before he

proceeded to take action based on informant's

message. Mere securing of panchas before going

to spot does not lead to an inference that

information was definite. In a decision of the

Constitution Bench of the Supreme Court in the

case of Mukesh Singh vs State (Narcotic

Branch of Delhi) [(2020) 10 SCC 120] it is

held,

"3.9. A cryptic message on telephone etc. which under the NDPS Act is similar to the information provided by a secret informer etc. cannot therefore constitute an FIR. It is only after recoveries are effected and/or arrests made, information regarding commission of a cognizable offence crystallises. After such handing over, the role of a Section 42 officer comes to an end, except he has to make a report of his action to his superior officer within 48 hours under :: 13 ::

      Section     57     of    the        NDPS     Act.   For    all
      practical     purposes,              the     time        when

Section 42 officer hands over the person arrested or the goods seized, is the first- time information is received by the "investigating officer" and that is the time of commencement of investigation.

Heavy reliance is placed upon the decisions of this Court in the cases of H.N. Rishbud v. State of Delhi AIR 1955 SC 196 and Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1."

(emphasis supplied)

8. Therefore, it is not necessary to register

FIR whenever a police officer receives information

over the phone or in some other way about an

offence which is likely to take place. Rather it is

the duty of the police officer to take immediate

measures to prevent the crime from happening, or

if committed in his presence, to take action

according to section 41 of Cr.P.C, FIR may be

registered later on.

:: 14 ::

9. The facts on hand further disclose that

only after registration of FIR, action against the

petitioner was initiated. Therefore, the argument

of Sri Hashmath Pasha, on this point, cannot be

accepted.

Point No. (ii)

10. Ex.P5 was the passport that the

petitioner obtained by giving false information that

his name was Shaik Hussain. Both the courts have

held that the petitioner obtained it by giving false

information. This finding cannot be interfered with,

but Sri Hashmath Pasha raised a legal issue that

seizure of Ex.P5 was not in accordance with law.

To make it more clear, his argument was that

Ex.P5 came to be recovered based on confession

statement said to have been given by the

petitioner. Mere marking a portion in the

confession statement leading to discovery is not

sufficient, and unless recovery based on disclosure :: 15 ::

is legally proved, inculpatory inferences against an

accused cannot be drawn. He submitted that when

an independent witness to seizure panchanama for

recovery of Ex.P5 turned hostile, evidence of PW1

alone was not sufficient. He also argued that PW1

did not speak the very same words that are

marked as Ex.P4, a portion of confession

statement.

11. Sri P.Prasanna Kumar argued that seizure

of Ex.P5 has been legally proved. Ex.P4 shows

disclosure statement of the petitioner who himself

led PW1 to his house and produced Ex.P5. Though

PW8 turned hostile, he gave a clear admission in

the cross-examination that he had deposed falsely

to help the accused, and this admission would

establish that he was very much present when

Ex.P5 was seized.

12. The argument of both the counsel about

the evidence of PW8, if considered and discussed, :: 16 ::

would go to the realm of appreciation of evidence

which is not usually permitted in revisional

jurisdiction. Therefore even if evidence of PW8 is

ignored, there remains evidence of PW1. The

argument of Sri Hashmath Pasha on the evidence

given by PW1 regarding seizure Ex.P5 touches the

aspect of appreciation of evidence. Therefore, it is

enough just to opine here that there is no rule as

such that testimony of investigating officer should

not be believed without corroboration from

independent witness. It is not necessary that an

investigating officer should repeat verbatim the

portion of confessional statement leading to

discovery of a fact which is within the knowledge

of the accused. If the testimony of investigating

officer is trust worthy, it can be acted upon, and

this principle is well settled. Hence, the argument

of Sri Hashmath Pasha on this point also fails.

:: 17 ::

Point No. (iii)

13. On this point, Sri Hashmath Pasha

argued that the offences under sections 419, 420,

468 and 471 do not constitute at all as the

essential ingredients of these offences are not

present in the charge sheet and that the

prosecution failed to prove that Ex.P5 was used by

the accused. He argued that proof provided by the

prosecution is not beyond reasonable doubt.

According to him, there is no evidence to show

that the petitioner used the passport Ex.P5, that

there is no evidence that he forged the passport

and that probability in defence evidence is not

considered at all.

14. Sri. P. Prasanna Kumar argued that both

the trial court as also the appellate court have

held that offences against the petitioner have been

proved beyond reasonable doubt. The concept of

proof beyond reasonable doubt cannot be :: 18 ::

stretched too long that providing proof should not

become an impossibility. In this regard, he

referred to the judgment of the Supreme Court in

the case of Bhagwan Jagannath Markad and

Others vs State of Maharashtra [(2016) 10

SCC 537]. He further argued that Ex.P5 contains

immigration seals of various countries, and these

seals indicate that the petitioner visited many

countries using Ex.P5. If he did not use it, he

alone should have given explanation as to how

Ex.P5 came to be stamped by the immigration

department of several foreign countries. He

argued that section 106 of the Evidence Act is

applicable in a situation like this. Therefore

burden was more on the petitioner than the

prosecution.

15. I find force in the argument of Sri. P.

Prasanna Kumar. Ex.P3 is the genuine passport of

the petitioner and Ex.P5 is the fake passport. The :: 19 ::

petitioner has tried to offer some explanation for

coming into existence of Ex.P5 which the courts

below have held to be not acceptable. It is not as

though the trial court has not discussed the

evidence regarding the use of Ex.P5; there is a

discussion on it. Defence evidence is also

considered. Ex.P5 contains visa stampings and

they indicate that the petitioner visited many

foreign countries. If the petitioner did not use

Ex.P5, he alone should explain as to how it could

be stamped by immigration authorities of different

countries. Rightly section 106 of the Evidence Act

can be employed in a situation like this. Since

there is no explanation, inference under Section

114 of Evidence Act can be drawn that the

petitioner might have used Ex.P5 for visiting

different countries. In the case of Prithipal

Singh and Others vs State of Punjab and

Another [(2012) 1 SCC 10], it is held as below :

:: 20 ::

"Burden of proof under Section 106:

53. In State of W.B. v. Mir Mohammad Omar this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are :: 21 ::

particularly within the knowledge of the accused."

16. The offence under Section 12(1)(b) of

the Passports Act gets constituted if a person

obtains a passport or travel document by giving

false information or suppresses a material

information for obtaining a passport or travel

document or without lawful authority alters or

attempts to alter the entries in a passport or

travel document. The evidence available on record

which the courts below have held to have been

proved and which cannot be disturbed in revisional

jurisdiction show false information being provided

by the petitioner for obtaining passport as per

Ex.P5. In fact what is found is that the petitioner

obtained his genuine passport, Ex.P3 after he

obtained Ex.P5. In this view, there is evidence for

holding that the offence under section 12(1)(b) of

the Passports Act was committed.

:: 22 ::

17. If the case is further examined whether the

courts below are justified in convicting and sentencing the

petitioner for the offences under sections 419, 420, 468,

471 of IPC, it may be stated that based on the evidence

placed by the prosecution, it has been rightly held that all

these offences are constituted. Shaikh Hussain is not the

real name of the petitioner and that he applied for

passport as per Ex.P5 in the name of Shaikh Hussain

affixing his photograph. It is a case of personation.

Intention to cheat is also forthcoming. Cheating finds its

meaning in section 415 and its essential ingredient is

causing inducement dishonestly or fraudulently for

delivery of any property to any person. Therefore sections

419 and 420 are constituted. The passport as per Ex.P5

was obtained by providing or making false information.

Petitioner has used Ex.P5 for visiting many countries and

in this view offences under sections 468 and 471 are also

constituted.

:: 23 ::

18. In regard to proving the case beyond

reasonable doubt, it may be stated that every

doubt pointed out by an accused cannot be said to

be reasonable. As the word 'reasonable' indicates,

the doubt pointed out must strike the prosecution

case at its root. Any amount of explanation for

removing the doubt must appear to be insufficient

and the doubt must still remain. Therefore the

Supreme Court has observed in the case of

Bhagwan Jagannath Markad and Others

(supra) as below :

" 18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two :: 24 ::

conditions - (i) when a person feels absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain".

The degree of proof need not reach certainty but must carry a high degree of probability."

(emphasis supplied)

19. In the case of Suresh Chandra Jana vs

State of Bengal and Others [(2017) 16 SCC

466] it is held :

"16. It may be mentioned that it is not every doubt but only a reasonable doubt of which benefit can be given to the accused. A doubt of a timid mind which is afraid of logical consequences, cannot be said to be reasonable doubt. The :: 25 ::

experienced, able and astute defence lawyers do raise doubts and uncertainties in respect of evidence adduced against the accused by marshalling the evidence, but what is to be borne in mind is -

whether testimony of the witnesses before the court is natural, truthful in substance or not. The accused is entitled to get benefit of only reasonable doubt, i.e. the doubt which rational thinking man would reasonably, honestly and conscientiously entertain and not the doubt of a vacillating mind that has no moral courage and prefers to take shelter itself in a vain and idle scepticism. The administration of justice has to protect the society and it cannot ignore the victim altogether who has died and cannot cry before it. If the benefits of all kinds of doubts raised on behalf of the accused are accepted, it will result in deflecting the course of justice. The cherished principles of golden thread of proof of reasonable doubt which runs through web of our law should not be :: 26 ::

stretched morbidly to embrace every hunch, hesitancy and degree of doubt."

(emphasis supplied)

20. Therefore, the argument that the

prosecution has failed to prove its case beyond

reasonable doubt cannot be accepted.

Point No. (iv)

21. The argument of Sri Hashmath Pasha was

that the prosecution failed to prove that it

obtained sanction as required under section 15 of

the Passports Act for prosecuting the accused.

Though the prosecution produced sanction order as

per Ex.P21, its mere production does not amount

to proof. The competent authority who issued the

sanction order should have been examined. Since

he was not examined, the petitioner lost an

opportunity of questioning him whether or not he

had applied his mind before passing sanction

order. In this view, entire prosecution is vitiated.

:: 27 ::

In support of his argument, he placed reliance on

the judgment of the Supreme Court in the case of

Narbada Devi Gupta vs Birendra Kumar

Jaiswal and Another [AIR 2004 SC 175]. Sri

P.Prasanna Kumar countered this argument by

arguing that the defence did not dispute the

sanction order when PW10 was cross-examined;

and no question was put to him disputing

genuineness of Ex.P21. The validity of sanction

because of non-examination of the authority who

granted it, was not questioned before the trial

court and also the appellate court. Moreover,

Ex.P21 was issued by the competent authority and

its issuance cannot be doubted at all. He

submitted that for the first time, the point

regarding sanction could not be raised.

22. I do not think that the argument put forward by

Sri Hashmath Pasha can be accepted. It is true that

section 15 contemplates obtaining of sanction before :: 28 ::

initiating prosecution against a person; it is a question of

law. But whether it was issued by the competent

authority or whether there was application of mind by the

competent authority before passing sanction order, is a

question of fact. In this view, once sanction order was

produced and marked; and if its validity was not

questioned before the trial court and also the appellate

court, it cannot be questioned in the revision.

23. Mere marking is not a proof is a general

principle of appreciation of evidence. According to Section

62 of the Evidence Act, primary evidence means document

itself. If a document is produced, and if its execution is

disputed, then the principle "mere marking of a document

does not amount to proof" is applicable. The person who

executed a document or its attestors must be examined.

In the case of Narbada Devi (supra) the admissibility of

three rent receipts arose for consideration. The defendant

contended that he was a tenant and in support of his

claim, he produced the rent receipts which were disputed :: 29 ::

and in this context, it was held that mere production and

marking of a document could not be held to be due proof

of its contents. To give one more illustration, in a suit for

specific performance based on agreement of sale, proof of

agreement of sale arises if very execution of the

agreement is disputed. If execution is not disputed, its

production and marking is sufficient. So far as sanction

order is concerned, it is not a document like rent receipt

or agreement of sale or lease deed. It is issued by a

competent authority as a statutory requirement and it is

an order. In this view, sanction order stands on a

different footing when compared to other documents as

aforementioned. If the very issuance of sanction order is

disputed, or if the stand of the accused is that the

competent authority has not applied his mind before

passing sanction order, then it may be said that the

competent authority issuing the sanction is to be

examined, else it is not necessary. In this case sanction

order as per Ex.P21 was produced by PW10, the

investigating officer who took over investigation from :: 30 ::

PW1. If the entire cross-examination of PW10 is seen,

there is no suggestion that the competent authority did

not issue it. Ex.P21 is not disputed at all. It appears that

even the genuineness of Ex.P21 was not taken as a

ground of argument before the trial court or the appellate

court. In this view, a question pertaining to factual aspect

cannot be raised for the first time in the revision court.

Moreover, with regard to issuance of sanction order, the

presumption according to section 114(e) of the Indian

Evidence Act can be drawn. In this context, I find it useful

to refer to the judgment of the Andhra Pradesh High Court

in the case of M.Srinivasulu Reddy vs State Inspector

of Police, Anti Corruption Bureau [1993 Crl.LJ 558]

where it is held that,

"When the Government accords sanction, Section 114(e) of the Evidence Act raises a presumption that the official acts have been regularly performed. The burden is heavier on the accused to rebut that statutory presumption. Once that is done then it is the duty of the prosecution to produce necessary :: 31 ::

record to establish that after application of mind and consideration thereof to the subject and grant or refusing to grant sanction was made by the appropriate authority."

Therefore, this argument of Hashmath Pasha is thus

not acceptable.

Point No. (v)

24. It was the argument of Sri Hashmath

Pasha that while examining the petitioner under

section 313 Cr.P.C, the evidence given by PW10

with regard to obtaining of sanction order as per

Ex.P21 was not put to him for his explanation and

therefore this part of the evidence is to be

eschewed. If the evidence is thus eschewed,

Ex.P21 goes out of picture and thereby the

petitioner will become entitled to acquittal for

want of sanction. Sri Prasanna Kumar submitted

that if for any reason the petitioner was not

questioned on evidence given by PW10 with regard :: 32 ::

to sanction order as per Ex.P21, the accused

cannot be acquitted. He further submitted that

omission to put a question to accused under

section 313 Cr.P.C does not vitiate the entire trial.

He also submitted that this question was not

raised in the trial court or the appellate court and

for the first time it is being raised in the revision.

If that question was so material, even now the

petitioner or his counsel can be questioned. In

this regard, he has gathered support from two

judgments of the Supreme Court namely State

[Delhi Administration] vs Dharampal [(2001)

10 SCC 372], State of U.P. vs Raghuvir and

Another [(2018) 13 SCC 732], and a judgment

of a Division Bench of this court in the case of

Anand @ Anand Thorat and Another vs CBI

Police [ILR 2018 KAR 487].

25. This ground is also not available to the

petitioner. It may be stated that if the law :: 33 ::

obligates the prosecution agency to obtain

sanction, it is a statutory requirement. The

reason for obtaining sanction is to avoid frivolous

prosecution and that is the reason why the

authority competent to grant sanction should apply

his mind to the evidence collected by the

investigator to decide whether sanction can be

granted or not. Sanction order is produced before

the court to prove that statutory requirement is

met with. The sanction order is not incriminating

evidence against the accused. Section 313 Cr.P.C

contemplates putting such kind of questions to

accused in regard to circumstances as appear

against him in the evidence. That means

evidence staring at the accused should be brought

to his notice to enable him to give explanation.

Assuming that there is valid sanction and that the

competent authority is also examined before the

court, it cannot be said that based on such

evidence, the accused can be convicted. All that :: 34 ::

the competent authority through his order of

granting sanction states is that he is convinced

about existence of materials for prosecuting the

accused, but it is not inculpatory material against

the accused.

26. What happens if the accused is not

questioned with regard to a particular

circumstance at the stage of section 313 Cr.P.C, is

exhaustively examined by the Supreme Court. In

the case of Dharampal (supra) it is held,

"13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material, has occurred that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused :: 35 ::

has as regards the circumstances established against the accused but not put to him".

27. In the case of Raghuvir (supra) it is

held,

"11. Moreover, for relying upon the opinion of the ballistic expert, the High Court observed that no question was put to the accused under Section 313 Cr.P.C about ballistic expert report (Ex. A14). The object of Section 313 Cr.P.C. is to put a circumstance against the accused so that he may meet out the prosecution case and explain the circumstances brought out by the prosecution to implicate him in the commission of the offence. If any circumstance had not been put to the accused in his statement, the same shall be excluded from consideration. Of course, this is subject to a rider whether omission to put the question under Section 313 Cr.P.C. has caused miscarriage of justice or prejudice to the accused. As pointed out earlier, in the case in hand, recovery of gun from the accused Prem Yadav and the ballistic expert's opinion (Ex. A14) is only a :: 36 ::

corroborative piece of evidence strengthening the prosecution case as established by the oral testimony of eye witnesses PW-1 and PW-2. Even assuming that the question regarding the ballistic expert's evidence has not been put to the accused under Section 313 Cr.P.C., in the facts and circumstances of the case in hand, it must be held that it has caused no prejudice to the accused. In our considered view, the High Court was not right in brushing aside this formidable circumstance against accused Prem Yadav."

28. The Division Bench of this court in the case of

Anand @ Anand Thorat (supra) has referred to the

judgment of the Surpeme Court in the case of Narsing vs

State of Haryana [(2015) 1 SCC 496] where it is held as

below :

"30.1. Whenever a plea of non-

compliance with Section 313 Cr.P.C is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for :: 37 ::

deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer".

29. Thus it is clear now that omission to put a

question to accused under section 313 Cr.P.C, unless it is

demonstrated that it has resulted in miscarriage of justice

or the interest of the accused is prejudiced substantially,

cannot be considered to be a good ground for upsetting

the judgment of conviction. If the omitted question is so

material, the appellate court can put the question to the

accused or his counsel and seek explanation. This being

the position of law, I do not think that Sri Hashmath Pasha

has raised a valid ground.

Point No. (vi)

30. On this point Sri Hashmath Pasha argued that

PW1 lodged FIR after completing panchanama and he

himself undertook investigation. Though the investigation

was handed over to CBI at a later stage, major part of the :: 38 ::

investigation was completed by PW1 and that the CBI did

nothing but filing charge sheet. That means entire

investigation was conducted by PW1 who was also a

informant, in this view investigation was vitiated. The

counter argument of Prasanna Kumar was that there was

no bar that the officer who lodged FIR could not undertake

investigation. The bar applies when there is personal

interest on the part of the investigating officer being the

informant or complainant. The accused must demonstrate

bias in investigation or otherwise it cannot be said to be

bad. He has placed reliance on the judgment of the

Supreme Court in the case of Mukesh Singh vs State

(Narcotic Branch of Delhi), [(2020) 10 SCC 120].

31. Many a time it so happens, especially in cases

where raid is conducted on receipt of a secret or credible

information from the police informants, the police officer

has to go to spot for averting the offence being committed

or to apprehend the persons involved in commission of

offence and to seize the objects or things. With the :: 39 ::

seizure of materials connected with crime, almost entire

investigation comes to an end and what may remain is to

obtain report from the laboratory or experts. If after

seizure, FIR is registered and the very same police officer

sends the seized materials to laboratory for chemical

examination or to the opinion of experts, is it possible to

say that investigation is vitiated.

32. Nextly, to say that the informant police officer

cannot undertake investigation, it is necessary that the

personal interest possessed by the investigator or bias in

him towards the accused, should be demonstrated. If the

investigation is free of bias and prejudice, there is nothing

wrong in the same officer continuing the investigation

after lodging FIR. To illustrate, supposing a theft takes

place in the house of the police officer and he makes a

report of the same for registration of FIR and if he

undertakes investigation of his own case, then the

question of personal interest arises. In that event

investigation is vitiated as he cannot investigate his own :: 40 ::

case. In Mukesh Singh (supra), the Supreme Court has

made the point very clear thus :

"12.2. Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record. Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal generalisation".

33. Sri Hashmath Pasha has not been able to

demonstrate as to how the interest of the petitioner :: 41 ::

suffered and was prejudiced on account of investigation

undertaken by PW1 being the informant. Therefore this

ground of argument cannot be accepted.

Point No. (vii)

34. The argument of Sri Hashmath Pasha was that

right from the beginning, that is, from the stage of

registration of FIR till conclusion of investigation, the

investigator did not follow the procedure established under

law and thus Article 21 of the Constitution was offended

resulting in impairment of personal liberty of the

petitioner. His elaborate argument was that the

investigation was undertaken without registration of FIR,

that the petitioner was subjected to prosecution without

valid sanction and that unnecessarily charge sheet was

filed for the offence under section 12(1)(b) of the

Passports Act without there being proof for using of the

fake passport as per Ex.P5. On the other hand, Sri

Prasanna Kumar argued that Article 21 of the Constitution

cannot be applied here for there is no infringement of :: 42 ::

personal liberty of the petitioner as the entire

investigation was undertaken in accordance with the

procedure.

35. There is no need to give elaborate reasons on

this point in view of discussion on points No. (i) to (vi).

Article 21 applies when personal liberty of a person is

deprived without following the procedure. There is a great

lot of difference in no procedure being followed and

infraction in the procedure. While following the procedure,

if a mistake occurs or if there is infraction, it cannot be

said that personal liberty is affected unless the person

complaining of violation of Article 21 demonstrates as to

how his liberty is affected substantially or his interest is

prejudiced affecting liberty. Moreover investigation

involves various stages; though investigation procedure is

prescribed, degree of comprehension of facts,

circumstances and situations during investigation varies

from person to person involved in investigation; so many

empirical aspects will emerge during investigation, and :: 43 ::

therefore investigation cannot be fit into an Euclidean

formula. It is quite natural that an accused, ably assisted

by a seasoned lawyer, may try to find fault in the

procedure followed, but the courts must be very

circumspect when such issues are raised. In this case

procedure has been followed and even there is no

infraction in it. Hence, this point of argument also fails.

36. The alternative argument of Sri Hashmath Pasha

was that in case this court would come to conclusion that

the petition is not to be allowed, the petitioner may be

given the benefit under the provisions of Probation of

Offenders Act taking into consideration the age of the

petitioner. The trial court has examined why Probation of

Offenders Act cannot be applied. I find that reason

tenable. Therefore this benefit cannot be given. In the

result, this petition fails and it is dismissed.

Sd/-

JUDGE ckl