Telangana High Court
Mohammad Mahaboob Ali Mapasha Ali ... vs The State Of Telangana on 6 February, 2023
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.1069 OF 2023
Between:
Mohammad Mahaboob Ali @ Mapasha Ali
@ Akram and others ... Petitioners
And
The State of Telangana,
Rep. by its Public Prosecutor,
High Court for the State of Telangana. ... Respondent
DATE OF JUDGMENT PRONOUNCED: 06.02.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 1069 of 2023
% Dated 06.02.2023
# Mohammad Mahaboob Ali @ Mapasha Ali
@ Akram and others ... Petitioner
And
$ The State of Telangana,
Rep. by its Public Prosecutor,
High Court for the State of Telangana ... Respondent
! Counsel for the Petitioner: Sri D.Bhaskar Reddy
^ Counsel for the Respondents: Sri S.Sudershan
Additional Public Prosecutor
>HEAD NOTE:
? Cases referred
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1069 OF 2023
ORDER:
The petitioners are aggrieved by the order of the Junior Civil
Judge-cum-Judicial Magistrate of First Class at Vemulawada in
Crl.M.P.No.298 of 2022 in Cr.No.224 of 2019 directing the
petitioners/A1 to A3 herein to appear before the concerned police
for the purpose of capturing photographs and video-graph.
2. The case of the prosecution is that these petitioners along
with others are liable for committing murder. During the course of
investigation certain CCTV footage was collected by the
investigating agency and deposited before the learned Magistrate. A
request was made by the police by filing a petition, seeking orders
of the Court to direct the accused to be present for the purpose of
taking photographs and video of the petitioners/A1 to A3 for the
purpose of comparison with the persons found in the CCTV footage
that was collected during the course of investigation.
3. Learned counsel appearing for the petitioners would submit
that a similar application was made by the police in Crl.M.P.No.880
of 2019 seeking direction by the Magistrate to allow taking of
photographs and video of the accused. The said Crl.M.P.No.880 of
2019 was dismissed by order dated 23.03.2021 and the very same
prayer cannot be permitted again. For the said reasons, directions
in the said impugned order have to be quashed.
4. On the other hand, Sri S.Sudershan, learned Additional
Public Prosecutor submits that there is no error that is committed
by the learned Magistrate in giving directions. Further, the case is
serious in nature and the investigation should go on and
accordingly, prayed to dismiss the petition.
5. As seen from the record, there was a prayer made by the
prosecution in Crl.M.P.No.880 of 2019. However, the learned
Magistrate has passed orders refusing the prayer and the operative
portion of the said order is as under:
"6. After going through the averments and hearing arguments
on both sides, this Court has observed the petitioner has filed
the petition without any specific provision. As such the petition
is not maintainable in the absence of specific provision. Hence
this Court is inclined to dismiss the petition.
7. In the result, this petition is dismissed."
6. The said petition was dismissed when the learned Magistrate
found that there is no provision that was mentioned by the
investigating agency for giving such directions.
7. Criminal Procedure (Identification) Act, 2022 came into force
from 18.04.2022. Sections 2 (1)(b) and 5 of Criminal Procedure
(Identification) Act, 2022 reads as follows:
"2(1) In this Act, unless the context otherwise requires,-
(a)....
(b) "measurements' includes finger-impressions, palm-print
impressions, foot-print impressions, photographs, iris and retina
scan, physical, biological samples and their analysis, behavioural
attributes including signatures, handwriting or any other
examination referred to in section 53 or section 53A of the Code of
Criminal Procedure, 1973.
5. Where the Magistrate is satisfied that, for the purpose of any
investigation or proceeding under the Code of Criminal Procedure,
1973 or any other law for the time being in force, it is expedient to
direct any person to give measurements under this Act, the
Magistrate may make an order to that effect and in that case, the
person to whom the order relates shall allow the measurements to
be taken in conformity with such directions."
8. Under Section 5 of the Act of 2022, when the Magistrate
is satisfied that for the purpose of any investigation or
proceeding, it is expedient to direct any person to give
measurement, Magistrate can make an order to that effect.
9. The order passed in Crl.M.P.No.880 of 2019 was not
made on facts but the Court found that there was no provision
that was mentioned. Mentioning or mentioning of wrong
provision in a petition is of no consequence, if the prayer made
in the application can be adjudicated by the concerned court
or has the power to pass orders in such an application.
Though the earlier application for taking photographs and
video of the accused was denied, the same will not bar the
court from allowing the application second time, when
admittedly earlier petition was dismissed only on the ground of
not mentioning provision of law and not on facts or law.
10. Learned counsel for the petitioners argued that the trial
Court should have resorted to Section 54-A of Cr.P.C and not
the present proceedings by directing the accused to give
photographs and video, cannot be accepted.
11. Under Section 54-A of Cr.P.C, when a person is arrested
on an allegation of committing an offence and his test
identification is considered necessary, the concerned court can
direct to hold test identification of such person. The present
case is that the police collected CCTV footage during
investigation and for the purpose of comparing and knowing
whether the persons seen in the said CCTV footage are the
accused or not, police had sought the photographs and video
of the accused. Such course can be adopted by the police and
the test identification parade under Section 54-A of Cr.P.C is
different from what is sought to be investigated by the police
by taking photographs and video.
12. Such course of investigation seeking an expert's help
would resolve the issues to know whether the persons found
in the CCTV footage are the petitioners/ accused or not. Either
way the investigation would be completed in the said aspect.
For the said reason, I do not find any infirmity in the order of
the learned Magistrate and the accused are directed to appear
before the police as directed by the learned Magistrate for the
purpose of giving photograph and video.
13. With the above direction, the Criminal Petition is
disposed off. Miscellaneous applications pending, if any, shall
stand closed.
__________________
K.SURENDER, J
Date: 06.02.2023
Note: LR copy to be marked.
B/o.kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1069 OF 2023
Dt. 06.02.2023
kvs
