K.Ellangovan @ Ilangovan v. The State (Ut Of Andaman And Nicobar Islands)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE UDAY KUMAR CRR/40/2024 K. Ellangovan @ Ilangovan ... Petitioner
Versus
The State And another ... Respondents For the petitioner : Mr. Deep Chaim Kabir, Sr. Adv.
Mr. S. Ajith Prasad Mrs. Monisha Ganguly For the State : Mr. Sumit Karmakar For the opposite party No. 2 : Ms. Yasmeen Begum Heard on : 04.12.2024, 05.12.2024 & 06.12.2024 Judgment on : 13.12.2024 UDAY KUMAR, J.
1.
The petitioner prays for quashing of :
The proceeding of GR Case No. 1755 of 2018 arising out of Central Crime station Police Station Case No. 255 of 2018 dated 29.09.2018 under section 354/354 A/506 of the Indian Penal Code, and ii) Consequent charge sheet being No. 03 of 2022 dated 25.01.2022 under the same sections pending
before the learned Chief Judicial Magistrate, Port Blair, and iii) The order passed on 27th July, and 04.10.2021 whereby learned Chief Judicial Magistrate has directed for reinvestigation of the case and iv) The order dated 21.02.2022 whereby learned Chief Judicial Magistrate has taken cognizance of the offence under section 354/354 A/506 of the IPC. 2.
Learned advocate for the petitioner submits that petitioner was posted at Bambooflat PS under Andaman & Nicobar Police Force as SI of Police where he received a source information against Uttam Kumar Dhali that He was involved in an act of drug trafficking. ii) He cultivated cannabis at his house iii) He acted as a peddler to the tourist.
3.
Based on the said information he conducted raid in the house of the Uttam Kumar Dhali on 23.04.2018. Komal Lalit Kumar Solanki, OP No. 2 was present there at that time. She obstructed the petitioner in discharging his official duties and threatened him to implicate in a false case of rape and molestation. The petitioner informed the incident to the SDPO Havelock and registered Neil PS Case No. 14 of 2018 dated 24.04.2018 under section 20 (A) of NDPS against the accused person Uttam Kumar Dhali and charge sheet was submitted
after investigation, upon which special case No 55 of 2019 was started against them, which is still pending before the Court of learned Special Judge Port Blair.
4.
But the incident of raid offended Uttam Kumar Dhali and OP No. 2. Out of anger she raised allegation against the petitioner to SP, DGP, CS. The said complaint was entrusted to SDPO for inquiry, who given him clean chit.
5.
Subsequently, on 27.08.2018 she filed a complaint under section 156 (3) of Cr.P.C to the court of learned Chief Judicial Magistrate for a direction on the SHO, PS Neil Islands for registration of FIR under Section 354, 354 A, 342, 162 A of IPC against the S.I. K Ellangovan @ Ilangovan. On the direction of learned Chief Judicial Magistrate. FIR was registered and matter was investigated into. After investigation FRT 2 of 2019 was submitted on 28.10.2019 due to lack of evidence was submitted by Station House Officer, P.S. C.C.S. in C.W.G. R. Case No. 1755 of 2018 and the same was informed to OP No. 2 for filing Narazgi petition, if any. Accordingly one application for further investigation was filed by SHO, PS CCS on 27.07.2021 upon which learned Chief Judicial Magistrate has given fresh direction for reinvestigation of this case to SHO, PS CCS. During reinvestigation the statement of OP No. 2 Komal Lalit Kumar Solanki was recorded under Section 164 of Cr.P.C. on 23.08.2021 and of Uttam Kumar Dhali on 31.08.2021. On 04.10.2021 second Narazgi petition was filed by complainant,
OP No. 2 seeking direction for reinvestigation upon which direction for reinvestigation was given to SHO, PS CCS by learned Chief Judicial Magistrate. Reinvestigation culminated into Charge sheet No. 03/2022 dated 25.01.2022 under Sections 354/354 A/506 of the Indian Penal Code was submitted on 21.02.2022 upon which learned Chief Judicial Magistrate has taken cognizance of the offence. 6.
It is specific case of petitioner that out of malice of DGP he has been falsely implicated in this case. DGP got offended to him as he sent complaint against him, to the Lieutenant Governor and the Chief Secretary on 25.07.2021, for his acts of continuous harassment to him. A day after the complaint, one Narazgi petition was filed, is sufficient to decipher their nexus. On his instruction, the FRT filed earlier, due to lack of evidence was converted into charge sheet. Now, what new they got this time which compelled them to file Charge sheet; even after ignoring of opinion of learned Public Prosecutor recorded earlier. 7.
He also stated that OP No. 2 has malice continuously against him since 23.04.2018, the day on which conducted raid at the house of Uttam Kumar Dhali.
8.
As a result he has been of maliciously implicated in this case as it appears from :
the order of reinvestigation of G. R. 1755/18 was ordered on the Narazgi petition filed on 27.07.2021.
ii) permission for recording of statement of Uttam Kumar Dhali and Komal Lalit Kumar Solanki under Section 164 of Code of Criminal Procedure after 03 years of the occurrence.
iii) Submission of charge sheet after 02 years from the date of submission of Final Report.
iv) everything became active at once a day after making complain to LG and CS against DGP on 25.07.2021 for his continuous harassment by DGP to show malice of his department against him. The entire proceeding is illegal as there is no provision in Criminal Procedure Code for passing an order in respect of reinvestigation of a case. Undoubtedly, reinvestigation was initiated out of malice and conspiracy.
9.
In support of his contention learned advocate for the petitioner relied on paragraph 40 and 51 of decision of Vinubhai Haribhai Malviya vs. State of Gujarat reported in AIR 2019 Supreme Court 5233, wherein it has been stated that the power of Magistrate in terms of Section 173 (2) read with Section 173 (8)and Section 156 (3) of the Code has been analysed and held that :
The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) in the case initiated on the basis of a police report.
ii) A Magistrate has the power to direct further investigation after filing of a police report in terms of Section 173 (6) of the Code. As per principle laid down in Bhagwant Singh vs. Commissioner of Police (1985) 2 SCC 537.
10.
The Magistrate has power to direct further investigation of presentation of report in terms of Section 173 (2) of the Code. Any other approach or interpretation would not be in contradiction to the vary language of Section 173 (8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach particularly when in terms of Section 190 of the Code, the Magistrate is competent authority to take cognizance of an offence.
11.
Per contra, learned public prosecutor has submitted that charge sheet has been filed after proper investigation. The delay in filing narazgi petition was caused due to absence of OP No. 2 who had been to her native place at Maharastra.
ii) Allegations are real. The finding of Investigating Officer or the order of cognizance was never challenged. iii) Magistrate has ample power to give direction for further investigation.
iv) This matter is fix for framing of charges, let it be decided on trial.
v) By filing this Revisional application, he is trying to cause delay to defeat the interest of OP No. 2. vi) There is no illegality, impropriety and irregularity in the case. Let this matter be decided by the trial Court. Why is he afraid to face the trial? So this petition is deserved to be dismissed with cost.
12.
In reply, learned advocate for the petitioner submits that absolute power for reinvestigation is not invested to the authority of magistrate. Only High Court could enjoy this authority under Section 482 of the Cr.P.C. He also relies on the doctrine of 'fruit of poison tree' i.e. if tree is poisonous the same would be the fruit. The wrong procedure followed by prosecution would affect his case. Court works in accordance with the provision of law not on emotion. So he prayed for quashing of the proceeding initiated there upon.
13.
The main question involved in this Revisional application to decide that whether Magistrate has power to give direction for reinvestigation or de novo investigation or not? 14.
The Power of Magistrate to give order for further investigation is vested under Section 173 (8) of the Cr.P.C, but the order for further investigation can be passed only on the request of the investigating agency and that too in circumstance
warranting further investigation for detection of material evidence to secure fair investigation and Trial. 15.
Undoubtedly, Magistrate has power to give order for further investigation, but this section does not provide him any power to pass order for reinvestigation. Further investigation and reinvestigation are two different things. Order for further investigation can only be passed if there is chance of getting some material evidence. Such evidence should be necessary for fair investigation and Trial. But order for re-examination or denovo investigation, can only be passed by Constitutional Court that too in exceptional circumstances in order to prevent miscarriage of criminal justice. Passing such direction without having authority is apparently irregular in nature, is sufficient to invite intervention of this Court to prevent the abuse of process of Court. Since the direction of reinvestigation was given without any propriety, as such I find that the impugned order of learned Chief Judicial Magistrate is suffers from patent illegality, irregularity and impropriety.
16.
Accordingly, the proceeding of GR Case No. 1755 of 2018 arising out of Central Crime station Police Station Case No. 255 of 2018 dated 29.09.2018 under section 354/354 A/506 of the Indian Penal Code, and consequent charge sheet being No. 03 of 2022 dated 25.01.2022 under Sections 354, 354 A, 506 of the Indian Penal Code filed before the learned Chief Judicial Magistrate, Port Blair, and the order passed on 27th July, 2021
and 04.10.2021 whereby learned Chief Judicial Magistrate has directed for reinvestigation of the case and the order dated 21.02.2022 whereby learned Chief Judicial Magistrate has taken cognizance of the offence under section 354/354 A/506 of the IPC, are quashed.
17.
The Revisional Application CRR 40 of 2024 along with connected application, if any, is disposed of. However, there is no order as to the cost.
18.
Interim order, if any, stands vacated.
19.
Urgent Photostat certified copy of this judgement if applied for may be supplied to the parties upon compliance of usual formalities.
(UDAY KUMAR, J.)