K.V.S.N.Murthy vs. The Government Of Andhra Pradesh

THE HON'BLE SRI JUSTICE K.C.BHANU WRIT PETITION Nos. 28542 of 2011 and 28556 of 2011

COMMON ORDER :

1. Writ Petition No. 28542 of 2011 is filed seeking to issue a writ of mandamus transferring crime no.80 of 2009 of Panjagutta police station, Hyderabad dated 21.1.2009 to the Central Bureau of Investigation (CBI), Economic Offences Wing, Hyderabad and to file a report in this court and direct the respondent-State to pay Rs.2.00 lakhs towards the costs of the litigation.

2. The facts, in brief, that led to filing of the Writ Petitions may be stated as follows:

M/s. Twin Cities Infotech Limited is a company registered under the Companies Act, 1956 and it went for public issue, wherein petitioner was allotted 9600 shares at face value of Rs.10/- per share, and collected Rs.10.00 crores from public and thereafter there was no communication from the company till 15.7.2008. Efforts made by the petitioner to trace out the company remained futile. In this regard, the petitioner lodged a complaint to the third respondent who registered a case in crime no.80 of 2009, but because of some extraneous considerations, the investigating officer threatened that the case would be closed. The petitioner brought the said facts to the notice of the Director General of Police, Hyderabad and also to the first respondent, vide letter dated 11.3.2009. As the

case was not being properly investigated, petitioner approached this Court by way of Writ Petition No.15414 of 2009 seeking entrustment of the case to CBI, which was dismissed vide order dated 15.9.2009 giving liberty to the petitioner to approach the trial court. If the company is physically existing in the said address as claimed by promoters and statutory auditors, the investigating officer could have collected sufficient documentary evidence. Hence, the Writ Petition No.28542 of 2011.

The case in crime no.80 of 2009 was closed by the investigating officer vide notice dated 11.1.2011. Aggrieved by the said notice, the petitioner made complaint dated 8.2.2011 to the Director General of Police, who is first respondent in Writ Petition No.28556 of 2011. As there was no reply, the petitioner again sent a reminder dated 29.8.2011. Since the petitioner has not received any reply from the first respondent, he filed the second Writ Petition No.28556 of 2011 to direct the first respondent to file action report in the matter.

4. The respondents filed counter affidavits denying the averments in the Writ Petitions and contending inter alia that no crime is pending as on today and so the question of entrusting the case to an investigating agency does not arise, and that after filing of the final report by police, remedy of the petitioner is otherwise, and that no cause of action survives as on the date of filing of the Writ

Petitions. Hence, it is prayed to dismiss the Writ Petitions.

5. Learned counsel for the petitioner contended that M/s.Twin Cities Infotech is a bogus company and the said company is not at all in existence; that police have not collected any material documents like telephone bill, lease deed, bank statement, electricity bill, etc. to show about existence of the company in the address as claimed by promoters and statutory auditors and therefore the investigation is not fair and proper, and that arbitrary decision of an investigating officer in filing the final report can be set aside by this Court and enquiry by CBI be ordered in the matter.

6. On the other hand, learned Assistant Government Pleader for Home contended that no crime is pending as on today and so the question of entrusting the case to an investigating agency does not arise; that after filing of the final report by police, remedy of the petitioner, who is complainant, is to file a protest petition before the Magistrate concerned and that no cause of action survives as on the date of filing of the Writ Petition, and hence she prays to dismiss the Writ Petition.

7. The factual matrix is not in dispute. Basing on a report given by the petitioner, a case in crime no. 80 of 2009 was registered by Punjagutta p.s., Hyderabad for the offences under Section 420 IPC on 21.1.2009. It is

also not in dispute that in pursuance of the investigation conducted by police, they filed a final report on 17.2.2011.

8. The scheme of the Code of Criminal Procedure, 1973 (Cr.P.C.) starts from registration of the case under Section 154 Cr.P.C. by an investigating agency and ends with filing of a final report under Section 173 Cr.P.C. Right from Section 154 Cr.P.C. till Section 173 Cr.P.C., there is no provision enabling any investigating agency to conduct re-investigation in respect of same offence.

Under Section 173 (8) Cr.P.C., a Magistrate gets jurisdiction to call for further report on any further investigation. There is a marked difference between 'further investigation' and 're-investigation'. Reinvestigation is entirely conducting investigation again from the beginning of the case, which is not permissible under the Cr.P.C. Under the Cr.P.C., only in certain circumstances, a Magistrate, after recording reasons, can permit the investigating agency to conduct further investigation in respect of the same crime. In view of the fact that Punjagutta police filed final report after completion of investigation and when there is no provision under the Cr.P.C. to conduct re-investigation, the question of directing the respondents to transfer the case, which is not pending before Punjagutta police station, to the CBI does not arise. If the petitioner is having any grievance, he can as well file a protest petition before the concerned

Magistrate, and if, still, he is not satisfied, he can as well examine the witnesses on his behalf to show that prima facie offence of cheating has been committed by the accused in crime no.80 of 2009. Therefore, when Cr.P.C. does not permit for re-investigation, the question of exercising extraordinary jurisdiction under Article 226 of the Constitution of India does not arise. Similarly, the question of giving direction to the Director General of Police as sought for in Writ Petition No.28556 of 2011 does not arise in view of the fact that the petitioner will be having an opportunity to place material before the competent criminal court with regard to lapses or illegalities or irregularities, if any, committed by the investigating officer. The Writ Petitions are devoid of merit and are liable to be dismissed.

9. With the above observation, the Writ Petitions are dismissed. No costs. Miscellaneous Petitions, if any, pending in th Writ Petitions shall stand dismissed.

--------------------- (K.C.Bhanu, J.)

05.06.2012 DRK

THE HON'BLE SRI JUSTICE K.C.BHANU

WRIT PETITION Nos. 28542 of 2011 and 28556 of 2011

05.06.2012