In CRIMINAL REVISION PETITION NO.538 of 2014-KAR HC- Unless omission to put question to accused u/s 313 CrPC results in miscarriage of justice or interest of accused gets prejudiced, it cannot upset judgment of conviction: Karnataka HC Justice Sreenivas Harish Kumar [22-03-2022]

Read Order:  IQBAL AHMED Vs. CBI CHENNAI 

Mansimran Kaur 

Bangalore, April 11, 2022: While dismissing the Revision petition of the accused-petitioner, the Karnataka High Court has observed that sanction order is not incriminating evidence against the accused and Section 313 CrPC contemplates putting such kind of questions to accused in regard to circumstances as appear against him in the evidence. It has also been noted that unless omission to put question to accused u/s 313 CrPC results in miscarriage of justice or interest of accused gets prejudiced, it cannot upset judgment of conviction

The Bench of Justice Sreenivas Harish Kumar was dealing with a revision petition of the accused-petitioner, Iqbal Ahmed, who was involved in a case of fabrication of passports for the illegal purpose of human trafficking . 

Brief facts of the case were such that there was a racket of fake passports that was bursted and the name of the petitioner also came to the  forefront . The Accused-Petitioner had with him a passport bearing No.H1924155. However, he made  a voluntary statement which led to recovery of another passport bearing No .F9608954 that he had kept in his house .CBI filed the charge sheet against the petitioner and after the trial, the Additional Chief Metropolitan Magistrate(Special Court for CBI cases), Bengaluru, convicted the petitioner for the offences aforesaid. 

The petitioner moved an appeal before the Court of Additional City Civil and Sessions Judge and Special Judge for CBI cases, Bengaluru, however the same was dismissed by an order dated April 3, 2014. Pursuant to the same, the petitioner instituted a revision petition. 

The Court refused to accept the petitioner’s contention that the entire investigation was vitiated as the registration of FIR was not done within the reasonable time. The Bench referred to the judgment in Mukesh Singh vs State (Narcotic Branch of Delhi),wherein it was held that 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 cognizable offence crystallises.The Bench held that 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.

The Court also held that the testimony of the investigating officer without corroborative evidence from the individual witness should not be considered as no rule of law. The Court further rejected the contention of the Counsel of petitioner with respect to the sanction that is to be obtained by the prosecution under Section 15 of the Passports Act for prosecuting the accused. The Court held that, it is true that a sanction under Section 15 of the Act is required, however the question whether it was issued by the competent authority or whether there was application of mind is a question of fact and its validity should have been challenged before the Trial Court. The same cannot be questioned in the revision petition. 

Heavy reliance was placed on the judgment of the Andhra Pradesh High Court in M.Srinivasulu Reddy vs State Inspector of Police, Anti Corruption Bureau wherein it was 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 records 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. 

Another contention was  pertaining to infringement of the personal liberty of the petitioner under Article 21 of the Indian Constitution , stating that there was no due process of law followed from the time of filing of FIR  to conclusion of  investigation. The Court rejected this contention as well by observing that there is a huge difference between “ no procedure being followed” and “ infraction of procedure” . The latter shall not imply that there is deprivation of personal liberty, noticed the Bench.

The next contention was pertaining to the issue that the investigation officer and the officer who lodged the FIR were the same and hence, the investigation would be vitiated. The Court held that until and unless there is biasness shown on the part of the accused, the same cannot be assailed. Reliance was made to Mukesh Singh’s Case(Supra) wherein it was held that if there is no trace of biasness or prejudice, then the officer who lodged the FIR can carry forward the investigation as well. 

Further the Counsel for the petitioner contended that while examining the petitioner under section 313 Cr.P.C, the evidence given by one of the prosecution witnesses 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 was to be eschewed . The Court countered the same by submitting that if the law obligates the prosecution agency to obtain sanction, it is a statutory requirement. 

The Bench also said, “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.”

Lastly the Court examined the issue of convicting the accused under Sections 419,420, 468, 471 of the Indian Penal Code. The Court observed that the prosecution had proved the same beyond reasonable doubt. It was added that Shaikh Hussain was not the real name of the petitioner, however he applied for a passport under the same name by affixing his photograph thus this act makes him an offender under Section 415, 420 and 419 of the IPC. The passport was obtained by providing false information and it was  used to travel to different countries and so, offences under Section 468 and 471 were also attracted. Thus, by making the above observations and relying upon the findings of the cited cases, this Court dismissed the revision petition.