S. Kandasamy v. K. Kalimuthu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.08.2011CORAM:THE HONOURABLE MR. JUSTICE C.T. SELVAMCrl.R.C.No.1450 of 2007andM.P.Nos.1 and 2 of 2007 and 1 of 20101. S. Kandasamy2. C. Rangasamy3. A. Thangavel4. T. Balasubramaniyam5. R. Subbulakshmi6. P. Nachimuthu7. V. Balasubramanian8. T. Lingeswari ... Petitioners/ Accused 1 to 8vs.1. K. Kalimuthu ... 1st Respondent/ Petitioner 2. State by The Inspector of Police Namakkal Police Station Namakkal District. ... 2ndrespondent/ Complainant PRAYER: This Criminal Revision Petition is filed under Section 397r/w 401 Cr.P.C., to set aside the order dated 16.08.2007 made inC.M.P. No.3234 of 2006 in C.C. No.36 of 2006 on the file of learnedJudicial Magistrate No.I, Namakkal.For Petitioners : Mr. N. ManoharanFor Respondents : Mr. K.V. Sridharan for R1 Mr. P. Govindarajan, APP for R-2O R D E RThe accused in case pending trial in C.C. No.36 of 2006 on thefile of Judicial Magistrate No.1, Namakkal are the petitioners beforethis Court. They challenge an order passed by such court in CMPNo.3234 of 2006 dated 16.08.2007. A private complaint was lodged on11.02.2005 before learned Judicial Magistrate No.1, Namakkal allegingcommission of offences under sections 468, 471, 420 r/w 511 and 120(B) of IPC. The same was referred to the second respondent policeunder section 156(3) CrPC. A case was registered in Crime No.400 of2005 on 29.04.2005. On completion of investigation a final reportinforming commission of offences under section 468, 167 and 120 (B) https://hcservices.ecourts.gov.in/hcservices/ of IPC was filed and the same was taken on file in C.C. No.36 of2006. Before commencement of trial the complainant filed a petitionunder section 173(8) CrPC seeking conduct of further investigationand the same was allowed by the order under challenge.2. Heard learned counsel for the petitioners, the firstrespondent and learned Additional Public Prosecutor and perused thematerial available on record.3. A perusal of the order under challenge reveals that thecourt below has not considered the relevant facts, the findingsthereupon by the investigating agency, the material in support ofsuch findings nor informed the reasons for arriving at the conclusionthat further investigation was necessary. It merely informs theacceptance of a right in the court below to order furtherinvestigation under section 173(8) Cr.P.C. as a proposition of law,that the complainant has approached this Court for a similar reliefand this Court had been pleased to direct him to approach the Courtbelow with the observation that such Court may pass orders inaccordance with law. Finding the order of the court below totallybereft of reasoning on material aspects, this Court would allow thisrevision and remit back CMP No.3234 of 2006 on the file of JudicialMagistrate No.1, Namakkal, for fresh consideration. Even while doingso, this Court considers it necessary to render its finding on issuesraised before it by the opposing counsel.4. Sri. N. Manoharan, learned counsel for the petitionersubmitted that the Apex Court in the case of Reeta Nag v. State ofWest Bengal & Ors., (2009) 9 SCC 129, had held that furtherinvestigation could not be directed by the Magistrate suo motu andthe same could be done only upon an application made therefor by theinvestigating agency. The contention of learned counsel is that wheneven a Magistrate suo motu could not do so, further investigationcould not have been ordered at the instance of the complainant.Learned counsel would also submit that section 301 Cr.P.C. is theonly provision wherein a limited role of assisting the prosecution ispermitted of a complainant. In the absence of any specificprovision, the Court below fell into error in allowing the petitionmoved before it.5. Sri. K.V. Sridharan, learned counsel for the firstrespondent would oppose such submission by informing that thecomplainant was a person interested in assuring that action on hiscomplaint reaches a just end. Towards such purpose it would be opento him to move a petition for further investigation and when theCourt concerned found merit therein, it would but be proper thatfurther investigation be directed, in the interests of justice. 6. On receipt of a final report, a Magistrate has three options:(a)He may accept the report; https://hcservices.ecourts.gov.in/hcservices/ (b)He may reject the same, take cognizance/ refuse to takecognizance for an offence mentioned/ not mentioned in thefinal report; and(c)He may, in a fit case, direct further investigation.Some of the judgments which recognize the right of the Magistrate todirect further investigation are:(i)(1980) 2 SCC 91 [Kamlapati Trivedi v. State of West Bengal];(ii)(1999) 5 SCC 740 [Sri Bhagwan Samardha Sreepada VallabhaVenkatavishwanandha Maharaj v. State of A.P. and others];(iii)(2001) 7 SCC 536 [Hemant Dhasmana v. Central Bureau ofInvestigation and another]; and(iv)(2009) 7 SCC 685 [Kishan Lal v. Dharmendra Bafna and another];It may not be out of place to inform that the decision inKamlapati Trivedi's case is that of a three Judge Bench of theHonourable Apex Court.7. The above list merely is illustrative. Against a catena ofjudgments which inform/suggest that further investigation may bedirected by the Magistrate acting suo motu, the judgment in (2009) 9SCC 129 [Reeta Nag v. State of West Bengal & Ors.], stands alone. In1997 (7) SCC 614 [Union Public Service Commission v. S.Papaiah], theHonourable Apex Court found improper the action of the Magistrate inaccepting the final report and closing the case despite the informanthaving brought to the notice of the Magistrate the shortcomingsnecessitating further investigation. It has for long been settledlaw that before acceptance of a final report seeking closure of acase it is necessary to put the informant/de facto complainant onnotice (see 1985 (2) SCC 537 [Bhagwant Singh v. Commissioner ofPolice]). If the Magistrate upon issuing such mandatory notice andhearing the informant/ de facto complainant cannot direct furtherinvestigation in an appropriate case then the very purpose of issueof notice before acceptance of the final report would stand lost. Itmay also require mention that in the Reeta Nag's case it has beenobserved that the Magistrate cannot suo motu direct furtherinvestigation under Section 173(8) Cr.P.C. or direct re-investigationin the case on account of the bar of Section 167(2) of the Code.Section 167(2) Cr.P.C. relates to remand of the accused. Thus, it would be appropriate to follow traditional wisdom andinform that powers do lie with the Magistrate to order furtherinvestigation in an appropriate case.8. With the above observation, this revision petition shallstand allowed. The order of the learned Judicial Magistrate No.I,Namakkal, passed in C.M.P. No.3234 of 2006 in C.C. No.36 of 2006 https://hcservices.ecourts.gov.in/hcservices/ dated 16.08.2007 is set aside. The matter is remitted back to theCourt below for fresh consideration. Consequently, the connectedmiscellaneous petitions are closed.Sd/-Asst. Registrar//true copy//Sub Asst.Registraravr/gmTo1.The Inspector of Police Namakkal Police Station Namakkal District. 2.The Judicial Magistrate No.I, Namakkal.3.-do- Thro The Chief Judicial Magistrate, Namakkal.1 cc to Mr.K.V.Sridharan, Advocate, Sr.No.508581 cc to Mr.N.Manokaran, Advocate, Sr.No.50770Crl.R.C.No.1450 of 2007TS {CO}TP/13.10.2011.