High Court · 2025

Crl.M.P(MD)No.11811 of 2024BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTReserved on : 17.02.2025Delivered on : 19.03.2025CORAMTHE HONOURABLE MR.JUSTICE K.MURALI SHANKARCrl.M.P(MD)No.11811 of 2024inCrl.R.C.(MD)No.932 of 2024A.Mohammed Meera : PetitionerVs.1.M.Jafar Ibrahim2.The Deputy Superintendent of Police, Crime Branch CBCID., Trichy Range, CBCID Office, Trichy.3.The State of Tamil Nadu rep.by the Inspector of Police, Nagudi Police Station, Pudukottai District. Crime No.606 of 2020. : Respondents PRAYER : Criminal Miscellaneous Petition filed under Section 528 of BNSS, toimplead the proposed party/3rd respondent as third respondent in Crl.RC(MD)No.932 of 2024.For Petitioner: Mr.S.Saravana Kumar For Respondents : Mr.B.Thanga Aravindh, Government Advocate (Criminal Side) for R2 & R3.: Mr.J.John, for R1. 1/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024ORDERThis Criminal Miscellaneous Petition has been filed seeking orders to impleadthe petitioner/proposed party as third respondent in Crl.RC(MD)No.932 of 2024pending on the file of this Court. 2.The facts not in dispute are that on the basis of the complaint given by the firstrespondent/revision petitioner, FIR came to be registered in Crime No.606 of 2020 forthe offences under Sections 147, 294(b), 448, 447, 380 and 506(i) of IPC on the file ofNagudi Police Station, Pudukottai District and the Inspector of Police, AranthangiCircle, after conducting investigation, filed the final report as 'mistake of fact'.Meanwhile, the accused 1 and 2 have filed an application for anticipatory bail beforethe Principal Sessions Court, Pudukottai and the same was ordered on 27.01.2021. 3. The first respondent/complainant has filed a petition before this Court inCrl.OP(MD)No.1979 of 2021 to cancel the anticipatory bail granted by the PrincipalSessions Court for the accused. Considering the submission made by the prosecutionthat final report has already been filed as 'mistake of fact' and RCS notice was alsoserved on the complainant and that since the same was denied by the complainant,this Court directed the Investigating Officer to give the copy of the RCS notice alongwith the final report to the complainant. Since the same was not complied with, thecomplainant filed a contempt petition in Cont.P(MD)No.1610 of 2021 and this Court2/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024after coming to know that the police has given false information, considering thesubmission made by the prosecution, transferred the investigation and directed theNagudi Police to hand over the case to CBCID for fresh investigation and inpursuance of the said directions, FIR came to be registered in Crime No.2 of 2022 onthe file of the Pudukottai CBCID on 09.12.2022. 4.The second respondent police, after completing the investigation filed acharge sheet against the three accused including the petitioner herein and the casewas taken on file in P.R.C.No.4 of 2024 on 24.01.2024 on the Court of the JudicialMagistrate No.II, Pudukottai. Thereafter, the complainant filed a petition underSection 173(8) of Cr.P.C., in Crl.M.P.No.511 of 2024, seeking further investigation. Thelearned Magistrate, after conducting enquiry has passed the impugned order, dated13.08.2024 dismissing the petition. Challenging the dismissal order, the complainanthas preferred the present revision in Crl.RC(MD)No.932 of 2024. Pending revision,the first accused has filed the above application to implead himself as thirdrespondent in the criminal revision. 5.The case of the petitioner is that he is a power agent of original owner of thesubject property; that sufficient evidence and materials are available to prove that thesubject house does not belong to the revision petitioner, but he has created fraudulentsettlement deed as if his mother executed in his favour; that the property was not at3/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024all standing in the name of the revision petitioner's mother at the time of allegedsettlement deed; that the third respondent has also closed the case as 'mistake of fact',but the first respondent has given a story based on the photos of scene of occurrencein contempt proceedings and got favourable direction and influenced the secondrespondent to file a charge sheet; that the revision petitioner has been attempting tomislead the Court in the revision and as such, the petitioner is a necessary party andalso an affected person in the above case and that if the petition is not allowed, thepetitioner will be put to irreparable loss and hardship. 6. The first respondent/revision petitioner has filed a counter affidavitdisputing the petitioner's averments; that even after transfer of investigation, the firstrespondent has taken more efforts to save the accused and prepared self made falsestatement in the name of witnesses; that the impleading petition filed by the accusedis nothing, but abuse of process of law to delay the case and he has acted as tool ofthe third respondent; that the first respondent has received the phone call andwhatsapp video call from the eye witnesses and the same was placed before theCourt in the contempt proceedings; that the investigating officer has not denied thecell phone video recording and pen drive; that the investigating officer deliberatelyomitted to test the geniuses of the video call records and eye witnesses' phone call;that the petitioner has filed the above application for further investigation to prove4/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024the involvement of the accused persons including the first accused; that he is theauthor of the crime and he has recorded the occurrence in the cell phone at the placeof occurrence, but the investigating officer has failed to recover the cell phone fromthe first accused; that the above aspects would go to show that there was no fairinvestigation and that therefore, impleading petition is liable to be dismissed. 7. No doubt, as rightly contended by the learned counsel for the firstrespondent, he filed the petition for further investigation against the respondentpolice and the learned Magistrate has dismissed the said petition. The firstrespondent has preferred the revision against the police officials. 8. But the main contention of the petitioner is that he has been shown as the firstaccused in the above case; that the first respondent alone has created such fraudulentsettlement deed as if his mother executed in his favour, but it was shown that therevision petitioner's mother was not owning the property at that time; that thepetitioner was not heard in the contempt proceedings and the first respondent gotfavourable orders and on that basis, investigation was transferred to the secondrespondent and that therefore, he has to be impleaded as respondent in the revisionso as to enable him to put forth his case. 9.The learned counsel for the first respondent would rely on the decision of theHon'ble Supreme Court in the case of Sathishkumar Nyalchand Shah Vs. State of5/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024Gujarat and others reported in (2020)4 SCC 22 and it is necessary to refer thefollowing passages : “10.Having heard learned counsel appearing on behalf of the respectiveparties and the private respondent herein, we are of the opinion that assuch no error has been committed by the High Court dismissing theapplication submitted by the appellant herein to implead him in the SpecialCriminal Application filed by the private respondent herein challenging theorder passed by the learned Chief Judicial Magistrate rejecting hisapplication for further investigation under Section 173(8) CrPC with respectto one another accused namely Shri Bhaumik against whom no charge-sheet has been filed till date. Therefore, it is not at all appreciable how theappellant against whom no relief is sought for further investigation has anylocus and/or any say in the application for further investigation underSection 173(8) CrPC. How he can be said to be a necessary and a properparty. It is required to be noted that, as such, even the proposed accusedShri Bhaumik shall not have any say at this stage in an application underSection 173(8) CrPC for further investigation, as observed by this Court inthe case of W.N. Chadha (supra); Narender G. Goel (supra) and DinubhaiBaghabhai Solanki (supra). In the case of Dinubhai Baghabhai Solanki6/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024(supra) after considering one another decision of this Court in the case of SriBhagwan Samardha v. State of A.P., it is observed and held that there isnothing in Section 173(8) CrPC to suggest that the court is obliged to hearthe accused before any direction for further investigation is made. In SriBhagwan Samardha (supra), this Court in paragraph 11 held as under:“11. In such a situation the power of the court to direct thepolice to conduct further investigation cannot have any inhibition.There is nothing in Section 173(8) to suggest that the court isobliged to hear the accused before any such direction is made.Casting of any such obligation on the court would only result inencumbering the court with the burden of searching for all thepotential accused to be afforded with the opportunity of beingheard. As the law does not require it, we would not burden theMagistrate with such an obligation.” 11.Therefore, when the proposed accused against whom the furtherinvestigation is sought, namely Shri Bhaumik is not required to be heard atthis stage, there is no question of hearing the appellant-one of the co-accused against whom the charge- sheet is already filed and the trial againstwhom is in progress and no relief of further investigation is sought against7/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024him. Therefore, the High Court is absolutely justified in rejecting theapplication submitted by the appellant to implead him as a partyrespondent in the Special Criminal Application.”10.The above decision is squarely applicable to the case on hand. Here also, thepetitioner is the first accused and charge sheet has already been filed against him andthe case is now pending before the Sessions Court after committal and admittedly, norelief of further investigation is sought against him. 11.The learned counsel for the petitioner would rely on the recent decision ofHon'ble Supreme Court in the case of Santhakumari and others Vs. State of TamilNadu and another passed in SLP (Crl.) No.4230 of 2023, dated 12.05.2023, whereinthe petition under Section 156(3) of Cr.P.C., was ordered to be dismissed by thelearned Magistrate and the revision challenging the dismissal order filed before theHigh Court came to be allowed with a direction to the respondent police therein toregister FIR; that when the same was challenged before the Hon'ble Apex Courtalleging that no opportunity of hearing was given to the proposed accused, theHon'ble Apex Court by referring to its earlier decisions in Manaharbhai MuljibhaiKapadia and another Vs. Shaileshbhai Mohanbhai Patel and others reported in(2012) 10 SC 517 and Bal Manohar Jalan Vs. Sunil Paswan reported in 2014 (9) SCC640, allowed the appeal and remitted the matter back to the High Court to decide the8/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024revision afresh in accordance with law. 12.As rightly contented by the learned counsel for the first respondent, inSathishkumar Nyalchand Shah's case, similar to the case on hand, the revision wasfiled challenging the dismissal of the petition filed under Section 173(8) of Cr.P.C., forfurther investigation and the accused against whom charge sheet was also filed, hasmoved an application to implead him as one of the respondent in the revision andthe revision was dismissed and that when the same was challenged, the Hon'bleSupreme Court has confirmed the order of High Court, dismissing the impleadmentpetition. 13. As already pointed out, the petitioner is the first accused against whomcharge sheet was already filed and as such, he has no locus standi to question theplea for further investigation. Hence, this Court concludes that the above petition isabsolutely devoid of merits and the same is liable to be dismissed. 14. In the result, this Criminal Miscellaneous Petition is dismissed. sd/- 19/03/2025 / TRUE COPY / /04/2025 Sub-Assistant Registrar ( C.S. I / II / III / IV ) Madurai Bench of Madras High Court, Madurai - 625 023. 9/10 https://www.mhc.tn.gov.in/judis Crl.M.P(MD)No.11811 of 2024DASTO1 THE PRINCIPAL DISTRICT JUDGE,PUDUKKOTTAI.2 THE JUDICIAL MAGISTRATE NO.II (FAC),PUDUKKOTTAI.3 DO THROUGH THE CHIEF JUDICIAL MAGISTRATE,PUDUKKOTTAI DISTRICT.4 THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH CB CID, TRICHY RANGE, CB CID OFFICE, TRICHY DISTRICT. 5 THE INSPECTOR OF POLICE, NAGUDI POLICE STATION, PUDUKKOTTAI DISTRICT. 6 THE ADDITIONAL PUBLIC PROSECUTOR,MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC to M/s.S.SARAVANA KUMAR, Advocate ( SR-3093[I] dated 19/03/2025 ) ORDER IN Crl.M.P(MD)No.11811 of 2024in Crl.R.C.(MD)No.932 of 2024 Date :19/03/2025SA/SAR. /21.04.2025/10P/8CMadurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023. 10/10