BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/09/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.(MD).No.669 of 2007 Crl.R.C.(MD).Nos.670 and 680 of 2007 and M.P(MD)Nos.1 of 2007 AND M.P(MD)SR.Nos.18738 to 18740 of 2007 in Crl.O.P(MD)No.5517 of 2007 Crl.R.C.(MD).Nos.669 and 670 of 2007 Chinnaraj alias R.Padmaban ... Petitioner in both the petitions Vs 1.Raveendran alias Ravi 2.The Superintendent of Police, Karur. 3.P.Sakthivel, The Inspector of Police, Karur Town Police Station, Karur District. 4.The Sub Inspector of Police, Crime Branch, Karur Town Police Station, Karur District. 5.The Inspector of Police, CBCID, Karur. ... Respondents in
both the petitions
Prayer
Petitions filed under Sections 397 and 401 of the Code of Criminal
Procedure, to call for the records relating to the impugned order passed in
Crl.M.P.Nos.3739 and 3740 of 2007 dated 06.08.2007 on the file of the learned
Judicial Magistrate No.I, Karur and set aside the same.
!For Petitioner … Mr.K.M.Vijayan, Senior Counsel
for Mr.B.Saravanan
^For Respondent … Mr.V.Subramanian
for Mr.M.Subash Babu for R1
Mr.Siva.Ayyappan,
Govt. Advocate (Crl.Side)
for R2 to R5
Crl.R.C.(MD).No.680 of 2007
The State represented by
The Inspector of Police,
CBCID, Karur. … Petitioner
Vs
Raveendran alias Ravi … Respondent
Prayer: Petition filed under Sections 397 and 401 of the Code of Criminal
Procedure, to call for the records relating to the impugned order passed in
Crl.M.P.Nos.3739 and 3740 of 2007 dated 06.08.2007 on the file of the learned
Judicial Magistrate No.I, Karur and set aside the same.
!For Petitioner … Mr.Siva.Ayyappan,
Govt. Advocate (Crl.Side)
M.P(MD)SR.Nos.18738 to 18740 of 2007
in
Crl.O.P(MD)No.5517 of 2007
Chinnaraj alias R.Padmaban … Petitioner in
all the petitions
Vs
1.Raveendran alias Ravi
2.The Superintendent of Police,
Karur.
3.The Sub Inspector of Police,
Crime Branch,
Karur Town Police Station,
Karur District.
4.The Inspector of Police,
CBCID, Karur. … Respondents in
all the petitions
Prayer
Petitions filed under Section 482 of the Code of Criminal Procedure, to
implead the petitioner as 4th respondent, to suspend the order and to recall the
order passed in Crl.O.P.No.5517 of 2007 dated 30.07.2007.
!For Petitioner … Mr.K.M.Vijayan, Senior Counsel
for Mr.B.Saravanan
^For Respondent … Mr.V.Subramanian
for Mr.M.Subash Babu for R1
Mr.Siva.Ayyappan,
Govt. Advocate (Crl.Side)
for R2 to R4
:COMMON ORDER
Crl.R.C.(MD)Nos.669, 670 and 680 of 2007 are focussed to call for the
records relating to the impugned order passed in Crl.M.P.Nos.3739 and 3740 of
2007 dated 06.08.2007 on the file of the learned Judicial Magistrate No.I, Karur
and set aside the same.
2. M.P(MD)SR.Nos.18738 to 18740 of 2007 in Crl.O.P(MD)No.5517 of 2007,
have been filed to implead the petitioner as 4th respondent, to suspend the
order and to recall the order passed in Crl.O.P.No.5517 of 2007 dated
30.07.2007.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of these petitions would run thus:
The police registered the case in Cr.Nos.994 and 995 of 2005 under
Sections 465, 468, 420 and 120(B) I.P.C and laid the police reports. Thereupon,
the defacto complainant Raveendran @ Ravi, being not satisfied with the
investigation conducted and the police reports filed before the learned
Magistrate, filed Crl.R.C.Nos.840 and 841 of 2005 before this Court which passed
order on 01.03.2007 directing further investigation by the same police. It
appears, the police conducted further investigation, but the defacto complainant
was not satisfied with that and hence, once again, the same defacto complainant
filed Crl.O.P(MD)No.5517 of 2007. This Court by virtue of order dated
30.07.2007, issued direction and the operative portion of it, is extracted
hereunder for ready reference:
“5. Hence, in these circumstances, I would like to pass the following
direction:
The learned Magistrate shall keep the charge sheet pending with him and in
the mean while, within ten days from the date of receipt of a copy of this
order, it is open for the petitioner to file an affidavit and a petition under
Section 173(8) Cr.P.C and pray for further investigation by C.B.C.I.D,
whereupon, the learned Magistrate shall consider it and pass suitable orders.
In the event of the learned Magistrate deciding to order further investigation,
he is fully competent to order C.B.C.I.D to conduct further investigation. ”
4. Consequently, the defacto complainant filed the applications before the
learned Magistrate concerned in Cr.M.P.Nos.3739 and 3740 of 2007 for further
investigation, whereupon it appears, the learned Magistrate after hearing the
learned Counsel for the petitioner, passed orders as under:
“Perused. Petition allowed as per the orders of the Hon’ble High Court in
Crl.O.P(MD)No.5517 of 2007 dated 30.07.2007, the entire case records in
Cr.No.994 of 2004 of Karur Town P.S is hereby ordered to be transferred to
CBCID, Karur for reinvestigation.”
“Perused. Petition allowed as per the orders of the Hon’ble High Court in
Crl.O.P(MD)No.5517 of 2007 dated 30.07.2007, the entire case records in
Cr.No.995 of 2004 of Karur Town P.S is hereby ordered to be transferred to
CBCID, Karur for reinvestigation.”
5. Being aggrieved by and dissatisfied with, the method and manner in
which the defacto complainant approached the learned Magistrate Court and the
order passed, Crl.R.C.Nos.669 and 670 of 2007 are focussed on the main ground
that the Magistrate without passing an objective order simply assumed and
presumed wrongly as though the High Court directed the Magistrate to order for
further investigation by C.B.C.I.D. It has also been alleged as if before
passing the order dated 30.07.2007 in Crl.O.P.No.5517 of 2007 by this Court, the
petitioner herein was not heard. However, this plea has been withdrawn while
arguing the matter.
6. Meanwhile, C.B.C.I.D who was in receipt of the order of the learned
Magistrate for further investigation, filed Crl.R.C(MD)No.680 of 2007 contending
that C.B.C.I.D is over-burdened and they would not be able to conduct further
investigation.
7. Heard both sides in entirety.
8. The nitty-gritty, the gist and kernel of the controversy which I could
understand from the records and from the arguments of the respective Advocates
concerned is to the effect that on the one hand, the defacto complainant is
constantly on his pursuit for getting investigated his case in a better manner,
whereas the proposed accused is taking exception to the pick and choose policy
on the part of the defacto complainant. According to the learned Counsel for
the petitioner, the learned Magistrate is having no jurisdiction to order
C.B.C.I.D to investigate into the matter.
9. The learned Senior Counsel for the accused would argue that the High
Court itself is having no power under Section 482 Cr.P.C to confer on the
Magistrate to order for further investigation by some other agency; that the
learned Magistrate is having no jurisdiction to order for further investigation
by some other agency and that the learned Magistrate was not justified in a
cryptic manner ordering C.B.C.I.D to take up further investigation without even
setting out, some prima facie grounds expressing his satisfaction relating to
the earlier investigation conducted by the police.
10. Per contra, the learned Counsel for the defacto complainant would try
to torpedo the arguments of the learned Senior Counsel for the accused that the
learned Magistrate had jurisdiction by virtue of Section 156(3) Cr.P.C read with
Section 173(8) Cr.P.C for ordering further investigation by C.B.C.I.D and for
which, no reason need be stated by him in very many words. He would also
develop his argument that when the Criminal Procedure Code is silent, reasons
cannot be insisted to be stated by the Magistrate while ordering further
investigation or transfer of investigation and that such an order is only
administrative in nature.
11. The learned Senior Counsel for the proposed accused would cite the
following decisions in support of his contentions:
(i) Hemant Dhasmana v. Central Bureau of Investigation and another
reported in 2001 Supreme Court Cases (Cri) 1280. An excerpt from it, would run
thus:
“16. Although the said sub-section does not, in specific terms, mention
abut the powers of the Court to order further investigation, the power of the
police to conduct further investigation envisaged therein can be triggered into
motion at the instance of the court. When any such order is passed by a court
which has the jurisdiction to do so, it would not be a proper exercise of
revisional powers to interfere therewith because the further investigation would
only be for the ends of justice. After the further investigation, the authority
conducting such investigation can either reach the same conclusion and reiterate
it or it can reach a different conclusion. During such extended investigation,
the officers can either act on the same materials or on other materials which
may come to their notice. It is for the investigating agency to exercise its
power when it is put back on that track. If they come to the same conclusion,
it is of added advantage to the persons against whom the allegations were made,
and if the allegations are found false again the complainant would be in
trouble. So from any point of view the Special Judge’s direction would be of
advantage for the ends of justice. It is too premature for the High Court to
predict that the investigating officer would not be able to collect any further
material at all. That is an area which should have been left to the
investigating officer to survey and recheck”
The Honourable Apex Court in the decision cited, at paragraph No.16, would
highlight that the revisional power of the High Court should not be invoked for
interfering with the order of the lower Court in directing further investigation
which would only be to meet the ends of justice.
(ii) Popular Muthiah v. State of Tamil Nadu reported in (2006) 2 M.L.J
(Cri) 779. An excerpt from it, would run thus:
“50. The High Court while passing the impugned judgment did not bear the
said principles in mind. It went beyond its jurisdiction in directing the
prosecution of the Appellant before us. In a case of this nature, where a
superior Court exercises its inherent jurisdiction, it indisputably should
remind itself about the inherent danger in taking away right of an accused. The
High Court should have been circumspect in exercising the said jurisdiction.
When a power under sub-section (8) of Section 173 of the Code of Criminal
Procedure is exercised, the Court ordinarily should not interfere with the
statutory power of the investigating agency. It cannot issue directions to
investigate the case from a particular angle or by a particular agency. In the
instant case, not only the High Court had asked reinvestigation into the matter,
but also directed examination of the witnesses who had not been cited as
prosecution witnesses. It furthermore directed prosecution of the Appellant
which was unwarranted in law.”
The cited decision is mainly based on the peculiar facts involved in that case
and the Honourable Apex Court took exception to the direction of this Court in
that case in relating to rope in one new accused while disposing of the appeal.
Here, the factual position is obviously different.
(iii) Rajesh and others v. Ramdeo and others reported in 2003 Supreme
Court Cases (Cri) 1054. An excerpt from it, would run thus:
“2. This appeal is directed against the impugned order of the High Court
of Bombay at Nagpur Bench in criminal writ petition directing a fresh and
further investigation by an agency other than the local police, though on the
basis of the FIR the local police did investigate into the matter, and in the
meantime have filed charge-sheet against the accused persons. While the
investigation was on, the complainant approached the High Court by filing a writ
petition. The High Court has taken an unusual step of forming a panel and
directing them to examine the matter, and on the basis of the said panel report,
the High Clourt has directed a further investigation by an agency other than the
local police to be headed by the Superintendent of Police. Since the
investigation agency has already filed the charge sheet on the basis of which
the accused persons are being proceeded against, if any further materials are
available, the Court may alter the charge framed. In the circumstances, we have
no hesitation to come to the conclusion that the High Court has overstepped its
jurisdiction in issuing the impugned direction calling upon further
investigation into the matter, which in our considered opinion, would be an
abuse of process of the Court. We, therefore, set aside the impugned order of
the High Court dated 9-3-2000. The appeal is disposed of accordingly. Needless
to mention, power of the investigating agency to have any further investigation
exercised under Section 173(8) CrPC is not being taken away by this order.”
The reliance placed on the aforesaid decision by the learned Senior Counsel for
the proposed accused, in my opinion, is not applicable to the facts and
circumstances of this case as in that case, despite charge sheet having been
filed and pending before the Court having jurisdiction, the High Court
intervened and formed a panel to examine the matter and on the basis of the said
panel report, the High Court directed further investigation which the Honourable
Apex Court looked askance at and remarked that the High Court overstepped in its
function.
(iv) Gun-Rock Enclave Co-op. Housing Socy. Ltd, v. P.Ranganayakamma
reported in 2005 CRL.L.J.4591. An excerpt from it, would run thus:
“9. In the case of Hemanth Dhasmanna v. Central Bureau of Investigation,
AIR 2001 SC 2721 : (2001 Cri L J 4190), the Supreme Court held that on receipt
of a report under Section 173(2) of the Code stating that no offence is
committed by the accused, then the Court may accept and drop the proceedings or
the Court may disagree with the report and take cognizance of the offence and
issue process if it takes the view that there is sufficient ground for
proceeding further or the Court may direct further investigation to be made by
the police, but, the Magistrate is not empowered to direct particular police
officer or even an officer of the particular rank to conduct investigation.
Under Section 173(8) of the Code, the Magistrate is empowered to order further
investigation by the officer in charge of the concerned Police Station alone.”
12. Placing reliance on the aforesaid decisions, he would develop his
argument to the effect that the Honourable Apex Court repeatedly held that no
Court should direct further investigation or investigation by a particular
agency.
13. Per contra, the learned Counsel for the defacto complainant cited the
following decisions:
(i) Kashmeri Devi v. Delhi Admn. reported in AIR 1988 SUPREME COURT 1323.
An excerpt from it, would run thus:
“7. Since according to the respondents charge-sheet has already been
submitted to the Magistrate we direct the trial Court before whom the charge-
sheet has been submitted to exercise his powers under section 173(8) Cr.P.C to
direct the Central Bureau of Investigation for proper and thorough investigation
of the case. On issue of such direction the Central Bureau of Investigation
will investigate the case in an independent and objective manner and it will
further submit additional charge-sheet, if any, in accordance with law. The
appeal stands disposed of accordingly.”
(ii) Alliraj Gounder v. The Inspector of Police reported in 2005 (3) CTC
673. An excerpt from it, would run thus:
“4. Moreover if the writ petitioner is not satisfied with the
investigation being done by the police, he has a remedy to approach the
Magistrate concerned under Section 156(3), Cr.P.C vide H.S.Bains v. State, AIR
1980 SC 1883, and if the said Magistrate is satisfied about the allegations of
the petitioner, he can direct the police agency which he deems to be appropriate
to do the proper investigation into the complaint of the petitioner, and he can
also monitor the police investigation.” (emphasis added)
The perusal of the decision of the Division Bench of this Court would leave no
doubt in the mind of the Court that even the Magistrate has got the power to
order further investigation by some other agency. The learned Magistrate is
expected to render criminal justice without driving the aggrieved party to seek
redressal before the High Court even with regard to minor mistakes committed by
the police officers. Under the Code of Criminal Procedure, the term ‘police’
alone is contemplated and they are governed by the Police Act, 1863 and I do not
like, at this juncture, to ponder over the point if the Magistrate is having
right to order C.B.I under Special Police Establishment Act to conduct
investigation or further investigation, but so far the local police or C.B.C.I.D
of the State is concerned, the Magistrate should have the power to issue
direction as otherwise litigant public would be the sufferers. There are
various divisions in Tamil Nadu for administrative convenience, but the Code of
Criminal Procedure treats the police as one only and the learned Magistrate is
having the control over the police to the limited extent as per the Code of
Criminal Procedure, even though the police is not the tentacle of the Court for
all purposes. The learned Magistrate is having the right to observe the
progress of investigation in a case, though he cannot interfere with it. To
fortify and buttress such a view, there are various provisions in the Code of
Criminal Procedure and I need not dilate on that in this context as it is
obvious and axiomatic.
(iii) The precedent, Surindra Nath v. State of Rajasthan reported in 2006
CRL.L.J 2716 is relied on by the learned Counsel for the defacto complainant.
An excerpt from it, would run thus:
“10. The words “further investigation in respect of an offence after a
report under sub-section (2) … the officer-in-charge of the police station”
used in Section 173(8) Cr.P.C does not mean further investigation by the same
investigating agency. Further investigation by a different investigating agency
cannot be pre-empted on the ground of investigation already made by the earlier
I.O. The law must be allowed to take its own course and injuncting such process
prematurely by invoking extraordinary powers conferred under section 482, Cr.P.C
cannot sub-serve the ends of justice and the offence as alleged are liable to be
fully and thoroughly investigated and that is why the enabling powers like
contained in Section 173(8) Cr.P.C have been incorporated in the law. The words
“further investigation” in Section 173(8) Cr.P.C are not linked with the words
“the officer-in-charge of the police station by the word ‘by’. The words
“further investigation” are suffixed by the words “in respect of an offence”.
Therefore, further investigation by a different investigation agency is not
ruled out under Section 173(8) Cr.P.C. The arguments of the learned Counsel for
the petitioners proceed on the presumption that upon further investigation the
things are bound to take a U-turn against that accused petitioners only. There
is no place for such presumption to accept or pre-empt the further
investigation.”
(iv) Leela Das v. State, C.B.I reported in 2001 CRI.L.J 2684. An excerpt
from it, would run thus:
“8. The aforesaid observation clearly supports the contention of the
learned Advocate for the opposite party that the order impugned is not an order
passed by a judicial order, and, therefore, it need not specify the precise
reason for the ultimate order of the learned Magistrate directing the Central
Bureau of Investigation to further investigate the case. That being so, I find
that the order impugned cannot be set aside on the aforesaid ground.”
As such, the aforesaid excerpts and the entire perusal of the judgment of the
Calcutta High Court cited supra would highlight that the order of the learned
Magistrate in directing further investigation cannot be faulted with on the
ground that it is niggard of reasons found detailed in such direction.
14. In the wake of the decisions cited on the side of the defacto
complainant in, (i) Kashmeri Devi v. Delhi Admn. reported in AIR 1988 SUPREME
COURT 1323, (ii) Alliraj Gounder v. The Inspector of Police reported in 2005 (3)
CTC 673, (iii) Surindra Nath v. State of Rajasthan reported in 2006 CRL.L.J 2716
and (iv) Leela Das v. State, C.B.I reported in 2001 CRI.L.J 2684, and my
discussions infra, the aforesaid decisions cited on the side of the accused are
not applicable to this case.
15. The learned Senior Counsel for the proposed accused would develop his
argument that this Court in the earlier order dated 30.07.2007, specifically
mandated the Magistrate to pass suitable orders and in the event of deciding to
order for further investigation, he could choose C.B.C.I.D as the agency, but
the learned Magistrate throwing to winds the order of this Court, issued cryptic
direction for further investigation by C.B.C.I.D.
16. The learned Counsel for the defacto complainant would submit that the
said order is only an administrative order and not a judicial order and
indubitably and incontrovertibly an administrative order need not be buttressed
by or fortified by any reason to be recorded as part of that direction.
17. Not to put too fine a point on it, I am of the considered opinion that
if the protest petition is dismissed, certainly reasons should be given, but the
converse is not true. In the case of ordering further investigation by the
Magistrate, the accused is having no right to challenge it before higher fora,
but if the prayer for further investigation is rejected, the defacto complainant
could agitate it before higher forum and in such an event, law envisages reason
to be stated therein only.
18. The learned Counsel for the defacto complainant would draw the
attention of this Court to Section 397 Cr.P.C and argue that the accused is
having no right of audience and the revisional power of this Court cannot be
invoked at all impugning the said direction issued by the learned Magistrate,
whereas the learned Senior Counsel for the accused would place reliance on the
terms, ‘proprietary, legality and correctness’ as found envisaged under Section
397 Cr.P.C and argue that the High Court should have the opportunity of seeing
as to whether the learned Magistrate acted properly, as otherwise there will be
unfettered power on the part of the Magistrate to order further investigation by
some other agency on flimsy and imaginary reasons which is not contemplated
under the Code of Criminal Procedure.
19. In my considered opinion, inasmuch as the law is settled and the legal
proposition is trite, to the effect that the proposed accused in a criminal
case, before issuance of summons to him, has no right of audience, he cannot
challenge the order of further investigation by some other agency under Section
397 Cr.P.C. At that stage, no adversarial proceeding is contemplated before the
Magistrate. In such a case, the accused cannot air his grievance that the
learned Magistrate ordered further investigation by some other agency without
citing reasons.
20. To the risk of repetition, without being tautologous, I would stress
upon the fact that the revisional powers of the High Court could not be invoked
as against interlocutory orders. Section 397(2) Cr.P.C has been interpreted
consistently by the Honourable Apex Court that from the interlocutory orders, no
revision would lie. In my considered opinion, such order for further
investigation by C.B.C.I.D passed by the learned Magistrate is only a step-in-
aid order in the process of finding out the truth involved in the matter, and as
such, it cannot be the subject matter of revision also.
21. In the result, I am of the considered opinion that the interference
with the order of the learned Magistrate is not warranted.
22. Regarding the grievance of C.B.C.I.D is concerned, I am of the
considered view that C.B.C.I.D cannot shirk its responsibility, when the
litigant public are reposing confidence in C.B.C.I.D and demanding probe by it
in a complicate case of this nature . They cannot be heard to contend that they
are over-burdened etc. This case is having a chequered career of its own, as
revealed by the order dated 01.03.2007 of this Court in Crl.R.C.Nos.840 and 841
of 2005. I am therefore of the view that C.B.C.I.D should take up the task as
ordered by the learned Magistrate.
23. With the above observations, Crl.R.C.(MD)Nos.669 of 2007, 670 of 2007
and 680 of 2007 and M.P(MD)SR.Nos.18738 to 18740 of 2007 in Crl.O.P(MD)No.5517
of 2007 are disposed of. Consequently, connected Miscellaneous petitions are
closed.
To
1.The Superintendent of Police,
Karur.
2.The Inspector of Police,
Karur Town Police Station, Karur District.
3.The Sub Inspector of Police,
Crime Branch,Karur Town Police Station,
Karur District.
4.The Inspector of Police,
CBCID, Karur.
5.The Judicial Magistrate No.I, Karur.
6.The Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.