BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 24/11/2010
Coram
The Honourable Mr. Justice S.TAMILVANAN
Crl.R.C.(MD).No.659 of 2010
M.P.(MD).Nos.1 and 2 of 2010
Chinnasamy .. Petitioner
vs.
1. State Rep. by
The Inspector of Police
Shengottai Police Station,
Tirunelveli District.
2. The Superintendent of Police
Tirunelveli District, Tirunelveli.
3. The Superintendent of Police
C.B.C.I.D
Government Estate, Chennai.
4. Seenithurai
5. Raja @ Muthuramalingam
6. Raja
7. S.M.Maruthappa Pandia @ Babu Raja
8. Lingam .. Respondents
(Impleaded as per the order of this court
made in M.P.(MD).No.2 of 2010 in
Crl.R.C.(MD).No.659 of 2010 vide order
dated 02.11.2010 by STJ)
Criminal Revision filed under Section 397(1) r/w 401 of Criminal Procedure
Code against the order, dated 29.06.2010 made in Cr.M.P.No.5997 of 2009 in
P.R.C.No.49 of 2009 on the file of the Judicial Magistrate, Shengottai.
!For petitioner ... Mr.A.Thiruvadikumar
^For respondents... Mr.L.Murugan
Govt. Advocate (Crl.side) for R1 to R3
Mr.S.Thirumalairaja
Senior Counsel for R4 to R8
:ORDER
Aggrieved by the order, dated 29.06.2010 passed in Cr.M.P.No.5997 of 2009
in P.R.C.No.49 of 2009 on the file of the Judicial Magistrate, Shengottai, this
criminal revision has been preferred by the petitioner / defacto complainant.
2. The aforesaid criminal miscellaneous petition was filed before the
Court below under Section 173 (8) of the Code of Criminal Procedure, seeking for
reinvestigation by CBCID, the third respondent herein.
3. Learned counsel appearing for the petitioner submitted that the
deceased is the brother of the petitioner herein and he was done to death by the
accused in the case and one Sethuthai and Kasipandi were eye witnesses for the
occurrence. However, the first respondent has failed to record their statement
and implead them in the list of witness. The petitioner being the aggrieved
party in a murder case having dissatisfied with the investigation of the
prosecution, was in a compelling circumstance to file petition under Section 173
(8) of Cr.P.C for further investigation by the third respondent herein, however,
the learned Judicial Magistrate, by the impugned order dismissed the plea of the
petitioner.
4. Learned Government Advocate appearing for the respondents 1 to 3
submitted that the investigation in this case was over and that the case was
also committed by the learned Judicial Magistrate, Shengottai to the concerned
Sessions Court. At this stage, the petition filed by the defacto complainant,
seeking further investigation under Section 173 (8) Cr.P.C before the Judicial
Magistrate is not legally maintainable and therefore, there is no error in the
order passed by the Court below in dismissing the petition.
5. Learned Senior Counsel appearing for the respondents 4 to 8 who were
accused before the trial court submitted that the petition filed under Section
173 (8) Cr.P.C before the learned Judicial Magistrate is not legally
sustainable. The learned Senior Counsel further submitted that the petition
filed by the defacto complainant before the Judicial Magistrate, seeking further
investigation in a matter, after the investigation was over and the matter
having been committed to the Sessions Court is not legally maintainable.
6. Learned counsel appearing for the petitioner drew the attention of this
Court to the order, dated 02.11.2009 made in Crl.O.P.(MD).No.9493 of 2009,
whereby the petitioner was directed to file a petition before the learned
Judicial Magistrate under Section 173 (8) Cr.P.C and the concerned Judicial
Magistrate was also directed to consider the same on merits. It is a settled
proposition of law that after the committal, the learned Judicial Magistrate is
not empowered to pass any order, when the same is taken over by the court of
sessions after the investigation is over.
7. Section 173 (8) Cr.P.C reads as follows :
“Nothing in this section shall be deemed to preclude further investigation in
respect of an offence after a report under sub-section (2) has been forwarded to
the Magistrate and, where upon such investigation, the office in charge of the
police station obtains further evidence, oral or documentary, he shall forward
to the Magistrate a further report or reports regarding such evidence in the
form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as
may be, apply in relation to such report or reports as they apply in relation to
a report forwarded under sub-section (2).”
As per this provision of law, the Judicial Magistrate is not empowered to order
further investigation, after the committal of the case to Sessions Court.
8. In Ram Lal Narang vs. State (Delhi Admn.) reported in 1979 (2) SCC 322,
the Hon’ble Apex Court has held that further investigation is not altogether
ruled out merely because cognisance has been taken by the court. When defective
investigation comes to light during course of trial, it may be cured by further
investigation, if circumstances so permitted. It would ordinarily be desirable
and all the more so in this case, that the police should inform the court and
seek formal permission to make further investigation when fresh facts come to
light instead of being silent over the matter keeping in view only the need for
an early trial since an effective trial for real or actual offences found during
course of proper investigation is as much relevant, desirable and necessary an
expeditious disposal of the matter by the courts.
9. In Hasanbhai Valibhai Qureshi vs. State of Gujarat, reported in 2004
SCC (Cri) 1603, the Hon’ble Supreme Court has held that as contemplated under
Section 173 (8) of the Code of Criminal Procedure, police can conduct further
investigation in a proper manner, even if the court has taken cognisance,
however, fresh facts come to light and if there is lapses in earlier
investigation in the case, the police should inform the court and seek
permission to make further investigation.
10. In the instant case, there is no such circumstance, only the defacto
complainant has filed a petition, seeking further investigation under Section
173 (8) Cr.P.C. Learned counsel appearing for the petitioner submitted that the
statement of Sethuthai and Kasipandi were not obtained by the police, though
they were eye witnesses. To consider them as eye witnesses, their names could
have been found a place in the complaint and the FIR otherwise as held by the
Hon’ble Apex Court in various such witnesses, subsequently added cannot be
treated as eye witnesses. Admittedly, in this case, the petition has been filed
by the defacto complainant before the Magistrate, after the case was committed
to the court of sessions.
11. On the aforesaid facts and circumstances, I am of the view that the
petitioner is not entitled to the relief sought for before the learned Judicial
Magistrate, based on the aforesaid earlier order, after the case was committed
to Sessions Court. It is an undisputed legal aspect that after the committal,
the learned Judicial Magistrate has no authority or jurisdiction to pass any
order with regard to the case pending before the Sessions Court. Hence the
petition itself was filed without jurisdiction before the Judicial Magistrate,
after the committal of the case, which is exclusively triable by court of
sessions. Hence, this Court is of the view that there is no error or illegality
in the impugned order, dismissing the petition filed by the petitioner / defacto
complainant and accordingly, this criminal revision is liable to be dismissed.
12. In the result, this criminal revision petition is dismissed.
Consequently, connected miscellaneous petitions are also dismissed.
tsvn
To
1. The Judicial Magistrate
Shengottai.
2. The Superintendent of Police
Tirunelveli District, Tirunelveli.
3. The Superintendent of Police
C.B.C.I.D
Government Estate, Chennai.
4. The Inspector of Police
Shengottai Police Station,
Tirunelveli District.