BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/10/2010 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.RC(MD)No.158 of 2010 MP.NO.1/2010 S.Nadarajan ... Petitioner Vs The Inspector of Police Suchindram Police Station Kanyakumari District ... Respondent
Prayer
This Criminal Revision Case is filed against the order dated 8.2.2010 passed in
Crl.MP.No.3536/2009 by the learned Judicial Magistrate II, Nagercoil,
dismissing the petition filed by the petitioner under Section 156(3) of the Code
of Criminal Procedure.
!For Petitioner … Mr.C.Rajakumar
^For Respondent … Mr.L.Murugan, GA
:Order
This Criminal Revision Petition is filed against the order dated
8.2.2010 passed in Crl.MP.No.3536/2009 by the learned Judicial Magistrate II,
Nagercoil, dismissing the petition filed by the petitioner under Section 156(3)
of the Code of Criminal Procedure.
2. The revision petitioner is the defacto complainant and the father
of the deceased. The revision petitioner has filed the above petition in
Crl.MP.No.3536/ 2009 under Section 156(3) of Code of Criminal Procedure to
direct the respondent Police to further investigate the matter on the ground
that the accused, namely, Sivas, against whom charge sheet has been filed by the
respondent Police, in the course of investigation has implicated one
Anandakumar, Karuthuraman, Vetri, Thangadurai @ Durai to have committed the
murder with the aid of their henchmen and there was a clear motive for them to
commit the crime in view of the case registered in Cr.No.290/2008,
PRC.No.11/2009 under Sections 147, 148, 294(b), 323, 324, 506(ii), 307 read with
149 of IPC read with Section 3(1) of the Tamil Nadu Public Property (Prevention
of Damage and Loss) Act read with Section 149 of IPC. The revision petitioner
has raised various allegations and also entertained certain doubts about the
manner in which the investigation has been done by the respondent Police.
3. In the counter filed by the respondent Police, they have stated
that they have conducted a full and fair investigation diligently and the charge
sheet has been filed against one Sivas in accordance with law. The respondent
Police reiterated the same contentions as put forward by them before the court
below that the petitioner was attempting to divert the case in order to save his
family honour, as it revealed in the course of investigation that the accused
Sivas had illicit contact with the wife of the deceased and the revision
petitioner is attempting to save his family honour by trying to hide the truth,
making false implication of those persons in order to settle his personal score
against them.
4. The learned Judicial Magistrate has dismissed the petition
solely on the ground that he had no power to order further investigation and to
rectify the defects in the investigation. The learned Judicial Magistrate
placed reliance on the decision of the Honourable Supreme Court reported in the
case of Reeta Nag Vs. State of West Bengal and others [2009-3-SCC-Crl-1051],
wherein the Honourable Supreme Court held that the Magistrate having passed a
final order framing charges against the accused and discharging the remaining
ten accused in the said case, it was no longer within his jurisdiction to direct
reinvestigation into the case. In the said case, on facts the Honourable
Supreme Court observed that having framed charges against certain accused and
discharging the remaining accused, at that stage, it is not within the
jurisdiction of the learned Magistrate to order further investigation.
5. Mr.C.Rajakumar, the learned counsel for the revision petitioner
vehemently contended that the learned Magistrate is competent to order further
investigation even after taking cognizance of the offence on the basis of the
Police report filed under Section 173(2) of Code of Criminal Procedure. The
learned counsel placed reliance on the decision of the Honourable Supreme Court
reported in 2008-1-MLJ-Crl-1393-SC [Sakiri Vasu Vs. State of UP and others] in
support of his contention that in cases where the learned Magistrate finds
that the Police has not done its duty of investigating the case at all or has
not done it satisfactorily, he can issue a direction to the Police to do the
investigation properly and can monitor the same. The Honourable Supreme Court in
the decision cited supra has held as under:-
“16. The power in the Magistrate to order further investigation under Section
156(3) is an independent power, and does not affect the power of the
investigating officer to further investigate the case even after submission of
his report vide Section 173(8). Hence, the Magistrate can order re-opening of
the investigation even after the Police submits the final report vide State of
Bihar Vs. AC.Saidanna [AIR-1980-SC-326].
17. In our opinion Section 156(3) CR.PC is wide enough to include all such
powers in a Magistrate which are necessary for ensuring a proper investigation,
and it includes the power to order registration of an F.I.R. and of ordering a
proper investigation if the Magistrate is satisfied that a proper investigation
has not been done, or is not being done by the Police. Section 156(3) Cr.PC
though briefly worded in our opinion is very wide and it will include all such
incidental powers as are necessary for ensuring a proper investigation.”
6. In yet another decision reported in 2009-7-SCC-685 [Kishan Lal
Vs. Dharmendra Bafna and another], the Honourable Supreme Court has held that it
is permissible for a learned Magistrate to direct further investigation, if the
investigation is found to be tainted and or otherwise unfair or is otherwise
necessary in the ends of justice. The Honourable Supreme Court has emphasized
that when a final form is filed by the Investigating Officer in exercise of his
power under Sub Section (2) of Section 173 of the Code, the first informant has
to be given notice and he may file a protest petition which in a given case may
be treated to be a complaint petition, on the basis whereof after fulfilling the
statutory requirements cognizance may be taken.
7. Reliance was also placed on the decision of this court reported
in 2007-2-MLJ-Crl-646 [Dr.N.B.Sekar Vs. Dr.Ajitha Sekar and another] wherein a
learned single Judge of this court, after referring to the decision of the
Honourable Supreme Court rendered in the case of Popular Muthiah Vs. State
[2006-2-MLJ-Crl-779], has held thus:-
“The Magistrate has jurisdiction in the event a final form is filed (i) to
accept the final for; (ii) in the event a protest petition is filed to treat the
same as a complaint petition and if a prima facie case is made out to issue
processes; (iii) to take cognizance of the offences against a person, although a
final form has been filed by the Police, in the event he comes to the opinion
that sufficient materials exist in the case diary itself therefore; and (iv) to
direct reinvestigation into the matter.”
8. Section 156 of the Code of Criminal Procedure envisages that a
Police officer can investigate cognizable offence. During the investigation,
the Investigating Officer can examine the person acquainted with the facts of
the case and reduce his statement into writing. Section 173 of the Code of
Criminal Procedure requires submission of a final report by a Police Officer to
the Magistrate as soon as the investigation is completed. The final report
submitted by the investigating officer is not final, in case the investigating
officer has not conducted the case properly, acted negligently and there is
material on record that there is further scope for investigation. Such a
provision is there under Section 173(8) of the Code of Criminal Procedure.
Though a final form is submitted under Section 173(2) of Code of Criminal
Procedure, nothing contained in Section 173(2) of the Code precludes further
investigation with respect to the offence after a report has been submitted to
the Magistrate. The law does not preclude the Investigating Officer to further
investigate the case and collect further evidence. To meet such circumstances,
there is a provision under Section 173(8) of Code of Criminal Procedure.
9. In the decision cited supra, the Honourable Supreme Court has
reiterated that it was open to the Police to conduct further reinvestigation
even after the court took cognizance of any offence on the strength of a Police
report earlier submitted. If the defacto complainant files a petition saying
that real culprits were not included in the final report or there is lacuna in
the investigation which will cause failure of justice, the learned Magistrate
should consider the same and after such consideration, if he comes to a prima
facie conclusion that proper investigation was not conducted, the Magistrate
will be free to order further investigation to avoid failure of justice.
10. Section 173(8) of Code of Criminal Procedure gives power to
the Police to conduct further investigation with permission from the Magistrate
even in a case where cognizance of the offence has already been taken by the
Magistrate. Section 173(8) puts no bar on the Magistrate to order further
investigation. If the Magistrate come to the conclusion that in the interest of
justice a further investigation is necessary, he can trigger the Police to
exercise the power under Section 173(8), as Police has power to conduct further
investigation under Section 173(8) of the Code of Criminal Procedure even after
taking cognizance. The Magistrate has power to point out to the Police to
exercise their duties under Section 173(8), if on the facts of the case, it is
revealed that further investigation is necessary. It is the duty of the court
to see that ultimate truth is revealed and no innocent shall be punished and at
the same time, real culprits shall not escape.
11. In the present case, it appears that before accepting the
Police report, no notice was given to the complainant. The complainant on his
own volition approached the concerned Magistrate stating that real culprits have
not been booked due to faulty investigation pointing out to certain defects in
the investigation. The said petition has been resisted by the respondent Police
on the ground that a detailed investigation has been done and a charge sheet has
been filed against the real culprit. It is to be pointed out here that Sub
Section (8) of Section 173 of the Code of Criminal Procedure permits further
investigation and even dehors any direction from the court and as such, it is
open to the Police to conduct proper investigation even after the court has
taken cognizance of any offence on the strength of a Police report. In view of
the afore said position of law, if there is necessity for further investigation,
the same can certainly be done as prescribed by law. It is the duty of the
Magistrate to see whether there is any such necessity to order further
investigation on the material placed before him and in the present case, the
learned Magistrate fell into an error by merely dismissing the petition on the
ground that he has no power to direct further investigation by the respondent
Police.
12. In view of the reasons stated above, the order dated 8.2.2010
passed by the learned Judicial Magistrate II, Nagercoil in Crl.MP.No.3536/2009
is liable to be set aside and accordingly, it is set aside. The learned
Magistrate is directed to peruse the materials placed on record and arrive at a
conclusion as to whether there is any necessity for further investigation and
pass orders accordingly.
13. In the result, this criminal revision petition is allowed.
Consequently, the connected MP is closed.
Srcm
To
The Judicial Magistrate II, Nagercoil