Madras High Court
S.Lakshmipathy vs The State Rep. By on 15 February, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.12.2023
Pronounced on : 15.02.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.7122 of 2023, Rev.Apln.(writ)No.59 of 2023 and
Crl.M.P.Nos.10451, 18701 & 4501 of 2023 and
WMP.No.12018 of 2023
Crl.OP.No.7122 of 2023
S.Lakshmipathy ... Petitioner
Vs.
1.The State rep. by
The Director General of Police,
Head of Police Force Tamilnadu,
Chennai
2.The Director General of Police,
Crime Branch CID,
Chennai
3.The Commissioner of Police,
Coimbatore City,
Coimbatore
4.The State Rep. by
The Inspector of Police,
C-2, Race Course PS,
Coimbatore City
5.The State rep. by
The Inspector of Police,
Crime Branch CID,
Coimbatore
6.S.Davidson Devasirvatham, IPS
https://www.mhc.tn.gov.in/judis
Page 1 of 26
Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
7.J.K.Tripathy, IPS
(R1,2,6 & 7 dismissed as not pressed as per
order dated 03.04.2023 in Crl.OP.No.7122 of 2023) ... Respondents
PRAYER: Criminal Original petition is filed under Section 482 of Criminal
Procedure Code, to quash the final report dated 06.01.2023 submitted by
Tmt.Shobana, Investigating Officer, CB CID in CBCID OCU FR.No.1/2023 in
Cr.No.1 of 2021 and all the subsequent connected proceedings.
For Petitioner : Mr.Devadatt Kamat,
Senior Counsel
for Mr.E.K.Kumaresan
For Respondents : Mr.A.Gopinath,
Government Advocate(crl.side)
Rev.Apln.No.59 of 2023
M.Gunasekar
(substituted as per order dated 21.11.2023
in WMP.No.32644 of 2023 in
Rev.Apln.No.59 of 2023) ... Petitioner
Vs.
1.The State rep. by
The Director General of Police,
Head of Police Force Tamilnadu,
Chennai
2.The Director General of Police,
Crime Branch CID,
Chennai
3.The Commissioner of Police,
Coimbatore City,
Coimbatore
4.The Inspector of Police,
C-2, Race Course PS,
Coimbatore City
https://www.mhc.tn.gov.in/judis
Page 2 of 26
Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
5.The Inspector of Police,
Crime Branch CID,
Coimbatore ... Respondents
PRAYER: Review application is filed under Order 47 Rule 1 of CPC r/w
under Section 114 of CPC to review the order dated 22.08.2022 passed in
WP.No.17949 of 2021.
For Petitioner : Mr.Devadatt Kamat,
Senior Counsel
for Mr.E.K.Kumaresan
For Respondents : Mr.A.Gopinath,
Government Advocate(crl.side)
For Petitioner
in Crl.MP.No.10451 of 2023 : Mr.R.John Sathyan,
Senior Counsel
for Mr.C.V.Shailandharan
COMMON ORDER
The criminal original petition in Crl.OP.No.7122 of 2023 has been filed to quash the final report dated 06.01.2023 submitted by Tmt.Shobana, Investigating Officer, CB CID in CBCID OCU FR.No.1/2023 in Cr.No.1 of 2021 and all the subsequent connected proceedings. The review application in Rev.Apln.No.59 of 2023 has been filed to review the order dated 22.08.2022 passed in WP.No.17949 of 2021.
https://www.mhc.tn.gov.in/judis Page 3 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
2. The case of the petitioner is that the accused installed CCTV cameras projecting the rest room which is located inside the petitioner's campus which meant for women working on its premises and house of Managing Director of Sri Krishna Hi-Tech Management Solutions Private Limited. On receipt of the said complaint, the fourth respondent registered FIR in crime No.98 of 2019 for the offence punishable under Section 354C of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Women Act, 1998 and Section 66(E) of IT Act. After completion of investigation, the fourth respondent filed final report as against two accused persons and the same has been taken cognizance in CC.No.1726 of 2019 on the file of the Judicial Magistrate-III, Coimbatore for the offence under Section 354C of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Women Act, 1998. After having been taken cognizance, on 23.06.2021, the first respondent on his suo motu, ordered for transfer of investigation in crime No.98 of 2019 on the file of the fourth respondent to the file of CBCID for further investigation. The first respondent also nominated one, G.S.Priyashaaisree as Investigation Officer to take up further investigation in crime No.98 of 2019, which was challenged by the petitioner. At the same time, the accused in CC.No.1726 of 2019 has filed petition to quash the entire proceedings in CC.No.1726 of 2019 https://www.mhc.tn.gov.in/judis Page 4 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 on the file of the Judicial Magistrate-III, Coimbatore. Both the petitions were simultaneously heard and passed common order dated 22.08.2022, thereby dismissed both the writ petition as well as the quash petition by this Court.
3. Mr.Devadatt Kamat, the learned Senior Counsel appearing for the petitioner submitted that the respondents have fraudulently suppressed the material facts and thereby caused this Court to pass order of dismissal of the writ petition with the influence of the accused with the officials and colluded together and ordered for fresh investigation by transfer of investigation to the file of the fifth respondent. When the trial court had taken cognizance in CC.No.1726 of 2019, without even seeking any permission from the trial court, the first respondent ought not to have ordered for further investigation, that too by different investigation agency without finding any fault with the original investigation agency. The respondents also suppressed the fact that the fourth respondent already filed petition for further investigation before the trial court. After ordering of transfer of investigation to the file of the fifth respondent, the fifth respondent filed petition under Section 173(8) of Cr.P.C. before the trial court seeking permission for further investigation in crime No.98 of 2019 in CMP.No.14212 of 2021. The learned Judicial Magistrate-III, https://www.mhc.tn.gov.in/judis Page 5 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 Coimbatore by an order dated 08.07.2021 dismissed the petition. It was not brought to the notice of this Court. In fact, the cursory reading of Section 173(8) of Cr.P.C. would clearly illustrate that only the courts can order further investigation, that too when the prosecution already filed final report, no police officer can order for further investigation. Therefore, the first respondent has no jurisdiction to order for further investigation, that too on its suo motu. The order passed by the trial court was not challenged before any of the forum. Even then, the fifth respondent conducted further investigation and filed final report thereby closed the FIR as mistake of fact. Hence, the petitioner filed petition to quash the final report dated 06.01.2023 on the file of the fifth respondent in Crl.OP.No.7122 of 2023.
4. Per contra, the learned Government Advocate(Crl.side) appearing for the respondents submitted that the first respondent has got jurisdiction to order for further investigation. Though the earlier investigation officer filed final report and the same has been taken cognizance by the trial court, on new information and new documents, further investigation can be permitted under Section 173(8) of Cr.P.C. Accordingly, the fifth respondent conducted detailed investigation and during the investigation, the victims deposed before the https://www.mhc.tn.gov.in/judis Page 6 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 learned Magistrate under Section 164 of Cr.P.C. They categorically deposed that they did not even know about the installation of CCTV camera to capture them when they proceeded to rest room. Therefore, they did not support the case of the complainant. Hence, the first respondent closed the FIR as mistake of fact and filed final report on 06.01.2023. However, it is pending on the file of the Chief Judicial Magistrate, Coimbatore for passing appropriate orders.
4.1 He further submitted that while pending the writ petition filed by the petitioner and petition filed to quash the proceedings in CC.No.1726 of 2019 on the file of the Chief Judicial Magistrate, Coimbatore, the fifth respondent filed status report. The fifth respondent categorically mentioned about the dismissal of the petition filed under Section 173(8) of Cr.P.C. in CMP.No.14212 of 2021 by an order dated 08.07.2021. After considering the order passed by the learned trial court, this Court pleased to dismiss the writ petition and upheld the order of further investigation passed by the first respondent. This court also dismissed the quash petition filed by the accused. As directed by the first respondent, the fifth respondent conducted further investigation and filed final report thereby closed the FIR as mistake of fact since no prima facie case is made out by the complainant in order to bring the https://www.mhc.tn.gov.in/judis Page 7 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 charges under Section 354(C) of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Women Act to home. Further, there is absolutely no patent error on the face of the records to review the order passed by this Court in WP.No.17949 of 2021. Hence, he prayed for dismissal of both the criminal original petition and the review application.
5. The learned Senior Counsel appearing for the accused submitted that only on the request made by the accused during the grievance day by way of submitting representation before the Commissioner of Police for further investigation in crime No.98 of 2019, on receipt of the same, it was forwarded to the first respondent. After considering the representation, the first respondent passed order for further investigation and also ordered for transfer of investigation from the file of the fourth respondent to the fifth respondent. Therefore, he prayed for dismissal of both the criminal original petition and the review application.
6. Heard, the learned counsel appearing on either side. https://www.mhc.tn.gov.in/judis Page 8 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
7. The petitioner in both the review application as well as the quash petition is the complainant. On the complaint, the fourth respondent registered FIR in crime No.98 of 2019 for the offence under Section 354(C) of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Women Act. There are totally two accused. While pending investigation, the accused filed quash petition to quash the FIR registered in crime No.98 of 2019 in Crl.OP.No.4224 of 2019. This Court dismissed the quash petition by an order dated 27.04.2019 and directed the fourth respondent to complete the investigation and file final report in crime No.98 of 2019 within a period of three months from the date of receipt of the order. After completion of investigation, the fourth respondent filed final report and the same has been taken cognizance in CC.No.1726 of 2019 on the file of the Judicial Magistrate-III, Coimbatore. While pending trial, the first respondent ordered for transfer of investigation in crime No.98 of 2019 from the file of the fourth respondent to the file of the fifth respondent by an order dated 23.06.2021. In pursuant to the order of transfer of investigation and also for further investigation, the fifth respondent re-registered FIR in crime No.1 of 2021 and filed petition before the trial court in CMP.No.14212 of 2021 seeking permission to conduct further investigation in crime No.98 of 2019. By an order dated 08.07.2021, the trial court dismissed the petition https://www.mhc.tn.gov.in/judis Page 9 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 seeking permission for further investigation. Even after dismissal of the petition, the fifth respondent proceeded with further investigation without even obeying the order passed by the trial court.
8. If at all, the first respondent has power to order for further investigation by transferring the investigation from the file of the fourth respondent to the fifth respondent, the fifth respondent was not supposed to seek permission from the trial court to conduct further investigation. Therefore, though the first respondent ordered for transfer of investigation and further investigation, the fifth respondent sought for permission to do further investigation from the trial court. When the fifth respondent sought for permission and the same was rejected, the fifth respondent should not have done further investigation since the trial court by detailed order, dismissed the petition seeking permission for further investigation. Though the learned Government Advocate(crl.side) filed status report stating that the petition filed by the fifth respondent for further investigation was dismissed, this Court dismissed the writ petition filed by the petitioner challenging the order of transfer of investigation and further investigation in crime No.98 of 2019. https://www.mhc.tn.gov.in/judis Page 10 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
9. The learned Senior Counsel appearing for the petitioner relied upon the judgment of the Hon'ble Supreme Court of India in the case of Vinay Tyagi Vs. Irshad Ali reported in (2013) 5 SCC 762, wherein it is held as follows:
22. ‘Further investigation’ is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a ‘further investigation’.
Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as ‘supplementary report’. ‘Supplementary report’ would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of https://www.mhc.tn.gov.in/judis Page 11 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a ‘reinvestigation’, ‘fresh’ or ‘de novo’ investigation.
23. However, in the case of a ‘fresh investigation’, ‘reinvestigation’ or ‘de novo investigation’ there has to be a definite order of the court. The order of the Court unambiguously should state as to whether the previous investigation, for reasons to be recorded, is incapable of being acted upon. Neither the Investigating agency nor the Magistrate has any power to order or conduct ‘fresh investigation’. This is primarily for the reason that it would be opposed to the scheme of the Code. It is essential that even an order of ‘fresh’/’de novo’ investigation passed by the higher judiciary should always be coupled with a specific direction as to the fate of the investigation already conducted. The cases where such direction can be issued are few and far between. This is based upon a fundamental principle of our criminal jurisprudence which is that it is the right of a suspect or an accused to have a just and fair investigation and trial. This principle flows from the constitutional mandate contained in Articles 21 and 22 of the Constitution of India. Where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo https://www.mhc.tn.gov.in/judis Page 12 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 investigation and, if necessary, even by another independent investigating agency. As already noticed, this is a power of wide plenitude and, therefore, has to be exercised sparingly. The principle of rarest of rare cases would squarely apply to such cases. Unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court, the Court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a ‘fresh investigation’.
10. Thus it is clear that under Section 173(8) of Cr.P.C., the investigation officer can do further investigation where the investigation officer obtained further oral or documentary evidence after filing the final report. Further investigation is nothing but subsequent stage to the primary investigation. Therefore, the investigation officer can file supplementary report. Further, investigation does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigation officer. Further investigation to be done only on the basis of discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence. Therefore, the investigation officer cannot be permitted to do re-investigation, fresh or de nova investigation unless ordered by the court. Therefore, neither investigation agency nor Magistrate has any https://www.mhc.tn.gov.in/judis Page 13 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 power to order or conduct fresh investigation. In the case on hand, the fourth respondent already filed final report and the same has been taken cognizance by the learned Judicial Magistrate-III, Coimbatore in CC.No.1726 of 2019 for the offence under Section 354C of IPC and Section 4 of Tamilnadu Prohibition of Harassment of Women Act. Therefore, the first respondent has no power to order for further investigation, that too by transfer of investigation from the file of the fourth respondent to the file of the fifth respondent. It is also pertinent to mention here that the first respondent, on his suo motu, ordered for transfer of investigation and for further investigation in crime No.98 of 2019.
11. Though the learned Senior Counsel appearing for the accused submitted that during the grievance day, the accused submitted petition before the second respondent, Commissioner of Police and the same was forwarded to the first respondent and the same was considered and ordered for further investigation by different investigation agency, on perusal of the order passed by the first respondent dated 23.06.2021, nothing whispered about the representation submitted by the accused or forwarded by the second respondent. Therefore, for the reasons best known to the first respondent, on its suo motu, ordered for further investigation by transfer of investigation from https://www.mhc.tn.gov.in/judis Page 14 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 the file of the fourth respondent to the fifth respondent. This Court dismissed the writ petition challenging the order passed by the first respondent dated 23.06.2021 only on the ground that further investigation can be permitted even after filing the charge sheet and it is a statutory right of the investigation agency. Further investigation can be done on the basis of fresh oral or documentary evidence. However, the rejection order passed by the learned Judicial Magistrate was not brought to the notice of this Court and also the fifth respondent conducted re-investigation by registering fresh FIR in Cr.No.1 of 2021 and filed final report by examining the very same witnesses and closed the FIR as mistake of fact. Therefore, this Court has no hesitation to recall the order dated 22.08.2022 passed by this Court. Accordingly, the review application in Rev.Apln.No.59 of 2023 is allowed and the order dated 22.08.2022 passed in WP.No.17949 of 2021 by this Court is recalled.
12. Further, the investigation officer or learned Magistrate has no power to order for fresh or de nova investigation. It is relevant to extract the provision under Section 173(8) of Cr.P.C. hereunder:
173(8) 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 https://www.mhc.tn.gov.in/judis Page 15 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 Magistrate and, where upon such investigation, the officer 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).
13. Accordingly, the investigation officer has power to do further investigation on discovery of new oral or documentary evidence. In fact, the final report filed by the fourth respondent was taken cognizance by the trial court in CC.No.1726 of 2019. It is well settled cannon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of Cr.P.C. or even under Article 226 of the Constitution of India to direct further investigation, fresh or de nova and even re-investigation. Therefore, the first respondent has no power to order fresh investigation. Though the order impugned shows the order for transfer of investigation and further investigation, the fifth respondent now has conducted fresh or de nova investigation in crime No.98 of 2019 by registering new FIR in Cr.No.1 of 2021 and examined the very same witnesses once again under Section 164 of Cr.P.C. and closed the FIR as mistake of fact.
https://www.mhc.tn.gov.in/judis Page 16 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
14. As stated supra, the first respondent on his suo motu ordered for transfer of investigation and further investigation. In fact, no final report or whatever the records communicated to the first respondent in crime No.98 of 2019. This Court shocked to see that the first respondent ordered for further investigation by transferring the investigation from the file of the fourth respondent to the file of the fifth respondent without even referring to the final report in Cr.No.98 of 2019 and without any request made by either accused or by complainant. It shows the influence of the accused with the police officials. That apart, the fifth respondent sought for permission before the trial court to do further investigation and the same was rejected by the trial court. Even then, the fifth respondent had guts to conduct fresh investigation, that too by registering new FIR in Cr.No.1 of 2021 and filed final report. That apart, already this Court dismissed the quash petition challenging the entire proceedings in CC.No.1726 of 2019 on the file of the Judicial Magistrate-III, Coimbatore in Crl.OP.No.23573 of 2019 by an order dated 22.08.2022 filed by the first accused. It shows prima facie material available as against the accused to bring the charges to home. In order to overcome the order passed by this https://www.mhc.tn.gov.in/judis Page 17 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 Court, the fifth respondent registered fresh FIR and closed it as mistake of fact. In the case of Vinay Tyagi Vs. Irshad Ali reported in (2013) 5 SCC 762, the Hon'ble Supreme Court of India further held that as follows:
49. Now, we may examine another significant aspect which is how the provisions of Section 173(8) have been understood and applied by the courts and investigating agencies. It is true that though there is no specific requirement in the provisions of Section 173(8) of the Code to conduct ‘further investigation’ or file supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice to seek permission of the courts to conduct ‘further investigation’ and file ‘supplementary report’ with the leave of the court. The courts, in some of the decisions, have also taken a similar view.
The requirement of seeking prior leave of the Court to conduct ‘further investigation’ and/or to file a ‘supplementary report’ will have to be read into, and is a necessary implication of the provisions of Section 173(8) of the Code. The doctrine of contemporanea expositio will fully come to the aid of such interpretation as the matters which are understood and implemented for a long time, and such practice that is supported by law should be accepted as part of the interpretative process.
Therefore, the investigation officer can do further investigation and file a supplementary charge sheet continued with the earlier report. https://www.mhc.tn.gov.in/judis Page 18 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023
15. The learned Senior Counsel appearing for the petitioner also relied upon the judgment in the case of Vinubhai Haribhai Malaviya Vs. State of Gujarat reported in 2019 (17) SCC 1, wherein the Hon'ble Supreme Court of India held as follows:
42. There is no good reason given by the Court in these decisions as to why a Magistrate’s powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the https://www.mhc.tn.gov.in/judis Page 19 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so leftout. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh https://www.mhc.tn.gov.in/judis Page 20 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 Rana v. State (Delhi Administration) (1997) 1 SCC 361and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 also stand overruled.
16. Thus it is clear that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out.
17. Therefore, the first respondent ought not to have ordered for further investigation, that too without any fresh oral or documentary evidence. The first respondent is not at all acquainted with the registration of FIR in crime No.98 of 2019 on the file of the fourth respondent. It was never intimated about the filing of final report to the first respondent. Therefore, what insisted and who insisted the first respondent to order for transfer of investigation and further investigation on his suo motu is a 'million-dollar https://www.mhc.tn.gov.in/judis Page 21 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 question'. Further, the first respondent ordered only for further investigation and even after dismissal of the permission sought for further investigation by the trial court, the fifth respondent proceeded with re-investigation by registering new FIR. The investigation officer recorded the statements of the victims under Section 164 Cr.P.C. The fourth respondent already examined their statements under Section 161 of Cr.P.C. and filed final report and the same has been taken cognizance by the trial court. Likewise, what or who insisted the fifth respondent to record statement under Section 164 of Cr.P.C is also questionable.
18. As stated supra, the fifth respondent can only continue the investigation done by the fourth respondent and can file supplementary report. Instead, the fifth respondent registered new FIR in Cr.No.1 of 2021 and conducted fresh investigation and closed the FIR as mistake of fact. The fifth respondent ought not to have conducted re-investigation, that too by registering new FIR. That apart, the first respondent and the fifth respondent failed to produce any fresh oral or documentary evidence. The same persons enquired by the fourth respondent, were once again enquired by the fifth respondent and recorded the statement cautiously under Section 164 of Cr.P.C. https://www.mhc.tn.gov.in/judis Page 22 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 and filed final report. Therefore, the first respondent and the fifth respondent played with the Court and ordered for further investigation and in the name of further investigation, the fifth respondent conducted fresh investigation in crime No.98 of 2019 by registering another FIR. It is not permissible under law. Only the court can order for fresh or re-investigation under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India. No doubt, the police officer or the magistrate has power to order for further investigation. When the trial court rejected the permission sought for to do further investigation, the fifth respondent should not have conducted fresh investigation by registering new FIR for the very same set of allegations for the very same offences. Therefore, the order passed by the first respondent dated 23.06.2021 cannot be sustained and the same is liable to be quashed. Accordingly, the order dated 23.06.2021 passed in RC.No.1180789/Crime 3(1)/ 2021 on the file of the first respondent is quashed and the writ petition in WP.No.17949 of 2021 is allowed.
19. In view of the quashment of the order passed by the first respondent dated 23.06.2021, the fresh investigation conducted by the fifth respondent by registering new FIR in Cr.No.1 of 2021 and the final report https://www.mhc.tn.gov.in/judis Page 23 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 dated 06.01.2023 filed by the fifth respondent cannot be sustained and the same is liable to be set aside. Accordingly, the criminal original petition in Crl.OP.No.7122 of 2023 is allowed and the final report submitted in crime No.1 of 2021 by the Investigation Officer is quashed. The trial court is directed to proceed with the trial on the basis of the cognizance taken on the final report filed by the fourth respondent in CC.No.1726 of 2019 and complete the same within a period of three months from the date of receipt of copy of this order. Consequently, connected miscellaneous petitions are closed. There shall be no order as to costs.
15.02.2024 Index :Yes/No Internet : Yes/No Speaking order/non-speaking order lok https://www.mhc.tn.gov.in/judis Page 24 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 To
1.The Director General of Police, Head of Police Force Tamilnadu, Chennai
2.The Director General of Police, Crime Branch CID, Chennai
3.The Commissioner of Police, Coimbatore City, Coimbatore
4.The Inspector of Police, C-2, Race Course PS, Coimbatore City
5.The Inspector of Police, Crime Branch CID, Coimbatore
6.The Government Advocate, High Court of Madras https://www.mhc.tn.gov.in/judis Page 25 of 26 Crl.O.P.No.7122 of 2023 & Rev.Apln.No.59 of 2023 G.K.ILANTHIRAIYAN, J.
lok CRL.O.P.No.7122 of 2023, Rev.Apln.(writ)No.59 of 2023 and Crl.M.P.Nos.10451 of 2023 and 18701 of 2023 15.02.2024 https://www.mhc.tn.gov.in/judis Page 26 of 26