Madras High Court
S.Nadarajan vs The Inspector Of Police on 21 October, 2010
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
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