Madras High Court
Pmc. Mercantile Private Limited vs The State Represented By on 22 April, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ATED : 31.07.2014
CORAM
THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.R.C(MD)No.231 of 2013
and
M.P(MD)Nos.1 of 2013 and 1 of 2014
1.PMC. Mercantile Private Limited,
Formerly operated at Door No.14,
P.T.Rajan Road, Madurai, and
later at Door No.22/44,
Hakkim Ajmal Khan Road,
Chinnachokkikulam,
Madurai.
2.Paramount Marketing Corporation,
Door No.22/44,
Hakkim Ajmal Khan Road,
Chinnchokkikulam,
Madurai.
3.G.Sheik Mohideen .. Petitioners
Vs.
1.The State represented by
The Deputy Superintendent of Police,
Economic Offences Wing-II,
Madurai.
2.S.John Basha
3.S.K.Ramakrishnan
4.A.Shabina
5.A.Abdul Rahim
6.N.Beebisha
7.M.Abitha Banu
8.M.Shameem Banu
9.M.Jamruth Bevi
10.S.Hasina Begum
11.K.Ameer Basha
12.P.Yasmin Begum
13.D.Manicshaw
14.Kiswar Jahan Begum
15.Mumtaj Begum
16.Hajira
17.Basira
18.Meher Banu
19.S.R.Sharfudeen
20.Shafiya Begum
21.Anarkali
22.V.R.Kannan
23.R.Vahitha Banu
24.S.Jemelin Begum
(Respondents 2 to 24 are impleaded
as per order dated 22.04.2013 made
in M.P(MD)No.3 of 2013).
25.Deivendran
(Twenty fifth respondent is
impleaded as per order dated
31.07.2014 made in
M.P(MD)No.2 of 2014). .. Respondents
Criminal Revision Case has been filed under Sections 397 read with 401
Cr.P.C. against the order dated 23.01.2013 passed in C.C.No.10 of 2013 by the
learned Special Judge for TANPID Act Cases, Madurai.
!For Petitioners : Mr.A.Ramesh
Senior Counsel for
Mr.R.Anand
^For Respondent No.1 : Mr.S.Prabha,
Government Advocate (Crl.side).
For Respondents : Mr.B.N.Rajamohamed
2 to 24
For Respondent No.25: Mr.R.Sevugaraja
(No appearance)
:ORDER
The arguments advanced by Mr.A.Ramesh, learned senior counsel arguing for Mr.R.Anand, learned counsel for the revision petitioners, Mrs.S.Prabha, learned Government Advocate (Criminal side) representing the first respondent police and by Mr.B.N.Raja Mohamed, learned counsel for the respondents 2 to 24 are heard.
2.The de facto complainant who is impleaded as twenty fifth respondent has left the matter without any representation, even though he has engaged a counsel. Based on the submissions made on behalf of the petitioners in the revision case and the contesting respondents, this Court doth pass the following order:
Admittedly, based on the complaint of the twenty fifth respondent Deivendran, a case was registered on the file of Economic Offences Wing-II, Madurai as Crime No.28 of 2010 for alleged offences punishable under Sections 406, 420 and 120-B I.P.C. and Section 5 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997. The Deputy Superintendent of Police, E.O.W.II, Madurai, took up the investigation of the case and submitted a report dated 21.11.2012 before the learned Special Judge under TANPID Act, Madurai on 07.12.2012. The learned Special Judge under TANPID Act, Madurai at the first instance returned the said report pointing out six mistakes. Thereafter, the Investigating Officer resubmitted the same supplying the missing materials and also answering the returns. Such resubmission was made on 09.01.2013. On 23.01.2013, the learned Special Judge passed an order taking cognizance of the offences based on the said report without specifying the offences and without noting the names of the accused persons against whom cognizance was taken. The short order passed by the learned Special Judge on 23.01.2013 reads as follows:
?Seized Book ?jpUf;Fws; bjspt[iu? perused. In the Book ? headings scheme II conditions in crime, investment perused. Take this case on file (Crl.O.P(MD)No.18047/2012)?.
3.The said order of the learned Special Judge taking cognizance of the offences based on the report of the Investigating Officer dated 21.11.2012 as corrected by the endorsement dated 09.01.2013, is challenged in the present revision.
4.Mr.A.Ramesh, learned senior counsel, has submitted that the proceeding of the learned Special Judge contains an error on the face of the record in so far as the learned Special Judge took cognizance of the offences based on a report of the police, which cannot be legally termed a final report in terms of Section 173(2) Cr.P.C. It is the further contention of the learned senior counsel that the irregularity in the proceeding is writ large as it will be obvious from the fact that a report of the police officer submitted to the Jurisdictional Court ought not to have been returned as it became the property of the Court and that the said irregularity culminated into an error on the face of the record, when the learned Special Judge took the case on file implying cognizance of the offences on the basis of a report, which contains a statement to the effect that investigation was not completed and it was still going on. The learned senior counsel has also pointed out the fact that the order taking cognizance of the offences by the learned Special Judge would reveal non-application of mind in so far as the order does not refer to the accused persons against whom the Special Court took cognizance of the offences and the offences for which cognizance was taken. In this regard, it is the further contention of the learned senior counsel that though the order taking cognizance of the offences cannot be termed as final order, nevertheless it cannot even be termed an interlocutory order as it has decided the right of the accused persons in one way or other as to whether they should be served with process in the criminal case to answer the charges incorporated in the report of the police and hence such an order can be appropriately termed as an intermediary order, which will take such order from the bar provided under sub-section 2 of Section 397 Cr.P.C.
5.As an alternative argument, learned senior counsel would submit that even if the impugned order could be construed to be an interlocutory order, that will not automatically take away the inherent power of the High Court preserved under Section 482 Cr.P.C. and that the said power which is inherent can be exercised by the High Court even in a case filed as a revision if the ends of justice requires doing so. In support of the said contention, learned senior counsel referred to a Judgment of this Court (Principal Bench) in Subhiksha Trading Services Ltd. & Anr. v. Azim H.Premji reported in 2011 CRL.L.J. 2769. In support of the other contentions, learned senior counsel relied on the following Judgments:
(i)Dharmendra Tripathi v. State of U.P. reported in 1996(20) ACR 801.
(ii)Bandi Kotayya v. State reported in AIR 1966 AP 377.
(iii)T.V.Sarma v. Smt.Turgakamala Devi and Others reported in 1976 Cri.L.J.1247.
(iv)Hari Chand and Raj Pal v. State reported in (1977) ILR 2 Delhi 367.
(v)Kamal Lochan Sen v. State of Orissa reported in 54(1982) CLT 509.
(vi)Bhartendu Pratap Singh v. State of U.P. and Another reported in 2011(4) ADJ 466 (Allahabad Lucknow Bench).
(vii)A.V.Dharma Reddy v. State of A.P. reported in 2011 Cri.L.J.185.
(viii)A.Vinayagam and 3 others v. Dr.Subash Chandran and another reported in 2000(1)CTC 225.
6.Out of the above Judgments cited by the learned senior counsel, the last one, namely A.Vinayagam and 3 others v. Dr.Subash Chandran and another reported in 2000(1)CTC 225 decided by a Division Bench of this Court, dealt with the power of the Judicial Magistrate to return the final report submitted by the police officer and all other cases dealt with the proprietary of taking cognizance of the offences based on an interim report, when the investigation was not completed at the time of filing of such report.
7.In this regard, Mrs.S.Prabha, learned Government Advocate (Criminal side), representing the police and Mr.B.N.Raja Mohamed, learned counsel representing the contesting respondents, would simply state that in view of the permissibility of conducting further investigation as provided under Section 173(8) Cr.P.C., there is nothing wrong in the Investigating Officer filing an interim report and the Court taking cognizance of the offences based on such interim report. It is their further contention that since numerous persons as depositors have made claims and they are to be examined and documents are to be collected, besides the distribution of amount seized from the accused and available in the freezed account of the accused persons, it should be treated as a special case and under such special circumstances the procedure adopted by the learned Special Judge cannot be found fault with and that therefore the challenge made to the impugned order of the learned Special Judge is bound to fail. It is their further contention that the order under challenge being an order in the nature of an interlocutory order, the revision preferred under Section 397 read with Section 401 Cr.P.C. is bound to fail. It is also their contention that when the petitioners have chosen to invoke the revisional jurisdiction of this Court, they cannot be allowed to fall back on Section 482 Cr.P.C. asking the Court to exercise its inherent power.
8.The above said rival submissions made on both sides are taken into consideration by this Court.
9.It is trite law that a police report submitted by the Investigating Officer during the course of investigation or after the completion of investigation to the Court having jurisdiction over the matter, becomes the property of the Court and it should not be returned or permitted to be taken out of Court under any circumstances. Time and again, this Court has come down heavily upon the Judges of the Subordinate Courts/Judicial Magistrates adopting the practice of returning the final reports pointing out certain defects to be represented after rectification of the defects. Specific instructions have also been issued to the Judicial Magistrates/Judges of the Subordinate Courts that in case of any defect found in the final report submitted by the Investigating Officer,the Court must retain the final report on its file, issue a memo to the Investigating Officer pointing out the mistakes and direct him to come and rectify the mistakes by supplying the missing materials or correcting the mistakes as the case may be. Above all in the beginning of the year 2000, a Division Bench of this Court in A.Vinayagam and 3 others v. Dr.Subash Chandran and another reported in 2000(1)CTC 225 made this point very clear. Still the Judicial Magistrates/Judges of the Subordinate Courts are following the irregular procedure which has been deprecated time and again by this Court. In this regard, this Court is constrained to reiterate the said point that under no circumstance the report of the police presented in the Jurisdictional Court should be returned and if the Judges of the Subordinate Courts do not follow the procedure, it shall invite appropriate action against such Judicial Magistrates/Judges of the Subordinate Courts.
10.Coming to the facts of the case, the learned Special Judge, who is in the cadre of a District and Sessions Judge, has chosen to commit the very same blunder, much against the dictates of this Court. The police submitted a report titled as final report. On receipt of the same, the learned Special Judge, chose to return it pointing out as many as six defects. Of course, the same will not vitiate the case as it is only an irregularity which is curable when the said report was resubmitted supplying the missing materials and explaining the other defects pointed out by the learned Special Judge. On such resubmission of the report, the learned Special Judge chose to take it on file implying that he did take cognizance of the offences alleged in the report. However, as rightly pointed out by the learned senior counsel for the petitioners, the learned Special Judge failed to note what are all the offences alleged against each one of the accused and what are all the offences taken cognizance of against each one of the accused. A bald statement found in the impugned order to the effect ?Seized Book ?jpUf;Fws; bjspt[iu? perused. In the Book ? headings scheme II conditions in crime, investment perused. Take this case on file? will show that the learned Special Judge failed to apply his mind to the contents of the final report for making up of his mind as to whether the offences could be taken cognizance of and if so, against whom and in respect of what offences.
11.Apart from the said mistake, as rightly pointed out by the learned senior counsel, the report based on which the learned Special Judge took cognizance of the offences by passing the impugned order, cannot be construed to be a final report as envisaged under Section 173(2) Cr.P.C. In this regard, the other Judgments cited supra and relied on by the learned senior counsel for the petitioners will make it clear that when the report of the police itself contains a statement that the investigation has not been completed and evidence are yet to be collected, such a report cannot be termed a final report and taking cognizance of the offences based on such report shall not be in accordance with law. Long back in 1966 itself, in Bandi Kotayya v. State reported in AIR 1966 AP 377, a Division Bench of the Andra Pradesh High Court made this point clear. The relevant portions of the Judgment of the Andhra Pradesh High Court in the said case are reproduced hereunder:
?5.So that, the two questions that fall for decision are first, whether in a Preliminary Register Case the Magistrate takes cognizance of the offence upon the filing of a preliminary charge-sheet, or whether he takes cognizance only after the filing of the final charge-sheet; and secondly, in the present case, whether in point of fact, the preliminary charge sheet was a police report as envisaged by Section 173(1), Criminal Procedure Code and whether the Magistrate had taken cognizance on it.?
?9.It is clear from the terms of Sub-section(1) that the report under Section 178 Criminal Procedure Code, is submitted by the police only after the investigation is completed and not before. Where in a given case, before the completion of the investigation, a report, which is styled a preliminary charge-sheet, is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173, Criminal Procedure Code, upon the receipt of which alone a Magistrate, acting under Section 207-A, Criminal Procedure Code, can proceed to hold a preliminary inquiry. Viewed thus, it is plain that in the present case the Magistrate had not taken cognizance of the offence when the preliminary charge-sheet that was filed before him. On the contrary, he passed orders giving the police sufficient time to complete their investigation and file a final charge sheet. The police accordingly continued the investigation by examining additional witnesses and holding test identifications, and after ascertaining the truth from all the available material, excluded Accused Nos.16 to 18 from the list of accused and submitted a final charge sheet. The Magistrate thereafter took cognizance of the offence and proceeded to hold an inquiry against Accused Nos.1 to 15 only.?
?10....... That being the position, a preliminary charge-sheet is no doubt a police report, but the Magistrate holding an inquiry under Section 207-A Criminal Procedure code, does not, indeed cannot, take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of such a report. He must wait for the report under Section 173, which would he forwarded to him by the police after completing their investigation. Only then, can he commence the inquiry as is apparent from the provisions of Sub-section(1) of Section 207-A Criminal Procedure Code?.
12.A learned Single Judge of the Andhra Pradesh High Court in T.V.Sarma v. Smt.Turgakamala Devi and Others reported in 1976 Cri.L.J 1247 made the following observations:
?14.A plain reading of Section 173, Cr.P.C. shows that every investigation must be completed without unnecessary delay and as soon as it is completed, the officer-in-charge of the Police Station shall forward a report to the Magistrate in the form prescribed. Therefore, there is no question of sending up of a police report within the meaning of Section 173, Cr.P.C. sub-section(2) until the investigation is completed. Any report sent before the investigation is completed will not be a police report within the meaning of Sub-section(2) of Section 173 Cr.P.C. and there is no question of the Magistrate taking cognizance of the offence and consequently the provisions of Section 309, Cr.P.C. cannot be invoked.?
?16....... The Code of Criminal Procedure does not contemplate a preliminary charge-sheet and a final charge-sheet. What is contemplated is only a police report within the meaning of Sub-Section(2) of Section 173, Cri.P.C. Admittedly in this case, there is no such report. The so-called preliminary charge-sheet filed in this case is not a police report because the investigation is not yet completed, and so the proviso to Section 167 Sub-section(2) is attracted. In this connection the learned Public prosecutor has relied upon Sub-Section(8) of Section 173, Cr.P.C. in order to contend that even a preliminary charge-sheet is a police report within the meaning of Sub-section(2) of that section. But a reading of Sub-section(8) of Section 173, Cr.P.C. shows that after a police report under Sub-section(2) is sent to the Magistrate, further investigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore, Sub-section (8) of Section 173, Cr.P.C. comes into play only after a report under Sub-Section(2) is sent but not before?.
?Where in a given case, before the completion of the investigation, a report, which is styled a preliminary charge-sheet is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173, Criminal Procedure Code, ...?
13.A learned Single Judge of the Delhi High Court in Hari Chand and Raj Pal v. State reported in (1977)ILR 2 Delhi 367 also expressed the very same view.
14.A case which came up before the Orissa High Court, which is almost similar to the case on hand, was the one in Kamal Lochan Sen v. State of Orissa reported in 54(1982) CLT 509. In the said case, though the report purportedly filed under Section 173(2) Cr.P.C. did not state that it was a preliminary report and investigation had not been completed, from the contents of the report the Court held that the same was not a report contemplated under Section 173(2) Cr.P.C. as the statement contained in the charge sheet itself indicated that the investigation had not been completed. The following are the observations made in the said case:
?5.Under the Code of Criminal Procedure, there is nothing like an incomplete or preliminary charge-sheet. Of the various reports that may be submitted by the police from time to time, the one which is submitted under Section 173(2) is called a charge-sheet and is required to be submitted after completion of investigation for taking cognizance of offence under Section 190(1)(b), Section 173(8) does not enable the investigating agency to submit an incomplete or preliminary charge-sheet and later on a final charge-sheet. Section 173(2) enjoins submission of a charge-sheet after completion of investigation. Section 173(8) operates at a stage after the submission of charge-sheet (the report under Sub-section(2) of Section 173) and enables the officer-in-charge to take up further investigation and after obtaining further evidence, to forward a further report. Section 173(8) therefore provides forwarding a supplementary charge-sheet and not the one contemplated by Sub-section(2) of Section 173. The language of Section 173(8) is clear. Sub-section (8) has not been intended to be used as a contrivance by the officer-in-charge to bypass the requirements of Section 173(2) and make the same nugatory.
6.It is not open to the officer-in-charge to be an incomplete or preliminary charge-sheet with a view to depriving an accused of his valuable right to liberty when the investigation is not completed within the period prescribed by the proviso to Section 167(2). However, it is the substance that matters and the Court has to consider if any subterfuge has been adopted to negate the right granted by Section 167(2) Proviso. If investigation has, in fact, been completed, mere description of the charge-sheet as incomplete or preliminary would not take the report out of the category of reports contemplated by Section 173(2)?.
15.A learned Single Judge sitting at Lucknow Bench of Allahabad High Court in Bhartendu Pratap Singh v. State of U.P. and Another reported in 2011(4) ADJ 466, in a similar case made the following observations:
?5....... It is stated that it means that the Investigating Officer is permitted to file the charge sheet only on completion of the investigation, particularly for the facts which were within his knowledge, therefore, he was obliged to complete the proceeding for collection of evidence, which was in his knowledge and then only to file the charge-sheet, whereas the Investigating Officer, as is evident from the charge sheet, though was well aware with the documentary evidence and was also making efforts to collect them yet before collecting the said evidence, he submitted the charge sheet, which is said to be incomplete charge-sheet, therefore, the learned Magistrate was not empowered to take cognizance of offence on such a police report, which is based on incomplete investigation. Thus, it is stated that the cognizance taken by the learned Magistrate on the basis of incomplete investigation is unsustainable and deserves to be quashed?. ?9.This Court expressed the opinion that if the Investigating Officer is of the opinion that he has not completed the investigation, he cannot forward a police report under Section 173(2) Code of Criminal Procedure. He also cannot get the advantage of Section 173(8) when the investigation is not completed in his opinion?.
16.The Hon'ble Supreme Court also in T.V.Sarma V. Smt.Turgakamala Devi and Others reported in 1976 Cri.L.J. 1247, made a similar observation, which has been extracted by the learned Judge of the Allahabad High Court sitting in Lucknow Bench in the above cited case. The said observations made by the Hon'ble Supreme Court are reproduced here under:
?15.In the case on hand only a preliminary charge sheet has been filed and it is specifically stated therein that the investigation is not yet completed. Therefore it cannot be treated as a police report within the meaning of sub section (2) of Section 173 Code of Criminal Procedure and so the Magistrate could not take cognizance of the offence in the present case and remand the accused under Section 309 Code of Criminal Procedure.
16.The learned Public Prosecutor has argued that in this case there is a charge sheet though styled preliminary and so the proviso to Section 167 Sub-section (2) does not apply. The Code of Criminal Procedure does not contemplate a preliminary charge sheet and a final charge sheet. What is contemplated is only a police report within the meaning of sub-section (2) of Section 173 Code of Criminal Procedure. Admittedly in this case, there is no such report. The so-called preliminary charge sheet filed in this case is not a police report because the investigation is not yet completed, and so the proviso to Section 167 sub-section (2) is attracted. In this connection, the learned Public Prosecutor has relied upon sub-section (8) of of Section 173 Code of Criminal Procedure. In order to contend that even a preliminary charge sheet is a police report within the meaning of sub-section (2) of that Section. But a reading of sub section (8) of Section 173 Code of Criminal Procedure shows that after a police report under sub-section (2) is sent to the Magistrate, further investigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore sub Section (8) of Section 173 Code of Criminal Procedure comes into play only after a report under sub section (2) is sent and not before. In this case since no report under sub section (2) is sent, sub section (8) does not come into operation at all. Since the preliminary report is not the one sent to the court after a report under sub-section (2) was sent, the learned Public Prosecutor cannot invoke the provisions of sub-
section (8) of Section 173, Criminal Procedure Code....."
The Hon'ble Judge of the Allahabad High Court (Lucknow Bench) observed:
?From the aforesaid observations of the Hon'ble Supreme Court, it is evident that the stage of further investigation under Section 173(8) of the Code of Criminal Procedure comes only after submission of complete police report under Sub-Section (2) of Section 173 of the Code of Criminal Procedure?.
17.In yet another case namely, State of Maharashtra v. Sharad Chandra Vinayak Dongre reported in 1995 (1) SCC 42, when cognizance of the offence was taken by the Magistrate on a report submitted on an incomplete investigation, the Hon'ble Supreme Court after expressing a view that no cognizance could be taken on such report on incomplete investigation, recorded the statement on behalf of the State that the State did not intend to file any further material by way of supplementary charge sheet before the trial Court and held that in view of such a statement, continuation of the investigation was ruled out. Thus the cognizance taken by the Magistrate was not disturbed. However, the Hon'ble Supreme Court made an observation that the statement made on behalf of the State relieved the Hon'ble Judges of the Supreme Court dealing with that case, to deal with the effect of Section 173(8) Cr.P.C. in the said case.
18.Distinguishing the said case decided by the Hon'ble Supreme Court, the Hon'ble Single Judge of the Allahabad High Court sitting in Lucknow Bench in Bhartendu Prata Singh v. State of U.P. and Another reported in 2011(4) ADJ 466 (cited above) held that since the investigation in that case was continuing as evidenced by the evidences disclosed in the said incomplete charge sheet and an observation came to be made to the effect that as soon as the investigation was completed and the police report would be filed before the Chief Judicial Magistrate, he would be at liberty to take cognizance of the offences on the basis of such police report. Similar is the observation made by the Andhra Pradesh High Court in A.V.Dharma Reddy v. State of A.P. reported in 2011 Cri.L.J.185.
19.Reference to the above said decisions, will make it amply clear that the Code of Criminal Procedure contemplates submission of a final report only on completion of the investigation and whatever report that might have been submitted by the Investigating Officer before completion of the investigation will not satisfy the requirements of Section 173(2) Cr.P.C. and that such report shall be termed incomplete report based on which no cognizance of the offences can be taken by the Judicial Magistrate or the Judge as the case may be. In this regard, this Court wants to make the distinction between an incomplete report followed by a final report and a final report which may be followed by a further final report on further investigation under Section 173(8) Cr.P.C. In case of a report before completion of the investigation, it shall not be a police report as contemplated under the said provision and taking cognizance of the offences based on such report shall be an error apparent on the face of the record. In case of such incomplete report, the police cannot fall back on Section 173(8) Cr.P.C. to baptise their continuation of the investigation as a further investigation contemplated under Section 173(8) Cr.P.C.. On the other hand, Section 173(8) Cr.P.C. comes into picture only after the completion of the investigation and submission of the final report. It pre-supposes that the Investigating Officer had collected all the materials which had been brought to his notice and submitted the final report based on such materials and that after the filing of such final report, new materials come to his knowledge, whereupon he embarks upon further investigation. On the other hand, for the purpose of denying the statutory right conferred on the accused persons under the proviso to Sub-section 2 of Section 167, the police cannot adopt the practice of filing interim reports or incomplete reports and the Magistrate or the Judge as the case may be, also cannot take cognizance of the offences based on such interim or incomplete reports.
20.In the case on hand, the alleged final report submitted by the Investigating Officer makes it clear that investigation had not been completed as on the date of submission of the report and even on the date of resubmission of the report. The penultimate paragraph of the report reads thus:
?It is respectfully submitted that in this case further investigation to ascertain full ramifications of the fraud is continuing. Additional list of witnesses and documents will be submitted in due course of time if deemed necessary?.
The said paragraph itself will make it clear that the Investigating Officer was aware of the fact that he had not completed the investigation and he contemplated further investigation and he did not contemplate the contingency of a necessity arising in future to embark upon a further investigation, if new facts or new materials come to his knowledge. The above said report of the Investigating Officer, as rightly pointed out by the learned senior counsel for the petitioners, does not conform to the requirements of the police report contemplated under Section 173(2) Cr.P.C. and hence taking cognizance of the offences mentioned therein is no doubt an error apparent on the face of the record which requires to be corrected by this Court.
21.An attempt has been made on behalf of the contesting respondents to contend that the order taking cognizance of offences based on the incomplete report could be in the nature of interlocutory order against which a revision may not be maintainable and that hence the petitioners should be non-suited for the relief sought for in the revision and they should be relegated to challenge the order under Section 482 Cr.P.C. by filing a separate petition. This Court is not in a position to accept the above said contention raised on behalf of the contesting respondents. Section 482 Cr.P.C. does not restrict the inherent powers of the Court to pass any order in order to render complete justice. Even in a case where the nature of the order, as to whether it can be termed an interlocutory order or intermediary order is doubtful and the order is challenged in a revision, the High Court dealing with the revision can treat the same as a challenge made under Section 482 Cr.P.C. In the case on hand, the right of the petitioners that they should not be asked to face the charges found in the charge sheet which is an incomplete final report has been dealt with by the impugned order. As such the impugned order cannot be termed a purely interlocutory order and as rightly contended by the learned senior counsel for the petitioners, it can be construed to be an intermediary order against which the revisional powers of the High Court can be invoked. Even otherwise, the restriction placed on the invocation of the inherent powers is the self-imposed restriction of the Court and in appropriate cases, even though the same will fall under the mischief of Sub-section 2 of Section 397 Cr.P.C., for avoiding miscarriage of justice, the Court can invoke its inherent jurisdiction and grant the necessary relief. It was held so in ?Subhiksha Trading Services Limited and Another v. Azim H.Premji? reported in 2011 Crl.L.J. 2769 by myself while sitting in the Principal Bench of the Madras High Court. In view of the above discussions, this Court comes to the conclusion that the impugned order cannot stand the scrutiny of this Court and there is an error apparent on the face of record, which is liable to be corrected by this Court.
22.Accordingly, the revision petition shall stand allowed. The impugned order dated 23.01.2013 is set aside. However, it is made clear that since the police report itself contains a statement to the effect that further investigation is being conducted, the same will be taken as continuation of the investigation which is yet to culminate in a police report as contemplated under Section 173(2) Cr.P.C. and that on completion of such investigation and submission of the report, the Special Judge for TANPID Act Cases, Madurai shall act in accordance with the provisions of law. Consequently, connected miscellaneous petitions are closed.
To
1.The Special Judge for TANPID Act Cases, Madurai.
2.The Deputy Superintendent of Police, Economic Offences Wing-II, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.