Madras High Court
Gopalakrishnan vs S.Anandeeswaran on 7 October, 2021
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 07.10.2021
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Crl.OP.Nos.12570/2014, 6684/2016, 1453/2018, 6413/2019 &
Crl.MP.Nos.3477,3478/2016 & 549,550/2018 & 3571/2019,4198/2019
& 7575/2019
[Video Conferencing]
Gopalakrishnan,
Head Constable, Presently working at
C-3, Saibaba Colony Police Station,
Coimbatore. ... Petitioner
in Crl.OP.No.6684/2016
Renuga Devi,
Sub-Inspector of Police,
District Crime Records Bureau,
Coimbatore. ... Petitioner
in Crl.OP.No.1453/2014
S.Anandeeswaran,
Son of Mr.Samudi,
Advocate, Door No.414, 4th Floor,
Sri Devar Compled, Avinashi Road,
Coimbatore – 641 018. ... Petitioner
in Crl.OP.No.6413/2019
1.Chinnaraj
2.Mohamed Ismail
3.Suji ... Petitioners
in Crl.OP.No.12570/2014
https://www.mhc.tn.gov.in/judis/
1
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
Versus
S.Anandeeswaran,
Son of Mr.Samudi,
Advocate, Door No.414, 4th Floor,
Sri Devar Compled, Avinashi Road,
Coimbatore – 641 018. ... Respondent
in Crl.OP.Nos.12570/2014,
6684/2016, 1453/2018
1.Renugadevi
2.Gopalakirushnan
3.Chinnaraj
4.Mohanmathu Issmayil
5.Suji
6.Maruthapillai ... Respondents
in Crl.OP.No.6413/2019
Prayer of Crl.OP.No.6684/2016, 1453/2014: - Criminal Original
Petition filed under Section 482 of Cr.P.C., to call for the records in
S.C.No.22/2014 pending on the file of the Learned Chief Judicial
Magistrate, Coimbatore, quash the same.
Prayer of Crl.OP.No.6413/2019:- Criminal Original Petition filed
under Section 482 of Cr.P.C., to order transfer of the case pending before
the Chief Judicial Magistrate Court, Coimbatore in SC.No.22/2014, to be
tied along with CC.No.92/2017 and CC.No.91/2017 pending before the
Chief Judicial Magistrate, Tirupur and transfer the same.
Prayer of Crl.OP.No.12570/2014:- Criminal Original Petition filed
under Section 482 of Cr.P.C., to call for the records in PRC.No.14/2013
on the file of the Learned Chief Judicial Magistrate, Coimbatore and
quash the same.
For Petitioners in
Crl.OP.No.12570/2014 : Ms.V.S.Usharani
https://www.mhc.tn.gov.in/judis/
2
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
For Respondent in
Crl.OP.No.12570/2014 : Mr.V.Gopinath
Senior counsel assisted by
Mr.S.Suresh
For Petitioner in
Crl.OP.No.6684/2016 : Mr.Arun Anbumani
For Respondent in
Crl.OP.No.6684/2016 : Mr.V.Gopinath
Senior counsel assisted by
Mr.S.Suresh
For Petitioners in
Crl.OP.No.1453/2018 : Mr.M.Guru Prasad
For Respondent in
Crl.OP.No.1453/2018 : Mr.V.Gopinath
Senior counsel assisted by
Mr.M.Thamaraiselvan
For Petitioner in
Crl.OP.No.6413/2019 : Mr.V.Gopinath
Senior Counsel assisted by
Mr.S.Venkatesan
For R1 in Crl.OP.
No.6413/2019 : Mr.Arun Prasath
For RR 2 to 5 in
Crl.OP.No.6413/2019 : Ms.V.S.Usharani
For R6 in Crl.OP.
No.6413/2019 : Mr.M.Guru Prasad
COMMON ORDER
(1) Since the facts in all the four Criminal Original Petitions are intricately connected and also emanate from the same occurrence, a common order is passed.
https://www.mhc.tn.gov.in/judis/ 3 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (2) Arguments were also advanced by the learned Senior Counsel/counsels covering the same set of facts and points of law necessitating a common order to be passed in all the four petitions.
(3) Crl.OP.No.12570/2014 had been filed by A3, A4 and A5 in PRC.No.14/2013 which was at that particular point of time, was pending before the learned Chief Judicial Magistrate at Coimbatore, seeking to quash PRC.No.14/2013. (4) It must be stated that subsequently, the case had been committed to the Court of Sessions and had been taken on file as SC.No.22/2014. Seeking to quash the further proceedings in SC.No.22/2014, A2 has filed Crl.OP.No.6684/2016. Seeking the very same relief, A1, for good measure, has filed Crl.OP.No.1453/2018.
(5) The parties have alleged inter-se commission of criminal offences and therefore, the defacto complainant in SC.N0.22/2014 had filed Crl.OP.No.6413/2019 seeking to transfer SC.No.22/2014 from the file of the learned Chief Judicial Magistrate, Coimbatore, to be tried along with two https://www.mhc.tn.gov.in/judis/ 4 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 other Calendar Cases, which had emanated from police reports, viz., CC.Nos.92/2017 and 91/2017, both of which are pending before the learned Chief Judicial Magistrate at Tiruppur. (6) An advocate by name S.Anandeeswaran who probably practices in Coimbatore, had occasion to visit Thudiyalur Police Station on 07.10.2011. He had gone over there owing to the fact that one Parameswaran had been summoned for an enquiry. He accompanied the said Parameswaran. At the Police Station, words had been exchanged between the advocate and the police officials which escalated to physical assault and this had led to both of them filing of complaints against each other. (7) On the basis of the complaint given by him, a FIR in Crime No.1565/2011 had been registered on the very same day/07.10.2011 under Sections 147, 148, 294-b, 341 and 307 IPC. He had named six specific police personnel and had also stated that there were several others who were not in uniform but were also involved in the commission of the offences alleged by him.
https://www.mhc.tn.gov.in/judis/ 5 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (8) The petitioner in Crl.OP.No.1453/2018 who was the Sub Inspector of Police at the said Police Station, had also given a complaint against the advocate Anandeeswaran. This was registered as Crime No.1564/2011 again on 07.10.2011 and in that particular FIR, the offences alleged were under Sections 294[b], 341, 354, 332 and 506[i] IPC and also under Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998. (9) Investigation proceeded with respect to the allegations in both the FIRs and Final Reports were filed with respect to both the crime numbers on 27.02.2012. The Final Report filed pursuant to investigation in FIR in Crime No.1565/2011 was taken cognizance as CC.No.115/2012 by the learned Chief Judicial Magistrate, Coimbatore. There were only two named accused in the Final Report. The other named police personnel were cited as witnesses. The offences under which the accused were charged, were under Sections 323, 324 and 326 IPC. (10) The Final Report filed pursuant to investigation in FIR in Crime No.1564/2011, had been taken cognizance by the learned https://www.mhc.tn.gov.in/judis/ 6 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Chief Judicial Magistrate, Coimbatore, as CC.No.114/2012 and the accused therein was S.Anandeeswaran and the offences charged were under Sections 332, 353 IPC and also under Section 4 of the Tamil Nadu Prohibition of Harassment of Woman Act, 1998.
(11) During the course of arguments, it had been informed that subsequently, owing to transfer of the two Calendar Cases to the learned Chief Judicial Magistrate, Tiruppur, by an earlier order of this Court, CC.No.114/2012 had been transferred and renumbered as CC.No.91/2017. I am informed that evidence had been recorded in full and the matter is posted for judgment. (12) CC.No.115/2012 had also been transferred to the learned Chief Judicial Magistrate Court at Tiruppur, and was renumbered as CC.No.92/2017. The trial has not yet commenced in the said Calendar Case, (13) In the meanwhile, owing to reasons which had been advanced and justified during the course of arguments, Anandeeswaran had also given a private complaint under Section 200 Cr.P.C., naming six accused which included the two accused who were https://www.mhc.tn.gov.in/judis/ 7 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 arrayed in the Final Report on investigation in Crime No.1565/2011 and also three other police personnel who were actually cited as witnesses in the said Final Report and another individual.
(14) The complainant alleged that the accused had committed offences punishable under Sections 147, 148, 294-b, 342 and 307 IPC. He also sought compensation under Section 357 Cr.P.C., to be paid to him. That complaint was taken cognizance as PRC.No.14/2013 and subsequently, committed to the Court of the Chief Judicial Magistrate, Coimbatore, who had taken it on file as SC.No.22/2014.
(15) Even before proceeding further with the facts of the case or rather, the progress of the Calender/Sessions Cases, it must also be stated that the matter had meandered around this Court on various earlier occasions and also before a Division Bench of this Court and there was a direction to change the investigation agency. Various other directions had been given. Let me not enter into a discussion on the same because they are all judicial orders and I am sure that whatever directions had been given, https://www.mhc.tn.gov.in/judis/ 8 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 had been complied with by those against whom such directions had been issued.
(16) Necessity for preferring a private complaint under Section 200 Cr.P.C., is now being very seriously questioned and it is to shake that particular foundation, the accused filed Crl.OP.Nos.6684/2016, 1453/2018 quite apart from filing Crl.OP.No.12570/2014.
(17) As stated, Crl.OP.No.12570/2014 had been filed at the earlier stage, seeking to quash PRC.No.14/2013. Subsequently, the case had been committed and taken on file as SC.No.22/2014. (18) Heard arguments advanced by Mr.Arun Anbumani, learned counsel appearing for the petitioner in Crl.OP.No.6684/2016 ; Mr.M.Guruprasad, learned counsel appearing for the petitioner in Crl.OP.No.1453/2018 and also Ms.V.S.Usha Rani, learned counsel appearing for the petitioners in Crl.OP.No.12570/2014. (19) It must also be mentioned that Crl.OP.No.12570/2014 had a stuttered life. It was dismissed and it was restored. It was again dismissed and today, by an order in Crl.MP.No.10308/2021, the matter has been restored again.
https://www.mhc.tn.gov.in/judis/ 9 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (20) Heard also arguments advanced by Mr.V.Gopinath, learned Senior Counsel who appeared on behalf of the respondent/defacto complainant in all the aforesaid Criminal Original Petitions.
(21) The complainant had also filed Crl.OP.No.6413/2019 seeking transfer of SC.No.22/2014 from the list of the Chief Judicial Magistrate, Coimbatore, to the list of the Chief Judicial Magistrate, Tiruppur, where, as stated, the other two Calendar Cases, namely, CC.Nos.91/2017 and 92/2017 are pending as on date.
(22) Mr.V.Gopinath, learned Senior Counsel while advancing reasons/arguments regarding the necessity for filing a private complaint under Section 200 Cr.P.C., in the teeth of a Final Report being filed by the Investigating Officer with respect to the allegations raised in the FIR in Crime No.1565/2011 stated that though in the complaint, the respondent Anandeeswaran had named several police officials as accused, in the Final Report, only two persons have been shown as accused and a major https://www.mhc.tn.gov.in/judis/ 10 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 charge under Section 307 IPC had been dropped and further, the other named police officials had been cited as witnesses. (23) The learned Senior Counsel wondered as to how that could render justice to the defacto complainant particularly as named accused persons are now invited by the prosecution to speak for the complainant and against the originally named co-accused persons. The learned Senior Counsel stated that the entire trial proceedings would only be a mockery and it was this factor that had necessitated the defacto complainant to move forward to file a petition under Section 200 Cr.P.C., seeking the learned Chief Judicial Magistrate, Coimbatore, to take on file, his complaint, enquire into it for the offences alleged against the named accused, who also included the three police officials whom he had originally named in Crime No.1565/2011 and whom, after investigation, had been cited as witnesses in CC.No.91/2017. In the complaint, a further plea was made to also include section 307 IPC.
(24) Filing of that very complaint and taking cognizance of that particular complaint, has been very seriously questioned by both https://www.mhc.tn.gov.in/judis/ 11 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Mr.Arun Anbumani, learned counsel and Mr.M.Guruprasad, learned counsel, who pointed out that a police report had been filed on the complaint given by the defacto complainant / Anandeeswaran and investigation had been conducted. After filing of Final Report, the procedure, as enunciated, would naturally be to go forward with the trial proceedings. (25) It is also the contention of the learned counsels that if a particular offence under Section 307 IPC, had been dropped, it would only indicate that in the considered opinion of the Investigating Officer, such an offence had not occurred. (26) It is the further contention of the learned counsels that if in the opinion of the Investigating Officer, the named accused could be more effectively used by the prosecution as witnesses to drive home the charge against the other accused persons, then there cannot be a presumption that those witnesses would speak adverse to the case of the prosecution. It was pointed out that the trial has not yet commenced in the said Calendar Case and therefore, the stand taken by Mr.V.Gopinath, learned Senior Counsel was very seriously disputed and it was stated that the https://www.mhc.tn.gov.in/judis/ 12 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 witnesses must be permitted to adduce evidence and if during the course of evidence, they state or rather, if any of the independent witnesses state that further persons wereinvolved in the series of events which took place on that eventful day, then the Trial Judge can always invoke the provisions under Sections 319 Cr.P.C., and add those persons as accused after following due procedure.
(27) It is therefore contended by the learned counsels that permission must be granted to proceed further with the trial in CC.No.92/2017 and witnesses must be given an opportunity to speak the facts as they know it and as they had perceived it and as they have seen it.
(28) On the other hand, Mr.V.Gopinath, learned Senior Counsel stated that filing of the Final Report pursuant to investigation in Crime No.1565/2011 was never brought to the knowledge of the defacto complainant / Anandeeswaran and it is very emphatically contended by the learned Senior Counsel that the said Final Report had not been served on the defacto complainant and the learned Senior Counsel took efforts to point out that service of https://www.mhc.tn.gov.in/judis/ 13 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 that particular Final Report on the defacto complainant particularly when named accused have been dropped from facing trial and charges indicated in the FIR have also been dropped is mandatory and the defacto complainant should be given an opportunity to file a protest petition against such Final Report and place his submissions / averments for further consideration before the Court in the said Final Report was filed. (29) The learned Senior Counsel stated that violation of that particular statutory right of the defacto complainant, namely, service of the Final Report, renders and has rendered the proceedings unlawful and therefore, the defacto complainant was forced to take recourse to the statutory right available to him as provided under Section 200 Cr.P.C., and had lawfully exercised such statutory right to prefer a complaint before the concerned jurisdictional Court, namely, the Chief Judicial Magistrate Court at Coimbatore.
(30) The issue which therefore, now arises for consideration is whether preferring that complaint under Section 200 Cr.P.C., can be upheld in law or should be interfered with by this Court. https://www.mhc.tn.gov.in/judis/ 14 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (31) The scheme as laid down in the Code of Criminal Procedure when an informant goes to a Police Station to give an information about the occurrence of an offence and its subsequent progress had been laid down from Sections 154 onwards in the Code of Criminal Procedure.
(32) Even before entering into further discussion, it must be made clear that an informant is different from a complainant. Though it is a matter of language, an informant gives information to the police about the occurrence of a particular offence which had taken place. A complaint, on the other hand, has been specifically defined under Section 2[d] of the Code of Criminal Procedure, which reads thus:-
2(d)"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by https://www.mhc.tn.gov.in/judis/ 15 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 whom such report is made shall be deemed to be the complainant.
(33) Primarily a complaint would mean an allegation made to a Magistrate seeking to take action with respect to an offence said to have been committed by a known person or by an unknown person. It does not include a police report.
(34) In 2015 [4] Law Weekly 443, a learned Single Judge of this Court [M.M.SUNDRESH, J., as His Lordship then was] in A.V.Bellarmin and Others Vs. V.Santhakumaran Nair and Others, had an occasion to discuss about this particular difference between an informant and a complainant. The words cannot be used interchangeably, though of course, it is so used in common parlance.
(35) On receipt of information of cognizable offence, an obligation is placed on the concerned police official to record the same in the General Diary and register a FIR. It has also been held by the Court that there is no other alternative for the police official to register a FIR. This has been emphasized in Lalithakumari Vs. State of Uttar Pradesh reported in 2014 [2] SCC 1 wherein the https://www.mhc.tn.gov.in/judis/ 16 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Hon'ble Supreme Court had made it obligatory, in fact, mandatory on the part of the police official to receive, in his official capacity, information about the occurrence of a cognizable and to register the same. Of course, exceptions had also been given in the said judgment. But still, the duty of the police officer to record the information has been reiterated and emphasized by the Hon'ble Supreme Court.
(36) Section 154 Cr.P.C., prescribes the manner in which the said information has to be recorded. Section 156 Cr.P.C., prescribes the manner in which investigation into such a cognizable offence has to be conducted. Section 157 Cr.P.C., provides that investigation can be initiated either by information or otherwise.
After registration of such FIR and after conducting investigation and following the procedure of recording the statements of witnesses and collecting documents, finally, the Investigating Officer is obliged to file a Final Report before the jurisdictional Court.
(37) Section 172 Cr.P.C., makes it obligatory that a Diary should be maintained with respect to the proceedings in investigation. The https://www.mhc.tn.gov.in/judis/ 17 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Report of the police officer on completion of investigation, has to be filed under Section 173 Cr.P.C. Under Section 173[2] Cr.P.C., the nature of the form of the Report has been stipulated. (38) At this juncture, it must be kept in mind that a Court, on receipt of a Final Report, takes cognizance of the offence and not of the offenders.
(39) It has also been held in Neeharika Infrastructure Private Limited Vs. State of Maharashtra and others reported in 2021 SCC Online 315 that the Court without examining the contents of a Final Report or of the FIR, cannot embark on an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. It has also been pointed out that the Final Report is, an opinion of the Investigating Officer, to enable the learned Magistrate to take cognizance of the offence as provided under Section 190 Cr.P.C. (40) Under Section 173[2] Cr.P.C., it had been stipulated that the Investigating Officer shall also communicate the action taken by him to the person by whom the information relating to the commission of the offence was first given. This would indicate https://www.mhc.tn.gov.in/judis/ 18 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 that the informant must be informed about the nature of the Final Report filed by the Investigating Officer.
(41) Under Section 173[8] Cr.P.C., if the Investigating Officer obtains further evidence after filing the Final Report or obtains further oral or documentary evidence, he can forward the same to the jurisdictional Magistrate Court and file a further Report recording such evidence, which had been collected in the form prescribed under Section 173[2] Cr.P.C. This provision is normally called 'further investigation' and has come up for interpretation quite often. Questions have been raised as to whether the informant can seek further investigation or whether the Magistrate can seek further investigation or whether further investigation should be precluded by an application by the Investigating Officer. I am not called upon to enter into a discussion upon that aspect.
(42) What has been seriously questioned is that in the Final Report filed in the instant case, on the information given by S.Anandeeswaran, not only some of the named accused had been dropped but also the major offence under Section 307 IPC ahd https://www.mhc.tn.gov.in/judis/ 19 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 been dropped. It is asserted again and again that a copy of the Final Report had not been or was never served on the informant, S.Anandeeswaran. Had such copy been given, it was pointed out by Mr.V.Gopinath, learned Senior counsel, there was a possibility that Anandeeswaran would have filed a petition normally called a 'protest petition' and a judicial order could have been passed by the learned Chief Judicial Magistrate on such petition.
(43) The legality of filing a separate complaint under Section 200 Cr.P.C., has been very seriously questioned by the learned counsels appearing for the petitioners in Crl.OP.Nos.6684/2016 and 1453/2018. They have stated that the complaint under Section 200 Cr.P.C. cannot be maintained by the complainant particularly because a Final Report had already been filed and it is incumbent on him to proceed with the trial in the said Calendar Case and as aforesaid, if during the course of evidence it transpires that further persons are also culpable and they can always be arrayed as accused under Section 319 Cr.P.C. https://www.mhc.tn.gov.in/judis/ 20 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (44) Maintainability of the complaint filed under Section 200 Cr.P.C., is the main thrust of arguments as advanced by Mr.Arun Anbumani, learned counsel and Mr.M.Guruprasad, learned counsel.
(45) Mr.V.Gopinath, learned Senior Counsel however contended that the complaint was maintainable. He relied on a judgment of a learned Single Judge of this Court reported in 2014 [3] MLJ [Cri.] 337 [Senthil Kumar and Others V. N.Bharathi Mohan], wherein, under more or less similar circumstances, a learned Single Judge had held as follows:-
''16.The grievance of the defacto complainant in the case on hand is that the second petitioner / accused is guilty of offence under Section 307 and his name should not have been deleted at the time of filing the charge sheet in the Police case. Further, it is the case that there are medical evidence to prove the knife injuries on both sides of neck and in this regard, witnesses have been examined and the statements have been obtained. Therefore, the decisions rendered in the case of https://www.mhc.tn.gov.in/judis/ 21 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Mokkaraj V. Pandiyammal reported in 2012 [6] CTC 803, does not render any support to the case of the petitioners.
17.As pointed out by Hon'ble Supreme Court in the case of Manikandan V. Pandian reported in 1989 Supp [2] SCC 648, the private complaint contained reasons as to why the respondent thought fit to move the learned Magistrate. The grievance is that though the ingredients of the offence of Section 307 were fully present and the injuries were recorded, the Police erroneously deleted the name of the second petitioner and omitted the offence of Section 307 by filing an alteration report. Therefore, the learned Magistrate had rightly entertained the private complaint.
18.As regards the case of double jeopardy, as already observed that it is not a case of prior conviction, which has occurred and in respect of the same allegation, a second case has been given as a private complaint. Further, the averments in the private complaint and what prompted the respondent to approach the Magistrate is a very relevant factor of the case on hand. Therefore, the https://www.mhc.tn.gov.in/judis/ 22 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 contention that it is a case of double jeopardy stands rejected and there is no infringement of Article 20[2] of the Constitution of India.
19.The submissions of the learned counsel appearing for the petitioner by referring to Section 210 Cr.P.C., also does not merit acceptance, as in the present case, the private complaint was not filed before the Magistrate, when the police was conducting the investigation, but after the charge was laid and only thereafter, the respondent/complainant had a grievance, sine the name of the 2nd petitioner was dropped and the offence under Section 307 was deleted. Therefore, when cognizance has already been taken on a police report and subsequently, complaint is filed with a different version together with medical evidence, which were not subject matter of the Police Report, then the provision of section 210 Cr.P.C., will not be attracted.'' [Emphasis Supplied] (46) It is contended by Mr.V.Gopinath, learned Senior counsel that since the major offence under Section 307 IPC had been dropped https://www.mhc.tn.gov.in/judis/ 23 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 in the Police Report, the complainant had every right to file a complaint under Section 200 Cr.P.C.
(47) On the other hand, both Mr.Arun Anbumani and Mr.M.Guruprasad, learned counsels also relied on precedents and in this connection, they drew my attention to the judgment reported in 2001 [6] SCC 181 [T.T.Antony and Others Vs. State of Kerala and Others], wherein the Hon'ble Supreme Court has held as follows:-
''27.A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Ram Lal Narang V. State [Delhi Admin] [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] it was, however, observed that it would be appropriate to conduct further investigation with the permission of the https://www.mhc.tn.gov.in/judis/ 24 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.'' (48) It had been the main thrust of the reasons of the Hon'ble Supreme Court that multiplicity registrations of FIRs on the same allegations should not be encouraged and rather, further https://www.mhc.tn.gov.in/judis/ 25 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 investigation should be directed to be conducted on the Final Report as filed by the Investigating Officer.
(49) Placing reliance on the ratio laid down, it is contended that the complaint preferred by S.Anandeeswaran before the learned Chief Judicial Magistrate, Coimbatore, should be interfered with by this Court.
(50) One factor troubles me is that there has been no answer to the statement made by Mr.V.Gopinath, learned Senior Counsel across the Bar that a copy of the Final Report filed under Section 173[2] Cr.P.C., had not been served on the informant/Anandeeswaran, particularly when a conscious decision has been taken by the Investigating Officer to drop several of the accused and not just that, but adding them as witnesses and also dropping the major offence alleged under Section 307 IPC.
(51) If that step of serving a copy of the Final Report had not been taken by the Investigating Officer, then whether it would vitiate taking of cognizance by the learned Magistrate or whether it https://www.mhc.tn.gov.in/judis/ 26 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 would give a leverage to the informant to file a complaint under Section 200 Cr.P.C., are allied questions to be answered. (52) It had been often held that taking cognizance is a very serious issue and the Hon'ble Supreme Court has also held that a Magistrate should apply his mind, come to subjective satisfaction and thereafter, take cognizance of the Final Report. (53) The trail of judgments in this regard started with M/s.Pepsi Food Limited and Another Vs. Special Judicial Magistrate and Another reported in 1998 [5] SCC 749 and it had also been referred again in 2015 [12] SCC 420 [Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others].
(54) Application of mind by a Magistrate is with respect to whether summons should be served on the accused and whether cognizable offences are made out necessitating summons to be served on the accused. It should also be examined by the Magistrate whether as against the accused individually, offences as alleged, are made out.
(55) In the instant case, in the Final Report, there has been dropping of the names of three of the accused/police personnel and https://www.mhc.tn.gov.in/judis/ 27 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 alternatively, bringing them as witnesses to support the case of the prosecution. Improbability of that stares at the face of the Final Report. They were named as co-accused and it would be highly impossible to expect that they would give evidence in favour of the prosecution against their own co-accused. I know that this is a typical defence statement. But still, reality of trial proceedings forces me to state that particular fact. (56) In view of the prevalent circumstances, I would give the following directions:-
(a) The cognizance taken on the Final Report filed pursuant to investigation in Crime No.1565/2011 by the learned Chief Judicial Magistrate, Coimbatore, is set aside and the matter is remanded back for fresh appreciation by the learned Chief Judicial Magistrate, to examine whether notice had been served on the informant as necessitated under Section 173[2][ii] Cr.P.C.
i. If such notice had not been given, then the learned Chief Judicial Magistrate, should revisit the procedures to be adopted from that stage. If notice had indeed been https://www.mhc.tn.gov.in/judis/ 28 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 served, then the Chief Judicial Magistrate, may proceed further and take cognizance of the Final Report in manner known to law.
ii. If notice had not been served, the learned Chief Judicial Magistrate, Tiruppur, should ensure that such notice is served on the informant Anandeeswaran and give him an opportunity to file a petition and I leave it to the wisdom of the informant Anandeeswaran to take up such opportunity.
iii. If such an opportunity is taken by the informant Anandeeswaran, then the matter can proceed further and the learned Chief Judicial Magistrate, Tiruppur, may pass further orders in accordance with the provisions of the Code. If such an opportunity is not taken by the informant, then the Chief Judicial Magistrate may move forward by taking cognizance in manner known to law. (57) Even in 2015 [12] SCC 420 [Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others], where the Hon'ble Supreme Court had held that the cognizance taken by the Magistrate https://www.mhc.tn.gov.in/judis/ 29 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 suffered for want of procedural application of mind, the Hon'ble Supreme Court had only remanded the matter back to the learned Magistrate for fresh application of mind on the Final Report. Therefore, I am justified in calling upon the learned Chief Judicial Magistrate, Tirppur, where CC.No.92/2017 is pending and go through the steps as provided under Section 173 Cr.P.C., and thereafter, take cognizance.
(58) In view of the fact that a major offence under Section 307 IPC and also the fact that three named accused have been shown as witnesses for the prosecution, I hold that the petitioner/Anandeeswaran is justified in lodging a complaint before the learned Chief Judicial Magistrate, at Coimbatore, pointing out the lacuna in the Final Report filed in FIR in Crime No.1564/2011 and therefore, I hold that the complaint under Section 200 Cr.P.C., is maintainable.
(59) Explanations have been given as to why the complainant had approached the Court once again by way of Section 200 Cr.P.C. In view of that fact, I would not interfere with further progress of SC.No.22/2014.
https://www.mhc.tn.gov.in/judis/ 30 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 (60) The complainant has also filed Crl.OP.No.6413/2019 seeking to transfer SC.No.22/2014 from the file of the learned Chief Judicial Magistrate, Coimbatore, to the file of the learned Chief Judicial Magistrate, Tiruppur, where the other two Calendar Cases, viz., CC.Nos.91/2017 and 92/2017, are pending. (61) It has been stated across the Bar that the matter had been transferred from the file of the learned Chief Judicial Magistrate, Coimbatore, to the file of the learned Chief Judicial Magistrate, Tiruppur, by an earlier order of this Court. It would only therefore be appropriate that such order is respected by me and therefore, SC.No.22/2014 is also transferred from the file of the learned Chief Judicial Magistrate, Coimbatore, to the file of the learned Chief Judicial Magistrate, Tiruppur. (62) Let the entire records be transferred and let the learned Chief Judicial Magistrate, Tiruppur, take the records on file and proceed in manner known to law.
(63) At that stage, the learned Chief Judicial Magistrate, Tiruppur, would have two separate cases on record, one on a Police Report https://www.mhc.tn.gov.in/judis/ 31 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 with respect to Crime No.1565/2011 in CC.No.92/2017 and the other is on a complaint under Section 200 Cr.P.C., which was SC.No.22/2014 on the file of the Chief Judicial Magistrate, Coimbatore.
(64) The procedure or trial to be adopted have been given in the Code of Criminal Procedure and I am confident that the learned Chief Judicial Magistrate, Tiruppur, would follow the proper procedure as laid down by law and in manner known to law.
(65) With respect to CC.No.91/2017, which is now posted for judgment, I direct the learned Chief Judicial Magistrate, Tiruppur, to proceed further and deliver judgment on appreciation of evidence already recorded.
(66) In the result, [a] Crl.OP.Nos.12540/2014 ; 1453/2018 and 6684/2016 are dismissed ; and [b] Crl.OP.No.6413/2019 is allowed and SC.No.22/2014 is directed to be transferred to the Court of the Chief Judicial https://www.mhc.tn.gov.in/judis/ 32 Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 Magistrate, Tiruppur, to be tried in manner known to law in conjuction with CC.No.92/2017.
Consequently, connected miscellaneous petitions are closed.
07.10.2021
AP
Internet : Yes
To
1.The Chief Judicial Magistrate,
Coimbatore.
2.The Chief Judicial Magistrate
Tiruppur.
3.The Public Prosecutor
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
33
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014 C.V.KARTHIKEYAN, J., AP Crl.OP.Nos.12570/2014, 6684/2016, 1453/2018,6413/2019& 07.10.2021 https://www.mhc.tn.gov.in/judis/ 34