Madras High Court
S.Sam Sundar Singh ... Revision vs The Inspector Of Police on 22 August, 2016
Author: P.Devadass
Bench: P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.08.2016 CORAM THE HONOURABLE DR.JUSTICE P.DEVADASS Crl. R.C. (MD) No.328 of 2016 and Crl.M.P. (MD) No.4267 of 2016 S.Sam Sundar Singh ... Revision Petitioner/Accused -vs- The Inspector of Police, Rathapuram, Tirunelveli District. (Under Crime No.129 of 2007) ... Respondent/Complainant PRAYER: Criminal Revision Petition is filed, under Section 397 r/w 401 Cr.P.C., to set aside the order passed under Section 173(8) Cr.P.C. in Crime No.129 of 2007, dated 27.07.2010 on the file of the learned Judicial Magistrate, Valliyur. !For Petitioner : Mr.K.R.Laxman ^For Respondent : Mrs.S.Prabha Govt.Advocate (Crl.Side) :O R D E R
The accused in Crime No.129 of 2007 on the file of the Inspector of Police, Rathapuram, Tirunelveli District directed this revision as against the order of the learned Judicial Magistrate, Valliyoor, dated 27.07.2010, passed under Section 173(8) Cr.P.C., directing fresh investigation.
2.On 26.08.2007, at about 5 p.m., Kakkum Perumal Nadar, in his land situate in Singara Thope in Rathapuram found an unidentified charred body. On the same day, at about 7 p.m. at the Rathapuram Police Station, he reported this to the Inspector of Police. The Inspector of Police registered a case of suspicious death in Crime No.129 of 2007 under Section 174 Cr.P.C
3.The Inspector commenced his investigation. Collected materials. On 01.10.2009, he altered the Section of law to Section 302 I.P.C. and submitted his alteration report to the learned Judicial Magistrate, Valliyoor. Thereafter, on 21.03.2009, he submitted a negative final report to the said Magistrate, temporarily treating the case as 'UN - undetectable'. The learned Magistrate, accepted the said report.
4.Subsequently, the prosecution seems to have obtained some clue and sought the permission of the learned Magistrate to re-investigate the case.
5.On 27.07.2010, the learned Judicial Magistrate, Valliyoor passed the following order:
?Records perused. Case reopened and the Inspector of Police is permitted to investigate the matter further as contemplated U/s. 173(8) Cr.P.C.?
6.Thereafter, the Investigation Officer reopened the investigation and he is stated to have obtained some materials implicating the petitioner with this case.
7.The learned counsel for the revision petitioner contended that the order already passed by the learned Judicial Magistrate, Valliyoor accepting the negative final report submitted by the Investigation Officer treating the case as UN-undetectable is a 'judicial order'. It cannot be reopened by the learned Magistrate. It can be reopened only after the said order being set aside by a superior forum.
8.In this connection, the learned counsel for the petitioner cited a Division Bench decision of this Court in K.K.S.S. RAMACHANDRAN V. STATE REP. BY THE INSPECTOR OF POLICE, IRUKKANKUDI POLICE STATION, SATTUR TALUK, VIRUDHUNAGAR DISTRICT [2015 (2) MLJ (Crl) 257].
9.The learned counsel for the revision petitioner also contended that under Section 173(8) Cr.P.C., the learned Magistrate has got power to order further investigation, but he has no power to order fresh/re/denovo investigation. Such a power could be exercised only by a superior Court.
10.In this connection, the learned counsel for the revision petitioner cited VINAY TYAGI V. IRSHAD ALI @ DEEPAK [2013 (5) SCC 762].
11.The learned counsel for the revision petitioner would submit that in the circumstances, the impugned order passed by the learned Magistrate on 27.07.2010 directing the police to conduct fresh investigation is against law and whatever follow-up action taken pursuant to such an order is vitiated.
12.The prosecution filed the counter opposing the plea of the petitioner.
13.The learned Government Advocate (Criminal side) submitted that on reinvestigation the accused having been concerned with this case came to light. He is a notorious criminal. He is involved in many cases. In the facts and circumstances the impugned order passed by the learned Magistrate is not flawed.
14.I have anxiously considered the rival submissions, perused the averments made in the revision petition and the counter filed by the prosecution, the impugned order and the decisions cited by the learned counsel for the revision petitioner.
15.We have already given the necessary factual matrix for the disposal of this revision. Let us not duplicate it.
16.On receipt of an information relating to the commission of a cognizable offence, a Station House Officer (S.H.O.), registers a First Information Report (F.I.R.) under Section 154 Cr.P.C. Thereafter, under Section 156 Cr.P.C., he gets the power to investigate the crime reported. As per Section 2(h) Cr.P.C., collection of materials with reference to the Crime reported is 'investigation'. The procedure the investigation officer has to follow has been delineated in Section 157 Cr.P.C. His collection of materials, mainly consists of oral statement of witnesses recorded under Section 161 Cr.P.C., seizure of documents, materials seized through search and seizure, statement obtained through custodial interrogation, Section 27 Evidence Act recoveries and scientific evidence and the reports thereon etc.
17.Concluding his investigation/collection of materials, the Investigation Officer has to form an opinion thereon and submit his report under Section 173(2) Cr.P.C. to the Court. In his said report he must state whether his investigation discloses commission of any offence. His such report is called 'positive final report'; 'Challan', loosely called 'Charge Sheet'. When his report says that no offence appears to have been committed and it is a 'Mistake of Fact', 'Mistake of Law', 'Accidental Fire', 'a Civil Case', 'Untraceable' and ' Undetected', then it is called 'negative final report', 'referred charge sheet', referred challan'. In either case, whether positive or negative, the report is called 'Police Report' or 'final report'.
18.Upon such report being filed by the Investigation Officer, as held in ABHINANDAN JHA V. DINESH MISHRA [1968 AIR 117], whether it is a positive or negative, on his perusal of the materials presented along with the final report, the learned Magistrate can concur with the conclusion of the Investigation Officer or come to a different conclusion and take cognizance thereon under Section 190(1)(b) Cr.P.C. or direct further investigation vide Section 156(3) and 173(8) Cr.P.C. and call for further report from the Investigation Officer. However, while doing so, he cannot direct the manner or method of investigation to be done by the Investigation Officer nor he direct the Magistrate to file a charge sheet.
19.The principles laid down in ABHINANDAN JHA (supra) has been subsequently reiterated by a three Judge Bench of the Hon'ble Supreme Court in BHAGAWANT SINGH V. COMMISSIONER OF POLICE AND ANOTHER [AIR 1985 SC 1285].
20.In case a negative final report is filed, the learned Magistrate after giving notice to the defacto complainant, some times to the victim, in some cases, to the relatives or legal heirs of the deceased, shall receive 'protest petition', if any filed by them, treat it as 'a complaint', enquire accordingly and pass orders thereon. (See 200, 202, 203, 204, 190(1)(b) Cr.P.C.)
21.A Division Bench of this Court in K.K.S.S. RAMACHANDRAN (supra) examined the nature of the order passed by a Magistrate accepting the negative final report filed by the Investigation Officer treating the case as Undetectable. The Division Bench held that it is a 'Judicial Order' passed by the learned Magistrate. And he cannot recall it. He is incompetent to do so. And it had also opined that such an order has to be set aside by a superior forum.
22.After the acceptance of a negative final report by the Magistrate when some clue or material may be unearthed by the Investigation Officer. In such a case need may arose for 'further investigation'. In such a case, the prosecution has to get the judicial order of the learned Magistrate accepting the negative final report of the Investigation Officer by setting it aside by a superior forum and thereafter the Investigation Officer can seek leave of the Magistrate to do further investigation under Section 173(8) Cr.P.C.,
22.In VINAY TYAGI (supra) the Hon'ble Supreme Court after noticing the three Judge Bench Decision in BHAGAWANT SINGH (supra) deviated from its earlier view in REETA NAG V. STATE OF WEST BENGAL & ORS [2009 (13) SCR 276] that at the instance of the defacto complainant the Magistrate has no power to order further investigation and held that the Magistrate has power to direct further investigation after filing of the initial final report, when the defacto complainant presents a valid ground.
24.However in VINAY TYAGI (supra) the Hon'ble Supreme Court has clearly held that though the police has power of 'further investigation' under Section 173(8) Cr.P.C. they have no power of 'fresh/re/de novo investigation'. It can be done only after scrapping the earlier investigation done by the police.
25.Both in REETA NAG (supra) and in VINAY TYAGI (supra) conclusively the Hon'ble Supreme Court has held that a Magistrate has no power to order for re/fresh/de novo investigation. He is incompetent to do so. However, such a power can be exercised by the High Courts under Section 482 Cr.P.C. and under Article 226 of the Constitution of India.
26.VINAY TYAGI (supra) has been subsequently followed by the Hon'ble Supreme Court in CHANDRA BABU V. STATE THROUGH INSPECTOR OF POLICE AND OTHERS [2015 Crl. L.J. 4538], also see P.RAVINDRANATH V. K. CHANDRA GANDHI AND INSPECTOR OF POLICE, USILAMPATTI, MADURAI DISTRICT [2014(3) MWN (Cri) 236] and RAMSARAN VARSHNEY & OTHERS V. STATE OF U.P. & ANOTHER [2016(2) SCC (Cri) 190 = (2016) 3 SCC 724. This is the present position of law with regard to a negative, referred charge sheet, 'further investigation' and 're-investigation'.
27.In the light of the above position of law since the order of the learned Judicial Magistrate, Valliyoor accepting the final report of the Investigation Officer that the case is undetectable is a judicial order, he cannot set aside it on his own and order fresh investigation. Thus, the impugned order dated 27.07.2010 suffers from legality. It calls for our interference.
28.In view of the foregoings, this revision is allowed. The impugned order dated 27.07.2010 passed by the learned Judicial Magistrate, Valliyoor in Crime No.129 of 2007 on the file of the Inspector of Police, Rathapuram is set aside.
29.It is made clear that it is open to the Investigation Officer to pursue the clues, if any, obtained by him subsequent to the closure of his initial investigation by approaching the appropriate superior Court to set aside the order of the learned Judicial Magistrate, Valliyoor accepting his report treating the case as undetectable and proceed further in accordance with law. Consequently, connected Miscellaneous Petition is closed.
To
1.The Principal Sessions Judge, Tirunelveli.
2.The Chief Judicial Magistrate, Tirunelveli.
3.The Judicial Magistrate, Valliyoor, Tirunelveli District.
4.The Government Advocate (Criminal Side), Madurai Bench of Madras High Court, Madurai.
5.The Deputy Superintendent of Police, Valliyoor, Tirunelveli District.
6.The Inspector of Police, Rathapuram, Tirunelveli District.
7.The Section Officer, (Criminal Section), Madurai Bench of Madrash High Court @ Madurai.
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