Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 660 (KER)

K. N. Natarajan v. Sasidharan

2001-11-20

T.M.HASSAN PILLAI

body2001
Judgment :- T.M. Hassan Pillai, J. The prayer made in the petition filled (Annexure A is the true copy of the petition) by the revision petitioner before the court below (judicial 1st Class Magistrate Court-11, Cherthala) in C.C.N.o 522/98 was for ordering re-investigation in C.C. Nos. 533 and 522 of 1998 pending before that court so as to ensure full justice to them (they claim to be innocent). The learned Magistrate declined to allow the prayer made in Annexure-a petition and calling in question the legality, propriety and correctness of the impugned order (Annexure B order), this revision has been preferred. Without adverting to the assertions made by the revision petitioner in Annexure-A, voicing grievance against the alleged lopsided, faulty and perfunctory manner of investigation conducted by the Sub Inspector of Police, Muhamma Police Station in crime No. 134/98 of that police station which culminated in laying Chellan against the revision petitioners accusing them of having committed the offences punishable under Sections 341, 323 read with section 34 IPC, this revision can be disposed of. 2. The pivotal or the coe question that is to be answered is whether a judicial magistrate, after taking cognizance of an offence on the basis of a police report and after appearance of the accused in pursuance of the process issued, can order further investigation. 3. Before proceeding to answer the question possed, some facts which are relevant and material are to be stated here. In C.C.No. 522 of 1998, revision petitioners were examing as Pws 1 and 2 and accused persons were examined under Section 313 Cr.P.C. At the time of filling Annexure A petition before the trial magistrate, that case was posted for adducing defence evidence. It transpired that in the cross case police report has been filed against the revision petitioners accusing them of having committed offence punishable under Section 341 and 323 read with section 34 IPC and the learned Magistrate took congnizance of the offences. Revision petitioners appeared before the learned Magistrate in pursuance of the proceed issued and the cross case is pending before the magistrate court. 4. It is no longer a debatable question that power for further investigation is available to police after submission of charge sheet in view of subsection (B) of Section 173 of the Criminal Procedure Code. Revision petitioners appeared before the learned Magistrate in pursuance of the proceed issued and the cross case is pending before the magistrate court. 4. It is no longer a debatable question that power for further investigation is available to police after submission of charge sheet in view of subsection (B) of Section 173 of the Criminal Procedure Code. Before taking cognizance of offence under Section 190 Cr.P.C. magistrate may himself order investigation as contemplated by Section 156(3) Cr.P.C. The postion now beyond pale of controversy is that despite a magistrate taking cognizance of an offence upon a police report police could exercise right of further investigation often as necessary when fresh materials came to light. In Ram Lal Narang V. State (Delhi Administration) (AIR 1979 S.C. 1791) Apex Court ruled that after cognizance has been taken, then with a view to maintain independence of the magistracy and the judiciary, interest of the purity of administration of criminal justice and interest of the comity of the various agencies and institutions entrusted with different stage of such administration, it would " ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light". 5. Supreme Court had occasion to peep into a little grey area of the criminal law as the Supreme Court was called upon to decide the question as to whether a judicial magistrate after taking cognizance of an offence on the basis of police report and after appearance of the accused in pursuance of the process issued, can order of his own further investigation in the case and Apex Court has held that the magistrate of his own cannot order further investigation (see Randhir Singh Rana.V. State Delhi Administration AIR 1997 Supreme Court 839). The principle of law that can be culled out on a parity of reasoning is that magistrate is not competent to order further investigation after taking cognizance of the offences and after accused appeared before him in pursuance of issuance of process expect giving formal permission to make further investigation to police when fresh facts come to light (When police informs and seek permission of the court). Learned Counsel for the revision petitioner as not brought to my notice any decision of the Supreme Court rendered after laying down the law in the above sited decision taking a contrary or a divergent view. Learned Counsel for the revision petitioner as not brought to my notice any decision of the Supreme Court rendered after laying down the law in the above sited decision taking a contrary or a divergent view. 6. The order insurmountable hurdle to get upset the impugned order is that after submission of police report under sub section(2) on completion of investigation, the right of police is only to contact investigation under sub section (8), and not "fresh investigation" or "reinvestigation". Continuation of earlier investigation is further investigation and on completion of further investigation the investigating agency as to forward to the magistrate a further report or reports as envisaged under 173 (8) Cr.P.C. and not fresh report or reports. Supreme Court laid down the above stated legal principles in K.Chadrasekhar V. State of Kerala (1998 SCC (Crl)1290). Sub Section 173 (8) lays down that investigating agency can carry on further investigation in respect of the offence after a report under Sub section(2) as been find. In the course of further investigation commission of some fresh offence also may be disclosed but connected with the transaction which is the subject matter of the earlier report. The police, after further investigation, can find supplementary report and the trial court which took cognizance cannot reject the supplementary report out right and it may be a supplementary report in support of the earlier report. To enable the investigating agency to gather further evidence is the purpose of Sub section(8) of section 173 Cr.P.C. Forwarding of another report is visualized by sub section (8) of section 173 and further investigation as legal sanction. It is now well settled in view of the decision rendered by the supreme court in State of Rajastan v. Aruna Devi and others (1995 SCC Cri) 1) that the magistrate is competent to take cognizance of an offence on the basis of further report submitted by police after further investigation even if the magistrate accepted the earlier report filed by the police under Section 173(2) Cr.P.C. after investigation stating that the complaint is false. It is the exclusive jurisdiction of magistrate to decide whether the material d placed by the prosecution with the report (charge sheet) is sufficient to take cognizance or not and the power of magistrate to take cognizance of offence cannot be controlled by the investigating agency, whose duty is only to investigate and place the facts and evidence before the magistrate (see State of Maharashtra V. Sharadchandra Vinayak Dongre and others (1995 SCC (Cri) 16). 7. The prayer made in the petition filled by the revision petitioners is for reinvestigation and the magistrate is not competent to order reinvestigation. Learned Magistrate turned down the prayer made in Annexure-A petition for reinvestigation and for entirely different reasons the magistrate's order is to be sustained. No illegality or irregularity had been brought to my notice to upturn the order under attack. Hence, the revision is dismissed.