Judgment :- The petitioner has come forward with the above petition to call for the records in Crl.MP No. 3406 of 2002 on the file of the XVI Metropolitan Magistrate, George Town, Chennai and quash the order dated 13-08-2002 passed on the protest petition for re-investigation in MP No. 3406 of 2002. 2. Heard both sides. The petitioner is the accused in a private complaint filed by one Govindasamy, Partner of Karuna Traders before the XVI Metropolitan Magistrate, George Town, Chennai and the same was forwarded by the learned Magistrate under Section 156 (3) of Cr.P.C. to the first respondent/police for investigation. The respondent/police has registered a case in Crime No. 491 of 2001 for the alleged offences under Sections 406, 420, 506 (ii) r/w. Section 120 B of IPC. The respondent/police, after investigation has filed a final report before the said Magistrate stating that the dispute is civil in nature. The de-facto complainant namely Govindasamy has filed a protest petition for re-investigation in Crl.MP No. 3406 of 2002 on 13-08-2002 and requested the magistrate to direct further investigation under Section 173 (8) Cr.P.C. to the Assistant Commissioner of Police, Central Crime Branch, Egmore, Chennai – 8, which was allowed by the court below. Aggrieved by the said order, the present petition has been filed. 3. The facts of the case in nutshell is that the de-facto complainant has received scrap steel from the petitioner on the promise made by the petitioner to supply more scrap. One of the partners of Karuna Traders namely Chelladurai has paid an advance of Rs.26 lakhs to the petitioner, but the petitioner has not supplied the goods as promised. The said amount was treated as loan and the petitioner herein has executed 10 promissory notes for a total value of Rs.40 lakhs in favour of the said Chelladurai. According to the de-facto complainant, after receipt of Rs.26 lakhs for supplying steel materials, the petitioner has not supplied the goods and cheated the de-facto complainant. It was learnt by the de-facto complainant that the petitioner is not at all dealing with the business of steel plates. 4. Mr. According to the de-facto complainant, after receipt of Rs.26 lakhs for supplying steel materials, the petitioner has not supplied the goods and cheated the de-facto complainant. It was learnt by the de-facto complainant that the petitioner is not at all dealing with the business of steel plates. 4. Mr. Regupathy, learned counsel appearing for the petitioner submitted that the order passed by the learned Magistrate is erroneous and against the procedures established by law; that on receipt of the complaint reported under Section 173 (2) of Cr.P.C. three courses are open to the learned Magistrate namely (i) to drop all further action, if no sufficient grounds (ii) take cognizance of the offence under Section 191 (b) on the basis of the report of the police and (iii) take cognizance of offence under Section 191 (a) of Cr.P.C. on the basis of the original complaint and proceed to examine upon oath the complainant and witnesses under Section 200 of Cr.P.C. The learned counsel further submitted that passing of order for further investigation under Section 173 (8) of Cr.P.C. is illegal; that the observation of the learned Magistrate rejecting the final report and ordering further investigation that too mentioning particular officer to conduct investigation is unknown to criminal law; that the learned Magistrate has misconstrued the case cited by the de-facto complainant and prayed for quashing the order passed by the learned Magistrate. 5. The learned counsel appearing for the petitioner relied on the following decisions in support of his case: (i) 1976 Supreme Court Cases (Cri) 380 (Devarapally Lakshminarayana Reddy and others v. V. Narayana Reddy and others) wherein in Para-13 it was held thus:- 13. It is well settled that when a magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives a discretion to the magistrate in the matter. This is clear from the use of the words “may take cognizance” which in the context in which they occur cannot be equated with “must take cognizance”. The word “may” gives a discretion to the magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. In this judgment, it is held that a request by a Magistrate to police to investigate under sec.156(3) Cr.P.C. is not improper when no cognizance of the offence is taken. It is also held that when on receiving a complaint, a Magistrate applies his mind for the purposes of proceeding under sec.200 Cr.P.C. and the succeeding sections in chapter XV of the Code of 1973 is said to have taken cognizance of the offence within the meaning of sec.190(1)(a). If instead of proceeding under chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind such as issuing search warrant for the purpose of investigation, or ordering investigation by the police under sec.156(3) Cr.P.C. cannot be said to have taken cognizance of any offence. ii) 1981 Supreme Court Cases (Cri) 93 (H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh) wherein in Para-7 it was held thus:- "7. In Abhinandan Jha v. Dinesh Mishra1, the question arose whether a magistrate to whom a report under Section 173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet, on his disagreeing with the report submitted by the police. This Court held that the magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. This Court held that the magistrate had no jurisdiction to direct the police to submit a charge-sheet. It was open to the magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under Section 156(3). If ultimately the magistrate was of the opinion that the fact set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. While expressing the opinion that the magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the court observed that the magistrate could take cognizance under ‘section 190(1) (c)’. We do not have any doubt that the reference to ‘section 190(l)(c)’ was a mistake for ‘section 190(l)(i) That appears to be obvious to us. But Shri Kapil Sibal urged that the reference was indeed to Section 190(1) (c) since at that time Section 190(1) (c) included the words ‘or suspicion” and the court had apparently taken the view that the magistrate could take cognizance of the offence not under Section 190(1) (a) as if on a police report but under Section 190(1) (c) as if ‘on suspicion’. We do not agree with this submission. Section 190(l)(c) was never intended to apply to cases where there was a police report under Section 173(1). We find it impossible to say that a magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the magistrate and the police arrived at different conclusions from the facts. The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the magistrate is not bound by the conclusion of the complainant. If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Section 307, Indian Penal Code the magistrate is not bound by the conclusion of the complainant. He may think that the facts disclose an offence under Section 324, Indian Penal Code only and he may take cognizance of an offence under Section 324 instead of Section 307. Similarly if a police report mentions that half a dozen persons examined by them claim to be eyewitnesses to a murder but that for various reasons the witnesses could not be believed, the magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses. He may prefer to ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence. If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report. He would be taking cognizance upon the facts disclosed by the police report though not on the conclusions arrived at by the police. It could not be said in such a case that he was taking cognizance on suspicion." In this case, the Honourable Supreme Court has laid down the courses open to the Magistrate on receipt of the report, and has held that even if the report suggests that the case against the accused is not made out and must be dropped, the Magistrate disagreeing with the report can take cognizance of the offence under section 190(1)(b) Cr.P.C. and direct issue of process. 6. Mr. Thambidurai,learned Government Advocate appearing for the first respondent, relying on the counter has submitted that after receipt of the order under Section 173 (8) the Assistant Commissioner of Police, Central Crime Branch, Chennai has transferred the case to Inspector of Police, Team IX, Crime Branch for further investigation and compliance; that the allegations that the impugned order under Section 173 (8) is unsustainable; and that the learned Magistrate has got powers to order further investigation. 7. Mr. 7. Mr. Walter Solomon, learned counsel appearing for the 2nd respondent argued that the petitioner has approached the 2nd respondent and falsely made a representation that he has been dealing with the business of steel plates and promised to supply huge quantities thereby induced the 2nd respondent to pay a sum of Rs.26 lakhs towards advance and accordingly it was paid by the 2nd respondent, but he failed to supply the goods as promised thereby he cheated the 2nd respondent/de-facto complainant; that the earlier investigation by the XI team, Central Crime Branch, Chennai was done without examining any witnesses and wrongly closed the complaint as civil in nature; that the learned Magistrate, after satisfied himself that complete investigation was not done in the case has rightly ordered for re-investigation and prayed for dismissal of the petition. 8. The learned counsel appearing for the 2nd respondent relied on the following decisions in support of his case:- i) 1985 SCC (Cri) 267 (Bhagwant Singh Vs. Commissioner of Police and another) wherein in Para 4 it was held thus:- "4. Now, when the report forwarded by the officer-in-charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things : (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under subsection (3) of Section 156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of Section 156......" ii) 1997 SCC (Cri) 1112 (Union Public Service Commission Vs. S. Papaiah and others) wherein in Para 13 the Honourable Supreme Court has held that "... The Magistrate could, thus in exercise of the powers under section 173(8) Cr.P.C. direct the CBI to "further investigate" the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the "new" report to be submitted by the investigation officer would be governed by sub-sections (2) to (6) of section 173 Cr.P.C." The above two judgments relied on by the learned counsel appearing for the second respondent are not applicable to the present case as the said cases are relating to the complaint filed by the police, but, not relating to private complaint. 9. The dispute involved in this case is that after receipt of the police report in a private complaint, whether the Magistrate can order for further investigation through the Assistant Commissioner, Central Crime Branch, Egmore under sec.173(8) Cr.P.C. 10. The learned counsel appearing for the petitioner has advanced arguments that in a private complaint, the Magistrate cannot direct the police for further investigation under sec.173(8) Cr.P.C. The learned Government Pleader and the counsel appearing for the second respondent submitted that such an order passed by the Magistrate is valid. 11. The learned counsel appearing for the petitioner has advanced arguments that in a private complaint, the Magistrate cannot direct the police for further investigation under sec.173(8) Cr.P.C. The learned Government Pleader and the counsel appearing for the second respondent submitted that such an order passed by the Magistrate is valid. 11. Now, we will look into the provisions of sec.173(8) Cr.P.C.:- "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section(2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(2)." Under Chapter XII of Cr.P.C., sections 154 to 176 are provided. Chapter XII begins with the heading of Information to the police and their powers to investigate. Sec.156 Cr.P.C. is relating to police officer's power to investigate cognizable offences. In the said section 156, it is contemplated that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Sub section 2 of sec.156 speaks that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Sub section 3 of sec.156 is relevant to the case on hand wherein it is stated that any Magistrate empowered under section 190 may order such an investigation as above mentioned. It is evident from sec.156, investigation can be initiated by the police officer without an order of a Magistrate and the Magistrate of that jurisdiction is also empowered under sec.190 to order for investigation. 12. It is evident from sec.156, investigation can be initiated by the police officer without an order of a Magistrate and the Magistrate of that jurisdiction is also empowered under sec.190 to order for investigation. 12. Other sections in Chapter XII Cr.P.C. are relating to information as to cognizable or non cognizable cases, procedure for investigation, report how submitted, preliminary enquiry, attendance of witnesses, examination of witnesses, confessions, search, diary, enquiry and report on suicide, power to summon person, enquiry by Magistrate into the cause of death and report of police officer on completion of investigation. 13. Section 173 Cr.P.C. is relevant for deciding the issues involved in the case on hand. Sec.173(2) contemplates that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence. Sec.173(8) contemplates that nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section(2). Even the opening of the section makes it clear that nothing precludes the investigating officer to send his new report if any new or additional facts come to his knowledge though a report was already sent by him. The power of the police to conduct further investigation, after laying final report is recognised under sec.173(8) Cr.P.C. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition provided the case is one made on police complaint. 14. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition provided the case is one made on police complaint. 14. Once a Magistrate in a private complaint orders for investigation under sec.156(3) and receives a report from the police under sec.173(2) Cr.P.C., three courses are open to him viz., (i) he may drop further action when he decides that there is no sufficient ground; (ii) he may take cognizance of the offence under sec.190(1)(b) Cr.P.C. and issue process; and (iii) he may take cognizance of the offence under sec.190(1)(a) Cr.P.C. on the basis of the original complaint and proceed to examine upon oath the complainant and the witnesses under sec.200 Cr.P.C. (Followed: H.S.BAINS V. STATE (1981 SCC (CRI) 93)). 15. There is no power, expressly or impliedly conferred under the Code, on a Magistrate in a private complaint after ordering investigation under sec.156(3) and receipt of final report to call upon the police to change their opinion so as to accord with his view when they have sent a report that the case is closed as civil in nature. The investigation under the Code takes in several aspects and stages ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial and the submission of either a charge sheet or a final report is dependent on the nature of the opinion, so formed. The formation of the said opinion, by the police, is the final step in the investigation insofar as private complaint is concerned, and that final step is to be taken only by the police and by no other authority. Hence, the impugned order of reinvestigation under sec.173(8) Cr.P.C. passed by the learned Magistrate is unsustainable in law. 16. In this case, the learned Magistrate has not chosen to treat the protest petition in accordance with law and procedures indicated in the Code. Besides that the learned Magistrate committed an error in specifying a particular officer to conduct re-investigation. Hence, the impugned order is set aside. 17. However, as fairly conceded by the learned counsel appearing for the petitioner, it is open to the learned Magistrate to proceed on the basis of the original complaint on its merits in accordance with law. Besides that the learned Magistrate committed an error in specifying a particular officer to conduct re-investigation. Hence, the impugned order is set aside. 17. However, as fairly conceded by the learned counsel appearing for the petitioner, it is open to the learned Magistrate to proceed on the basis of the original complaint on its merits in accordance with law. I do not want to mention anything about the merits of the case as the same is within the domain of the learned Magistrate. 18. With the above said observation, this petition is allowed. Consequently, the connected Crl.M.P. is closed.