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2006 DIGILAW 3164 (MAD)

T. Rajasekar v. V. R. Chelladurai & Others

2006-11-21

A.P.SHAH, K.CHANDRU

body2006
Judgment :- (Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No.36291 of 2005 12.7.2006.) A.P. Shah, C.J. This appeal is directed against the judgment and order dated 12.7.2006 passed by the learned single Judge in Writ Petition No.36291 of 2005. The writ petition was filed by the writ petitioner, first respondent herein for quashing the order dated 14.7.2005 passed by the Director General of Police, Tamil Nadu, Chennai third respondent herein directing the transfer of investigation in PS Cr.No.597/2004 on the file of Bhoothapandy Police Station to the Additional Superintendent of Police (Crime Branch.), Kanyakumari District. By the order under appeal, the writ petition was allowed, and the impugned order of the Director General of Police was quashed and set aside. 2. The facts which are necessary for the disposal of this appeal are few and may be shortly stated. On 16.9.2004, the appellant filed a complaint with Boothapandy Police Station alleging theft of blank cheque leaves and title deeds from the side box of his motor cycle on 14.9.2004. He also lodged a complaint in that regard with the bank concerned. A paper publication was also caused by the appellant in ‘Dina Thanthi’ through his advocate on 18.10.2004. In the meantime, certain cheques were presented to the bank for encashment and the appellant again gave a complaint to the Inspector of Police, Boothapandy Police Station on 23.10.2004. The appellant thereafter filed a private complaint before the Judicial Magistrate, Boothapandy against the first respondent and two others, which was returned by the learned Magistrate on 08.11.2004 with a liberty to lodge a complaint before the Superintendent of Police. Subsequently, the appellant represented his complaint before the Judicial Magistrate, Boothpandy on 16.11.2004. The learned Magistrate forwarded the complaint under Section 156(3) Cr.P.C to the Inspector of Police, Boothapandy Police Station. Accordingly, a case in Crime No.597/2004 came to be registered on 18.11.2004 for the offences under Sections 379, 109 r/w 403, 411, 467, 468 and 471 IPC. The complaint was investigated by the Inspector of Police, Boothapandy Police Station, who closed the case as “mistake of fact” and filed his report before the learned Magistrate on 21.4.2005. In the meantime, a representation was made by the appellant to the respondents 2, 3 and 4 seeking investigation of his complaint by any superior officer of police. The complaint was investigated by the Inspector of Police, Boothapandy Police Station, who closed the case as “mistake of fact” and filed his report before the learned Magistrate on 21.4.2005. In the meantime, a representation was made by the appellant to the respondents 2, 3 and 4 seeking investigation of his complaint by any superior officer of police. The appellant also moved a writ petition in this Court being W.P.No.14781 of 2005 seeking direction for transfer of investigation. By order dated 29.4.2005 the learned single Judge directed the second respondent therein namely, the Director General of Police to consider and dispose of the appellant’s representation. The writ appeal filed against the aforesaid order was dismissed by a Division Bench of this Court observing that the order passed by the learned single Judge was only a direction to the authorities concerned to consider the representation seeking for transfer of investigation. By virtue of the impugned order passed by the Director General of Police, the Deputy Superintendent of Police took up investigation in Crime No.597/04 and ultimately filed the charge sheet against eight persons before the Court of Judicial Magistrate, Boothapandi. In the meantime, the first respondent filed the present writ petition which came to be finally allowed by the learned single Judge. We may also mention that the first respondent filed a complaint against the appellant under Section 138 of the Negotiable Instruments Act in which process came to be issued. The appellant has filed a writ petition for quashing the complaint under Section 138 of the Negotiable Instruments Act and those proceedings are pending before the Madurai Bench of this Court. 3. The appellant has filed a writ petition for quashing the complaint under Section 138 of the Negotiable Instruments Act and those proceedings are pending before the Madurai Bench of this Court. 3. On the basis of the above stated facts and circumstances, the learned single Judge formulated the following question of law: - “The point for consideration is whether once the Magistrate has taken on file the complaint given by the de-facto complainant/first respondent, entrusted the matter for investigation by the police having jurisdiction to enquire into the matter and that the police after investigating into the matter submitted a report to the Magistrate closing the case as mistake of fact and on receipt of the report, the Magistrate has taken a decision to accept the said report and close the complaint and accordingly issued a notice in Form 95 to the first respondent to appear before the court and that the first respondent refused to receive the above said notice, but made representations subsequent to the filing of the final report to transfer the investigation in the said criminal case and thereafter filed a writ petition before this Court and obtained an order without making the writ petitions and two others as party respondents against whom the complaint was made for the alleged theft and presentation of cheques for withdrawal which were alleged to be blank cheques signed by the Chairman of the Trust and, as directed by this Court, the third respondent passed the impugned order directing the fifth respondent to re-investigate the matter is correct or not.” 4. The learned single Judge appears to have proceeded on the assumption that on the final report submitted by the jurisdictional police, the learned Magistrate issued notice to the appellant before passing orders on his complaint, but the appellant refused to receive the notice, and consequently the learned Magistrate accepted the report and closed the complaint. According to the learned single Judge, as against the order passed by the learned Magistrate, the only course open to the appellant/complainant was to file a revision or an appeal before the superior Court assailing the correctness of the order passed by the Magistrate. According to the learned single Judge, as against the order passed by the learned Magistrate, the only course open to the appellant/complainant was to file a revision or an appeal before the superior Court assailing the correctness of the order passed by the Magistrate. But the appellant, however, to nullify the order passed by the learned Magistrate has adopted the ingenuous way of sending a representation seeking reinvestigation of the matter and transfer of investigation and obtained an order from this Court directing the authorities concerned to consider and pass orders on his representation and pursuant thereto, the impugned order was passed by the third respondent for transfer of investigation. The learned single Judge, therefore, held that the impugned order is not sustainable in law. 5. Mr.R.Subramanian, learned senior counsel appearing for the appellant strenuously contended that the first respondent/writ petitioner being an accused in a criminal case has no right to challenge the order of transfer of investigation passed by the Director General of Police in exercise of powers under Section 36 of Cr.P.C. Learned senior counsel submitted that the finding recorded by the learned single Judge that the investigating officer filed final report on 25.2.2005 and that on the said report, the learned Magistrate issued notice to the appellant before passing orders and further the learned Magistrate proceeded to pass orders on the complaint is totally incorrect. The report of the Investigating Officer though was dated 25.2.2005, the same was filed before the Judicial Magistrate only on 21.4.2005. Further the learned Magistrate did not issue any notice at all to the appellant/complainant nor there was any order passed by the learned Magistrate. He submitted that once the investigation has been ordered by the learned Magistrate under Section 156(3) Cr.P.C, the investigation can be by the Station Officer or any Superior Officer of Police by taking over the investigation from such officer in charge of the police station either suo motu or on the directions of the superior officer. Hence, the order passed by the Director General of Police, Chennai dated 14.7.2005 is perfectly legal and valid. 6. On the other hand, Mr.N.R.Chandran, learned senior counsel appearing for the first respondent submitted that the impugned order is against the scheme of Section 173 Cr.P.C, which stipulates that any further investigation can be done only with the leave of the Court. 6. On the other hand, Mr.N.R.Chandran, learned senior counsel appearing for the first respondent submitted that the impugned order is against the scheme of Section 173 Cr.P.C, which stipulates that any further investigation can be done only with the leave of the Court. Once the investigation officer forms an opinion that the complaint is liable to be closed as mistake of fact and files a report to that effect under the provisions of Section 173 (2) Cr.P.C, the power of the police to investigate ceases with the filing of the said report. The third respondent was not empowered to deal with such cases after filing of the report except with the permission of the Magistrate under Section 173(8) Cr.P.C. and no such further investigation or even reinvestigation can be ordered without the permission of the learned Magistrate. Learned senior counsel submitted that the impugned order of the third respondent directing transfer of investigation is a non-speaking order and has been passed mechanically without application of mind to the materials placed on record. 7. We have called for the original records and also verified the same. Upon verification, it is seen that though the final report of the investigating officer was dated 25.2.2005, the same was filed before the Judicial Magistrate’s court only on 21.4.2005. In the meantime, the investigating officer retired on 28.2.2005. It is also seen that the learned Magistrate did not issue any notice at all to the appellant/complainant nor there was any order passed by the learned Magistrate. It is further seen from the record that notice of the final report was given to the appellant in terms of Form- 95, but the same was stated to be returned with an endorsement that the appellant has refused to receive the report. 8. In Bhagwant Singh v. Commissioner of Police and another, ( 1985 (2) SCC 537 ), a three Judge Bench of the Supreme Court has held that in a case where the Magistrate to whom a report is forwarded under Section 173(2)(i) decides not to take cognizance of the offence and to drop the proceedings or take the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. Unnecessary delay on account of the difficulty of effecting service of the notice on the informant cannot be a valid objection against this view because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under Section 173(2)(i). Moreover, the difficulty of service of notice on the informant cannot provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate. In the instant case, though the report was lodged with the court of Judicial Magistrate on 21.4.2005, the Magistrate had not issued any notice to the appellant/complainant nor any order has been passed by him. Consequently, the order of the third respondent transferring investigation to a higher officer cannot be faulted with. 9. Learned senior counsel for the first respondent, however, urged that once the final report is submitted by the police, no further investigation can be directed without prior permission of the Magistrate, and therefore on this ground alone the order passed by the third respondent is liable to be set aside. It is true that ordinarily permission of the Magistrate is sought for carrying further investigation. But merely because further investigation was carried without the prior permission will not render the investigation invalid in law. In this regard we may refer to the decision of the Supreme Court in State of Rajasthan v. Aruna Devi and others, (1995) 1 SCC 1 . In that case, a complaint was filed in the Court of Munsif and Judicial Magistrate, First Class, Bilara against the respondents therein under various sections of the Indian Penal Code. The gravamen of the allegation was that the respondents had, in pursuance of a conspiracy, transferred contain land on the strength of a special power of attorney bearing forged signature. The Magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by Section 156(3) Cr.P.C. A case was registered thereafter by the police and a final report was submitted on 18.7.1981 stating that the complaint was false. The report came to be accepted by the Magistrate on 23.9.1981. The Magistrate, after perusal of the complaint, directed an investigation to be made as contemplated by Section 156(3) Cr.P.C. A case was registered thereafter by the police and a final report was submitted on 18.7.1981 stating that the complaint was false. The report came to be accepted by the Magistrate on 23.9.1981. It, however, so happened that the Superintendent of Police had independently ordered further investigation on 24.9.1981 and a challan came to be filed by the police against the respondents under Sections 420 and 467 IPC. The Magistrate took cognizance of the said complaint. A challenge was made to this act of the Magistrate before the Sessions Judge, who dismissed the revision. On further approach to the High Court, the revision was allowed and the order of cognizance was set aside. The State went on appeal to the Supreme Court under Article 136 of the Constitution of India. Allowing the appeal, the Supreme Court held as follows: - “3. A perusal of the impugned judgment of the High Court shows that it took the view that the Magistrate had no jurisdiction to take cognizance after the final report submitted by police had been once accepted. Shri Gupta, appearing for the appellant, contends that this view is erroneous in law inasmuch as Section 173(8) of the Code permits further investigation in respect of an offence after a report under sub-section (2) has been submitted. Sub-section (8) also visualizes forwarding of another report to the Magistrate. Further investigation had thus legal sanction and if after such further investigation a report is submitted that an offence was committed, it would be open to the Magistrate to take cognizance of the same on his being satisfied in this regard. 4. Shri Francis for the respondents, however, contends that the order of the Magistrate taking cognizance pursuant to filing of further report amounted to entertaining second complaint which is not permissible in law. To substantiate the legal submission, we have been first referred to Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 , in which a three-Judge Bench of this Court dealt with this aspect. To substantiate the legal submission, we have been first referred to Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 , in which a three-Judge Bench of this Court dealt with this aspect. A perusal of the judgment of the majority shows that it took the view that dismissal of a complaint under Section 203 of the Code is no bar to the entertainment of a second complaint on the same facts; but the same could be done only in exceptional circumstances some of which have been illustrated in the judgment. Further observation in this regard is that a fresh complaint can be entertained, inter alia, when fresh evidence comes forward. In the present case, this is precisely what had happened, as on further investigation being made, fresh materials came to light which led to the filing of further report stating that a case had been made out. 5. The case of Bindeshwari Prasad Singh v. Kali Singh, (1977) 1 SCC 57 which also has been referred by Shri Francis, has not really dealt with the point under consideration, as the legal question examined therein was whether a Magistrate possesses inherent powers to review or recall any order passed by him. Of course, the order recalled in that case was also one of dismissing the complaint under Section 203 on the ground of complainant being absent which showed that he had no interest in the matter.” 10. In the present case before the final report was filed in the Court of Judicial Magistrate, Boothapandi, a writ petition came to be filed before this Court, on which a direction was issued to the third respondent to dispose of the representation of the appellant to transfer the investigation of the case to some other investigating authority. The order of the learned single Judge has been affirmed by the Division Bench of this Court. Even before the Division Bench decided the appeal, the impugned order was passed by the third respondent to transfer the investigation to the Additional Superintendent of Police, Crime, Kanyakumari District. The matter has been further investigated by the fourth respondent and the charge sheet has been filed in the Court of Judicial Magistrate, Boothapandi. The learned single Judge was therefore clearly in error in setting aside the order of the third respondent. The matter has been further investigated by the fourth respondent and the charge sheet has been filed in the Court of Judicial Magistrate, Boothapandi. The learned single Judge was therefore clearly in error in setting aside the order of the third respondent. The Learned single Judge proceeded on an erroneous basis that the Magistrate had issued notice to the appellant and after notice, the learned Magistrate accepted the report and closed the complaint. The learned Magistrate has not passed any order on the report submitted on 21.4.2005. Consequently, further investigation carried on by the Deputy Superintendent of Police (Crime Branch) cannot be said to be illegal or without jurisdiction. 11. In the result, the appeal is allowed. The order of the learned single Judge is set aside. However, it is made clear that it would be open for the first respondent, on the matter being taken up by the learned Magistrate, to urge that no case against him has been made out and it would be open for the Magistrate to pass such orders, as he deem legal and just. No costs. Consequently, M.P is closed.