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2008 DIGILAW 2794 (MAD)

Mohamed Hussain v. Inspector of Police (L & O)

2008-08-01

K.MOHAN RAM

body2008
Judgment :- The above Criminal Original Petition has been filed to direct the respondent Police to further investigate under section 173(8) Cr.p.C. in Crime NO.507 of 2005 on the file of the respondent. 2. The short facts which are necessary for disposal of the Criminal Original Petition are set out below: The petitioner herein is residing with his daughter and son-in-law at No.5/3, Kasturi Estate II Street, Chennai -86; a civil dispute is pending before the Principal District Judge at Tiruchirappalli between the petitioner and the accused in C.C.No.5726 of 2005 on the file of the VI learned Metropolitan Magistrate, Egmore, Chennai; while so, at about 4.45 p.m. on 16.03.2005, the accused namely, Ahmed Zainal Ariff alleged to have contacted through mobile Phone No.9841375754 the petitioners son-in-law over the land line telephone NO.24993112 and alleged to have threatened that the petitioner will not return alive and steps have already been taken to murder him and the petitioners son-in-law and daughter, also will be murdered; the said telephone threat was informed to the petitioner while he was in Trichy and the son-in-law lodged a complaint with the respondent Police and on that basis a case has been registered in Crime No.507 of 2005 under section 506 of I.P.C. After completion of investigation, charge sheet has been filed in C.C.No.5726 of 2005. During the course of trial P.W.1 to P.W.4 have been examined. 3. It is the case of the petitioner that the mobile phone NO.9841375754 belongs to one Sahul Hameed of 15, Sannathi Street, Vadapalani, Chenai – 26 and the said details have been furnished by one Raj Mohan an employee of Aircel who was examined by Investigating Officer and whose statement has been recorded by the Investigating Officer on 21.03.2005; but the said Rajmohan was unfortunately not examined as a witness in this case. When this mistake was noticed, the petitioner has filed a petition under section 311 Cr.P.C and the respondent filed a petition under section 173(8) Cr.P.C seeking permission for further investigating the case and to file the final report. The said petition was dismissed by the learned Magistrate. Against the said order, respondent has not chosen to file any revision or any criminal Original Petition. Since the prosecution has not taken any steps, the petitioner has filed this present Criminal Original Petition. 4. Heard both sides. 5. The said petition was dismissed by the learned Magistrate. Against the said order, respondent has not chosen to file any revision or any criminal Original Petition. Since the prosecution has not taken any steps, the petitioner has filed this present Criminal Original Petition. 4. Heard both sides. 5. Learned counsel for the petitioner submitted that when the threatening call itself has emanated from Mobile phone bearing No.9841375754 and the said detail was furnished by the employee of Aircel namely, Rajmohan during the course of examination by the Investigating Officer and such statement has also been recorded, he ought to have been examined as a witness. But, unfortunately, it has not been done and the mobile phone also has not been recovered from Ahamed Zainal Arif. Learned counsel for the petitioner further submitted that the said owner of the cell phone ought to have been examined in the course of investigation. Failure to examine them will seriously affect the prosecution case and hence realising the same, Investigating Officer filed a petition seeking permission for further investigation but, without properly understanding the scope and purpose of the petition filed under 173(8) of Cr.P.C., the learned Magistrate has dismissed the petition. 6. In support of the said contention learned counsel also placed reliance on the decision of the Honble Apex Court reported in 2004 SCC (cri) 1603 (Hasanbhai Valibhai Qureshi v. State of Gujarat and others). In the said decision in paragraph Nos.12 and 13, the Apex court has observed as under: "12. Sub-section (8) of section 173 of Code permits further investigation and even dehors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognisance of any offence on the strength of a Police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the propriety or the manner and nature of investigation already conducted. 13. In Ram Lal Narang v. State (Delhi Admn) it was observed by this court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. 13. In Ram Lal Narang v. State (Delhi Admn) it was observed by this court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case." 7. Learned counsel submitted that even without permission from the court under section 173(8) of Cr.P.C. the respondent could have conducted further investigation and filed further report. But to be on the safer side, Investigating Officer sought for permission from the court but the court has without properly understanding the scope has dismissed the petition. 8. Heard learned counsel appearing for the petitioner. Though the accused in this case filed M.P.No.1 of 2008 seeking permission to intervention in this case and the petition was ordered by this court, when the case was listed for hearing, learned counsel for the intervener was not present in the court and there was no representation on his side for the last three hearing dates. 9. I have considered the aforesaid submissions. 10. 9. I have considered the aforesaid submissions. 10. As rightly pointed out by the learned counsel for the petitioner when the allegation against the accused itself is that he made a threatening telephone call from Mobile No.9841375754 and during the course of investigation it has come to light from the statement of Raj Mohan that the said Mobile stands in the name of Ahmed Zainal Ariff, it was the bounden duty of the Investigation Officer to cite Rajmohan as a witness and even before filing the charge sheet, the investigation Officer ought to have seized the mobile phone, examined the person, in whose name the mobile phone stands. But, unfortunately, the same has not been done. At the instance of the petitioner, the respondent filed a petition seeking permission for further investigating the matter. The court below without properly applying its judicial mind to the aforesaid aspects dismissed the petition and hence the order of the court below is unsustainable. 11. The decision of the Apex Court referred to above squarely applies to the facts of this case. When a defect in the investigation comes to the notice of the Investigating Agency and when the same is brought to the notice of this Court it is the bounden duty of the Court to consider the same. In this case the Court below has failed to do the same. As pointed out above, the defect in the investigation, namely, the non-examination of the said person-Rajmohan and the non-examination of Ahamed Zainal Arif and non-seizure of the mobile phone from him and were brought to the notice of the Court below if ought to have applied its judicial mind and held that there is necessity for further investigation. The mere fact that there may be future delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. For the aforesaid reasons, this Court is of the considered view that the order of the learned Magistrate cannot be sustained and therefore the order of the learned Magistrate is set-aside and the Criminal Original Petition is allowed. 12. In the result, the criminal Original petition is allowed permitting further investigation. For the aforesaid reasons, this Court is of the considered view that the order of the learned Magistrate cannot be sustained and therefore the order of the learned Magistrate is set-aside and the Criminal Original Petition is allowed. 12. In the result, the criminal Original petition is allowed permitting further investigation. Since the case is pending from 2005, the respondent shall further investigate the matter and file the further report within a period of one month from the date of receipt of a copy of this order. After filing of the further report by the respondent, the trial court shall continue with the trial and complete the same at the earliest, preferably, within a period of two months there from. It is made clear that this Court has not expressed any opinion about the merits of the case.