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2008 DIGILAW 4263 (MAD)

K. Mohankumar v. Inspector of Police

2008-11-18

K.N.BASHA

body2008
Judgment The petitioner, who has been implicated in this case as A2 for the alleged offence under Section 392 of I.P.C., has come forward with this petition seeking for the relief of direction to the learned Judicial Magistrate No.II, Madurai to take the amended charge sheet filed by the respondent police in Crime No.729 of 2003 on the file of the respondent police. 2. Mr. M. Ajmalkhan, learned counsel appearing for the petitioner submitted that in this case charge sheet was filed under Sections 197 and 173(8) of Cr.P.C. for the offence under Section 392 of I.P.C. including the petitioner as one of the accused (A2) and thereafter the case was committed to the learned Principal Sessions Judge, Madurai and the case was made over to First Additional Sessions Judge, Madurai and pending in S.C.No.92 of 2008. The learned counsel for the petitioner further submits that the petitioner filed a petition for quashing the F.I.R. before this Court in Crl.O.P.No.845 of 2004 and this Court passed an order dated 25.01.2005 dismissing the petition for quashing and further directed the concerned Investigating Officer to examine the matter independently without reference to the pleadings urged before this Court in quashing petition and find out as to whether the petitioner is involved in the alleged offence. 3. The learned counsel for the petitioner would further submit that as the Investigating Officer has not taken any steps as per the observation of this Court, the petitioner has been constrained to file a petition under Section 173(8) of Cr.P.C. for seeking the relief of further investigation and on such petition, the learned Judicial Magistrate No.II, Madurai directed the respondent police to conduct further investigation and file a charge sheet in accordance with law. It is submitted before this Court today that the Investigating Officer in this case has conducted further investigation as per the order of the learned Judicial Magistrate No.II, Madurai, and also filed the amended charge sheet before the learned Magistrate, but the learned Magistrate declined to accept that amended charge sheet on 16.04.2008 on the ground that the case was already committed to the learned Principal Sessions Judge and the Investigating Officer has to file the amended charge sheet only before the learned Sessions Judge. It is submitted that thereafter the Investigating Officer moved before the learned First Additional Sessions Judge and presented the amended charge sheet, but the learned Sessions Judge observed that the Investigating Officer has to file the amended charge sheet only before the learned Magistrate, who has earlier committed the matter to the Court of Sessions. The learned counsel for the petitioner would further contend that in view of the said fact the petitioner has been made to run from pillar to post. It is submitted that in the amended charge sheet, the name of the petitioner was deleted and it is stated by the Investigating Officer that the petitioner was not involved in the alleged offences and as such, the petitioner has been put into great hardship in spite of the fact that the final report disclosing that he has not involved in this case, he has to appear before the trial Court regularly for all the dates of hearing and he is undergoing the ordeal of trial. 4. Mr. Ajmalkhan, learned counsel appearing for the petitioner would further contend that the only provision available under the Cr.P.C. is Section 173 (2) in respect of the completion of investigation and filing the final report. It is submitted by the learned counsel for the petitioner that under Section 173(8) Cr.P.C. after the completion of further investigation the final report has to be filed only before the learned Magistrate and as such, the learned Magistrate has to accept the amended charge sheet and thereafter the learned Magistrate has to act in accordance with law. Therefore, it is submitted by the learned counsel for the petitioner that the learned Magistrate may be directed to accept the amended charge sheet and to act in accordance with law. In support of his contention, the learned counsel for the petitioner placed reliance on the decision of the Orissa High Court in Arjuna Kumar Pujhari v. State of Orissa reported in (1989 CRL.L.J.449). 5. The learned Government Advocate (Crl. Side) submitted that the Investigating Officer already completed the further investigation and filed the final report before the learned Magistrate, but the same was returned on the ground that the learned Magistrate has already committed the case to the Court of Sessions. 5. The learned Government Advocate (Crl. Side) submitted that the Investigating Officer already completed the further investigation and filed the final report before the learned Magistrate, but the same was returned on the ground that the learned Magistrate has already committed the case to the Court of Sessions. It is submitted that thereafter the Investigating Officer moved before the learned I Additional Sessions Judge and the learned I Additional Sessions Judge observed that the Investigating Officer has to file the amended charge sheet only before the learned Magistrate. 6. I have carefully considered the submissions made by both sides and also perused the materials available on record. 7. It is seen that the petitioner has been arrayed as A-2 in this case as per the final report filed before the learned Magistrate and thereafter the case was committed to the Court of Sessions and as on date the case is pending for trial before the learned I Additional Sessions Judge, Madurai in S.C.No.92 of 2008 for the alleged offence under Section 392 of I.P.C. It is curious to note in this matter that while the investigating officer filed the final report after completion of further investigation under Section 173 (8) Cr.P.C., the learned Magistrate refused to take the same on file and to act in accordance with law and on the other hand, directed the investigating officer to present the same before the learned Sessions Judge as the case was already committed to the Sessions Court. It is unfortunate to note that the learned Magistrate has taken note of the procedure contemplated under Section 173(8) of Cr.P.C. in respect of filing the final report after conducting and completing the further investigation. It is unfortunate to note that the learned Magistrate has taken note of the procedure contemplated under Section 173(8) of Cr.P.C. in respect of filing the final report after conducting and completing the further investigation. It is relevant to refer the provision under Section 173 (8) Cr.P.C. which reads hereunder: "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 a 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)." The reading of the above said Section makes it crystal clear that after completion of further investigation, the investigating officer shall forward the further report in the form prescribed as per the provision under Section 173 (2) of Cr.P.C. Therefore, even though the case was already committed to the Sessions Court, the investigating officer necessarily should final the further report after completion of further investigation only before the committal Magistrate and he has no other option. 8. The Orissa High Court in Arjuna Kumar Pujhari v. State of Orissa reported in 1989 CRL.L.J.449 following a decision rendered by the Division Bench of the Karnataka High Court in the case of G.E. Narayana v. State of Karnataka reported in ILR (1979) 2 Kant 2536) has made this position very clear and held as follows: "The word "Magistrate" referred to in S.173(8) of the Code is the Magistrate referred to in S.173(2) of the Code and, therefore, it follows that the further report under the Code has to be forwarded to the Magistrate to whom the report under S.173(2) has been forwarded by the officer-in-charge of the concerned police station and the said Magistrate on receiving the report in turn has to forward that report to the Sessions Judge or the Special Judge, as the case may be, who would exercise final discretion in regard to the further action on such report. But such a report under S. 173(8) has to be forwarded to the Magistrate contemplated under sub-s. (2) of S.173 and who in his turn would do the ministerial act of forwarding the same to the Trial Judge." 9. In view of the provision under Section 173(8) of Cr.P.C. and in view of the above principle of law laid down in the decision cited supra, this Court is constrained to direct the learned Judicial Magistrate No.II, Madurai to accept and receive the further report filed by the respondent police after completion of further investigation in Crime No.729 of 2003 on file and to deal with the matter in accordance with law. With the above direction, the criminal original petition is disposed of.