1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:27.04.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)Nos.218 and 219 of 2011 and M.P.(MD).Nos.1 and 1 of 2011 A.George :Petitioner in two Crl.R.Cs. -Vs- 1. Perumal Pillai, Ex Secretary, Alagiyapandiyapuram Primary Agricultural Co-operative Bank, Kanyakumari District. 2. The State represented by the Sub-Inspector of Police, Commercial Crime Investigation Wing, Nagercoil, Kanyakumari District. (Crime No.3 of 2006) :Respondents in Crl.R.C.No.218 of 2011 -Vs- 1. Perumal Pillai, Ex Secretary, Alagiyapandiyapuram Primary Agricultural Co-operative Bank, Kanyakumari District. 2. Arunachalam Pillai, Ex-Assistant Secretary, Alagiyapandiyapuram Primary Agricultural Co-operative Bank, Kanyakumari District. 3. The State represented by the Sub-Inspector of Police, Commercial Crime Investigation Wing, Nagercoil, Kanyakumari District. (Crime No.3 of 2006) :Respondents in Crl.R.C.No.219 of 2011 Prayer:Criminal Revision Cases filed under Section 397 r/w. 401 of Cr.P.C against the order passed by the learned Judicial Magistrate No.II, Tirunelveli (C.C.I.W. Special Court Camp at Nagercoil) in Crl.M.P.Nos.1680 and 1681 of 2009 in C.C.Nos.15 and 16 of 2006 dated 06.01.2011. For Petitioners : M/s. K.P.Narayanakumar COMMON ORDER The petitioner claims to be a Member of Alagiyapandiyapuram Primary Agricultural Co-operative Bank and his Membership Number is 2088 and according to him, he was elected to the Executive Committee of the Society. 2.There are certain irregularities took place with regard the affairs of the above said Society and in this connection, an enquiry was ordered under Section 81 of the Tamil Nadu Co-operative Societies Act and as a result of the enquiry, the case in Crime No.3 of 2005 was registered by the C.C.I.W., Nagercoil against one Perumal Pillai, who is arrayed as the first respondent/accused herein for the alleged commission of the offences under Sections 468, 471, 477 (A) and 408 of I.P.C. 3.According to the petitioner, the cashier of the Bank viz., Sundaravel had also connived and abetted the commission of the offences along with the first respondent/accused and the second respondent herein has not conducted the proper investigation. Therefore, in this regard, he filed Crl.M.P.No.1680 of 2009 under Section 173(8) of Cr.P.C. praying for further investigation and to array the said Sundaravel as an accused. 4.The first respondent herein/accused has filed his counter stating among other things that the trial of the case has already commenced and the https://hcservices.ecourts.gov.in/hcservices/ 2 petition has been filed only to protract the proceedings. On behalf of the prosecution also, counter affidavit has been filed stating that the petitioner is a stranger to the case and the case was not instituted based on the information given and during the course of investigation, he has not preferred any complaint either before the police or before the authorities constituted under the Co-operative Societies Act. It is further stated in the counter affidavit filed by the prosecution that the petitioner has no locus standi to invoke Section 173(8) of Cr.P.C. and that the petition has been filed only with an ulterior motive for the purpose of prolonging the proceedings. Hence, for the said reasons, prayed for dismissal of the said petition. 5.The Court of Judicial Magistrate No.II, Tirunelveli on taking into consideration the averments made in the petition and the counter affidavit filed by the respondents found that the petitioner was the Member of the Society and also the Member of the Executive Committee and with regard to the irregularities took place in the affairs of the said Society, enquiry officer viz., Mr.Murugesan found out the irregularities and filed his report under Ex.P.14, based on which, the above said criminal prosecution came to be lodged. 6.The charge sheet was taken on file and the trial of the case was also commenced and the witnesses on behalf of the prosecution were examined and the accused was also questioned under Section 313 1(b) of Cr.P.C. and thereafter, the case has been posted for examination of defence witness and at that juncture, the petitioner has filed the present petition seeking further investigation to array Mr.Sundaravel cashier as an accused. 7.The lower Court has also found out that as per Ex.P.10, the petitioner found to have indulged in some activities detrimental to the interest of the Society and therefore, he was permanently removed from the executive membership and that the petitioner also availed an agricultural loan and since he failed to pay the same, recovery proceedings were initiated in A.R.C.No.1466 of 2010 and an order of recovery of Rs.29,400/- came to be passed against the petitioner herein on 28.04.2010. 8.On legal issue, the lower Court found as per the judgment of the Honourable Supreme Court reported in (2009) 4 MLJ (Crl) 1004 (SC) in Reeta Nag v. State of West Bengal it is held that further investigation cannot be ordered at the instance of the de facto complainant. Therefore, citing the said reasons, the lower Court has dismissed the petitions filed by the petitioner.Challenging the vires of the same,the present revisions are filed 9.Mr.K.P.Narayanakumar, learned counsel appearing for the petitioner would submit that the Sundaravel Cashier of the society had connived with the first respondent/accused and due to their activities, the Society incurred huge loss and as a member of the Society, he is entitled to file petition under Section 173(8) of Cr.P.C. for further investigation to aid the State, which is prosecuting the case. It is further submitted by the learned counsel for the petitioner that the reasons assigned by the lower Court for dismissing these petitions are without any basis and they are unsustainable and hence, prayed for setting aside the order. 10.The learned counsel appearing for the petitioner in support of his submissions, relied on the following judgments: (i) AIR 1968 SC 117 (V 55 C 88) in Abhinandan Jha v. Dinesh Mishra. (ii) 1997 (7) SCC 614 and (2009) 4 MLJ (Crl) 1004 (SC) in Reeta Nag v. State of West Bengal. 11.In AIR 1968 SC 117 the question arose for consideration was whether https://hcservices.ecourts.gov.in/hcservices/ 3 the Magistrate can direct the police to submit a charge sheet, when the police, after investigation into a cognizable offence, had submitted a final report, under Section 173 of Cr.P.C. The Honourable Supreme Court of India in the said decision has taken into consideration the conflict of opinion between various High Courts viz., High Courts of Madras, Calcutta, Madhya Pradesh, Assam, Gujarat, Patna and Bombay. 12.In paragraph Nos.15 and 19, it has been held as follows: "15. Then the question is, what is the position, when the Magistrate is dealing with a report submitted by the police, under Section 173, that no case is made out for sending up an accused for trial, which report as we have already indicated, is called, in the area in question, as a 'final report'? Even in those cases, if the Magistrate agrees with the said report, he may accept the final report and close the proceedings. But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, under Section 173(8), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, under Section 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, under Section 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report. 19.The question can also be considered from another point of view. Supposing the police send a report, viz., a charge sheet, under Section 170 of the Code. As we have already pointed out the Magistrate is not bound to accept that report, when he considers the matter judicially. But can he differ from the police and call upon them to submit final report, under Section 169? In our opinion, the Magistrate has no such power. If he has no such power, in law, it also follows that the Magistrate has no power to direct the police to submit a charge-sheet, when the police have submitted a final report that no case is made out for sending the accused for trial. The functions of the Magistracy and the police, are entirely different, and though, in the circumstances mentioned earlier, the Magistrate may or may not accept the report, and take suitable action, according to law, he cannot certainly infringe (sic.impinge?) upon the jurisdiction of the police, by compelling them to change their opinion, so as to accord with his view." 13.In 1997 (7) SCC 614, the facts of the case are that no notice was issued by the Magistrate to the appellant viz., U.P.S.C before accepting the final report submitted by the C.B.I. and decided not to take cognizance and take further proceedings and it has been held that the Magistrate was not justified in accepting the final report of the C.B.I and closing the case without any notice to the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4 14.In the considered opinion of the Court, those decisions are not applicable to the facts of the present case and that there cannot be any difficulty in accepting the proposition laid down in the above cited decisions. 15.In so far as the present case is concerned, the judgment of the Honourable Supreme Court of India reported in 2009 (4) MLJ 1004 S.C. is applicable. In the said case, the question arose for consideration was whether after charge sheet has been filed by the investigating agency under Section 173(2) of Cr.P.C and charge has been framed against some of the accused on the basis of the charge sheet and the other co-accused have been discharged, the Magistrate can direct investigating authorities to conduct a re-investigation or even further investigation under Section 173(8) of Cr.P.C. and it has been held as follows: "17.In addition to the above, the decision of this Court in Randhir Singh Rana v. State (Delhi Administration) (citation) (supra) also makes it clear that after taking cognizance of an offence on the basis of a police report and after appearance of the accused, a Judicial Magistrate cannot of his own order further investigation in the case, though such an order could be passed on the application of the investigating authorities. The view expressed in Randhir Singh Rana v. State (Delhi Administration) (supra) finds support in the decision of this Court in the case of Dinesh Dalmia v. CBI (2007) 8 SCC 770:(2008) 2 MLJ (Crl) 1766, wherein while considering various provisions of the Criminal Procedure Code including Section 173 thereof, this Court held that so long as the charge-sheet is not filed within the meaning of Section 173(2) Cr.P.C., investigation remains pending. But, even the filing of a charge-sheet did not preclude an Investigating Officer from carrying on further investigation in terms of Section 173(8) Cr.P.C. It was also observed that the power of the Investigating Officer to make a prayer for conducting further investigation in terms of Section 173 (8) of the Code is not taken away only because a charge-sheet has been filed under Section 173(2) and a further investigation is permissible even if cognizance has been taken by the Magistrate. 19.What emerges from the above mentioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P.C. and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation under Section 173(8). The Magistrate cannot suo moto direct a further investigation under Section 173(8) Cr.P.C. or direct a re- investigation into a case on account of the bar of Section 167(2) of the code. 20.In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant under Section 173(8), was a direction given by the learned Magistrate to reinvestigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded https://hcservices.ecourts.gov.in/hcservices/ 5 his jurisdiction in entertaining the said application filed by the de facto complainant. 21.Since no application had been made by the investigating authorities for conducting further investigation as permitted under Section 173(8) Cr.P.C., the other course of action open to the Magistrate as indicated by the High Court was to take recourse to the provisions of Section 319 of the Code at the stage of trial." 16.As held in paragraph 20 of the above said decision, the investigating authority therein did not apply for further investigation and it was only upon the application filed by the de-facto complainant under Section 173(8) of Cr.P.C., direction was given by the jurisdiction Magistrate to re- investigate the matter and it has been held that such a cause of action was beyond the jurisdiction competence of the Magistrate. 17.In the case on hand, admittedly the petitioner claims to be a member of the Society is not the de-facto complainant and the facts extracted by the trial Court would also disclose that due to the irregularities committed, the petitioner was permanently removed from the Executive Committee of the Society. That apart, he has also availed an agricultural loan and since he failed to repay the same, recovery proceedings were initiated and an order of recovery was also came to be passed against him. 18.That apart, the trial of the case has already been commenced and the witnesses on behalf of the prosecution were examined and after questioning of the accused under Section 313 1(b) of Cr.P.C., the case is posted for examination of the defence witness and at that juncture, the petitioner has came forward to file a petition seeking further investigation under Section 173(8) of Cr.P.C. for the purpose of arraying Mr.Sundaravel cashier as an accused. 19.In the considered opinion of the Court, such the course is not open to the revision petitioner factually as well as legally, in view of the decision of the Honourable Supreme Court reported in 2009 (4) MLJ 1004 S.C. (cited supra) 20.This Court on a careful consideration and appreciation of the entire materials available on record is of the view that there is no error, illegality or error apparent on the face of the record in the impugned order passed by the trial Court in dismissing the petition filed by the petitioner under Section 173(8) of Cr.P.C. Therefore, these revision petitions are dismissed. Consequently, the connected Miscellaneous Petitions are also closed. Sd/- Assistant Registrar (P&A) / TRUE COPY / Sub Assistant Registrar To: 1.The Judicial Magistrate No:II,Tirunelveli. (CCIW Special Court Camp at Nagercoil) 2.The Sub-Inspector of Police, Commercial Crime Investigation Wing, Nagercoil, Kanyakumari District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC to Mr.K.P.Narayanakumar, Advocate. SR.No.15803. Akv/RP/23.05.2011/5P/5C. Crl.R.C.(MD)Nos.218 and 219 of 2011, 27.04.2011 https://hcservices.ecourts.gov.in/hcservices/