1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:10.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.OP(MD)No.1560 of 2011 Palanivel :Petitioner/Defacto Complainant -Vs- State rep. By The Sub Inspector of Police, Ammapettai Police Station, Thanjavur District. Crime No.336 of 2009 :Respondent/Complainant PRAYER:This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the respondent to conduct further investigation and file final report in C.C.No.144 of 2010 on the file of the District Munsif cum Judicial Magistrate, Papanasam. For Petitioner : Mr.C.Mayil Vahana Rajendran For Respondent : Mrs.S.Devasena, Govt. Advocate,Crl. Side ORDER This petition has been filed by the petitioner seeking for a direction against the respondent to conduct further investigation and to file a final report in C.C.No.144 of 2010 on the file of the District Munsif cum Judicial Magistrate, Papanasam and to pass further orders. 2.Heard Mr…C.Mayil Vahana Rajendran, learned counsel appearing for the petitioner and Ms.S.Devasena, learned Government Advocate (Criminal side) appearing for the respondent/State. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is working as a Plumber and when he was purchasing provisions at Kovilpattu, the accused viz., Ravi and two others abused him and attacked with stick on 20.10.2009 at about 7.00 p.m. and immediately, he was admitted in Tanjore Medical College Hospital at 20.10.2010 by 9.15 p.m. and on intimation by the said hospital authority, the respondent came to the hospital at 20/21.10.2010 at 4.00 a.m. and recorded a statement from the petitioner and a case has been registered in crime No.336 of 2009 under Section 294(b) and 323 I.P.C. 4.He would further submit in his argument even though the petitioner had taken treatment as in patient in the hospital for about 20 days and the injuries sustained to the petitioner were also grievous in nature, the respondent police has filed the charge sheet only for the minor offences viz., under Section 294(b), 323 and 325 I.P.C. He would further submit in his argument that the charge sheet ought to have been filed under Section 326 I.P.C since all the ingredients of the said section have been adduced through the documents and witnesses in the investigation. Since the said charge sheet filed by the respondent police has been taken on file by the District Munsif cum Judicial Magistrate, Papanasam in C.C.No.144 of 2010, a further investigation is necessary for arriving to the conclusion of filing the charge sheet for the major offence under Section 326 I.P.C and accordingly, a suitable direction may be issued against the respondent police for further investigation. 5.The learned Government Advocate (criminal side) would submit in his argument that the respondent police have promptly investigated the case and filed the charge sheet on the basis of the evidence gathered by them under Sections 294(b), 323 and 325 I.P.C and the injury sustained by the https://hcservices.ecourts.gov.in/hcservices/ 2 petitioners would warrant only under Section 325 I.P.C. since there was no dangerous weapons used in causing the hurt. 6.He would further submit in his argument that the direction sought for by the petitioner cannot be ordered in view of the completion of investigation and the filing of the charge sheet and a case was also taken in C.C.No.144 of 2010 and therefore, he would request this Court to dismiss the petition. 7.I have given anxious thoughts to the argument advanced on either side 8.Indisputably, the petitioner has given a complaint on 20.10.010/21.10.2010 at 4.00 a.m. at the hospital, where the statement has been recorded by the police from the petitioner. Accordingly, a case was registered in crime No.339 of 2009 for the offence under Sections 294(b) and 323 I.P.C. Subsequently, on investigation and on going through the wound certificate and other aspects, it has been altered with another offence viz., 325 I.P.C. for causing grievous hurt by the accused persons. 9.According to the claim of the petitioner, he sustained the injury due to the attack caused by a wooden log and therefore, it could be termed as dangerous weapon and the charge sheet ought to have been filed under Section 326 I.P.C. Apart from that the petitioner has drawn the attention of this Court that he was taking treatment as inpatient for more than 20 days in the hospital. It has also been urged that the wound certificate would also depict the nature of injury as grievous. 10. On a careful perusal of the said documents and evidence adduced in the course of investigation, we could see that the injury sustained by the petitioner was grievous in nature. No doubt, the investigation was over, the charge sheet has also been filed, and the case was taken on file in C.C.No.144 of 2010. Now, the qustion to be solved is whether the further investigation can be ordered at this juncture. 11.It is the judgment of Hon’ble Apex Court reported in 2007(2) Crimes 118 (SC) in between Sasi Thomas Vs. State and Others to the effect that further investigation under Section 173(8) Cr.P.C. could not be issued when the case was taken on file and the trial is offing. The relevant portion of the Hon'ble Apex court's judgment reported in would run thus: "26.The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under sub section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case" Similarly, the judgment of the Hon'ble Apex Court reported in 2001(10) SCC 759 in between Rajesh and Others Vs. Ramdeo and Others would go to show the same proposition of law. The relevant passage of the said judgment would run as follows: "Since the investigation agency has already filed the charge sheet on the basis of which the accused persons are being proceeded against, if any further materials are available, the Court may alter the charge framed. In the circumstances, we have no hesitation to come to the conclusion that the High Court has overstepped its jurisdiction in issuing the impugned direction calling upon further investigation into the matter, which in our considered opinion, would be an abuse of the process of the https://hcservices.ecourts.gov.in/hcservices/ 3 Court. We, therefore, set aside the impugned order of the High Court dated 09.03.2000. The appeal is disposed of accordingly. Needless to mention, power of the investigating agency to have any further investigation exercised under Section 173(8) Cr.P.c. is not being taken away by this order." Yet another judgment of the Hon'ble Apex Court reported in (1998) 8 Supreme Court Cases 661 in between Union of Indian and Others Vs. Sushil Kumar Modi and Others, is also dealing with the said proposition of law, which run as follows: "Once a charge sheet is filed in the competent court after completion of the investigation, the process of monitoring by the monitoring Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the Court in which the charge sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure." 12.Therefore, the aforesaid judgments would enlighten us that once charge sheet has been filed and the case has been taken on file, it is not feasible to pass an order of further investigation. It has also been laid down that the trial Court itself is competent to adduce evidence in such a way to prove the case of the petitioner for which further investigation was sought for. Therefore, the petitioner could adduce evidence regarding the nature of offence committed against him by the accused in the coruse of evidence as to whether the offence is attracted under Section 325 or 326 I.P.C. It depends upon the nature of weapon. If the wooden log used in the offence is considered to be a dangerous weapon, as per evidence then the provision of Section 326 I.P.C would apply. Therefore, this Court need not pass an order as to whether 326 I.P.C. is applicable or not at this stage. It is left open to the discretion of the trial Court to go into the question and if it finds that the offence would attract under Section 326 I.P.C,. it can alter the charges already framed by it, and put it to the accused and record their answers and thereafter to proceed further in accordance with law. Therefore, there is no necessity for this Court to order for further investigation under Section 173(8) Cr.P.C. and to direct the respondent to file a further final report. 13.For the foregoing reasons, this Court is not inclined to order further investigation as asked for by the petitioner. With the aforesaid observation, this criminal original petition filed by the petitioner seeking for further investigation under Section 173(8) Cr.P.C. is disposed of. Sd/- Assistant Registrar (CO) / TRUE COPY / Sub Assistant Registrar To: 1.The District Munsif cum Judicial Magistrate, Papanasam. 2.The Sub Inspector of Police, Ammapettai Police Station, Thanjavur District 3.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai arul Crl.O.P.(MD).No.1560 of 2011 RP/07.03.2011/3P/4C. 11.02.2011 . https://hcservices.ecourts.gov.in/hcservices/