IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.1.2010 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.R.C.Nos.686 of 2004 and 697 of 2002 N.A.Paneerselvam ... Petitioner in both CrlRCs VS 1.Baby Ammal 2.Ramesh ... 1st and 2nd Respondents in both CrlRCs. State by Sub Inspector of Police, R-2, Kodambakkam Police Station. 3rd Respondent in Crl.R.C.No.686/04 State by Sub Inspector of Police, Central Crime Branch, Chennai. Cr.No.344/01 3rdRespondent in Crl.R.C.No.697/02 . . . PRAYER in Crl.R.C.No.686 of 2004: Petition filed under Sections 397 and 401 Cr.P.C., to set aside the judgement dated 19.12.2000 passed by the learned XVII Metropolitan Magistrate, Saidapet, Chennai, in C.C.No.7711 of 1999. PRAYER in 697 of 2002 : Petition filed under Sections 397 and 401 Cr.P.C., to set aside the judgement dated 02.01.2002 passed by the learned XI Metropolitan Magistrate, Saidapet, Chennai, in Crl.M.P.No.3129 of 2001 in C.C.No.3041 of 2001. For Petitioner : Mr.P.Ramesh Kumar For R1 and R2 : Mr. N.Bhaskaran For R3 : Mr.N.R.Elango Addl.Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ O R D E R On a written information lodged by the petitioner on 11.3.1999, the Sub Inspector of Police, R-2, Kodambakkam Police Station registered a case in Cr.No.352 of 1999 for the alleged offences under Section 427, 448 and 379 of IPC against accused 1 and 2/respondents 1 and 2. When the case was taken for investigation by the then Sub Inspector of Police, the petitioner had his own grievance that the then Sub Inspector had taken sides with respondents 1 and 2. While so, on completing the investigation viz., the third respondent filed a final report before the learned XVII Metropolitan Magistrate, Saidapet, Chennai for an offence under Section 448 I.P.C. The learned Magistrate took cognizance of the same in C.C.No.7711 of 1999. 2. Subsequently, on coming to know about the same, the petitioner filed a private complaint before the very same learned Magistrate under Section 200 Cr.P.C in respect of the very same occurrence against the respondents 1 and 2 herein. Though the petitioner now claims that he had only filed a petition seeking further investigation, the records show that it was a private complaint filed by the petitioner. From the records it could be seen that the learned XVII Metropolitan Magistrate, Saidapet, Chennai referred the said complaint to the Additional Deputy Commissioner of Police, Crimes, Egmore, Chennai under Section 156(3) Cr.P.C for registration of case and investigation of the same. As per the directions, a fresh case in respect of the very same occurrence was registered in Cr.No.644 of 2000 on the file of the Central Crime Branch, Chennai. The said case was registered under Section 120(b) r/w 448, 451, 380 and 506(i) I.P.C. On completing the investigation, charge sheet was laid by the Sub Inspector of Police, Central Crime Branch, Chennai on 06.07.2001 before the learned XI Metropolitan Magistrate, Saidapet, Chennai. On considering the same, the said Magistrate took cognizance of the offence under Sections 120(b) r/w 448, 452, 380 and 506(ii) I.P.C. in C.C.No.3041 of 2001. 3. In the meanwhile, the learned XVII Metropolitan Magistrate, Saidapet, Chennai proceeded further with the trial of the case in C.C.No.7711 of 1999. Since, despite issuance of summons, witnesses were not produced, the learned Magistrate acquitted the respondents 1 and 2 by Judgment dated 19.12.2000. Challenging the same, the petitioner is before this Court with Crl.R.C.No.686 of 2004. 4. In so far as the case in Cr.No.352 of 1999 is concerned, as I have already stated, cognizance was taken by the XI, Metropolitan Magistrate, Saidapet, Chennai in C.C.No.3041 of 2001 in which summons were issued to respondents 1 and 2. On appearance, the respondents 1 and 2 filed Crl.M.P.3129 of 2001 under Section 245(2) Cr.P.C for discharge on the ground that they had been already acquitted in https://hcservices.ecourts.gov.in/hcservices/ respect of the very same alleged occurrence by the learned XVII Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7711 of 1999. The learned XI, Metropolitan Magistrate, Saidapet, Chennai by order dated 02.01.2002 allowed Crl.M.P.No.3129 of 2001 and discharged the respondents 1 and 2 in respect of the offence under Section 448 I.P.C. alone; however proceeded to frame charges against respondents 1 and 2 in respect of other offences. The trial of the said case is still pending. Challenging the discharge of the respondents 1 and 2 in respect of the offence under Section 448 I.P.C, the petitioner/defacto complainant has come up with Crl.R.C.No.697 of 2002. 5. Since common issues are involved that too relating to one and the same occurrence, these two revisions were heard together and disposed of by this common order. 6. It is brought to the notice of this Court that in so far as the first respondent is concerned, since she died some time before, the charges against her have already abated and therefore, there is no need to pass any order in respect of the first respondent. The said submission is recorded. 7. I have heard the learned counsel for the petitioner, learned counsel appearing for the second respondent and the learned Additional Public Prosecutor and also perused the records carefully. 8. Admittedly, the occurrence in both the cases is one and the same. Indisputably, the case was registered on the complaint of the petitioner by the Sub Inspector of Police, R-2, Kodambakkam Police Station in Cr.No.352 of 1999. Cognizance was also taken on the said case on the final report filed by the Sub Inspector of Police. Thereafter, the only power of the Magistrate to entertain the grievance of the petitioner may be to order for further investigation, if it is warranted. Or else, the remedy for the aggrieved defacto complainant would be to file a private complaint. In this case, rightly such a private complaint was filed by the petitioner. At that juncture, in my considered opinion, under law, the learned Magistrate has got no power to refer the complaint under Section 156(3) Cr.P.C for registration of a fresh case and for fresh investigation. Having known that already case had been registered, the learned Magistrate ought not to have directed the complainant to be registered as a fresh case and to do fresh investigation. Absolutely such power is lacking. On several occasions, the Honourable Supreme Court as well as this Court have consistently held that fresh investigation is an unknown concept for criminal law. Fresh investigation cannot be confused with further investigation. The power of the Court at any stage is only to order for further investigation under Section 173(8) Cr.P.C, that too after the final report is filed. Obviously, in the case on hand, the learned XVII https://hcservices.ecourts.gov.in/hcservices/ Metropolitan Magistrate,Saidapet, Chennai had not chosen to order further investigation by entertaining the grievance of the defacto complainant. If once he has decided not to order for further investigation, he ought to have entertained the private complaint by taking cognizance on the said complaint provided the allegations made there under make out offences for taking such cognizance and then to proceed to record the statement of the complainant under Section 200 Cr.P.C, to record the statement of witnesses under Section 201 Cr.P.C and to decide either to issue summons under Section 204 Cr.P.C or to dismiss the complaint under Section 203 Cr.P.C. This established procedure which has been codified in the Criminal procedure Code has not been followed by the learned XVII Metropolitan Magistrate. Had this procedure been followed by the learned Magistrate, he would have proceeded to try the private complaint also simultaneously along with the case in C.C.No.7711 of 1999 and to deliver Judgments n both the cases on one and the same day as per the procedure established under law. 9. Obviously, the learned Magistrate has committed a serious illegality in referring the complaint under Section 156(3) Cr.P.C for registration of a fresh case. For such an illegality committed by the learned Magistrate, the defacto complainant cannot be made to suffer. The principle "Actus curiea Neminum Gravabit" i.e., 'no one shall be prejudiced by the act of Court' has to be necessarily applied. 10. Therefore, in my considered opinion, the reference made by the learned Magistrate should be treated only as a direction for further investigation under Section 173(8) Cr.P.C. It is doubtful whether the Sub Inspector of Police, Central Crime Branch, who investigated the case had occasion to look into the Case Diary relating to Crime No.352 of 1999 on the file of the R-2, Kodambakkam, Police Station. It is not known whether the said investigation officer had occasion to verify the earlier materials collected during investigation. For all these irregularities which are very serious in nature, we cannot allow the defacto complainant to suffer. Further, the fact remains that at last there is a final report submitted by the Sub Inspector of Police, Central Crime Branch on which the learned XI Metropolitan Magistrate, Saidapet has taken cognizance and the learned Magistrate has found prima facie materials to try the respondents 1 and 2. 11. Though no challenge has been made before this Court in respect of the order made under Section 156(3) Cr.P.C, referring the complaint to the police for fresh investigation and though no challenge has been made in respect of the simultaneous proceedings conducted by two different Courts in respect of the same occurrence, in my considered opinion, it is appropriate for this Court to invoke its jurisdiction under Section 483 Cr.P.C as well as under Section https://hcservices.ecourts.gov.in/hcservices/ 482 Cr.P.C to set right the irregularities or illegalities committed by the Court below. Above all, it can also be noticed that without serving summons on the witnesses, the learned XVII Metropolitan Magistrate has acquitted the accused. Therefore, the order of acquittal in C.C.No.7711 of 1999 needs to be set aside and the case requires to be remitted back for fresh trial by the learned XI Magistrate. 12. Since the acquittal of the respondents 1 and 2 in C.C.No.7711/1999 is set aside, the order of discharge made in C.C.No.3041 of 2001 by the learned XI Metropolitan Magistrate which is solely on the ground of acquittal in C.C.No.7711 of 1999 also needs to be interfered with and the same is also liable to be set aside. Both the cases should be ordered to be tried together as provided in Section 210 Cr.P.C. 13. In view of all the above position both the revisions are allowed in the following terms: "(i)The order of acquittal dated 19.12.2000 in C.C.No.7711 of 1999 on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai is set aside and the case is transferred to the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai for trial. (ii) The order of discharge dated 02.01.2002 made in Crl.M.P.No.3129 of 2001 in C.C.No.3041 of 2001 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai is also set aside and the said petition (Crl.M.P.No.3129/2001) stands dismissed. (iii) The learned XI Metropolitan Magistrate, Saidapet, Chennai shall try both the cases together in accordance with law after affording sufficient opportunity to the accused." Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1. XI Metropolitan Magistrate, Saidapet, Chennai. 2. XVII Metropolitan Magistrate, Saidapet, Chennai. https://hcservices.ecourts.gov.in/hcservices/ -do-through 3. The Chief Metropolitan Magistrate, Egmore, Chennai-08 4. The Sub-Inspector of Police R-2, Kodambakkam Police Station, Chennai 5. The Sub-Inspector of Police, Central Crime Branch, Chennai. 6. The Public Prosecutor, High Court, Madras. Crl.R.C.No.686 of 2004 and 697 of 2002 PKB(CO) MS:11/02/2010 https://hcservices.ecourts.gov.in/hcservices/