IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:6.8.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.836 of 2007 and M.P.No.1 of 2007 Giridharan ... Petitioner/Accused vs. 1.State rep.by the Inspector of Police, B2, Vishnu Kanchi Police Station. ... 1st Respondent/Complainant (Cr.No.398/2005) 2.M.Kamalakaran .... 2nd Respondent 2nd respondent impleaded as per the order of Court dated 23.7.2007 made in M.P.No.3 of 2007 in Crl. R.C.No.836 of 2007 Petition filed under Section 397 of Cr.P.C. against the order dated 18.5.2007 passed by the Judicial Magistrate, No.I,Kancheepuram, in Crl.M.P.No.164 of 2007 in C.C.No.12 of 2006. For Petitioner : No appearance For Respondents : Mr.R.Muniyapparaj,G.A. For R1 Mr.V.Karthic for M/s.T.S.Gopalan and Co., for R2 ORDER Challenging and impugning the the order dated 18.5.2007 passed by the Judicial Magistrate, No.I, Kancheepuram, in Crl.M.P.No.164 of 2007 in C.C.No.12 of 2006, this criminal revision case is focussed. 2. Compendiously and concisely, the facts absolutely necessary and germane for the disposal of this criminal revision case would run thus:- (a) The police laid the police report in terms of Section 173 of Cr.P.C. as against the revision petitioner/accused for the offence under Section 420 of IPC. While so, the accused, after entering appearance, filed the application Crl.M.P.No.164 of 2007 under Section 239 of Cr.P.C for discharging him on the ground that at the https://hcservices.ecourts.gov.in/hcservices/ time of the anticipatory bail application pending before the Principal District and Sessions Judge, Chengalpet, on the prosecution side, the learned Public Prosecutor informed the Court that the case was closed as 'mistake of fact'. Accordingly, the accused prayed the Magistrate to discharge him on the ground that the very filing of the charge-sheet before the Court was untenable. However, after hearing both sides, the learned Magistrate dismissed the said application. 3. Animadverting upon such dismissal this revision has been filed on various grounds, the gist and kernel of them would run thus: The lower Court failed to consider that after closing of the case as 'mistake of fact', the police had no jurisdiction to further investigate the matter and lay the police report under Section 173 of Cr.P.C. The lower Court failed to consider that the ingredients of the offence under Section 420 IPC have not been made out and accordingly, the revision petitioner prayed for setting aside the order of the Magistrate and for allowing the Crl.M.P.164 of 2007. 4. The point for consideration is as to whether there is any perversity or non-application of law in dismissing the Crl.M.P.No.164 of 2007 filed by the accused under Section 239 of Cr.P.C. 5. Despite printing the name of the counsel for the revision petitioner, no one appeared. 6. Heard the learned counsel for the de-facto complainant as well as the Government Advocate, who would argue that absolutely there is nothing wrong on the part of the Magistrate in dismissing the Crl.M.P.No.164 of 2007 because the police has got powers to investigate into the matter and lay the police report despite allegedly having informed the Court earlier, during investigation stage, and that too, when anticipatory bail petition was pending, that the matter was closed as 'mistake of fact'. The fact also remains that such a report was not filed before the jurisdictional Magistrate with whom the FIR was filed. 7. I could see considerable force in the submission made by the de-facto complainant as well as the Government Advocate that the police has got powers to investigate further the matter even after tentatively coming to the conclusion, at the initial stage when the anticipatory bail petition was pending, to drop action. 8. Indubitably and unassailably, the police did not submit negative report dropping action, to the Magistrate with whom the FIR was pending and the Magistrate also has not recorded that the action was dropped. Even in such cases, the police has got the power to get the matter reopened and investigate the matter. However, in this case, the police investigated, it appears, further and laid the police report, based on which the Magistrate took cognizance and in such a case it is not open for the accused to persuade the Magistrate to discharge him. No other ground was raised before the Magistrate to discharge and the Magistrate also correctly applying the mind au fait with law and au courant with facts dismissed the application, https://hcservices.ecourts.gov.in/hcservices/ warranting no interference by this Court. In the result, the criminal revision case is dismissed. Consequently, connected miscellaneous petition is dismissed. Msk 6.8.2009 This matter having been listed under the caption 'For Being Mentioned' on thursday, the 27th day of August 2009 pursuant to the order of this Court dated 06.8.2009 and made herein in the presence of the aforesaid counsels on the either side the Court made the following order: " This matter is being listed today under the caption "for being mentioned" At the mentioning, this Court clarified that there is no possibility of revoking the earlier order passed dated.06.8.2009 as the said order is passed on merits. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1.The Judicial Magistrate, No.I,Kancheepuram. 2.-do- Thro' The Chief Judicial Magistrate, Kancheepuram. 3. The Inspector of Police, B2- Vishnu Kanchi Police Station, 4. The Public Prosecutor, High Court, Madras. + 1 CC to M/s.T.S.Gopalan & Co.,,Advocate,SR.42154 Crl.R.C.No.836 of 2007 CK(CO) EM/14.10 https://hcservices.ecourts.gov.in/hcservices/