1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.12.2011 CORAM: THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Revision Case(MD)No.790 of 2011 and M.P.No.1 of 2011 Jegan : Petitioner/Accused Vs. 1. The State Rep. by Inspector of Police, District Crime Branch Kanyakumari District. [in Cr.No.119 of 2007] : 1st Respondent/Complainant 2. Chandra Babu @ Moses : 2nd Respondent/Defacto Complainant 3. The State Rep.by Inspector of Police, CBCID Police, Kanyakumari District. : 3rd Respondent/Respondent PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of the Code of Criminal Procedure, against the order dated 2.9.2010 made in Cr.M.P.No.841 of 2010 on the file of the Chief Judicial Magistrate, Kanyakuamri ordering reinvestigation in Cr.No.119 of 2007 on the file of the 1st respondent police by the 3rd respondent police. For Petitioner : Mr. R. Gandhi for Mr.M.Ajmal khan For Respondents : Mr. P. Kandasamy Government Adovate (Crl.Side) [for R1 and R3] Mr.T. Antory Arulraj [for R2] ORDER The revision petitioner is one among the accused in Cr.No.119 of 2007 on the file of the first respondent. The 2nd respondent is de-facto complainant. In his complaint the de-facto complainant has alleged that he had animosity with one Manikandan in his business, that both of them are contractors, that there are cases among them in the Vadaseri and Iranial police stations, that on 5.6.2007 at about 2.30 p.m. While he was coming near Maniangudi, Kakkachalai in his motor cycle, from the opposite side one Sumo Car bearing Registration No.KL 2 F 1251, Icon Car bearing Registration No.KL 19 1 and also a car without registration number stopped before him, that he stopped his motor cycle on the extreme side of the road, that from the vehicles Manikandan, Jega, Murugan, Vijayan and Sunil, driver of Manikandan alighted and one person by means of Vettu Kathi, cut him on his head stating that the de-facto complainant has taken contract work worth Rs.8 crores, that his brother Murugan by means of vettu kathi cut on his right elbow, Jegan (the petitioner herein) by https://hcservices.ecourts.gov.in/hcservices/ 2 means of a knife stabbed on his right forearm and further Manikandan by means of vettu kathi caused injuries on his left hand thumb and right leg elbow, when he fell down, Vijayan by means of iron rod assaulted him on his leg and the above said Sunil and other persons trampled him on his stomach and chest and that he raised alarm. On hearing it, his brother Francis, Sam Oliver and Bose came to the scene. On seeing them all the accused threatened him that they would kill him and left the place after boarding the cars and that he gave statement while he was taking treatment in Kulasekaram Velayutham Pillai Hospital. 2.The 1st respondent took up the case for investigation, which was registered under Sections 147, 148, 341, 324, 323 and 307 I.P.C., examined the witnesses, prepared Athatchi and Accident Register and finally he laid a final report before the learned Judicial Magistrate No.I, Nagercoil stating that further proceedings have to be stopped on account of mistake of fact. The learned Judicial Magistrate on a intimation to the de-facto complaninant, closed the file recording the case as 'Mistake of fact'. Thereafter, the de-facto complainant filed a protest petition in crl.M.P.No.1974 of 2009 on the file of the above said Court requesting the Court to direct the CBCID viz., the 3rd respondent to re-open the case and for filing fresh final report. 3.The learned Judicial Magistrate, Nagercoil dismissed the Protest Petition on 29.7.2009 by observing that the investigating officer on analysing the facts after perusing the statement of witnesses who had not stated any other important witnesses to be examined and the truthfulness in the statement of witnesses could be tested on scrutiny in a proceedings to be undertaken on a private complaint that a specific investigating agency could not be directed and hence the protest petition has to be treated as private complaint and the de-facto complainant has to treat the same as such and to proceed with in accordance with law. 4.The de-facto complainant challenging the said order, filed Crl.R.C. (MD) No.458 of 2009 on the file of this Court and this Court on 8.10.2009 directed the learned Chief Judicial Magistrate, Nagercoil to pass appropriate orders on the Protest Petition. While directing so, C.T.Selvam,J. has observed as follows:- "5. This Court has resisted from entering upon a discussion on the merits of the case or on the materials before it so as to avoid prejudice to either side. With the aim is to avoid prejudice and alleged bias, as rightly submitted by the learned Senior Counsel, it would be better that the reconsideration of the final report and also the materials towards arriving at a finding of whether the case is one calling for further proceedings against the accused or otherwise, be left to the judicial discretion of another Court. Accordingly, the Judicial Magistrate Padmanabapuram is directed to forward all records pertaining to the Crime No.119 of 2007 on the file of the respondent police to the Court of the Chief Judicial Magistrate, Nagercoil within a period of two weeks from the date of receipt of a copy of this order. The Chief Judicial Magistrate , Nagercoil, is in turn directed to consider the 173 report as also the materials, hear both the Public Prosecutor and the de-facto https://hcservices.ecourts.gov.in/hcservices/ 3 complainant who had filed the protest petition and pass orders in accordance with law." 5.In obedience to the above said direction, the Chief Judicial Magistrate, Nagercoil, took up the case for further enquiry and heard the learned counsel for the de-facto complainant and the Assistant Public Prosecutor and allowed the Crl.M.P.No.841 of 2010 directing the 3rd respondent to take up re-investigation in this case and file a final report. It is the order which is under challenge before this Court presently. 6.The learned Chief Judicial Magistrate, Nagercoil has recorded reasons for reaching a conclusion as above to the effect that the first respondent, Inspector of Police has conducted his investigation and laboured hard how the accused could be discharged form the case, that he did not approach this case in a proper perspective, that why the investigation officer searched the reasons to discard the case of de- facto complainant and for safeguarding the accused and that the final conclusion of the investigating officer is not acceptable. 7.Adverting to the facts of the case as the investigating officer viz., the 1st respondent has rightly mentioned in his final report there are material discrepancies available in the complaint, statement of the de-facto complainant and that of other witnesses. In the complaint it is stated that at the time of occurrence, from the opposite side, 3 vehicles came. But in the statement of witnesses, including the statement of de- facto complainant, it is stated that only one Tata Sumo Car was came from which 5 or 6 persons alighted. 8.Dr.Micheal Geetha Franklin, working as Assistant Surgeon in Sri Mookambigai Medical College hospital at Kulasekaram, has stated in the Accident Register that it was reported that the de-facto complainant has fallen on account of road traffic accident and was assaulted by 10 to 12 persons and also was stamped on his lower abdomen. It is not the case of de-facto complainant there was a road traffic accident. In the wound certificate given by the doctor dated 17.6.2007, it is stated that the de-facto complainant is alleged to have been hit by the car from back side while he was riding the bike and was assaulted by some persons by some weapons or logs. The learned Chief Judicial Magistrate has given his finding that the doctor could have been compelled to record like this by the Investigating Officer. Without examination of doctor, this finding is not sustainable. 9.Even though the statements from the accused persons have been recorded by the Investigating Officer, at this stage they need not be considered. 10.The witnesses examined by the police to say about the offence by name Vikaraman S/o Kesava Pillai while stating about the occurrence says that after assaulting the de-facto complainant, on seeing the other witnesses, the assailants fled away from the scene by car and that in the assailants Manikandan was not found. He further states that he knows the de-facto complainant and the first accused Manikandan. https://hcservices.ecourts.gov.in/hcservices/ 4 11.One Sudhir working as Manager in Marikar Engineering Company, Skoda Division at Trivandrum would say that the vehicle bearing Registration No.KL 19-0001 Skoda vehicle was brought to their workshop by the driver Sunil on 5.6.2007 at 1.00 p.m. and the same was delivered after rectifying repairs on 17.7.2001 at 5.00 p.m. and the owner of the vehicle was Manikandan. He has also issued certificates to that effect. 12.Dr.S. Chellasivalingam Civil Surgeon, Government Hospital, Kuzhithurai, who has given opinion in the Accident Register, has given a letter to the first respondent stating that the accused Manikandan was admitted in Government Hospital, Kuzhithurai on 4.6.2007 at 8.30 p.m. as inpatient. He was admitted for Gastritis with urinary track infection and was treated as inpatient from 4.6.2007 to 6.6.2007. He has also stated in his statement that the first accused was taking treatment in the hospital on 5.6.2007, i.e., on the date of occurrence. 13.In the back drop of the above said factual scenario, it has to be observed that there are remarkable discrepancies with regard to the facts. It is true that the first respondent has gone deep into the statement of witnesses and reached a conclusion. But no fault could be found on the part of the first respondent. The learned Chief Judicial Magistrate has also observed that the investigation officer has taken up the duty of the court to decide the case. But in view of this Court, the investigating Officer in order to arrive at a correct conclusion has to scrutinise the materials on record. This Court does not find any foulplay on the part of the investigating officer. 14.Insofar as the direction of the learned Chief Judicial Magistrate is concerned, it has to be seen whether the reinvestigation can be ordered. The Learned counsel Mr.R.Gandhi appearing for the petitioner would contend that at the request of the de-facto complainant neither further investigation nor re-investigation can be directed, that before passing the order, the accused person should have been heard by the Chief Judicial Magistrate, since he is one among the persons prejudiced by the order and that the law does not permit re-investigation. 15.In support of his contention he placed reliance upon a decision of the Supreme Court in (2009) 9 SCC 129 [Reeta Nag v. State of West Bengal and others] wherein Their Lordships have observed that further investigation can be directed only on the request of the investigating agency and if the de-facto complainant feels aggrieved has to seek remedy under Section 319 of Cr.P.C. at the time of trial. The following are the relevant portions in the judgment: "25.What emerges from the abovementioned decisions of this Court is that once a charge-sheet is filed under Section 173(2) CrPC 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 autorities permit further investigation under Section 173(8). The Magistrate cannot suo motu direct a further investigation under Section 173(8) CrPC or direct a reinvestigation into a case on account of the bar of Section 167(2) of the Code. https://hcservices.ecourts.gov.in/hcservices/ 5 26.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 reinvestigation on the application made by the de-facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de-facto complainant. 27. Since no application had been made by the investigating authorities fro conducting further investigation as permitted under Section 173(8) CrPC, 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. We, therefore, see no reason to interfere with the order of the High Court since it will always be available to the Magistrate to take recourse to the provisions of section 319 if any material is disclosed during the examination of the witnesses during the trial." 16.I have followed the above said decision in my judgment reported in 2011 Crl.L.J. 418 [E.Jeevankumar v. State and Anr.] and observed Section 173(8) Cr.P.C. does not curtail the powers of the investigating officer to take up further investigation and it has not provided any procedure enabling the de-facto complainant to take initiative to place request for further investigation. 17.When the proceedings were taken up before the Chief Judicial Magistrate, accused persons were not heard. Section 401(2) Cr.P.C. provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Section 401 deals with High Court's powers of revision. The said provision does not deal with the proceedings before the Magistrate. 18.The learned counsel for the 2nd respondent Mr.T.Antony Arulraj would contend that the revision is not maintainable since the order is interlocutory in character, that the accused has no locustandi to poke his nose at the pre-cognizance stage, that the right of the accused is not infringed,that the present attempt on the part of the petitioner i to review the order of this Court and that there can be reinvestigation at the behest of the de-facto complainant. 19.Repelling the above said contention, the learned counsel for the petitioner would submit that any order which violates or prejudices the right of a party is not an interlocutory order, that the innocence of the accused has been reiterated on 2 earlier occasions, one by the Investigating Agency and other by the learned Judicial Magistrate and that the accused has to be heard. https://hcservices.ecourts.gov.in/hcservices/ 6 20.The learned counsel for the 2nd respondent placed reliance upon a judgment of this Court reported in 1975 Crl.L.J.994 [Nathan v. Vaithinathan] in which it is decided that the order of the Magistrate forwarding a complaint for an offence under Section 307 I.P.C.,to Police for investigation and repot under Section 156(3) Cr.P.C. is an interlocutory order to which Section 397(2) Cr.P.C. will apply and no revision lies against such order. But the facts of the present case remain as the police had already taken up investigation on the complaint laid by the de-facto complainant and final report filed as 'Mistake of Fact' and the same was accepted by the Judicial Magistrate and after that Protest Petition filed by the de-facto complainant and an order was passed by the Judicial Magistrate. Hence, it is not a proceeding on complaint forwarded by the Court to police for investigation. The order of the learned Chief Judicial Magistrate is a direction and the protest petition was filed by the de-facto complainant after completion of earlier proceedings viz., the investigation by the first respondent. Hence, the present revision is maintainable. 21.In 2007 Crl.L.J.4677 [Vanshu v. State of U.P.] a single Judge of the Allahabad High Court has held that the order of Magistrate for registration of F.I.R was an administrative order at a pre-cognizance stage and no accused can stop registration of F.I.R against him. But the facts of the case are distinguishable. Here, there is no order to register F.I.R against the accused. 22.The accused need not be heard at the pre-cognizance stage, argued the learned counsel for the second respondent, based on the contentions of Vanshu's case (cited above), in which a decision of the Supreme Court in 1997 (34) ACC 163 [Karan Singh v. State] has been referred, wherein it is held that where an order is made under Section 156(3) Cr.P.C directing the police to register FIR and investigate the same, the Code nowhere provides that the Magistrate shall hear the accused before issuing such a direction nor any person can be supposed to be having a right asking the Court of law for issueing a direction that a FIR should not be registered against him. But as already stated this is not the stage of direction for registering FIR. 23.It is stated by the second respondent that the present petition is as if to review the order passed by this Court in Crl.R.C.No.458 of 2009. But it is not so. This Court on the earlier occasion has not recorded any opinion as to the merits of the case. It has simply directed the learned Chief Judicial Magistrate, Nagercoil, to consider the report as also the materials. Hence, there is no question of reviewing the order passed by this Court. 24.As regards direction for re-investigation by the 3rd respondent, passed by the Court below is concerned, it is not legally permissible, contended the learned counsel for the petitioner. It is observed in (2011) 1 SCC (Cri) 336 = (2010) 12 SCC 254 [Babubhai v. State of Gujarat and others] that if the court comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the Court may direct for further investigation and ordinarily not for re-investigation. So, if any extraordinary or any special circumstances arise the Court may direct for de nova investigation as per the decision. Following are the relevant portions in the said judgment: https://hcservices.ecourts.gov.in/hcservices/ 7 "39. In Kashmeri Devi Vs. Delhi Administration &amp; Anr. AIR 1988 SC 1323, this Court held that where the investigation has not been conducted in a proper and objective manner it may be necessary for the court to order for fresh investigation with the help of an independent agency for the ends of justice so that real truth may be revealed. In the said case, this court transferred the investigation to the CBI, after coming to the conclusion that investigation conducted earlier was not fair. 40. The above referred to judgments of this Court make it clear that scheme of investigation, particularly, Section 173(8) Cr.P.C. provides for further investigation and not of re- investigation. Therefore, if the Court, comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for re- investigation. 41. The expression ordinarily means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. &quot;Ordinarily&quot; excludes &quot;extra-ordinary&quot; or &quot;special circumstances&quot;. (vide: Kailash Chandra Vs. Union of India AIR 1961 SC 1346; Eicher Tractors Ltd., Haryana Vs. Commissioner of Customs, Bombay AIR 2001 SC 196; and State of A.P. Vs. Sarma Rao &amp; Ors. AIR 2007 SC 137). 42. Thus, it is evident that in exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, it may direct for investigation de novo wherein the case presents exceptional circumstances. 43. ... ... ... ... ... ... 44. ... ... ... ... ... ... 45. Not only the fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. Investigating agency cannot be permitted to conduct an investigation in tainted and biased manner. Where non- interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation. " 25.Thus, if the Court finds that an investigation has not been conducted in a fair and proper manner, further investigation may be directed under Section 173(8) of Cr.P.C and in exceptional cases rel- investigation by another agency may be directed. As far as the facts of the present case are concerned, this Court does not find and "exceptional circumstances" for ordering re-investigation. Further, the scheme of https://hcservices.ecourts.gov.in/hcservices/ 8 Section 173(8) Cr.P.C is enabling investigating officer to request for further investigation. Under these circumstances available in this case, this Court is of the view that no further investigation need be ordered. 26.In view of the above discussion taken up by this Court and as per the principles laid down by the Supreme Court, it is held that no re- investigation need be taken up. Further investigation is also not warranted. In such a view of this matter, the order challenged before this Court has to be set aside and it is accordingly set aside. The learned Judicial Magistrate in his order dated 13.7.2009 directed that the protest petition has to be treated as private complaint and hence the de-facto complainant has still got opportunity for presenting the case before the Court and he has not been prejudiced in any way. 27.In the result, the Criminal Revision Petition is allowed. Connected M.P.is closed. Sd/- Assistant Registrar (T&P) / True Copy / Sub Assistant Registrar To 1.The Chief Judicial Magistrate, Nagercoil. 2. The Judicial Magistrate No.I, Nagercoil. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1CC TO MR.M.AJMALKHAN, ADVOCATE SR : 43691 Ggs SR : 27.01.2012 : 8p/5c Order in: Crl.R.C.(MD)No.790 of 2011 13.12.2011 https://hcservices.ecourts.gov.in/hcservices/