IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9-09-2009 CORAM: THE HONOURABLE MR.JUSTICE R.REGUPATHI Crl.O.P.No.11387 of 2009 B. Sundarrajan .. Petitioner. Versus State rep by Inspector of Police Tiruvannamalai Town Police Station (Crime) Tiruvannamalai .. Respondent Prayer: Petition filed under Section 482 Cr.P.C seeking for the reliefs as stated therein. For Petitioner : Mr.P. Sathish Prabu For Respondent : Mr.N.R. Elango, APP O R D E R This petition is filed, seeking for a direction to the respondent police to further investigate the case in Cr.No.28/2004 of Thiruvannamalai Police Station. 2. The petitioner is the defacto-complainant in Cr.No.28 of 2004 on the file of the respondent police for the offence punishable under Sec.380 IPC. 3. The case of the prosecution is that theft of jewellery was committed from a Jewellery Shop and based on that investigation has been taken up. Since the assailant could not be traced, investigation of the case was closed on 15.2.2004. Subsequently, the respondent police re-opened the case on fresh information and the accused were arrested and jewels were recovered. Under such circumstance, a petition under Sec.173(8) for further investigation has been filed on 21.5.2004 before the learned Judicial Magistrate No.I, Thiruvannamalai and the learned Judicial Magistrate by order dated 8.6.2004 in Cr.M.P.No.4341 of 2004 dismissed the said petition stating that the final report filed by the respondent has been taken cognizance and under such circumstances, fresh investigation cannot be ordered. https://hcservices.ecourts.gov.in/hcservices/ 4. A revision preferred by the respondent police in Crl.R.C.No.10 of 2004 against the order of the learned Judicial Magistrate was dismissed by the learned Sessions Judge, Thiruvannamalai confirming the order passed by the learned Judicial Magistrate, holding that " there is no question of the Judicial Magistrate against reviewing his judicial Order to enable the investigating agency to make further investigation in the matter". Under such circumstances, the present petition has been filed by the defacto-complainant seeking for further investigation of the case. 5. The learned counsel for the petitioner submits that the order passed by the learned Judicial Magistrate as well as Court of Sessions are erroneous and illegal. 6. The learned Additional Public Prosecutor submits that investigation had not been taken up properly by the original police officer and even though a final report on the ground of 'mistake of fact' was filed, the case was re-opened by the subsequent police officer, resulting in the arrest of some of the accused and recovery of jewels. He also submits that proceedings were also initiated against the original investigating officer. 7. The Investigating Officer, even after filing of the final report by closing the case as "mistake of fact", on receipt of fresh information, has got every right to re-open the case under Sec.173(8) Cr.P.C for further investigation and an intimation in this regard shall be sent to the learned Judicial Magistrate. Specific permission is not required for commencing of such investigation, since it is within the purview of the investigating officer. But for the orders passed by the learned Magistrate and the Court of Sessions during 2004, investigation of the case would have been completed and further proceedings including trial would have been taken. 8. I have perused the materials available on record. It is an unfortunate case where investigation was taken up for a grave offence of theft of jewellery and due to mishandling of the case by the original investigating officer, the case was closed as 'mistake of fact' on 15.2.2004. Subsequently, on the intervention of the higher police officer, the case was re-opened and further investigation was conducted, in which, some accused were arrested and jewels were recovered. When it was informed to the learned Judicial Magistrate and the petition for ordering of further investigation was filed, the same was dismissed erroneously without application of mind by holding that the order already passed need not be reviewed. 9. It is equally unfortunate that such an erroneous and illegal order passed by the learned Judicial Magistrate was confirmed by the learned Sessions Judge also. There are plethora of precedents that https://hcservices.ecourts.gov.in/hcservices/ investigation under Sec.173(8) Cr.P.C can be re-opened, if there are materials to substantiate the same and under such circumstances, investigating agency may have to be necessarily permitted to continue the investigation. 10. In the case on hand, because of the erroneous order passed by the learned Judicial Magistrate, which was confirmed by the Court of Sessions, investigation of the case is still pending and only under such circumstances, the present petition has been filed seeking to permit the respondent police to continue further investigation. 11. Accordingly, the criminal original petition is allowed and the respondent police is directed to conclude the investigation at the earliest. Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar sr To 1. The Inspector of Police Tiruvannamalai Town Police Station (Crime) Tiruvannamalai 2. The Public Prosecutor, High Court, Chennai +1 cc to M/s.Lakshmi Priya Associates, SR.No.45292 CRL.O.P.No.11387/2009 JP {CO} TP/24.9.2009. https://hcservices.ecourts.gov.in/hcservices/