Dipak Misra, J.

Leave granted.

In this appeal, by special leave, the informant-appellant calls in question the defensibility of the order dated 13.12.2011 passed by the learned Single Judge of the High Court of Judicature of Madras at Madurai in Criminal Revision No. 790/2011 whereby he has annulled the order dated 2.9.2010 passed by the learned Chief Judicial Magistrate, Nagercoil directing further investigation in exercise of power under Section 173(8) of the Code of Criminal Procedure ( CrPC ) and also directing the investigation to be carried out by C.B.C.I.D.; on the foundation that in the obtaining fact situation there are no exceptional circumstances for ordering re-investigation.

As the facts would unfurl, the appellant filed an FIR with the Sub- Inspector of Police, Kulasekaram Police Station, upon which Crime No. 119/2007 was registered u/s 147 , 148 , 341 , 324 , 323 and 307 of Indian Penal Code ( IPC ). The informant had alleged that on 05.06.2007 about 2 p.m., Manikandan, Jegan, Murugan, Vijayan, Sunil and some others attacked him with ‘Vettu Kathi’, knife and iron rod and in the said attack he sustained multiple injuries. The motive behind the assault, as per the FIR, was due to business rivalry that existed between the appellant and Manikandan, as both are contractors. The Inspector of Police, Kulasekaram Police Station conducted the initial investigation and subsequently the case was transferred to the District Crime Branch Police, Kanyakumari and thereafter, the Inspector of Police, District Crime Branch filed a final report before the learned Judicial Magistrate, Padmanabhapuram stating that the case was a mistake of fact. The learned Judicial Magistrate on intimation to the informant accepted the final report. In the meantime, the appellant had filed a protest petition dated 5.1.2009 forming the subject matter of Crl. M.P. no. 1974/2009 on the file of the learned Judicial Magistrate praying therein to direct CBCID to re-open the case and file a fresh report. However, as the final report had already been accepted before disposing the protest petition, the appellant preferred Crl. O.P. no. 1727/2009 before the Madurai Bench of the Madras High Court. The High Court called for the report from the Magistrate’s Court and, thereafter, set aside the order accepting the final report and directed the Magistrate to consider the final report along with the protest petition. The learned Magistrate vide order dated 29.07.2009 dismissed the protest petition. It took note of the decisions in Hasanbhai Valibhai Quareshi vs State of Gujarat and Ors. [1] and Hemant Dhasmana vs CBI and Anr. [2], and held that as the investigation officer had examined all the witnesses as averred by the informant and received the evidence and as no new witnesses were cited to be examined, there was no justification for directing reinvestigation of the case. It further directed that the protest petition to be treated as a separate private complaint.

Being aggrieved by the said order, the appellant preferred Criminal Revision Petition, i.e., Crl. R.C. No. 458 of 2009 in the High Court. Before the High Court, the appellant contended that the order of the Magistrate was based on the acceptance of the final report submitted by the police and the order did not reflect any application of mind on his part. It was further urged that the order was bereft of discussion of the evidence gathered by the Investigating Officer, and that apart there was total non-application of mind either for acceptance or rejection of the statements of the witnesses filed along with the final report. The High Court while setting aside the order of learned Magistrate observed that the lower court fell into error by neither discussing the material available, nor clearly spelling out the reasons and shirked its duty by merely permitting the petitioner, therein, to pursue his cause by way of private complaint. The learned Single Judge, accordingly, allowed the revision and concluded thus:-

Being aggrieved by the said order, one of the accused, Jegan, filed Criminal Revision No. 790 of 2011. The High Court, vide the impugned order, after discussing the evidence on record, came to hold that there were material discrepancies in the evidence brought on record and, therefore, in the present fact situation there were no exceptional circumstances for ordering re-investigation, and that apart, the scheme of Section 173(8) CrPC only enables the investigating officer to request for further investigation. The High Court, accordingly, set aside the order of the Chief Judicial Magistrate and further observed that as the learned Judicial Magistrate in his order dated 13.07.2009 had directed that the protest petition was to be treated as a private complaint, the de-facto complainant still had an opportunity for presenting the case before the Court and no prejudice was caused to him.

We have heard Mr. K.V. Vishwanathan, learned senior counsel for the appellant and Mr. M. Yogesh Kanna, learned counsel for the State and Mr. S. Thananjayan, learned counsel for the respondent no.3. It is submitted by Mr. Vishwanathan, learned senior counsel that the High Court has absolutely flawed by entering into the merits of the case when the learned Chief Judicial Magistrate had only directed for reinvestigation by different investigating agency. It is urged by him that if the order passed by the Chief Judicial Magistrate is read in entirety, it would convey that he in actuality has directed for further investigation, but has used the expression “reinvestigation” as it was directing investigation to be carried out by another agency. It is his further submission that in view of the earlier order passed by the High Court, the order impugned in this appeal is wholly unsustainable.

Learned counsel for the private respondent no.3 in support of the decision of the High Court has submitted that the learned Magistrate has no power for directing reinvestigation, and hence, the order passed by the High Court is absolutely impregnable. It is also his submission that when a protest petition is filed and it has been directed to be treated as a private complaint, the appellant, in no manner, is prejudiced and, therefore, there is no warrant for interference in this appeal. First, we shall dwell upon the issue whether the High Court, in exercise of the revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation. In fact, he has noted certain facts and deduced certain conclusions, which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. (see Amit Kapoor v. Ramesh Chander [4]).

Judging on the aforesaid premises, we have no shadow of doubt that the High Court has adverted to the facts not to see the perversity of approach, or to see that justice is done, but analysed it from an angle as if it is exercising the appellate jurisdiction. Therefore, the High Court’s conclusion with regard to the factual score is unsustainable. Presently to the thrust of the matter, the controversy before the learned Single Judge was basically two-fold, namely, whether the learned Chief Judicial Magistrate could have directed for reinvestigation and secondly, whether it could have directed for reinvestigation by another investigating agency. To appreciate the said issues, it is necessary to analyse the scheme of Section 190 of the CrPC. The said provision reads as follows:-

upon a police report of such facts;

upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” In Uma Shankar Singh v. State of Bihar [5], a two-Judge Bench was considering the issue pertaining to the power of the Magistrate under Section 190(1)(b) of CrPC. The Court, scanning the anatomy of the provision, opined that the Magistrate is not bound to accept the final report filed by the investigating agency under Section 173(2) of the Code and is entitled to issue process against an accused even though exonerated by the said authorities. The principle stated by the two-Judge Bench reads as follows:-

Irshad Ali[10], has opined thus:-

To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the principle of stare decisis.” And eventually the Division Bench ruled:-

............................J. [Dipak Misra] ............................J. [V. Gopala Gowda] New Delhi July 7, 2015

-----------------------