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Judgment
The above petition has been preferred u/s 482, Cr.P.C. to call for the records in C.C.No.13 of 1997, on the file of the learned Judicial
Magistrate-VII, Trichy and to quash the proceedings.
Admittedly, two FIRs, one in Crime No.282 of 1991 and another in Crime No.283 of 1991 on the file of Airport Police Station, Golden Rock
Circle, Trichy, were registered on the basis of the complaints given by Mr.D. Radhakrishnan, Inspector of Police (Law &; Order), Palakkarai
Police Station, Trichy Town at 16.30 hrs. on 16.8.1991 and by Mr.K.K. Williams at 19.00 hrs, on 16.8.1991 respectively, in respect of one and
the same incident said to have taken place between 12.00 and 13.00 hrs. in front of Trichy Airport on the Trichy-Pudukottai Main Road within the
jurisdiction of the said Police Station.
According to the prosecution, the petitioners, who are the accused in the said crimes, are either members or sympathisers of AIADMK party;
the petitioners/accused, in order to show their protest in respect of Cauvery issue, formed themselves into an unlawful assembly with a common
object of causing damages to convoy cars brought there to receive Mr.P. Chidambaram, the then Minister of State for Commerce, Government of
India, and to assault, him and other Congress party men, by preventing the police officers, who were on bandobust duty, from discharging their
official duty; some of the accused were armed with iron rods and others with sticks and stones and caused damage to 20 cars, assaulted Mr.P.
Chidambaram, his party men and the police personnel. Hence, the said complaints for the offences punishable under Sections 147, 148, 323, 427,
506(ii), 427, 506(ii) read with Section 114, IPC, 353, 332 read with Section 149 and Section 114 read with Section 332 IPC, as mentioned in
Charge Sheet No. 2 of 1996 dated 31.12.1996 in Crime No.283 of 1991 dated 16.8.1991.
The Sub Inspector of Police. (Law & Order), Airport Police Station, Trichy, submitted an ''Action-Drop Report'' dated 12.5.1995 before the
learned Chief Judicial Magistrate, Trichy, which reads as follows:
On 16.8.91 at 12.20 hrs. at Airport Trichy in Airport P.S. limits some unknown persons formed themselves into an unlawful assembly, armed
with deadly weapons, with common intention to assault the Hon''ble Ex. Central Minister Thiru P. Chidambaram, way laided him when he was
coming out in a car from Airport and assaulted the driver and damaged the car in which he travelled.
In this connection a case in Airport P.S.Cr.No.282/91 u/s 147, 148, 332, 427, IPC on the report of Inspector Tr. Radhakrishnan at 16.30 hrs.
(sic)
On the report of one K.K. Williams s/o Kunju Driver, 7B, Crawford Colony, Trichy 12, a case in connection with same occurrence was
registered in Airport P.S. Cr.No.283 of 1991 u/s 147, 148, 336, 324, 332 and 427, IPC was registered and investigated by Inspector Thiru
Thamodharan.
As both the cases are registered for a same occurrence, I am dropping further action in Airport P.S. Cr.No.282 of 1991 u/s 147, 148, 332 and
427, IPC as Inspector Thiru Thamodharan is investigating the other case."" (Italics supplied)
Accepting the above report to drop further action against Crime No.282 of 1991, as the other complaint registered in Crime No.283 of 1991
was investigated by Thiru Thamodaran, Inspector of Police, Airport Police Station, Trichy, the learned Chief Judicial Magistrate, Trichy, recorded
the said ''Action-Drop Report'' filed in Crime No.282 of 1991, on 18.5.1995, and therefore, the complaint registered in Crime No.283 of 1991,
on the file of Airport Police Station is still pending for investigation.
However, according to the petitioners/accused, the Secretary to Government, informed Thiru T. Rathinavel, Dr. S. Arokiasamy and
Dr.G.R.Mala, who are petitioners/accused 13, 14 and 15 herein, by a letter dated 14.10.1993, that the case registered in Crime No.283 of 1991
was informed as undetectable by the Inspector of Police, Golden Rock Circle, Trichy, on 17.7.1993. The said letter of the Secretary to
Government dated 14.10.1993 reads as follows:
Date: 14.10.1993
From
Thiru P. Baskaradoss, I.A.S.,
Secretary to Government.
To
Thiru T. Rathinavel, M.L.A.,
Thiruverumbur Constituency.
Dr.S. Arokiasamy, M.L.A.,
Tiruchirapalli - I Constituency
173, Ponnagar, Tiruchy - 1.
Dr.G.R. Mala, M.L.A.,
Tiruchirapalli - II Constituency.
Sir,
Sub: Law & Order - Tiruchirapalli District - Airport Police Station Crime No.283 of 1991 (Goldenrock Circle) against Dr.Arokiasamy MLA.,
Thiru T. Rathinavel, MLA., and Dr.G.R.Mala, MLA., Withdrawal of criminal cases -Regarding.
Ref: 1) Your representation dated 29.9.92 addressed to the Secretary to Government, Home Department.
2) Your representation dated 2.6.93 addressed to the Hon''ble Chief Minister of Tamil Nadu.
I am directed to inform you that the case registered in Airport Police Station Crime No.283 of 1991, under Sections 147, 148, 336, 332, 324 &
427 IPC. was referred as ""UNDETECTED"" by the Inspector of Police Thiru. Radhakrishnan of Golden rock Circle, Tiruchirapalli on 17.7.1993.
Yours faithfully,
Sd/-for Secretary to Government.
Thereafter, in pursuance of the directions of the Superintendent of Police, Trichy, the Inspector of Police (Law & Order), Golden Rock Circle,
by a memo dated 30.7.1996 filed before the learned Judicial Magistrate-VII, Trichy, prayed for a leave to reopen Crime No.283 of 1991, as
though the said case registered in Crime No.283 of 1991 was also referred as ""undetectable"", by Inspector Thiru Radhakrishnan on 17.7.1993.
The said memo dated 30.7.1996 reads as follows:
The case in Airport P.S.Cri.No.283 of 1991 u/s 147, 148, 336, 324, 332 and 427, I.P.C. was registered on 16.8.91 at 19.00 Hrs and
investigated by Inspector Thiru. Damodharan, Goldenrock. The case was referred as UNDETECTABLE on 17.7.93 by Inspector Thiru.
Radhakrishnan.
As per the memo received from The Superintendent of Police, Trichy in C.No. HO/SB/Camp/TRI/96 dated 30.7.96, I was instructed to reopen
the case and take up investigation.
As such I request that the case may be reopened.
Sd/-
(Govi. Manoharan)
Inspector of Police
Law and Order
Golden Rock Circle,
But, the learned Judicial Magistrate-VII, Trichy, returned the said memo with an endorsement dated 15.8.1996, which reads as follows:
Airport P.S.Crl.283 of 1991 Returned
FIR is still pending
before the Court.
Hence requisition returned.
Sd/-
15.8.96
Judicial Magistrate VII
Trichy.
In the meanwhile, the case has been transferred to Crime Branch CID., Trichy Unit, for a further investigation, by a police radio message issued
by the Additional Superintendent of Police, Trichy, Crime Branch CID, by proceedings dated 2.8.1996. Accordingly, the respondent undertook
further investigation, collected materials u/s 161, Cr.P.C. and submitted a final report on 31.12.1996; in pursuance of which, Crime No.283 of
1991 was taken on file before the learned Judicial Magistrate-VII, Trichy, in C.C.No.13 of 1997. Hence, the above Criminal O.P.
Mr.E.Raja, learned counsel for the petitioners seeks to quash the proceedings relating to C.C.No.13 of 1997 on the ground that the
respondent has not obtained permission from the learned Judicial Magistrate-VII, Trichy, for further investigation, as per Section 173(3) & (8),
Cr.P.C; nor produced any new material for such farther investigation; nor given any opportunity to the petitioners/accused before proceeding with
further investigation and failure to provide such opportunity vitiates the principles of natural justice; and therefore, further investigation and the
consequential registration of the case on the file of the learned Judicial Magistrate-VII, Trichy, in C.C.No.13 of 1997 are nothing but art abuse of
process of Court, particularly when the petitioners/accused themselves were informed by the Secretary to Government, by his letter dated
14.10.1993 that the case registered in Crime No.283 of 1991 was referred to as ""undetected"" by the Inspector of Police, Golden Rock Circle,
Trichy, on 17.7.1993. He also contends that the learned Judicial Magistrate-VII, Trichy, ought to have applied his mind before taking Crime
No.283 of 1991 on file, in C.C.No.13 of 1997 that the respondent has not obtained any permission for such reinvestigation, as required u/s 173
(3) and (8), Cr.P.C. Placing reliance on the letter written by the Secretary to Government on 14.10.1993, learned counsel for the petitioners
contends that both the crimes registered against the petitioners/accused in Crime Nos.282 of 1991 and 283 of 1991 stand withdrawn, and
therefore, the respondent has no authority of law to reopen Crime No.283 of 1991, and consequently, learned Judicial Magistrate-VII, Trichy,
ought not to have taken the above Crime, viz. Crime No. 283 of 1991, on file in C.C.No.13 of 1997.
Per contra, Mr.N.R. Elango, learned Government Advocate, contends that the contentions of the learned counsel for the petitioners are totally
contrary to the facts available on record. He invited my attention to the Action-Drop Report dated 12.5.1995, wherein, it is stated that Crime
No.282 of 1991 was dropped in view of the fact that Inspector Thamodharan was investigating Crime No.283 of 1991 as both the crimes are
related to the same occurrence; but Crime No.283 of 1991 was never referred to as ""undetectable"", as informed by the Secretary to Government,
by his letter dated 14.10.1993. Therefore, the case registered in Crime No. 283 of 1991 was never withdrawn, in accordance with Section 321,
Cr.P.C. and as such, the same is still pending, as observed by the learned Judicial Magistrate-VII, Trichy. The learned Government Advocate,
hence, contends that neither the requirement of seeking permission of the Court to reopen Crime No.283 of 1991, as rightly observed by the
learned Judicial Magistrate-VII. Trichy, by his endorsement dated 15.8.1996; nor the necessity of getting a formal permission from the learned
Judicial Magistrate-VII, Trichy for further investigation arise in the instant case; nor the petitioners/accused are entitled for an opportunity before
such further investigation, in compliance of the principles of natural justice. Mr.N.R. Elango, learned Government Advocate, further contends that
the powers of the Police to further investigate is not barred under Cr.P.C. and the same is exhaustive in nature and what is required u/s 173,
Cr.P.C. is to forward further report or reports regarding such evidence of further investigation, in other words, a formal information to the Court;
and thereafter, it is for the learned Magistrate to take cognizance of any or all such offences, as per Section 190, Cr.P.C. In the instant case, in
view of the memo dated 30.7.1996, the respondent has fully complied with the requirements contemplated u/s 173, Cr.P.C. and therefore, no
ground is made out to quash the proceedings relating to C.C.No.13 of 1997, pending before the learned Judicial Magistrate-VII, Trichy.
I have bestowed my careful consideration to the submissions of both sides.
In this regard, I am obliged to refer Section 173 (3) and (8), Cr.P.C., which reads as follows:
173 Report of police officer on completion of investigation.
(1)......
(2).......
(3) Where a superior officer of police has been appointed u/s 158, the report shall, in any case in which the State Government by general or
special order as directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the
police station to make further investigation.
(4)......
(5)......
(6)......
(7).....
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been
forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of
sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forward under sub-
section (2).
Section 190, Cr.P.C. enables the Magistrate to take cognizance of offences (a) upon receiving a complaint of facts which constitute such
offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer or upon his own
knowledge, that such offence has been committed.
Section 321, Cr.P.C. deals with the withdrawal from prosecution, which reads as follows:
Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at
any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the
offences for which he is tried; and, upon such withdrawal, -
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, on when under this Code no charge is required, he shall be acquitted in respect of such offence or
offences;
Provided that where such offence
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or
(iii) involved the misappropriation or destruction, of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of Central Government while acting or purporting to act in the discharge of his official duty.
and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the
Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent,
direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
In Meera Sahib. Tenkasi v. The State, rep. by the Sub Inspector of Police, 1999 (1) LW (Crl.) 118, M. Karpagavinayagam, J, while
interpreting powers u/s 321, Cr.P.C. held as follows:
Section 321, Cr.P.C. provides two fundamental requirements. One is the right of the Public Prosecutor to request for the consent of the court for
withdrawal from the prosecution only on his being satisfied about the reasons for the same, independent of the instructions given by the Executive
authorities. The second thing is that the Magistrate has also to consider the various circumstances before giving such consent for withdrawal,
independent of the orders of the Executive authorities and the reasons given in the application filed by the Assistant Public Prosecutor in charge of
the case. If only these two requirements are fulfilled, then the order passed by the Magistrate u/s 321 Cr.P.C. would be legal.
The undisputed facts of the instant case clearly show that the Public Prosecutor had neither moved the learned Judicial Magistrate-VII, Trichy,
for withdrawal of the case registered in Crime Nos.282 of 1991 and 283 of 1991; nor the learned Judicial Magistrate-VII, Trichy, had given his
consent to withdraw the said case from the prosecution. On the other hand, the fact remains that the case registered in Crime No.282 of 1991 was
dropped, taking note of the fact that the case registered in Crime No.283 of 1991, registered on the very same cause of action, was being
investigated by one Thamodharan, Inspector of Police, Airport Police Station, Trichy and that the case registered in Crime No.283 of 1991 was
still pending, but not withdrawn, as per Section 321, Cr.P.C. Therefore, as rightly endorsed by the learned Judicial Magistrate-VII, Trichy, the
requirement of seeking permission of the Court for reopening the said Crime No.283 of 1991 for further investigation does not arise.
Further, the ratio laid down in State by the State Vs. L. Ganesan and others, , by Rengasamy. J, that it is true that the prosecution once
allowed to be withdrawn cannot be reopened as the same would cause havoc and prejudice to the accused, is, not applicable to the facts of the
present case as the case registered in Crime No.283 of 1991 against the petitioners is never withdrawn.
No doubt, the Apex Court in Randhir Singh Rana Vs. The State Being the Delhi Administration, , held that a Magistrate, after taking
cognizance of an offence on the basis of a police report, after the appearance of the accused, cannot order of his own, further investigation in the
case. In the instant case, it is clear that the case was transferred to Crime Branch CID for further investigation and the respondent herein admittedly
had sought permission of the Court for further investigation, even before taking cognizance of the offence, by the Magistrate. Therefore, the ratio
laid down in the above case is not applicable to the instant case.
On the other hand, in Ram Lal Narang Vs. State (Delhi Administration), , the Apex Court has held as follows:,
despite a Magistrate taking cognizance of an offence upon a police report, the right of police to further investigate even under the old 1898 Code
was not exhaustive and the police could exercise such right often as necessary when fresh information came to light. (This position is now beyond
pale of controversy because of sub-section (8) of Section 173 of the new Code, viz. Cr.P.C., 1973). But then a rider was added stating that after
cognizance has been taken, then with a view to maintain independence of the magistracy and the judiciary, interests of the purity of administration
of criminal justice and interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would
ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to
light."":
As rightly pointed out by Mr.N.R. Elango, learned Government Advocate, a formal permission was sought from the learned Judicial
Magistrate-VII, Trichy, even before taking cognizance of the offence, by memo dated 30.7.1996; but, the learned Judicial Magistrate-VII, Trichy,
rightly, returned the memo dated 30.7.1996, finding that the FIR registered in Crime No.283 of 1991 was still pending, by his endorsement dated
15.8.1996. Therefore, in my opinion, the requirements contemplated u/s 173 (3) and (8), Cr.P.C, have been duly complied with, in the instant
case.
The proposition that ""further investigation is not valid while the case against the accused is pending before the Court and if the permission of the
Court was not obtained nor the accused was not given any opportunity"", as laid down in S. Ramapandian v. State rep. by District Crime Branch,
Kancheepuram, 1996 (1) MWN (Cr.) 123, is not applicable to the instant case because, in the case cited supra, the petitioner was one of the
prosecution witnesses and was subsequently transposed, from the rank of witness to the position of the accused, which required an opportunity to
the petitioner therein, before such investigation; whereas no such circumstance has arisen in the instant case, requiring an opportunity to the
petitioners/accused, before such further investigation, attracting principles of natural justice.
Similarly, in Kennedy v. State rep. by Sub-Inspector of Police. Pasumpon Muthuramalinga Thevar District, 1997 (1) MWN (Cr.) 178, after
full investigation, the police filed the final report and all the materials before the Court, which were found accepted by the Court, taking cognizance
of the same by framing the charges, and thereafter, the prosecution opted for further investigation. But in the instant case, no such final report has
been filed before the Court when the respondent proposed to have a further investigation in the matter, and therefore, the above decision is not
applicable to the facts of this case.
Of course, in State of West Bengal and another Vs. Mohammed Khalid and others, , the Apex Court has held as follows:
Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal
sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that
offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ''cognizance'' indicates
the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it
is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. It has,
thus, reference to the hearing and determination of the case in connection with an offence''.
In Anil Saran Vs. State of Bihar and another, , the Apex Court has held as follows:
It is now settled law that the court takes cognizance of the offence and not the offender. As soon as the Magistrate applies his judicial mind to the
offence stated in the complaint or the police report etc. cognizance is said to be taken. Cognizance of the offence takes, place when the Magistrate
takes judicial notice of the offence. Whether the Magistrate has taken cognizance of offence on a complaint or on a police report or upon
information of a person other than; the police officer, depends upon further action taken pursuant thereto and the attending circumstances, of the
particular case including the mode in which the case is sought to be dealt with or the nature of the action taken by the Magistrate.
Admittedly, in the instant case, FIR is still pending and the investigation, therefore, continues. In the meanwhile, the case was transferred to
Crime Branch CID by the superior officers, who collected additional materials and obtained statements u/s 161, Cr.P.C. and also filed the same
before the learned Judicial Magistrate-VII, Trichy, in the light of which, learned Judicial Magistrate-VII, Trichy, took the case on file in C.C.No.13
of 1997. Therefore, the principles laid down in State of West Bengal and another Vs. Mohammed Khalid and others, and in Anil Saran Vs. State
of Bihar and another, , are not applicable to the facts of the present case.
It is clear that even after the report is filed u/s 173(2), Cr.P.C., Section .173(8), CriP.C. permits further investigation, as held in State of
Rajasthan v. Aruna Devi and Ors., 1995 SCC (Cri) 1.
In any event, as held in Central Bureau of Investigation and another Vs. Rajesh Gandhi and another, , the decision to investigate or the decision
OR the agency which should investigate, does not attract the principles of natural justice and the accused cannot have a say in who should
investigate the offence''s he is charged with, and therefore, the petitioners/accused cannot have any grievance even by the transfer of case from the
Inspector, Airport Police Station, Trichy to Crime Branch CID, Trichy Unit.
Of course, many doubts arise, raising the eyebrows, as pointed out by Mr.N.R. Elango, learned Government Advocate that how could the
police refer Crime No, 283 of 1991 as undetectable, particularly when they were present at the scene and time of occurrence, discharging their
official duty of providing, bandobust to Mr. P. Chidambaram, the then Minister of State for Commerce, Government of India, and they themselves
lodged a complaint in Crime No.282 of 1991, which was later on dropped as the other case registered on the same occurrence, viz. Crime
No.283 of 1991, was investigated by one Thamodharan, Inspector of Police, Airport Police Station, and as to the circumstances under which the
Secretary to the Government addressed a letter to the petitioners/accused on 14.10.1993, which carries a reference to the representation to the
then Hon''ble Chief Minister, but without any reference as to any of the proceedings of the police authorities for referring the matter as
undetectable, I do not propose to give much importance to such doubts, in view of the undisputed fact that neither the case registered in Crime
No.282 of 1991 nor in Crime No. 283 of 1991 was withdrawn by the prosecution, with the leave of the Court, as contemplated under Section,
321, Cr.P.C. On the other hand, the case registered in Crime No. 282 of 1991 was dropped, taking note of the fact that investigation of the case
in Crime No. 283 of 1991 was being continued by Thiru Thamodharan, Inspector of Police, Airport Police Station, Trichy, which is still pending
on file, as endorsed by the learned Judicial Magistrate-VII, Trichy.
For all these reasons, particularly, in the light of the undisputed facts that the case registered in Crime No.283 of 1991 was never withdrawn in
the manner, as contemplated under ""Section 321, Cr.P.C.; that the said crime is still pending and hence, the requirement of seeking permission of
the Court to reopen the same does not arise; that the accused have no right to say who has to investigate; that the respondent has started collecting
materials even before filing the final report by the police, and before taking cognizance of the offences in C.C.No.13 of 1997, by the learned
Judicial Magistrate-VII, Trichy, I do not find any merit in the contention of the learned counsel for the petitioners. Hence, the above petition is
dismissed with a direction to the learned Judicial Magistrate-VII, Trichy, to conduct the trial on day-to-day basis and pass appropriate orders in
the above case, within sixty days from the date of receipt of a copy of this order. Connected CrI.M.P. is closed. No costs.