Raju vs The State rep. by the Sub Inspector of Police, Vilathikulam Police Station, & Anr.

This Criminal Original Petition is filed under Section 482 of Criminal Procedure Code to call for the records relating to the order, dated

15.12.2009 made in Cr.M.P.No.1400 of 2009 on the file of Judicial Magistrate Court, Vilathikulam and set aside the same and pass further order

directing any competent agency to conduct further investigation.

The case of the petitioner/defacto complainant is that his relatives started picking up quarrel with him in respect of some properties. On

28.06.2008, at about 07.00 a.m., the accused persons trespassed into his house by breaking open the front gate and smashed the properties kept

inside his house and also stolen away the valuable wood kept therein. It is the further case of the petitioner that the accused persons criminally

trespassed into his property and damaged all the trees therein. When the same was questioned by him, they criminally intimidated him by showing

aruval and further the accused persons prevented the petitioner from entering into his house. Hence, the petitioner preferred a complaint before the

respondent police and the same was registered in Crime No.116 of 2008 for the offences punishable under Sections 147, 448, 427 and 506(i)

and 379 (NP) against one Balamurguan and 7 others.

It is the further case of the petitioner that even though the case was registered as early as on 29.06.2008, the respondent police has not

conducted any proper investigation, inspite production of sufficient evidence including a compact disc. When the matter stood thus, to his shock

and surprise, without examining the petitioner and the witnesses, the respondent police served a referred notice to the petitioner as if the case

registered in Crime No.116 of 2008, on 29.06.2008 was referred as ""mistake of fact"" on the same day along with a copy of referred charge sheet.

Thereafter, the petitioner came to know that the respondent police filed a referred charge sheet before the learned Judicial Magistrate,

Vilathikulam. The petitioner applied for the same and obtained a copy of the charge sheet filed before the Magistrate concerned. Since the charge

sheet filed before the Court and the charge sheet served to the petitioner are having different contents, the petitioner filed a petition in

Cr.M.P.No.1400 of 2009 before the learned Judicial Magistrate, Vilathikulam, to transfer the case for further investigation. The learned Judicial

Magistrate, Vilathikulam, vide order, dated 15.12.2009, dismissed the said petition. Hence, the petitioner/defacto complainant filed the above

petition for the relief as stated earlier.

The learned counsel for the petitioner reiterating the case of the petitioner stated above and further submitted that in the referred notice received

by the petitioner it is mentioned that the investigation was completed on the date of registration itself i.e. on 29.06.2008. Whereas in the referred

charge sheet filed before the learned Judicial Magistrate, Vilathikulam, it is mentioned that the investigation was completed on 30.06.2008. It is

pertinent to note that the case was registered on 29.06.2008, at 2 p.m. and the respondent police has chosen to complete the entire investigation

on the same day and filed charge sheet as mistake of fact, for the reasons best known to them. The learned counsel further submitted that filing of

two different charge sheets by the respondent police would go to show that the respondent police has created and concocted the entire documents

only in the police station, without doing any proper investigation. Further the learned counsel for the petitioner submitted that the trial Court without

considering the above aspects, has hurriedly dismissed the petitioner''s petition. He further submitted that the petitioner has filed the petition only for

further investigation, but the learned Magistrate had dismissed the petition by stating that it is not a fit case for re-investigation. Therefore, the

learned counsel prays to allow this petition and to direct further investigation. In support of his contentions, the learned counsel for the petitioner

has relied on the following judgments:-

i)(2009) 6 SCC 385 (Manoj Narain Agrawal v. Shashi Agrawal)

ii) (2009) 7 SCC 685 (Kishan Lal v Dharmendra Bafna and Anr.)

5 The learned Government Advocate (Criminal Side) would submit that the respondent police filed the referred charge sheet before Trial Court

after full fledged investigation as ''mistake of fact'' since there is a civil dispute between the parties and the Trial Court after considering all the

aspects, rightly dismissed the petition filed by the petitioner for further investigation. Moreover, the Trial Court has given liberty to the petitioner to

file a complaint under Section 200 Cr.P.C.. Without exhausting the said remedy, the petitioner has rushed to this Court by filing this criminal

original petition. Hence, he prays for dismissal of this petition.

I have carefully considered the submissions made by the learned counsel on either side and also perused the materials available on record.

From the perusal of the records it could be seen that the respondent police has filed two different charge sheets, i.e. the charge sheet copy

served to the petitioner and the referred charge sheet filed before the Court concerned, containing different contents, though the end result of both

the charge sheet are same to the effect that the complaint is closed as ""mistake of fact''''. In the referred notice served to the petitioner it is found

that the investigation is completed on 29.06.2008 itself, i.e. the date on which the complaint is filed. Whereas in the charge sheet filed before the

Court concerned it is found that the investigation is completed on 30.06.2008. From the above, it is clear that the statements and other materials

which are submitted along with the final report by the respondent police are being only desk work done at the police station itself. Even though it is

alleged by the respondent police that there is a civil dispute in respect of the parties, it is not the case of the petitioner that the respondent police

has expected to decide the civil matter. The petitioner has only prayed to take action in respect of the untoward incident that took place pursuant

to the civil dispute. Moreover, the motive upon the civil cases between the parties is a double edged weapon and it could be utilized by either side.

Apart from that, the judgments relied on by the learned counsel for the petitioner are also applicable to the facts of this case to order further

investigation.

From a perusal of the records, it could be seen that the respondent police has made up their mind to close the complaint as mistake of fact,

without considering the evidence submitted by the petitioner along with the complaint, that too by filing two reports on different dates. Therefore, to

meet the ends of justice, this Court feels to direct the District Crime Branch, Thoothukudi District, to appoint a responsible officer not below the

rank of Deputy Superintendent of Police to look into the complaint of the petitioner dated 29.06.2008 and to file a final report before the

Magistrate concerned on completion of physical enquiry. Accordingly, the Deputy Superintendent of Police, Thoothukudi District is suo motu

impleaded as the second respondent, who in turn is directed to appoint a responsible officer to investigate case in hand and to file a final report

before the jurisdictional Court as expeditiously as possible.

In the result, the order passed by the learned Judicial Magistrate, Vilathikulam, in Crl.M.P.No.1400 of 2009, dated 15.12.2009 is hereby set

aside and the criminal original petition is allowed with the above direction.