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Judgment
Honourable Mr. Justice C.T. Selvam
The accused in case pending trial in C.C. No. 36 of 2006 on the file of Judicial Magistrate No. 1, Namakkal are the petitioners before this Court. They challenge an order passed by such court in CMP No. 3234 of 2006 dated 16.08.2007. A private complaint was lodged on 11.02.2005 before learned Judicial Magistrate No. 1, Namakkal alleging commission of offences under sections 468, 471, 420 r/w 511 and 120(B) of IPC. The same was referred to the second respondent police u/s 156(3) CrPC. A case was registered in Crime No. 400 of 2005 on 29.04.2005. On completion of investigation a final report informing commission of offences u/s 468, 167 and 120(B) of IPC was filed and the same was taken on file in C.C. No. 36 of 2006. Before commencement of trial the complainant filed a petition u/s 173(8) CrPC seeking conduct of further investigation and the same was allowed by the order under challenge.
Heard learned counsel for the petitioners, the first respondent and learned Additional Public Prosecutor and perused the material available on record.
A perusal of the order under challenge reveals that the court below has not considered the relevant facts, the findings thereupon by the investigating agency, the material in support of such findings nor informed the reasons for arriving at the conclusion that further investigation was necessary. It merely informs the acceptance of a right in the court below to order further investigation u/s 173(8) Cr.P.C. as a proposition of law, that the complainant has approached this Court for a similar relief and this Court had been pleased to direct him to approach the Court below with the observation that such Court may pass orders in accordance with law. Finding the order of the court below totally bereft of reasoning on material aspects, this Court would allow this revision and remit back CMP No. 3234 of 2006 on the file of Judicial Magistrate No. 1, Namakkal, for fresh consideration. Even while doing so, this Court considers it necessary to render its finding on issues raised before it by the opposing counsel.
Sri. N. Manoharan, learned counsel for the petitioner submitted that the Apex Court in the case of Reeta Nag Vs. State of West Bengal and Others, , had held that further investigation could not be directed by the Magistrate suo motu and the same could be done only upon an application made therefor by the investigating agency. The contention of learned counsel is that when even a Magistrate suo motu could not do so, further investigation could not have been ordered at the instance of the complainant. Learned counsel would also submit that section 301 Cr.P.C. is the only provision wherein a limited role of assisting the prosecution is permitted of a complainant. In the absence of any specific provision, the Court below fell into error in allowing the petition moved before it.
Sri. K.V. Sridharan, learned counsel for the first respondent would oppose such submission by informing that the complainant was a person interested in assuring that action on his complaint reaches a just end. Towards such purpose it would be open to him to move a petition for further investigation and when the Court concerned found merit therein, it would but be proper that further investigation be directed, in the interests of justice.
On receipt of a final report, a Magistrate has three options:
(a) He may accept the report;
(b) He may reject the same, take cognizance/ refuse to take cognizance for an offence mentioned/ not mentioned in the final report; and
(c) He may, in a fit case, direct further investigation.
Some of the judgments which recognize the right of the Magistrate to direct further investigation are:
(i) Kamlapati Trivedi Vs. State of West Bengal, ;
(ii) Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj Vs. State of Andhra Pradesh and Others, ;
(iii) Hemant Dhasmane Vs. Central Bureau of Investigation and Another, ; and
(iv) Kishan Lal Vs. Dharmendra Bafna and Another, ;
It may not be out of place to inform that the decision in Kamlapati Trivedi''s case is that of a three Judge Bench of the Honourable Apex Court.
The above list merely is illustrative. Against a catena of judgments which inform/suggest that further investigation may be directed by the Magistrate acting suo motu, the judgment in Reeta Nag Vs. State of West Bengal and Others, , stands alone. In Union Public Service Commission Vs. S. Papaiah and others, , the Honourable Apex Court found improper the action of the Magistrate in accepting the final report and closing the case despite the informant having brought to the notice of the Magistrate the shortcomings necessitating further investigation. It has for long been settled law that before acceptance of a final report seeking closure of a case it is necessary to put the informant/de facto complainant on notice (see Bhagwant Singh Vs. Commissioner of Police and Another, . If the Magistrate upon issuing such mandatory notice and hearing the informant/ de facto complainant cannot direct further investigation in an appropriate case then the very purpose of issue of notice before acceptance of the final report would stand lost. It may also require mention that in the Reeta Nag''s case it has been observed that the Magistrate cannot suo motu direct further investigation u/s 173(8) Cr.P.C. or direct re-investigation in the case on account of the bar of Section 167(2) of the Code. Section 167(2) Cr.P.C. relates to remand of the accused.
Thus, it would be appropriate to follow traditional wisdom and inform that powers do lie with the Magistrate to order further investigation in an appropriate case.
With the above observation, this revision petition shall stand allowed. The order of the learned Judicial Magistrate No. I, Namakkal, passed in C.M.P. No. 3234 of 2006 in C.C. No. 36 of 2006 dated 16.08.2007 is set aside. The matter is remitted back to the Court below for fresh consideration. Consequently, the connected miscellaneous petitions are closed.