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Judgment
A. Packiaraj, J.—This revision has been filed against the orders passed by the Judicial Magistrate No. III, Coimbatore in Cr. No. 170 of
1999, accepting the refer notice filed by the Inspector of Police, B-4, Race Course Police Station, as further action dropped.
The Petitioner, namely the defacto complainant, had given a complaint to the 5th Respondent police for investigation against R-l to R-4 for
offence u/s 420 and 406 IPC. After the conclusion of investigation, as contemplated under the Code of Criminal Procedure, the Investigating
Officer should file a final report before the court concerned which has jurisdiction. The final report may be in the nature of refer notice, that is to
say, no offence is made out, or in the alternative, it may be a report disclosing the offence of which the Respondent has committed. In the present
case, the Investigating Officer has filed a report stating that no offence is made out.
However, the main grievance of the Petitioner is that when the police have come to aconclusion that further action is likely to be dropped, it is
mandatory on the part of the Magistrate to issue or give notice to the complainant that the police is likely to refer the matter and that it is open for
the defacto complainant to take up the matter by other proceedings or in any manner which the law provides. This position has been dealt in
Bhagwant Singh Vs. Commissioner of Police and Another, . Hence when the matter has been dropped by the police officer, the Magistrate
accepting the report and closing the First Information Report is illegal. Consequently, the Petitioner prays that he should be given an opportunity to
take up the issue again.
It is true that notice has not been served to the defacto complainant (Petitioner) when refer notice was filed before the court and no notice was
given by the Magistrate to the defacto complainant before he accepted the report, which apparently is illegal. This revision has to be necessarily
allowed on that point.
The Respondents 1 to 4, who are the accused, have been made parties in this revision. This revision having been filed out of time, a petition to
condone the delay was filed and when the matter was admitted, notice was directed to be sent to the accused. But before the accused could
receive notice from the court and enter appearance, the matter came to be listed and his Lordship Justice Malai. Subramanian has passed an order
condoning the delay on the ground that since the accused has not come into the picture, i.e. to say the trial court has not issued process to the
accused, they do not have any right of audience in the petition for condoning the delay. This order appears to be a perfect order.
But the contention of the learned Counsel for the Respondents is, having given notice, especially in a petition to condone delay, they are entitled
to be heard. Since any petition that has been filed out of time, infringes the vested right of the accused. Though they may not have a right to argue
on merits in relation to the case as such, they could always oppose the petition to condone delay.
I do agree with the contention of the learned Counsel that it ought to have been done. However that in my opinion will not affect the order of
Justice Malai. Subramanian in this case, since Section 397 Code of Criminal Procedure as well as Section 401 Code of Criminal Procedure
contemplates that it is not only the aggrieved party who can bring to the notice of the court, of the illegality committed by the trial court, but even
suo motu it can be done. As a matter of fact, the Supreme Court in Nadir Khan Vs. The State (Delhi Administration), , wherein it has been held
that even on the basis of paper report, the High Court could take up the issue and pass orders. Hence in the present case when there is apparent
illegality committed by the Magistrate as well as the police officer, I do not think it necessary for me to go into the other details argued by the
learned Counsel for the Respondents. Hence I set aside the order of the learned Magistrate accepting the final report and I direct him to give a
copy of the petition and refer notice submitted by the Inspector of Police, to the Petitioner, and pass orders after hearing it.
It will not be out of place for me to state that the police officer in his report has detailed the facts and stated that A-3 and A-4 are the Directors
of the company and they are guarantors of the loan of the company to whom loan has been given. Further the company has paid 3 installments and
failed to repay the balance. During investigation it was also found that the complainant has filed a civil case before the Debt Recovery Tribunal No.
II, Chennai in O.A. No. 1404 of 1998/DRT II,Chennai.
Therefore, when the Inspector of Police has made such submissions, it would have been better if the Magistrate has passed a detailed order
after considering the report.
According to the learned Counsel for A-4, he ceased to be a director even two years prior to the date of taking of the complaint.
If such persons are to be prosecuted, it is the duty of the complainant and the Investigating Officer to find out the role each of the Directors
played at the time of commission of the offence and prosecute them.
With this observation, the revision is allowed.