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Judgment
S. Thangaraj, J.—Crl. O.P. No. 1764 of 1998 is filed by the accused/petitioner u/s 482 Cr.P.C. to call for the entire records relating to the
orders made in Crl. M.P. No. 608/97 on the file of the Judicial Magistrate No. II, Dindigul and confirmed by the Principal Sessions Judge,
Dindigul in Crl RC. No. 11/97 and to set aside the said order.
Crl. R.C. No. 328 of 1998 is filed by the accused in R.C.S. No. 4/97 on the file of the Judicial Magistrate, Dindigul to set aside the orders
passed by the said Court and to pass such further orders as this Court may deem fit and proper.
The respondent Pandiyanatha Baskaran presented a complaint against the Revision Petitioner and others before the Judicial Magistrate No. II,
Dindigul for the offences under Sections 465, 467 and 471 read with 34 I.P.C. and learned Magistrate forwarded the said complaint to the
Inspector of Police, Kannivadi Police Station for investigation, u/s 156(3) Cr.P.C. The Inspector of Police, after due investigation submitted a final
report before the said Court ""dropping further action"" in the matter. On 17.2.97, learned Magistrate, after hearing the parties and also on perusing
the records, had passed the final order, and recorded dropping of further action in that case. On the same day the respondent Pandiyanatha
Baskaran filed a protest petition and also a petition in Crl. M.P. No. 608/97 to call for the original document from the office of the Registrar.
Learned Magistrate has recorded the sworn statement of the complainant as contemplated u/s 200 Cr.P.C. in Crl. M.P. No. 609/97 and posted
the case on 3.3.97 for recording the statement of the witnesses u/s 202 Cr.P.C. Learned magistrate passed an order calling for original records
from the Registrar. Aggrieved by the order passed by learned Magistrate in calling for the records from the office of the Registrar, the accused,
who is the Petitioner herein, has filed Criminal Revision Petition No. 11/97 on the file of the Principal Sessions Judge, Dindigul and the Sessions.
Judge confirmed the order passed by learned Magistrate. The petitioner has filed petition in Crl. O.P. No. 1764/98 to quash the said order. The
petitioner/accused has filed Criminal Revision Case No. 328/98 to set aside the order passed in R.C.S. No. 4/97 dated 22.1.98 on the file of the
Judicial Magistrate No. II, Dindigul.
The respondent herein one Pandiyanatha Baskaran filed a complaint u/s 200 Cr.P.C. against the petitioner herein and also 3 others on the
ground that they have forged the document and on the basis of which they have approached the Sub-Registrar to issue a notice to the complainant
Pandiyanatha Baskaran for the compulsory registration of the said Sale Deed dated 19.9.96 and the complainant found that the signature found in
the sale deed was not of his and was forged. He preferred a private complaint before the Judicial Magistrate No. II, Dindigul, which learned
Magistrate forwarded to the Inspector of Police, Kannivadi Police Station u/s 156(3) Cr.P.C. for investigation and the Inspector of Police filed a
report dropping further action. On 17.2.97 and learned Magistrate heard both sides and recorded the report filed by the Inspector of Police in
R.C.S. No. 4/97. At that stage, learned Magistrate has followed the correct procedure, as held by the Lordship of The Supreme Court in
Bhagwant Singh Vs. Commissioner of Police and Another, wherein it was held that the Magistrate can hear the person lodged the F.I.R. before
passing the final order in the referred charge-sheet, since learned Magistrate has heard the complainant Pandiyanatha Baskaran, who lodged the
F.I.R. on the basis of the private complaint filed by him in Crime No. 455/96 of Kannivadi Police Station.
However, learned Magistrate ought to have referred the case either under mistake of fact or under ''mistake on law'' and not on the reason
further action dropped. It is immaterial for further probe at this stage, since learned Magistrate has passed the final order in the R.C.S. after hearing
the complainant on whose complaint the F.I.R. was registered.
On the same day (17.2.97), learned Magistrate recorded the sworn statement of the complainant u/s 200 Cr.P.C., in his proceedings in Crl.
M.P. No. 609/97 and adjourned the case to 3.3.97 for issue of process and for recording the statements of witnesses on the side of the
complainant as contemplated u/s 202 Cr.P.C. on the same day, Crl. M.P. No. 608/97 was filed u/s 91 Cr.P.C. to call for the original Sale Deed,
wherein the alleged signature of the complainant was found, from the office of the Sub Registrar, Kannivadi. At this stage, learned Senior Counsel
for the Revision Petitioner has questioned the correctness of issuing process to the witnesses for their appearance to record their statement u/s 202
Cr.P.C. and also issuing summons u/s 91 Cr.P.C. to the Sub Registrar, Kannivadi to produce the original Sale Deed dated 19.9.96 wherein the
alleged signature of the complainant was found.
It was argued on the side of the Prevision Petitioner that when once the final order is passed in the R.C.S. it cannot be automatically reopened
and for filing the second complaint or for reopening the said R.C.S., the permission of the Court must be obtained by the complainant and in this
case, after passing the final order in the R.C.S., learned Magistrate has reopened the case without following the proper procedure.
To substantiate this position, learned Senior Counsel has relied on the decision of this Court in A. Krishna Rao Vs. L. S. Kumar, wherein it was
held that when once the Magistrate had accepted the R.C.S. the second complaint should be filed only after setting aside the earlier order passed
by learned Magistrate in the referred charge sheet.
Their Lordships of The Supreme Court in H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State
(Union Territory of Chandigarh), have held as follows:
A Magistrate who on receipt of a complaint orders an investigation u/s 156(3) and receives a Police report u/s 173(1), may, thereafter, do one of
three things: (1)he may decide that there is no sufficient ground for proceeding further and drop action; (2)he may take cognizance of the offence
u/s 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at
by the police in their report; (3) he may take cognizance of the offence u/s 190(1)(a) on the basis of the original complaint and proceed to examine
upon oath the complainant and his witnesses u/s 200. If he adopts the third alternative, he may hold or direct an inquiry u/s 202 if he thinks fit
thereafter he may dismiss the complaint or issue process, as the case may be.
In the instant case, learned Magistrate, after passing the final order in the R.C.S. on the basis of the report submitted by the Inspector of
Police, Kannivadi Police Station, has dropped further action in the F.I.R. in Crime No. 455/96 of Kannivadi Police Station. When the Police
report u/s 173(1) Cr.P.C. was received by learned Magistrate, he can do one of the three things, as slated by Their Lordships and not all of them.
In the instant case, learned Magistrate has accepted the final report submitted by the Inspector of Police, Kannivadi and passed the final order
chopping further action in the matter.
On the date when the final order was passed by learned Magistrate on the basis of the report submitted by the Inspector of police, the
complainant Pandiyanatha Baskaran filed Crl. M.P. No. 609/97 by way of protest petition stating some grounds challenging the order passed by
the learned Magistrate. On the same day, he also filed an application in Crl. M.P. No. 608/97 to send for the Sale Deed dated therein is genuine
or not. Immediately after passing the orders on the basis of the report filed by the Inspector of Police, the learned Magistrate has passed these two
orders.
It was argued on the side of the petitioner that when once the final order was passed on the basis of the report by the Investigating officer,
thereafter to revoke the same the complainant should get a fresh order from court.
In State of Rajasthan v. Aruna Devi and others (1995 S.C. (Cri) 1) it was held that in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, a
three-Judge Bench of the Supreme Court by majority has decided even if the complaint is dismissed u/s 203 Cr.P.C., there is no bar to entertain a
second complaint on the same facts under exceptional circumstances and it was held that a fresh complaint can be entertained inter alia when the
fresh evidence comes forward.
On the date when the order was passed by learned Magistrate, the protest petition gave him sufficient grounds and also the petition filed by the
complainant u/s 91 Cr.P.C. to send for the documents. Subsequently, the Inspector of Police himself has filed a report on the basis of fresh
materials and thereafter the learned Magistrate passed an order for further investigation and to file further report as contemplated u/s 173(8)
Cr.P.C. However, on 17.2.97, the said report regarding further information by the Police was not brought to the knowledge of the Magistrate and
in the above decision 1995 SCC (Cri) 1. Their Lordships have clearly pointed out that the report filed before the Magistrate u/s 173(2) or(8) does
not debar him from taking cognizance of the offences if on further investigation fresh materials come to light.
This Court in K. Ramasuhbu v. State through the Inspector of Police (1987 L.W.(Cri.) 79: 1987 (1) Cri 914) held on the basis of the decision
in Kamaiapati Trivedi v. State of West Bengal (1979 L.W. Crl. 48 (SN)) that in view of the ratio laid down in the above decision, it is clear that
the order passed by the Magistrate on the basis of the first report submitted by the Sub-Inspector is a judicial order. The second revised report
contemplated u/s 173(8) of the Code is only in case where the charge-sheet is filed and subsequently revised or additional charge-sheet is
contemplated on the further materials available, and not in a case where the case was already referred as mistake of fact and accepted by Court.
The facts of the instant case are similar to the facts of the case in which these decision were rendered by that Court. His Lordship after
considering Supreme Court held that if the final report was already filed, on the availability of further materials, a further final report can be filed as
contemplated u/s 173(8) Cr.P.C. and not in a case where the case was already referred as mistake fact and accepted by Court.
This Court in Ramamurthy v. State rep. by Inspector of Police D.C.B. Virdhunagar (1999 1 L.W.(Cri.) 352) held that there is no difficulty in
coming to the conclusion that even though the report was filed u/s 173(2) Cr.P.C. referring the matter, Section 173(8) Cr.P.C. would permit the
police for further investigation and send another report to the Magistrate contrary to the earlier report.
Relied upon this decision, the learned counsel for the respondent has argued that on the basis of the report sent by the Inspector of Police
referring the case, the Magistrate passed the final order in Crime No. 455/96 and same can be re-opened by the Police on the availability of fresh
materials and Section 173(8) Cr.P.C. empowers the Police officer to re-open the investigation and to file a further final report. In the event of
further investigation on availability of further materials, the Police officer has to get formal permission from the Court.
This Court in In Re: Palaniswami Goundan, held that even after filing of final charge-sheet, the police officer could still investigate and lay
further charge-sheets if he got information and that there was no finality either to the investigation or to the laying of charge-sheet.
Their Lordships in Ram Lal Narang Vs. State (Delhi Administration), have held
In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted u/s 173 of the 1898 Code, the
right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information
came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the court by seeking
its formal permission to make further investigation.
In the State of Maharashtra v. Shardchandra Vinyak Dongre (1995 S.C.C. (Crl) 16). Their Lordships of the Supreme Court have held that
the Magistrate is not bound by the label given to the report or the charge sheet by the investigating officer and it is for him to decide whether the
report and the material on which it is based, is sufficient for him to take cognizance or not.
The formal permission was obtained in this case by the Inspector of Police, Kannivadi Police Station on 22.1.98 and learned Magistrate
passed an order restoring the F.I.R. in Crime No. 455/96 of Kannivadi Police Station for further investigation which was pending. However, on
the date when the impugned order was passed in Crl. M.P. No. 608/97 neither there was any application by the concerned police nor an order
permitting the police to have further investigation.
While considering the various decisions for and against, we have to take into consideration of the decision of the Supreme Court and on the
basis of such decision we have to decide the case. The procedure followed by learned Magistrate cannot be appreciated and on the contrary,
since the Supreme Court has decided the correct position of law we are here to follow the same.
In H.S. Bains, Director, Small Saving-Cum-Deputy Secretary Finance, Punjab, Chandigarh Vs. State (Union Territory of Chandigarh), it was
held that the duty of the Magistrate when he has received a Police report u/s 173(1) on a complaint sent to the police u/s 156(3) Cr PC. to follow
any one of those procedures. However, learned Magistrate on one hand passed the final order in the referred charge-sheet filed by the Police and
thereafter, neither the police re-opened it nor the Magistrate re-opened suo motto and on the contrary has allowed the petition u/s 91 Cr.P.C.
Though the Magistrate apparently erred in following that procedure, later decisions of the Supreme Court show that it cannot be taken as a wrong
order.
In 1995 S.C.C. (Cri) 1, Their Lordships of the Supreme Court held that the report filed by the police u/s 173(2) does not debar him from
taking cognizance of the offence if on further investigation fresh material comes to light. Accordingly Their Lordships however, held that further
investigation in such circumstances, has legal sanction and if a report is submitted after further investigation, it would open to the Magistrate to take
cognizance of the offence which was brought out in the further investigation and if it satisfies the judicial mind of learned Magistrate. In the instant
case, learned Magistrate has permitted the Inspector of Police, Kannivadi to have further investigation in Crime No. 455/96 of the said police
station. This order was passed on 22.1.98. As on date, when there is a proper order for further investigation and in such circumstances, the earlier
order passed by learned Magistrate in Crl. M.P. Nos. 608/97 and 609/87 cannot be assailed and so also, the order of the Sessions Judge,
Dindigul in Revision Petition No. 11/97.
In 1995 S.C.C (Cri) 16 stated supra, it was held that the final report filed by the police officer referring the case and the charge-sheet filed u/s
173(2) Cr.P.C. and as such, the police can file a further report u/s 173(8) Cr.P.C., the earlier decision on this point that a further report u/s 173(8)
Cr.P.C. can be filed only after filing of the charge sheet is no longer a valid position of law, as both the final report referring the case on some
grounds like mistake of fact, mistake of law false, undeductable, etc., and also the final report charging the accused person for certain offences are
filed u/s 173(2) and therefore, a further report can be filed u/s 173(8) Cr.P.C. when we apply these decision to the instant case, the order passed
by the learned Magistrate on 22.1.98 permitting the Inspector of Police to conduct further investigation is in order and the same cannot be assailed,
when there is a valid order to have further investigation, the previous order passed by the Magistrate to send for the original document and also to
have enquiry u/s 202 Cr.P.C. are valid.
This Court in Ramamurthy v. State rep. by Inspector of Police, D.C.B. Virudhunagar (1999 1 L.W.(Cri.) 352) has rendered a similar decision
following the above two decisions in State of Maharashtra Vs. Manubhai Pragaji Vashi and others, that even though the final report filed by the
police u/s 173(2) referring the matter Section 173(8) Cr.P.C. would permit the police for further investigation to the further report before the
Magistrate.
In such circumstances, the prayer of the petitioner on both these petitions cannot be granted, since the order passed by learned Magistrate are
valid. For the foregoing reasons, the Criminal Original petition and the Criminal Revision case are liable to be dismissed.
In the result, the Crl. O.P. No. 1764 of 1998 and Crl. R.C. No. 328 of 1998 are dismissed. Consequently, Crl. M.P. Nos. 1108 and 2462 of
1998 stand dismissed.