S. Palanivelu, J.@mdashThe Petitioner is a complainant in Crime No. 60 of 2009 on the file of Vilathikulam Police Station. He lodged a complaint with the said police station alleging that he was the contesting candidate for the Parliamentary Election in Thoothukudi constitutency, for that, on 28-4-2009, at about 7.45 p.m., while he was in election campaign at Kulathur in his van, the Respondent, who is the Sub-Inspector of Police, immediately (sic) towards inside the van and arrested hint by. pointed his hand at him and saying that (Vernacular matter omitted......... Ed.) and threatened him to leave the place at once; that about 300 people gathered there; that he is Central Secretary for Bahujan Samaj Party for the State; that the Respondent berated him in the presence of the public by saying his caste name; that he belongs to Backward Community and that necessary action may be taken. A case was registered u/s 3(1)(vii) of SC/ST (POA) Act, 1989.
2. On the same date, the second Respondent had also laid a complaint with Eppothumvendran Police Station against this Petitioner, which was registered in Crime No. 59 of 2009, in which he has alleged that while he was patrolling the campaigning area, the candidate for the Parliament Constituency by name Jeevankumar, came in an open jeep and two other cars also accompanied; that without any prior notice, he was engaged in the political campaign; that his speeches were likely to bring about ill-will between certain communities; that at about 20.15 hours, the Petitioner stopped his speech and proceeded, at that time, the Respondent asked him not to canvass further, for which, the Petitioner told that the Respondent belongs to Nadar Community and hence, he does not like the people belonging to Schedule Caste Community; that the Petitioner called the other persons available there to come; that about 15 members under the leadership of one Rajapandi asked the Respondent, how can he ask their candidate to stop the speech and they also abused the police, thereby they prevented him from discharging the official duty and also marred public peace. FIR was registered under Sections 153(A)(1)(2); 505(1)(C) and 353 of IPC in Crime No. 59 of 2009.
3. Both the cases were taken up for investigation by the Deputy Superintendent of Police, Vilathikulam. As far as Crime No. 60 of 2009, registered at the instance of the Petitioner is concerned, the Deputy Superintendent of Police laid a final report before the learned District Munsif-cum-Judicial Magistrate, Vilathukulam stating that the case may be closed as mistake of fact. Before preferring this report, the Deputy Superintendent of Police has also obtained an opinion from the District Vigilance Committee (Vernacular matter omitted...... Ed.), which in its meeting dated 8-9-2009 adopted a resolution that this case has to be referred as mistake of fact. The report of the Investigating Officer along with the opinion from the Special Public Prosecutor, Tirunelveli, was perused by the said Committee, which is evident from the contents of the decision. The said Committee consists of the following officials and members'' from the public:-
(1) District Adi Dravidar Welfar Officer (Public), Thoothukudi.
(2) Special Public Prosecutor, Prevention of Atrocities Court, Tirunelveli.
(3) Special Tahsildar (ADW), Thoothukudi.
(4) Special Tahsildar (ADW), Kovilpatti.
(5) Special Tahsildar (ADW), Thiruchendur.
(6) Thiru T. Ramakrishnan, Lakshmipuram.
(7) Thiru M. Ganesan, Pudukottai.
(8) Thiru A. Paranjothi, Keelathattaparai.
(9) Thiru Paulselvam, Keelaseithalai.
(10) Deputy Superintendent of Police, Thoothukudi (Rural).
(11) Deputy Superintendent of Police Vilathikulam.
(12) Deputy Superintendent of Police, Kovilpatti:
(13) Deputy Superintendent of Police, Srivaigundam.
(14) Deputy Superintendent of Police, Sathankulam
(15) Sub-inspector of Police, Maniyatchi Police Station, Maniatchi.
(16) Sub-Inspector of Police, Social Justice and Human Rights, Thoothukudi.
4. The report of the Deputy Superintendent of Police contained the fact of decision taken by the abovesaid Committee. The learned Special Public Prosecutor, Tirunelveli, has given an opinion on 3-6-2009 asking the Investigating Officer''s opinion.
5. Upon receipt of the report from the Deputy Superintendent of Police, the learned Judicial Magistrate issued notice to the Petitioner and the Petitioner filed a protest petition in Cr. M. P. No. 336 of 2010 before the learned Judicial Magistrate u/s 173(8) of Code of Criminal Procedure In the petition, he hatated besides the allegation in the FIR, he obtained the signatures of the persons, who were present in the occurrence place and they are eye-witnesses; that the Investigating Officer did not enquire anyone of them, but she examined certain persons, who are closely associated to Kulathur Police Station and reached a wrong opinion; that on the strength of the allegations contained in the FIR, the provisions under SC/ST (POA) Act would be attracted and hence, the Court may not accept the final report filed by the Deputy Superintendent of Police and to direct for reinvestigation in this matter.
6. In the objections filed by the Deputy Superintendent of Police, Vilathikulam, it is alleged that as per rules, both the complaints were registered and taken up simultaneously by the same Investigating Officer, who investigated them and filed the final report; that it is not correct to state that since the Respondent is subordinate to the Investigating Officer, to support him, this final report has been filed; that the witnesses alleged in the complaint made by the Petitioner are accused in Crime No. 59 of 2009 and their examination would not reveal any truth; that the persons, who were present in the occurrence place were examined; that it is incorrect to state that the Respondent prevented the Petitioner from proceeding with his campaign and that the Respondent neither threatened nor prevented the Petitioner.
7. After hearing both sides, the learned District Munsif-cum-Judicial Magistrate, Vilathikulam, dismissed the application following the decision of the Hon''ble Supreme Court in
8. The crucial point to be discussed in this matter is, whether the de facto complainant is entitled to file an application for reinvestigation and whether such application could be entertained by the learned Judicial Magistrate u/s 173, Code of Criminal Procedure?
9. The learned Counsel appearing for the Petitioner would argue that there could be no impediment for the Judicial Magistrate to order re-investigation, when he is able to find that no proper investigation was taken up; and that the provision u/s 173(8) of Code of Criminal Procedure is not an obstacle to proceed to issue direction for reinvestigation.
10. Conversely, the learned Additional Public Prosecutor would state that there is no provision in Code of Criminal Procedure enabling the de facto complainant to file a petition requesting the Court to order for re-investigation, that he has no locus standi to file the petition and there is no need to disturb the order passed by the Court below.
11. In support of his contention, the learned Counsel appearing for the Petitioner would place reliance upon the Full Bench decision of the Supreme Court, reported in
... There can, therefore, be no doubt that when, on a consideration of the report made by the officer-in-charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case, where the Magistrate to whom a report is forwarded under, Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at die time of consideration of the report....
12. He has also relied on a decision, reported in
But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person, it is open to the Court to accept the report after hearing the complainant at whose behest the investigation-had commenced. If the Court feels on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contrary conclusions made by the Investigating Officer in the final report. Then it is open to the Court to independently apply its mind to the facts. emerging therefrom and it pan even take cognizance of the offences which appear to it to have been committed, in exercise of its power u/s 190(1)(b) of the Code.
13. Section 190(1)(b), Code of Criminal Procedure contemplates about the powers of the Judicial Magistrate, who takes cognizance of the offence upon the police report of such facts, which are contained in the complaint, In the above-said decisions, the Hon''ble Supreme Court has discussed the powers of the Magistrate under Sections 173 and 190, Code of Criminal Procedure No occasion had arisen in the abovesaid decisions as to the entitlement of the de facto complainant to file a petition for re-investigation or for further investigation.
14. The learned Judicial Magistrate has relied upon a decision, reported in
25. What emerges from the above mentioned decisions of this Court is that once a charge-sheet is filed u/s 173(2), Code of Criminal Procedure and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence complained of or on the application made by the investigating authorities permit further investigation u/s 173(8). The Magistrate cannot suo motu direct a further investigation u/s 173(8), Code of Criminal Procedure or direct a investigation into a case on account of the bar of Section 167(2) of the Code.
26. In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the de facto complainant u/s 173(8) was a direction given by the learned Magistrate to re-investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing the reinvestigation on the application made by the de facto complainant, but he also exceeded his jurisdiction in entertaining the said application filed by the de facto complainant.
15. It has been held that it was wrong on the part of the learned Judicial Magistrate to direct re-investigation on the application made by the de facto complainant. The learned Counsel for the Petitioner would contend that in the abovesaid case, the Hon''ble Supreme Court dealt with the stage of the case and the powers of the learned Judicial Magistrate, after recording of oral evidence in the trial and the principles laid down therein could not be made applicable to the present situation. But the Supreme Court in unequivocal terms, has held that issue of direction for reinvestigation on the application made by the de facto complainant, is exceeding the jurisdiction. Whatever be the stage of the case, the powers of the Magistrate, as dealt with by the Hon''ble Apex Court u/s 173(8) of Code of Criminal Procedure remain unaltered. The following are the decisions of the Hon''ble Supreme Court dealing with the powers of the Magistrate, in the matter of further investigation, while acting u/s 173(8) of Code of Criminal Procedure.
(i)
(ii) 2006 (2) MLJ (Cri) 779 (Popular Muthiah v. State of Tamil Nadu 2006 (2) MLJ (Cri) 779);
(iii) :
(iv) 2009 (2) SCC (Cri) 1047: (AIR 2009 SC (Supp) 1658) (Mithabhai Pashabhai Patel v. State of Gujarat). 2009 (2) SCC (Cri) 1047: (AIR 2009 SC (Supp) 1658
16. In
15... But there may be instances when the Magistrate may take the view, on a consideration of the final report, that the opinion formed by the police is not based on a full and complete investigation, in which case, in our opinion, the Magistrate will have ample jurisdiction to give directions to the police, u/s 156(3), to make a further investigation. That is, the Magistrate feels, after considering the final report, that the investigation is unsatisfactory, or incomplete, or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct the police to make further investigation, u/s 156(3). The police, after such further investigation, may submit a charge-sheet, or, again submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence, u/s 190(1)(b), notwithstanding the contrary opinion of the police, expressed in the final report.
17. In the case of Popular Muthiah v. State of Tamil Nadu (cited supra), it has been held as follows:-
56... The Magistrate has jurisdiction in the event a final form is filed (i) to accept the final form; (ii) in the event a protest petition is filed to treat the same as a complaint petition and if a prima facie case is made out, to issue processes; (iii) to take cognizance of the offences against a person, although a final form has been filed by the police, in the event he comes to the opinion that sufficient materials exist in the case diary itself therefor; and (iv) to direct re-investigation into the matter. (See
18. In :
11. When a report forwarded by the police to Magistrate u/s 173(2)(i) is placed before him several situations arise: The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, (3) may direct further investigation u/s 156(3) and require the police to make a further report....
19. In 2009 (2) SCC (Cri) 1047: (AIR 2009 SC (Supp) 1658) (cited supra), the Supreme Court has held thus:-
12...... Indisputably the investigating agency in terms of Sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such formal request may not be insisted upon.
13. It is, however, beyond any cavil that "further investigation" and "re-investigation" stand on different footing. It may be that in a given situation a superior Court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a "State" to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior Court would ordinarily issue such a direction. Pasayat, J. in
7. At this juncture it would be necessary take note of Section 173 of the Code. From a plain reading of the above Section it is evident that even after completion of investigation under Sub-section (2) of Section 173 of the Code, the police has right to further investigate under Sub-section (8), but not fresh investigation or re-investigation.
A distinction, therefore, exists between a re-investigation and further investigation.
In none of the aforesaid decisions, it has been observed that the de facto complainant has got right to seek for further investigation or re-investigation. While discussing and explaining the terminology employed in Sub-section (8) to Section 173 of Code of Criminal Procedure, the Apex Court has held that the Judicial Magistrate can either order for further investigation on his own, while taking cognizance or he can do it on the request of the investigating agency.
20. Sub-section (8) to Section 173 of Code of Criminal Procedure goes thus:-
173. (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-sections (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 forwarded under Sub-section (2).
21. The abovesaid provision enables the Judicial Magistrate to issue order for further investigation in given circumstances. It is nowhere spelt out in Code of Criminal Procedure that the de facto complainant may file application requesting direction from the Court for further investigation or re-investigation. The Court can exercise its jurisdiction only within the realm of the Code. Indisputably, the investigating agency as per Sub-section (8) of Section 173, Code of Criminal Procedure can request the Court to grant permission to investigate into the matter further. It does not provide right to the de facto complainant to file such application.
22. Had the legislature intended to provide right to the de facto complainant for asking the Court for re-investigation or further investigation, it would have incorporated required terms in the provision. When the section does not curtail the powers of the investigating Officer to take up further Investigation, it has not provided any procedure enabling the de facto complainant to take initiative to place request for further investigation. The law does not postulate any power on the judicial Magistrate to direct further investigation at the behest of the de facto complainant. Code of Criminal Procedure contains exhaustive schemes, elaborately dealing with powers of police and Courts and procedures, in extenso, to be observed by them. When it is not empowered for Judicial Magistrate to order further investigation at the request of the de facto complainant, he cannot assume power to direct the same.
23. The abovesaid illuminating judicial pronouncements would make it clear that the de facto complainant has no locus standi to file petition for further investigation or reinvestigation.
24. It is mentioned in the petition filed by the Petitioner that the witnesses cited in his complaint were not examined. In the com-plaint given by the second Respondent, he has stated that about 15 persons along with the complainant Jeevankumar abused the police. In the objection filed by the State, it has been stated that since the alleged witnesses to the occurrence are accused in Crime No. 59 of 2009, they were not examined. The reason adduced for not examining the witnesses cited in the complaint given by the Petitioner is convincing. Since this Court is of the opinion that the de facto complainant cannot request the Court for re-investigation or further investigation, the order challenged before this Court does not suffer from any legal infirmity, which deserves to be confirmed and accordingly, it is confirmed.
25. In the result, the Criminal Revision Petition is dismissed.
