@JUDGMENTTAG-ORDER
S. Nagamuthu, J.@mdashThe Petitioner is the de facto complainant in Cr. No. 164 of 2006 on the file of Rosanai Police Station, Tindivanam, Villupuram District. On 09.05.2006 at about 2.00 a.m. the Petitioner appeared before the 1st Respondent police and gave a written complaint in respect of the alleged occurrence involving the death of one Muruganandam. In the said complaint, it was, inter alia, alleged that on 08.05.2006 at about 9.30 p.m. while he was at his house at Mottaiyan Street, Tindivanam along with the deceased Muruganandam and few others, one N.R.R Aghu, N.M. Karunanidhi and 15 others came to his house in two cars, all armed with deadly weapons, like Veecharival, Soda Bottles, etc., and attempted to do away with the Petitioner. It was further alleged in the complaint that at that time, when Mr. Muruganandam, the brother-in-law of the brother of the Petitioner, who was present, intervened to save the Petitioner, the assailants attacked him with weapons. As a result, he died instantaneously. On the basis of the said complaint, the Head Constable, who was in charge of Rosanai Police Station registered the above case in Cr. No. 164 of 2006 for offences under Sections 147, 148, 302, 307, 506(i), 324, 323, 120(B) and 427 of IPC against seven named accused and fifteen unnamed accused.
2. The case was initially investigated by one Mr. Sekar, the then Inspector of Rosanai Police Station. Thereafter, on the orders of the Superintendent of Police, the investigation was taken up by one Mr. V. Balasubramaniam, the then Deputy Superintendent of Police, Kallakurichi Sub Division. On his transfer, it was taken by Mr. K. Kumar, the then Deputy Superintendent of Police, Tindivanam Sub Division.
3. On completing the investigation, the Deputy Superintendent of Police filed a final report before the learned Judicial Magistrate No. I. Tindivanam against 15 accused. Except, A1 - N.R. Raghu, all other accused, who figure in the final report, do not find a place in the FIR. Out of total number of 7 accused named in the FIR, except A1 - N.R. Raghu, the names of the other 6 accused do not find a place in the final report. Admittedly, before accepting the final report as against the 15 accused against whom the same had been filed, the learned Magistrate did not issue any notice as required under law to the Petitioner, who is the de facto complainant. The Petitioner claims that he was not aware of the submission of final report and it''s acceptance by the learned Magistrate then. Further, the case was subsequently committed to the Court of Sessions and it ultimately came up before the learned Additional Sessions Judge, Fast Track Court No. I, Tindivanam in S.C. No. 103 of 2008 for trial. This Court is informed by the learned Public Prosecutor that charges have already been framed against the accused by the trial Court.
4. Subsequently, the Petitioner filed a petition before the trial Court on 25.04.2008 u/s 173(8) of the Code of Criminal Procedure (hereinafter referred to as "the Code") requesting the Court to order for further investigation. In the affidavit filed in support of the petition, the Petitioner had raised as many as 13 grounds finding fault with the investigation done by the Deputy Superintendent of Police. His main grievance is that six named accused in the FIR have been wantonly omitted in the final report without doing proper investigation and by manipulating statements. Among other grounds, it was primarily contended by the Petitioner that the order taking cognizance by the learned Magistrate, the order of committal and all further proceedings before the Court of Sessions are vitiated for want of notice to the Petitioner before acceptance of the final report as per law laid down by the Hon''ble Supreme Court in
5. It was opposed by the investigating officer by filing counter, in which, the investigating officer justified the investigation and the final report. But, he had not stated anything as to why no notice was served on the Petitioner by the investigating officer in respect of the omission of 6 accused in the final report and he has also not made any comment about the failure of the learned Magistrate to issue such a notice as per the law laid down by the Hon''ble Supreme Court in Bhagwant Singh''s case cited supra.
6. From the records, it could be seen that a reply affidavit was also filed by the Petitioner denying all the allegations made by the Investigating Officer thereby disputing the correctness of the investigation.
7. Ultimately, the learned Additional Sessions Judge by order dated 28.08.2009 dismissed the petition filed by the Petitioner thereby negativing the request for further investigation. Challenging the same, the Petitioner/de facto complainant has come forward with this revision.
8. The learned Additional Sessions Judge has dismissed the petition on the following grounds:
(1) The investigation had been conducted thoroughly and final report was submitted with the concurrence of the public prosecutor and therefore it cannot be said to be defective.
(2) If at all the Petitioner is aggrieved by the omission of the named accused in the FIR, he should have approached the learned Magistrate concerned for appropriate relief before the case was committed to the Court of Sessions.
(3) The contention of the Petitioner that he was not aware of the filing of the final report and the order of the learned Magistrate accepting the same cannot be accepted in view of the fact that in Dinamalar Daily on 28.09.2007, there was a news item carrying the message that charge sheet had been laid omitting the names of 6 named accused in the FIR.
(4) Since the case is at the stage of trial, the question of ordering for further investigation by the Court of Sessions does not arise.
9. The learned senior counsel appearing for the Petitioner would seriously assail all the above conclusions arrived at by the learned Additional Sessions Judge. He would contend that the conclusion arrived at by the learned Additional Sessions Judge that since the case is in the stage of trial, he has got no power to order for further investigation is not at all correct. He would further submit that such an order for further investigation can be made at any stage even by the Higher Courts. He would further submit that non issuance of notice to the Petitioner/de facto complainant is a very serious flaw and on this ground alone the learned Additional Sessions Judge ought to have ordered for further investigation.
10. Though, there are several other grounds raised in the revision, now the learned senior counsel appearing for the Petitioner, across the bar, would invite this Court only to adjudicate upon the issue whether the order taking cognizance, the order of committal and all the consequential proceedings are vitiated for want of service of notice on the Petitioner before the acceptance of the final report as laid down in Bhagwant Singh''s case. The learned senior counsel would submit that he does not press for any adjudication in respect of other issues involved in the matter, but, he would, however, submit that all such issues may be kept open for the Petitioner to raise before the learned Magistrate at the appropriate stage. In nutshell, the prayer of the learned senior counsel is to set aside the order taking cognizance by the learned Magistrate, order of committal and the order passed by the learned Additional Sessions Judge, which is impugned in this revision and to remit the mater back to the learned Magistrate for fresh order on the final report after affording sufficient opportunity to the Petitioner and the other interested persons.
11. At the outset, a doubt arose, as to whether the plea for further investigation at the time of trial by the Court of Sessions can be entertained when the Petitioner had not chosen to challenge the order taking cognizance by the Magistrate and the order of committal. In this regard, the learned senior counsel appearing for the Petitioner would submit that though it is true that the Petitioner should have challenged those two proceedings, nevertheless, he is not precluded from making such a plea in this revision and this Court can exercise its power under Sections 482 & 483 of the Code to set things right by quashing all the above proceedings.
12. The learned Public Prosecutor would submit that investigation was done fairly, thoroughly and properly and all the allegations made against the investigation cannot be sustained. He would, however, submit that the learned Magistrate ought to have issued notice as per the law laid down in Bhagwant Singh''s case to the Petitioner before accepting the final report. This, according to him, is a serious flaw committed by the learned Magistrate. In view of the said settled position of law, the learned Public Prosecutor would submit that this Court may set aside the order taking cognizance by the Magistrate, order of committal and the order of the learned Additional Sessions Judge impugned in the revision and the matter may be remitted back to the learned Magistrate for passing fresh order after affording opportunity to the Petitioner and the other interested persons. The said fair submission of the learned Public Prosecutor is recorded.
13. The Respondents 2 to 15 herein are the accused against whom the final report has been accepted by the learned Magistrate. The learned senior counsel appearing for them would also be equally fair to submit that there can be no doubt regarding the above legal preposition, as it is submitted by the learned senior counsel appearing for the Petitioner based on the law laid down in Bhagwant Singh''s case cited supra. He would fairly concede that the learned Magistrate ought to have issued notice to the Petitioner before accepting the final report. He would, however, submit that the investigation had been done thoroughly and properly and there is no need for ordering further investigation. He would further submit that, in the event, this matter is remitted back to the Magistrate for fresh consideration, opportunity may be given to the Respondents 2 to 15 and to the other accused who have been omitted in the final report to make their submissions.
14. I have considered all the above submissions and also perused the records carefully.
15. At the outset, I have to state that in the Code of Criminal Procedure, there is no provision impelling the learned Magistrate to issue notice to the de facto complainant before accepting the final report of the police where either some of the accused against whom allegations were made in the FIR have been omitted or the entire report is a negative report. The Hon''ble Supreme Court, however, considering the said lacuna in the Code, in
4........ 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 proceedings 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 the time of consideration of the report. It was urged before us on behalf of the Respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But, we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to me informant and a copy of the report has to be supplied to him under Sub-Section 2(i) of Section 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at me time when the report is considered by the Magistrate.
16. When the said law came to be again considered by the Hon''ble Supreme Court in Union Public Service Commission v. S. Papaiah 1998(3) Cri 40 (SC)the same was reaffirmed. There are several such judgments rendered subsequently wherein the Hon''ble Supreme Court has followed the said law laid down in
17. In para 16 of the judgment in S. Papaiah''s case cited supra, the Hon''ble Supreme Court has held as follows:
Thus, for what we have said above we are of the opinion that the learned Magistrate was not justified in accepting the final report of the C.B.I. and closing the case without any notice to the Appellant and behind its back. The order of me learned Magistrate dated March 6, 1995 closing the case and of November 4, 1995 dismissing the petition filed by the Appellant as well as the order of the learned Sessions Judge dated March 8, 1996 dismissing the revision petition are set aside. The matter is remitted to me earned Metropolitan Magistrate for its disposal in accordance with law....
18. Applying the above law laid down in Bhagwant Singh''s case cited supra and followed in the other cases cited supra to the present case, it is crystal that the order of the learned Magistrate accepting the final report without notice to the Petitioner is absolutely illegal and the same is, therefore, liable to be set aside. Consequentially, the order of committal of the case to the Court of Sessions for trial and all the consequential proceedings before the Court of Sessions are liable to be set aside.
19. Now, yet another question arises as to whether, in the absence of any specific challenge to the order of the learned Magistrate taking cognizance and the order of committal by filing appropriate petition, in this revision, which questions only the legality and correctness of the order passed by the learned Additional Sessions Judge, this Court can set aside the above orders of the learned Magistrate and the consequential proceedings. In this regard, it needs to be pointed out that though separate petition has not been filed to challenge the above proceedings, nevertheless, a specific ground has been taken before the learned Additional Sessions Judge as well as in this revision that the orders of the learned Magistrate are vitiated for want of notice as laid down in Bhagwant Singh''s case.
20. At this juncture, it would be worthwhile to refer to a judgment of the Hon''ble Supreme Court in
27. While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revision jurisdiction and/or inherent jurisdiction not only when an application therefore is filed but also suo motu.
It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being "a case before the court'' in contradistinction from "a person who is arrayed as an accused before it" when the High Court seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it.
21. In a recent judgment in Dharmeshbhai Vasudevbhai and Ors. v. State of Gujarat and Ors. (2009) 3 SCC (Cri) 76 in para 12, the Hon''ble Supreme Court has held as follows:
12. The High Court, apart from exercising its supervisory jurisdiction under Articles 227 and 235 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the Code of Criminal Procedure.
22. While dealing with an identical situation, like the one before us, when the case had already been committed to the Court of Sessions, the Calcutta High Court in Aditi Sarkar v. State of West Bengal and Ors. 2008 1 Cri 156 Cal has held that the nature of the power u/s 482 of the Code is undoubtedly enormous and wide. It is said that hands of law are long enough. Essentially, the inherent power u/s 482 of the Code can always be exercised when there is no provision, nor any prohibition in the Code. Ultimately, the Calcutta High Court, set aside the order taking cognizance by the learned Magistrate, subsequent order of commitment of the case to the Court of Sessions and the order passed by the Court of Sessions on the petition filed by the de facto complainant.
23. The learned Senior Counsel appearing for the Respondents 2 to 15 and the learned Public Prosecutor do concede that this Court can, at this stage, exercise its power under Sections 482 and 483 of the Code in the instant case to set things right. In view of the above settled position of law, though this revision relates only to the order passed by the learned Additional Sessions Judge, in exercise of the power under Sections 482 and 483 of the Code, I find every legal justification to set aside the above orders of the Magistrate also.
24. In view of the above conclusion, I am of the view that it is unnecessary to go into the other grounds raised in the revision petition. Even the learned senior counsel appearing for the Petitioner does not press for any adjudication in respect of the other grounds. His only request would be to keep all such grounds open for the Petitioner to raise before the learned Magistrate while filing a protest petition. Such submission is also recorded.
25. The learned Senior Counsel appearing for the Respondents 2 to 15 would submit that liberty may be given to the Petitioner and the Respondents 2 to 15 herein and also to the accused who have been omitted to be included in the charge-sheet to make their submissions on the protest petition to be filed by the Petitioner before the Magistrate. The learned senior counsel appearing for the Petitioner would submit that he has got no objection for the learned Magistrate affording such opportunity to the Respondents 2 to 15 herein as well as the accused who have been omitted to be included in the charge-sheet. In this regard, I have to state that at the stage when a protest petition on the final report submitted by the police is considered by the learned Magistrate, the accused have got no right of hearing. In this regard, a useful reference can be had to the judgment in Popular Muthiah''s case cited supra wherein the Hon''ble Supreme Court in para 51 and 52 has held as follows:
51. In a case of this nature, therefore, in our opinion, it would have been in the fitness of things, the Appellant should have been heard by the High Court.
52. We may, however, hasten to add that our direction is not intended to lay down the law that while the Magistrate directs a further investigation or while a Sessions Judge exercises his jurisdiction u/s 319 of the Code of Criminal Procedure, an accused is entitled to he heard; he is not as he has no right therefore and, thus, the question of hearing him at that stage would not arise.
26. In the case on hand also, having regard to the peculiar circumstances of the case and the fact that the learned senior counsel appearing for the Petitioner has no objection for an opportunity being afforded by the Magistrate to the FIR named accused and to the Respondents 2 to 15 herein, I deem it appropriate to direct the Magistrate to afford such opportunity to them to make their submissions. I would, however, hasten to add that this shall not be taken as a precedent in future, as the liberty given in this case is in tune with the opinion expressed by the Hon''ble Supreme Court in para 51 of the judgment cited supra and because of the consent of the Petitioner.
27. In view of the foregoing discussions, the revision petition is allowed in the following terms:
1. The order of the learned Judicial Magistrate No. I, Tindivanam taking cognizance on the final report submitted by the 1st Respondent police is hereby set aside;
2. The order of the learned Judicial Magistrate No. I, Tindivanam committing the case to the Court of Sessions is also set aside.
3. The impugned order of the learned Sessions Judge is set aside.
4. The matter is remitted back to the learned Judicial Magistrate No. I, Tindivanam, who shall issue notice to the Petitioner, permit him to file appropriate protest petition or objections, and after sufficient opportunity to the Petitioner, the FIR named accused and the Respondents 2 to 15 to make their submissions and then to pass appropriate order on the final report.
5. The learned Additional Sessions Judge, Fast Track Court No. I, Tindivanam is directed to dispatch the case records forthwith to the learned Judicial Magistrate No. I, Tindivanam.
