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2019 (11) TMI 1783 - MADRAS HIGH COURTLocus standi/victim - Seeking to include the names of other accused persons, whose names were found in the First Information Report, dated 30.12.2016, registered in Cr. No. 2 of 2016, on the file of the 1st Respondent Police - whether the procedure adopted by the Judicial Magistrate in taking cognizance of the final report without notice to the Petitioner and the order passed by him in dismissing the protest petition is proper or not? HELD THAT:- Admittedly, in this case on hand, the Petitioner is a victim and he is an interested person. Though the complaint had been given by the brother of the Petitioner, only at the instance of the Petitioner, the case has been registered initially and thereafter, the closure report filed by the earlier investigating agency has been set aside and only at the instance of the Petitioner, the case has been transferred to the file of the present 1st Respondent Police and as such, the Petitioner being a victim, has locus-standi to maintain the protest petition and is entitled to be heard before final report is taken on file. Admittedly, no notice has been given to the Petitioner by the Magistrate before the final report was taken on file. The Magistrate had dismissed the petition, stating that it has been filed after cognizance has been taken and thereby, it is not maintainable. The Magistrate has the power to order further investigation of the offence till the stage when the trial commences. A criminal trial does not begin after cognizance is taken, but only after charges are framed. Article 21 of the Constitution of India demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. The Petitioner being a victim is a person mandatorily entitled to notice as per law before acceptance of final report. The Judicial Magistrate had held that the protest petition filed on 29.10.2019 after cognizance being taken on 27.12.2018 is not maintainable and that allowing the protest petition would amount to setting aside or modifying its own order and that the protest petition has to be treated as a private complaint. This Court is of the opinion that the procedure adopted by the Judicial Magistrate, in taking cognizance of the final report, dropping the names of the persons mentioned in the First Information Report, without notice to the Petitioner is illegal and further, dismissing the protest petition, on the ground of delay and observing that it is not maintainable and would amount to reviewing its own order is improper. The further finding that the other additional accused could be brought in only at the stage of Section 319 of Cr.P.C. is also improper - this Criminal Revision Petition is allowed in part.
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