TMI Blog2015 (7) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... act, as we perceive, presents that the learned Chief Judicial Magistrate was really inclined to direct further investigation but because he had chosen another agency, he has used the word “reinvestigation” As we have already indicated, the learned Chief Judicial Magistrate has basically directed for further investigation. The said part of the order cannot be found fault with, but an eloquent one, he could not have directed another investigating agency to investigate as that would not be within the sphere of further investigation and, in any case, he does not have the jurisdiction to direct reinvestigation by another agency. Therefore, that part of the order deserves to be lancinated and accordingly it is directed that the investigating agency that had investigated shall carry on the further investigation and such investigation shall be supervised by the concerned Superintendent of Police. After the further investigation, the report shall be submitted before the learned Chief Judicial Magistrate who shall deal with the same in accordance with law. We may hasten to add that we have not expressed any opinion relating to any of the factual aspects of the case. Thus the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the final report had already been accepted before disposing the protest petition, the appellant preferred Crl. O.P. no. 1727/2009 before the Madurai Bench of the Madras High Court. The High Court called for the report from the Magistrate s Court and, thereafter, set aside the order accepting the final report and directed the Magistrate to consider the final report along with the protest petition. 5. The learned Magistrate vide order dated 29.07.2009 dismissed the protest petition. It took note of the decisions in Hasanbhai Valibhai Quareshi vs State of Gujarat and Ors. (2004) 5 SCC 347 and Hemant Dhasmana vs CBI and Anr. (2001) 7 SCC 536, and held that as the investigation officer had examined all the witnesses as averred by the informant and received the evidence and as no new witnesses were cited to be examined, there was no justification for directing reinvestigation of the case. It further directed that the protest petition to be treated as a separate private complaint. 6. Being aggrieved by the said order, the appellant preferred Criminal Revision Petition, i.e., Crl. R.C. No. 458 of 2009 in the High Court. Before the High Court, the appellant contended that the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgments in Hemant Dhasmana (supra), Sonalai Soni vs State of Chattisgarh and Ors. 2005 Crl.L.J. 4461 (Chattishgarh), and Hasanbhai Valibhai Quareshi (supra), and came to hold that in terms of the said judgments there is power under S. 173 (8) of CrPC to forward the complaint for further investigation and resultantly by order dated 02.09.2010 directed the Additional Director General of Police, CBCID to confer the power on the Inspector, CBCID, Nagercoil to investigate the case in Crime no. 119/2007 and file a report. 8. Being aggrieved by the said order, one of the accused, Jegan, filed Criminal Revision No. 790 of 2011. The High Court, vide the impugned order, after discussing the evidence on record, came to hold that there were material discrepancies in the evidence brought on record and, therefore, in the present fact situation there were no exceptional circumstances for ordering re-investigation, and that apart, the scheme of Section 173(8) CrPC only enables the investigating officer to request for further investigation. The High Court, accordingly, set aside the order of the Chief Judicial Magistrate and further observed that as the learned Judicial Magistrate in his o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court. (see Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460). 13. Judging on the aforesaid premises, we have no shadow of doubt that the High Court has adverted to the facts not to see the perversity of approach, or to see that justice is done, but analysed it from an angle as if it is exercising the appellate jurisdiction. Therefore, the High Court s conclusion with regard to the factual score is unsustainable. 14. Presently to the thrust of the matter, the controversy before the learned Single Judge was basically two-fold, namely, whether the learned Chief Judicial Magistrate could have directed for reinvestigation and secondly, whether it could have directed for reinvestigation by another investigating agency. To appreciate the said issues, it is necessary to analyse the scheme of Section 190 of the CrPC. The said provision reads as follows:- 190. Cognizance of offences by Magistrates. (1) Subject to the provisions of this Chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 36. This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Sessions Court. 16. We have referred to the aforesaid authorities to reiterate the legal position that a Magistrate can disagree with the police report and take cognizance and issue process and summons to the accused. Thus, the Magistrate has the jurisdiction to ignore the opinion expressed by the investigating officer and independently apply his mind to the facts that have emerged from the investigation. 17. Having stated thus, we may presently proceed to deal with the facet of law where the Magistrate disagrees with the report and on applying his independent mind feels ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion being taken on the first information report lodged by him is clearly recognised by the provisions contained in sub-section (2) of Section 154, sub-section (2) of Section 157 and sub-section (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the first information report lodged by him. 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 [pic]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 173decides 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as aforenoticed. [pic] 39. The contrary view taken by the Court in Reeta Nag and Randhir Singh do not consider the view of this Court expressed in Bhagwant Singh. The decision of the Court in Bhagwant Singh in regard to the issue in hand cannot be termed as an obiter. The ambit and scope of the power of a Magistrate in terms of Section 173 of the Code was squarely debated before that Court and the three-Judge Bench concluded as aforenoticed. Similar views having been taken by different Benches of this Court while following Bhagwant Singh, are thus squarely in line with the doctrine of precedent. To some extent, the view expressed in Reeta Nag, Ram Naresh and Randhir Singh, besides being different on facts, would have to be examined in light of the principle of stare decisis. And eventually the Division Bench ruled:- 40. Having analysed the provisions of the Code and the various judgments as aforeindicated, we would state the following conclusions in regard to the powers of a Magistrate in terms ofSection 173(2) read with Section 173(8) and Section 156(3) of the Code: 40.1. The Magistrate has no power to direct reinvestigation or fresh investigation (de novo) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code. 20. In the said case, the question arose, whether the Magistrate can direct for reinvestigation. The Court, while dealing with the said issue, has ruled that:- At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct further investigation , fresh or de novo and even reinvestigation . Fresh , de novo and reinvestigation are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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