TMI Blog2019 (11) TMI 1783X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant Subordinate Judge, Coimbatore, in OS. No. 72 of 2013, on behalf of her minor children, namely, Nandhini and Sampath against the Defendants/the Respondents 2 to 4 herein, claiming equal right of share over the ancestral property. Hence, enmity arose between the Petitioner's family and the Respondents 2 to 4 herein. b) While so, the Respondents 2 to 4 along with the Respondents 5 and 6 had created a forged agreement for sale, by forging the signature of the Petitioner and his family Members to sell 1.60 acres to the 6th Respondent. Using the forged agreement for sale dated, 15.03.2006, the 6th Respondent had filed OS. No. 438 of 2009, seeking specific performance, before the District Judge, Coimbatore and the Petitioner had also filed his written statement in the said suit. The 2nd Respondent had criminally intimated the wife of the Petitioner to withdraw the said civil suit filed by her, stating that if she does not withdraw the suit, he will grab the land worth about Rs. 20 crores mentioned in the agreement for sale. c) Hence, the Revision Petitioner had made a complaint before the Inspector of Police, Sulur Police Station, against the Respondents 2 to 5. Though CSR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Police to register the First Information Report and produce the same before this Court on or before 12.04.2016 and posted the matter for reporting compliance on 12.04.2016. Thereafter, a case was registered in Cr. No. 306 of 2016 against the accused persons for the offences under Sections 420, 468, 471 read with 472 of IPC and without conducting proper enquiry, notice dated 5.8.2016 was served on the Petitioner, stating that further action dropped. Hence, the Petitioner had filed Crl.O.P. No. 15756 of 2016, seeking transfer of investigation to the file of the Central Crime Branch, Coimbatore for reinvestigation. By order dated, 11.08.2016, this Court, while setting aside the closure report in Cr. No. 306 of 2016, had transferred the case in Cr. No. 306 of 2016 to the file of the Central Crime Branch, Coimbatore for reinvestigation. g) Even after transferring the case to CCB, Coimbatore, no action was taken by the Police against the accused. Hence, the Petitioner was constrained to file Crl.O.P. No. 23712 of 2016 for change of investigation from CCB to CBCID. By order dated, 22.11.2016, this Court had transferred the case to the 1st Respondent CBCID and directed the Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 471 and 472 of IPC and 467, 468, 471, 204, 420 read with 511 of IPC on 06.12.2018, which was taken on file in CC. No. 324 of 2018 on 26.12.2018, by the Chief Judicial Magistrate, Coimbatore. b) The allegation that the Respondents 2 to 4 along with the Respondents 5 and 6 had created the forged documents, by forging the signatures of the Petitioner and his family Members, has not been proved in the investigation. The investigation revealed that the 6th Respondent alone had forged the signatures and created the alleged forged sale agreement dated 15.03.2006. The allegation of the Petitioner that the 2nd Respondent used to criminally intimidate the wife of the Petitioner to withdraw the suit was not supported by any evidence. The contentions contained in paragraphs 4 to 9 are matter of record. c) In the absence of any evidence against the Respondents 2 to 5, they cannot be charged though their names found mentioned in the First Information Report. Since the Petitioner is not the defacto complainant, no notice was served on him. The Trial Court had taken the final report on file only after the RCs notice was served on the defacto complainant and reasonable opportunity was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Section 319 of Cr.P.C. and that the Judicial Magistrate failed to appreciate the legal proposition that when the Investigating Officer with an ulterior motive did not send up other accused persons against whom prima facie incriminating materials are available, it is imperative for the Judicial Magistrate to order for further investigation. 7. The learned counsel for the Revision Petitioner would further submit that the law mandates notice on the victim and the Judicial Magistrate having found that the Petitioner is an interested person and a victim and on whose efforts, the case was registered and later transferred for further investigation, ought not to have taken cognizance of the final report without any notice being served on the Petitioner, when especially the persons against whom specific allegations having been made were dropped. The Judicial Magistrate erred in holding that since cognizance has already been taken on 27.12.2018, the belated protest application, dated 29.01.2019, is not maintainable. He would further submit that the Judicial Magistrate also erred in rendering a finding that summoning of the additional accused is not proper at the stage when a private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents 2 to 5 found a place in the First Information Report, the 1st Respondent after conducting due investigation, finding no averments against the Respondents 2 to 5, had dropped their names in the final report and that the notice of closure was served on R. Ganesamoorthy, the defacto complainant, brother of the Petitioner and that the Petitioner had filed the protest application only on 29.1.2019 and the Judicial Magistrate, finding that cognizance has already been taken on 27.12.2018, had dismissed the protest petition, stating that it is not maintainable and that the Judicial Magistrate had found that if the protest petition is allowed, it would amount to setting aside or modifying its own order and thereby, had dismissed the protest petition. 11. Originally, at the time of filing the revision, the Petitioner had annexed a certified xerox copy of the order passed in CMP. No. 337 of 2019, dated 26.08.2019. It is a single page order. The copy application had been made in No. 142119 on 26.08.2019 and the copy had been issued on 28.8.2019. Strangely, during the course of the arguments, the Respondent had furnished a true xerox copy of the order made in CMP. No. 337 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 27.12.2018. Since, the Private complaint is pending, this Court has not gone into the merits of the case. Considering all aspects, this Court finds that the present application is not maintainable, which is liable to be dismissed. 17. The remedy available to the Petitioner is that 1. to proceed with the private complaint under Section 200 of Cr.P.C. or 2. approach the Honourable High Court under Section 482 of Cr.P.C. and Article 226 of the Constitution of India to set aside the order of this Court, dated 27.12.2018. 18. In the result, this Court is of the view that 1. The reliefs prayed for in the present application are not maintainable. 2. No protest petition was filed or pending, while perusing the final report and taking cognizance on 27.12.2018. 3. Since cognizance had already been taken on 27.12.2018, the belated protest application dated 29.01.2019 is not maintainable. 4. If the protest petition is allowed, it would amount to setting aside or modifying its own order, but it has no powers to set aside its own order dated, 27.12.2018. 5. Since the protest petition has to be treated as a private complaint, which is also filed on the same day and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties is a judicial order. (iv) An order of a Magistrate recording the report of the police as undetectable is not a judicial order. (v) The power of the Magistrate to permit the police to further investigate the case as provided under Section 173(8) of the Code is an independent power and the exercise of the said power shall not amount to varying, modifying, or cancelling the earlier order of the Magistrate on the report of the police, notwithstanding the fact whether the said earlier order is a judicial order or a non judicial order of the Magistrate. (vi) For seeking permission for further investigation under Section 173(8) of Cr.P.C. by the police, the earlier order, either judicial or non judicial, passed by the Magistrate on the report of the police need not be challenged before the higher forum. (vii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. after cognizance has been taken on the police report can be exercised by the Magistrate only on a request made by the investigating agency and not, at the instance of anyone other than the investigating agency or even suo motu. [vide judgment of the Hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation agency. Although learned counsel for petitioner has sought to impress upon this Court that this Court may issue suitable directions for further investigation by way of orders in Crl.O.P. No. 27092 of 2009, considering that the offences alleged in the instant case are all matters of record, this Court is of the view that it would be appropriate to direct Court below to treat Crl.M.P. No. 5599 of 2008 in C.C. No. 122 of 2008 as a protest petition. 19. This Court feels it appropriate to refer to the relevant paragraphs in the decision of the Honourable Supreme Court reported in 2019 8 SCC 27 (Vishnu Kumar Tiwari Vs. State of UP), wherein observations have been made with regard to the procedure for taking cognizance and requirement of notice to an informant. It was held as under:- 21. In regard to the filing of protest petition by the informant who filed the first information report, it is important to notice the following discussion by this Court: (Gangadhar Janardan Mhatre case [Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768: 2005 SCC (Cri.) 404], SCC pp. 772-74, paras 6 9). 6. There is no provision in the Code to file a protest pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, there is no provision in the Code for issue of a notice in that regard. 22. This Court, in Gangadhar Janardan Mhatre [Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768: 2005 SCC (Cri.) 404], also stressed on the need to issue notice to the informant in the following discussion: (SCC p. 774, para 12). 12. Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537: 1985 SCC (Cri.) 267] the right is conferred on the informant and none else. 27. It is undoubtedly true that before a Magistrate proceeds to accept a final report under Section 173 and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter. While the investigating officer may rest content by producing the final report, which, according to him, is the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ Subramani Vs. State). 22. The proposition of law from the above decision is that the power of the Magistrate to permit the police to further investigate the case as provided under Section 173(8) of the Code is an independent power and the exercise of the said power shall not amount to varying, modifying, or cancelling the earlier order of the Magistrate on the report of the police, notwithstanding the fact whether the said earlier order is a judicial order or a non judicial order of the Magistrate. 23. 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 jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that whether the said earlier order is a judicial order or a non judicial order of the Magistrate. 25. In this case, it is a situation where though specific allegations have been made against the Respondents 2 to 5 in the First Information Report with regard to scam made in respect of the high value lands, by creating false bogus and forged documents and a contention was put forth for initiating criminal proceedings against all those who are involved in such a scam, the 1st Respondent Police had filed the final report, dropping them and filed the final report against only one accused, the 6th Respondent herein. The Petitioner had not been put on notice and the Judicial Magistrate has accepted the final report and had taken cognizance on 27.12.2018. Further, the order taking cognizance of the final report on 27.12.2018 does not disclose due application of mind. 26. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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