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1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16.02.2017 CORAM : THE HONOURABLE MR.JUSTICE P.KALAIYARASAN Crl.O.P.(MD)No. 12664 of 2010 Mr.M.John Kennedy @ M.J.Kennedy 1. The Inspector of Police, Thisaiyanvilai Police Station, Tirunelveli District.

... Petitioner

vs.

2.R.Joseph Antony Xavier

... Respondents

Prayer:Petition filed under Section 482 of Cr.P.C to call for the records relating to the impugned charge sheet in C.C.No.293 of 2009 on the file of the Judicial Magistrate, Nanguneri and quash the same. For Petitioner

: Mr.V.Sasi Kumar

For Respondents

: Mr.R.Ramachandiran Additional Public Prosecutor for R-1 Mr.T.A.Ebenezer for R-2 ORDER

This Criminal Original Petition is filed under Section 482 of Cr.P.C praying to call for the records in C.C.No.293 of 2009 on the file of the Judicial Magistrate, Nanguneri and quash the same.

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2 2.It is averred in the petition that on the basis of the complaint given by the defacto complainant on 08.02.2017, for the alleged occurrence, dated 10.12.2006, a case was registered by the first respondent in Cr.No.19 of 2007 for the offences under Section 457 and

380(NP)

of

I.P.C.

The

first

respondent,

after

detailed

investigation, filed final report by closing the complaint as mistake of fact on 09.02.2007.

The second respondent/defacto complainant, in

the mean time filed a Protest Petition before the learned Judicial Magistrate, Nanguneri, seeking a direction to reject the final report filed by the first respondent or to direct the first respondent to investigate further and file additional charge-sheet.

3.The

first

respondent

contrary

to

the

procedure

contemplated in the Code of Criminal Procedure filed another final report and the same was accepted by the learned Judicial Magistrate. Without the order for reopening the earlier complaint in the Protest Petition or for reinvestigation,

the second charge-sheet was filed and

the same was taken on file by the learned Judicial Magistrate and therefore, the proceedings as against the petitioner are liable to be quashed.

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3

4.The learned counsel for the petitioner has contended that having filed final report referring the case as mistake of fact, the second final report that too without any order of the learned Judicial Magistrate is not tenable and therefore, the proceedings are to be quashed.

5.The contends

that

learned the

Additional

Investigating

Public

Officer

Prosecutor can

conduct

interalia further

investigation and file further report or reports with the materials obtained by him subsequently under Section 173(8) Cr.P.C and therefore, the petition is to be dismissed.

6.The learned counsel for the second respondent also reiterated the same contentions, as raised by the learned Additional Public Prosecutor.

7.The only contention raised by the petitioner in this petition is that the first respondent/Investigating Officer having initially filed the final report referring the case as mistake of fact has also filed

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4 further final report levelling charges against the petitioner without any order of the learned Judicial Magistrate. The learned counsel for the petitioner relied on a judgment of the Hon'ble Supreme Court in Reeta Nag vs State of West Bengal and Others

reported in (2009) 4

MLJ (Crl) 1004 (SC) in support of his above contentions. Honourable Supreme Court held as follows: “19. What emerges from the above mentioned

decisions of this Court is that once a charge-sheet is filed under Section 173(2) Cr.P.C. 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 under Section 173(8). The Magistrate cannot suo moto direct a further investigation under Section 173(8) Cr.P.C or direct a re-investigation into a case on account of the bar of Section 167(2) of the Code. 20. 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

The

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5 complainant under Section 173(8), was a direction given by the learned Magistrate to reinvestigate 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 a re-investigation 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.”

8.In this judgment, it is held that the Magistrate cannot suo motu or upon an application filed by the defacto complainant, direct a further investigation under Section 173(8) Cr.P.C. But, in this case on hand, the Investigating Officer, after filing first final report, referring the case as mistake of fact, then, proceeded with further investigation and filed second final report with the materials obtained by him during his further investigation.

173(8) Cr.P.C empowers the

Investigating Officer to forward to the Magistrate a further report or reports regarding further evidence oral or documentary, he obtains. Therefore, there is no prohibition for the Investigating Officer to file further report. For this, the leave of the Judicial Magistrate is not

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6 P.KALAIYARASAN.J VS required. Therefore, the above contention of the learned counsel for the petitioner is

not acceptable and therefore, this Criminal Original

Petition fails.

9.In the result, this Criminal Original Petition is dismissed. The learned Judicial Magistrate, Nanguneri is directed to dispose of C.C.No.293 of 2009 within a period of three months from the date of receipt of a copy of this order.

VS Index

16.02.2017 :yes/No

Internet:yes/No To 1. The Judicial Magistrate, Nanguneri. 2. The Inspector of Police, Thisaiyanvilai Police Station, Tirunelveli District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court,

Madurai. Crl.O.P.(MD).No.12664 of 2010

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