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‘Further Investigation’ u/s. 173(8) Cr.P.C permissible.

CHINNATHAMBI VS. STATE REP. BY THE INSPECTOR OF POLICE, VELLAKOVIL POLICE STATION, TIRUPUR DISTRICT, Criminal Appeal No.663 of 2016 – 23 February 2017.

The bench constituting Justice S.Nagamuthu, Justice P.N.Prakash and Justice N.Authinathan in High Court of Madras set aside the judgment of conviction and sentence imposed on Chinnathambi by the learned Principal Sessions Judge, Tirupur, Tirupur District, in S.C.No.2 of 2013 dated 08.06.2016.

Chinnathambi, Sakthivel, and Natraj were convicted by the trial court for committing offenses u/s 449,457,302 r/w to 34,201,397 of IPC as they trespassed into the temple intending to commit robbery and thereby murdered the watchman. The culprits were not detected and the learned magistrate closed the case. Later on, after receiving some clues the investigating officer was granted permission to further investigate the case, as a result, the trial court convicted the accused. Chinnathambi filed an appeal challenging the order of his conviction.

Whether the judicial act of acceptance of a referred charge sheet (negative final report) by a Magistrate would have to be challenged and set aside before resort is had to further investigation under Section 173(8) of Cr.P.C.?

The crux of appellant’s contention is founded mainly on the judgment of a Division Bench of this court in K.K.S.S.Ramachandran’s v. State Rep. by the Inspector of Police, (2015) 2 MLJ (Crl) 257, u/s 173(8) of Cr.P.C. if the police officer wants to do further investigation, he has to challenge the order of the learned Magistrate accepting the final report before a higher forum and only after getting the said order set aside, the investigating officer could further investigate the case.

Since the jurisdictional Magistrate had accepted the final report filed by the police reporting that the crime could not be detected, the learned Magistrate had no jurisdiction or power to grant permission for further investigation of the case and thus the order of the Magistrate taking cognizance of the offenses on the said final report and the ultimate conviction by the trial court stand vitiated.

The Hon’ble High court made reference to judgments in Anju Chaudhary v. State of UP, (2013) 6 SCC 384, Ramachandran v. R.Udhayakumar, (2008) 5 SCC 413, Kamlapati Trivedi v. State of West Bengal, (1980) 2 SCC 91, Vinay Tyagi v. Irshad Ali @ Deepak , (2013) 5 SCC 762, State of Rajasthan v. Aruna Devi, (1995) 1 SCC 1 where the Hon’ble Supreme Court has highlighted the difference between “Reinvestigation” “De novo investigation” and “Further investigation” and the Supreme Court has not held that the Judicial Magistrate does not have the power to grant permission for “Further investigation”.

What is the order that constitutes a judicial order that is passed on receipt of a police report under Section 173(2) Cr.P.C.,?

It is like an interim report not falling within the scope of Section 173(2) Cr.P.C. On receipt of such a report, the learned Magistrate does not pass a judicial order but, instead, he simply receives and records the same. There is absolutely no element of any adjudication. This order of the learned Magistrate is undoubtedly not a judicial order.

Notwithstanding the fact whether the order of the learned Magistrate is either a judicial order or a mere ministerial order, the power of the learned Magistrate under Section 173(8) Cr.P.C., is an independent judicial power to grant permission because, statutorily the Investigating Officer has been empowered to do further investigation provided the conditions of the said provisions are satisfied.

In view of the judgment in Vinay Tyagi’s case the Hon’ble High court hold that it is not the case of review of an order, but a case of further investigation as contemplated under Section 173(8) of Cr.P.C. Therefore, for seeking permission for further investigation from the learned Magistrate, one need not challenge the earlier order of the learned Magistrate accepting the negative final report.

Hon’ble Supreme Court in State of Rajasthan v. Aruna Devi held in para 16 of the judgment as follows:-

16. It is also relevant to note in this case that even when the report was filed earlier as “undetected”, it was mentioned in the report that if fresh information comes to light, further investigation would be done. Therefore, it cannot be contended that once it is recorded as “undetected”, neither the Magistrate would have power to permit for further investigation nor the police would have power to reopen the case to make further investigation, especially, when fresh information has been received by the police to detect the offense alleged.”

An argument was also advanced before the court that a positive report filed under sub-section (2) of Section 173 of Cr.P.C.  cannot be equated to a negative report filed by the police. But high court simply rejected the argument by referring to State of Maharastra v.Shardchandra wherein Hon’ble supreme court held that both negative reports, as well as charge sheet, have to be considered as reports under sec 173(2)of Cr.P.C.

This court has thereby overruled the judgment in K.K.S.S.Ramachandran’s case and made the following conclusions:

(i) An order of the Magistrate taking cognizance of offenses on a police report is a judicial order. (ii) An order of a Magistrate ordering further investigation on receiving a police report is a non-judicial order. (iii) An order of a Magistrate accepting a negative police report after hearing the parties 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 canceling 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 Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel, 2017 (2) Scale 198]. (viii) The power to grant permission for further investigation under Section 173(8) of Cr.P.C. can be exercised by the Magistrate before accepting the negative police report thereby acting on the protest petition by the victim or the de facto complainant. [vide Kishan Lal v. Dharmendra Bafna and another, (2009) 7 SCC 685] (ix) We clarify that anyone who is aggrieved by any order made by the Magistrate on a police report as aforesaid in sub-paragraphs (i) to (iv) hereinabove may approach the higher forum for remedy if any.

The present case is based on circumstantial evidence. The fingerprints obtained from the scene of occurrence did not match with that of the appellant and also it has not been established that the ornaments were in possession with the appellant as soon after the commission of the crime. Since there was absolutely no evidence against Chinnathambi, the Hon’ble High Court acquitted him.

View/Download Judgment: CHINNATHAMBI VS. STATE REP. BY THE INSPECTOR OF POLICE, VELLAKOVIL POLICE STATION, TIRUPUR DISTRICT

Deeksha Nagaraj

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