ORDER
1. After getting the admission of this revision, assailing the impugned order passed by the learned Judicial Magistrate No. I, Kancheepuram, in Cri.M.B. No. 56/95 in C.C. No. 88/93, dated 10-5-1995, in a petition filed under S. 239 of the Code of Criminal Procedure by and on behalf of the revision petitioner herein, declining to discharge the petitioner, who was the accused subsequently added by filing an amended charge-sheet in the above calendar case before the trial Court, as insisted by the Bar, the revision was heard in full on merits an it is disposed of by passing the following order.
2. The petitioner by name Ramapandian was working as a Sub-Inspector in Baluchettychatram Police Station between 5-9-1990 and 21-11-1991 and during that time the first accused by name one Sivaprakasam was working as a Grade I Police Constable in the same police station. In connection with certain criminal activities committed by the said Grade I Police Constable while he was entrusted with the duty to attend the Court, assist the prosecution to conduct cases against the accused and report the result of the same by making the relevant entries in the records of the police station, certain overt acts were found involving the criminal offences. After full investigation by the respondent police in Crime No. 8 of 1991 of Kancheepuram Police Station in Chengleput M.G.R. (West) District by the District Crime Branch, the said first accused was charged with the offences under Ss. 466, 467 and 409, I.P.C. The cognizance of the said offences were taken against the said Sivaprakasam as the final report of the investigating agency revealed the same originally. In the list of witnesses submitted by the prosecution against the said accused, the petitioner was cited as witness No. 4. After taking cognizance, process has been issued and the accused entered appearance and he was questioned and thus, the progress of the trial was in the middle consuming certain amount of time. At this juncture, it appears from the case records, the investigating agency has filed an amended charge-sheet adding the petitioner as accused No. 2 before the trial Court for the offences under Ss. 109 and 466, 467, 409, I.P.C. and the Court below had accepted the said additional offences framed against the petitioner herein under S. 218 of the Code of Criminal Procedure. This was followed by the petitioner happen to file a quash proceedings in Crl.O.P. 7621/93 on the file of this Court under S. 482 of the Cr.P.C., to quash the entire proceedings before the trial Court which, however, on 6-10-1994 was dismissed with the direction to agitate the grounds before the trial Court. Accordingly, a petition under S. 330, Cr.P.C. was filed by and on behalf of the revision petitioner, praying for his discharge on the following grounds :-
1. There are no materials whatsoever traced out in the investigation against the petitioner and in fact there was no scope for further investigation at all;
2. The very fact that in the original investigation report the petitioner was cited as witness No. 4 of the prosecution and that so much so, it was rather curious to take him of and brand him as the co-accused by adding S. 109 of the Indian Penal Code on the basis of mere assumption and surmises and that in short, there was no investigation at all made in this regard;
3. The investigating agency and the prosecution once submitted a case before a Court under S. 173, Cr.P.C. and persuaded the Court to identify the cognizance of certain offences and that afterwards during the pendency of the said case without the permission of the Court, the prosecution or the investigating agency have no right to file additional report suo motu or voluntarily rope in any person as the accused, which is totally against the spirit and scope of S. 173(8) of the Code of Criminal Procedure; and
4. Even assuming that the prosecution is entitled to place any materials, which came to its custody regarding an offence, to sustain it, it shall prove the necessary materials for doing so to the satisfaction of the Court and in the absence of which no amendment or alteration of charges taken cognizance of already under S. 218 of the Code of Criminal Procedure, can be made.
3. The discharge of the petitioner was thus asked for on the grounds referred to above and they were resisted by the prosecution on the ground that under S. 218 of the Code of Criminal Procedure, the Court is empowered to alter the charge or amend the charges framed already before delivering the judgment on coming to know of the new facts or offences and for which no further investigation in form and substance is required and that question does not arise muchless the permission of the Court under S. 173(8) of the Cr.P.C. The scope and object of S. 216, Cr.P.C. to file an additional charge-sheet were also invoked while resisting the said application.
4. On hearing the matter in its entirety in respect of the contentions raised on behalf of both parties, the learned trial Magistrate negatived all the grounds of objections raised by and on behalf of the petitioner herein and, however, upheld the contentions raised on behalf of the prosecution and consequently, rejected the petition filed under S. 239, Cr.P.C. praying for the discharge by passing the impugned order. Aggrieved at this, for want of its legality and propriety and the erroneous approach allegedly committed by the learned trial Magistrate, the present revision has been filed and canvassed.
5. I have heard the Bar for the revision petitioner, canvassing the grounds raised in this revision, assailing the propriety and legality of the impugned order and the learned Government Advocate for the contra except with certain legal principles. It was the relentless effort of Mr. Karpaga Vinayagam, learned counsel appearing for and on behalf of the revision petitioner, that the very approach adopted by the learned trial Magistrate cannot be accepted for the simple ground that on a mere perusal of the impugned order though very lengthy, would clinch the fact that he has arrived at the conclusion, not on the basis of any legal principles or philosophy, but on the basis of mere surmises and conjectures, not even has been taken by the prosecution and pleaded and that, therefore, according to the learned counsel, the very approach adopted by the learned Magistrate in passing the impugned order is totally erroneous. He would contend further that there was no investigation at all done by the respondent herein either voluntarily or involuntarily, however, with no permission of the Court nor any new materials placed before the Court to alter or amend charges as specified under S. 216 or 218 of the Code of Criminal Procedure. The impugned order according to the learned counsel became vulnerable to be interfered with also for the reason that the alteration of the charges or the amendment of the charges was not done with the permission of the Court and that further without seeking the permission at any point of time, transposing the petitioner from the list of prosecution witnesses to the position of the accused would squarely expose the true colour of the prosecution and that while doing so, the whole mandate spelt out by the statute has not at all been followed.
6. Mr. A. N. Rajan, learned Government Advocate would contend on the contrary that upon the factual aspects the prosecution is entitled to place every material before the Court and this is accepted principle of procedural law than as provided under Ss. 216 and 218 of the Code. On getting new materials and substances involving the petitioner for the relevant offence under S. 109, I.P.C., then the prosecution is empowered to file the additional charge-sheet or alteration of the charges framed already and the granting of permission to do so then becomes only a formal thing. While saying so, learned Government Advocate would admit that for doing such a legal exercise during the pendency of the trial, there must be necessarily adequate materials placed before the Court. If not, even without any permission from the Court, he would frankly concede that the investigation is not expected to substitute with additional charges without any materials. Permission to be accorded to investigate further or re-investigate a case to the investigating agency by a Court of law arises only in case where it depends upon the availability of new or fresh materials exposing some or other offences. If the matter is viewed in this angle, the learned Government Advocate would contend the impugned order would be justified.
7. In the light of the said rival contentions, the relevant point that arises for consideration is : Whether the impugned order passed by the learned trial Magistrate is vitiated with any illegality or impropriety on factual as well as legal aspects and if so, liable to be set aside.
8. It is the common case that the revision petitioner was the Sub-Inspector worked in Baluchettichatram Police Station and the co-accused by name Sivaprakasam was a Grade I Constable attached to the said police station working under him during the relevant period and that the co-accused was deputed to attend the Court work at Kancheepuram with regard to the cases coming up for trial and to assist the Assistant Public Prosecutor concerned. During the said sojourn, it was also the common case that between 5-9-1990 and 20-11-1991 the Grade I Police Constable above referred has made himself involved in the commission of certain offences. However, it was detected by a Sub-Inspector of Police, who succeeded the petitioner and thus, a case was registered against the said constable and investigated. Ultimately a final report under S. 173 of the Code of Criminal Procedure was filed before the trial Court against the first accused, viz., Grade I Constable Sivaprakasam for the offences under Ss.466, 467 and 409, I.P.C., which was taken on file in C.C. No. 88/93 by the learned trial Magistrate, Kancheepuram and process were issued accordingly. There was no controversy or dispute with regard to the abovesaid facts between the parties herein to this extent.
9. At this juncture, it is noticed that the petitioner has claimed that his wife by name Vijaya working in the Office of the Superintendent of Police, Kancheepuram was transferred to several placed on several times within a short spell of time due to the personal misunderstanding and animosity ensued between herself and the then Superintendent of Police and as a sequel to the same, the Superintendent of Police developed some animosity against the petitioner also and consequently, he was also transferred to various places. The last transfer order was quashed by the Tamil Nadu State Administrative Tribunal on 26-6-1993. Annoyed at this judicial intervention, it is stated that the Superintendent of Police developed much grouse against the petitioner, and consequently intended to rope in the petitioner in this case with false and imaginary grounds. Accordingly, a stage managed investigation was claimed to have done resulting in filing the amended charge removing the petitioner from the rank of the witnesses to the position of the second accused by adding the charge under S. 109 of I.P.C. for all the offences charged already.
10. The above allegations though appear to be extraneous, have been envisaged by the Bar only as a motive for roping-in the petitioner as one of the accused but in reality he was not responsible for the commission of the offences by the first accused either directly or indirectly or in any other way. Therefore, it was contended that the amended final report filed by the respondent before the trial Court is nothing but a harassment schemed out by the respondent with every malicious intention. If the matter is viewed on the ground of legal aspects, I may observe that the above contention cannot be rejected as false one, but there appears to be some force in the same.
11. It is significant to note that the original episode of annexing criminal activities committed by the co-accused Sivaprakasam was mainly due to the detection and report done by Mr. Ayyappan, the Sub-Inspector of Police, who succeeded the petitioner herein in Baluchettichatram police station and that the entire investigation done by the respondent originally do not reveal any involvement of the petitioner herein and that more interesting to note is that the petitioner herein has been arrayed as witness No. 4 in the charge-sheet. If a witness for the prosecution cited so and relied on by the prosecution in the final report submitted before the Court and while the said proceeding was pending, is to be transposed as one of the co-accused then there must be every adequate materials and evidence placed before the Court. If any fresh material comes to the knowledge of the investigating agency then, the permission of the Court must have been obtained for the very reasoning that the whole case filed by the said investigating agency has been seized of by the Court of law and the proceedings are pending before the Court. In this regard, it has become necessary for me to advert S. 173 of the Code of Criminal Procedure in full, which are extracted as hereunder :-
'173. Report of police officer on completion of investigation -
1) Every investigation under this Chapter shall be completed without unnecessary delay.
2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating -
a) the names of the parties;
b) the nature of the information;
c) the names of the persons, who appear to be acquainted with the circumstances of the case;
d) whether any offence appears to have been committed and, if so, by whom;
e) whether the accused has been arrested;
f) whether he has been released on his bond and if so, whether with or without surety;
g) whether he has been forwarded in custody under S. 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any by whom the information relating to the commission of the offence was first given.
3) Where a superior officer of police has been appointed under S. 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
5) When such report is in respect of a case to which S. 170 applies, the police officer shall forward to the Magistrate along with the report -
a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;
b) the statements recorded under S. 161 of all the persons whom the prosecution proposes to examine as the witnesses.
6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate the part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.
7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any one of the documents referred to in sub-section (5).
8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).'
12. The Supreme Court in 'Ram Lal Narang v. State (Delhi Administration)' and 'Om Prakash Narang v. State (Delhi Administration)' : 1979CriLJ1346 , had emphasized the legal imperative in this regard as quoted hereunder :-
'Any one acquainted with the day-to-day working of the criminal Courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, is it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report to the Magistrate After all the investigating agency has greater resources at its command than a private individual. Similarly, where the involvement of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.
As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 100 lead us to hold that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.'
13. The Supreme Court in 'State of Bihar v. J.A.C. Saldanna', : 1980CriLJ98 :-
'There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in S. 173(8), there commences to the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate'.
'Section 5 of the Code of Criminal Procedure provides that an offence under the Indian Penal Code shall be investigated, tried or inquired in accordance with the provisions contained in the Cr.P.C. Investigation of offences are two in nature, one is cognizable and the other is non-cognizable. With reference to cognizable offences when the complaint is received with respect to such commission of the offence, the concerned police officer takes up the investigation. In the case of non-cognizable offences, the police officer does not investigate without the order of a competent Magistrate. According to the scheme of the Code, investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts, on an information relating to the commission of an offence given to a police officer in charge of the police station. Investigation generally consists of various steps, namely, enquiry by the officers or ascertainment of facts and circumstances of the case from the complaint, proceeding to the spot by the officer concerned on the allegations of the complaint and discovery and arrest of suspected offender and the collection of evidence for the arrest of the offender relating to the commission of the offence which in turn may consist of examination of various persons including the accused person and the reduction of the statement into writing with reference to seizures in mahazar and formation of opinion as to whether on materials collected by the police officer, there is a case to place the concerned person in action against whom complaint is lodged before the Magistrate for trial and filing of the charge-sheet under Section 173, Cr.P.C. In both the cases, however, the final report of the police is to be submitted, to the Magistrate under sub-section (1) of Section 173, Cr.P.C. If the Magistrate, on the other hand, disagrees with the report submitted by the police then the accused comes into the picture and thereafter, he has a right to be heard and to adduce evidence in support of his innocence. But, in case an order is passed by the Magistrate under section 173(3), Cr.P.C. in agreement with the police report that there is no case against the person accused, it goes in favour of the person accused. But it is open to the Magistrate to agree with the police report and take cognizance of the offence under section 190(1)(b) or to take the view that the facts disclosed do not make out an offence and decline to take cognizance.'
14. Basing upon the philosophy thus spelt out by the Supreme Court with regard to the crime detection and the crime punishment of the respective duties incumbent on the part of the investigating agency and the Courts respectively, one has to look into sub-section (8) of Section 173 of the Code, which clearly demonstrates the fact that during the pendency of a case before a Magistrate or a Court after taking cognizance of the same under sub-sections (1) and (2) of Section 173, Cr.P.C., the police are not barred from investigating anything with regard to the case pending before the Court if it comes across with a new fact or additional materials in order to prove the offences against the offender, who stand charged already before a Court of law. What is expressly and explicitly required by the statute is that the investigating agency shall forward the new materials or the additional evidence or further evidence to the Magistrate in the name of a further report or reports regarding such evidence, which has been collected subsequently for the appropriate scrutiny and proceedings by the Court of law. On the receipt of such additional materials and further evidence, the Court is bound to look into the said matters and then on the basis of the same is entitled to alter or amend the charges and shall be entitled to proceed further, but only after hearing the accused and the accused took notice of the said facts. If otherwise, the Court proceeds, then the said proceedings adopted by the Court would definitely, in my firm view would be hit by the principle of natural justice. No man shall be condemned unless he is heard, is the very fundamental meaning of the doctrine of 'Audi Alteram Partem' and it could be ignored if the additional materials or evidence collected by the investigating agency which are placed before a Court requiring the Court to alter or amend the charge framed already in a pending case, would definitely come within the teeth of the said doctrine and for the said reason, the procedure so adopted cannot be countenanced. To state more precisely the police are entitled to investigate further if they come across with new set of facts or materials or further evidence while a case against an accused is pending before a Court. But, however, that additional facts and further evidence collected must be placed before the Court for the purpose of future action to be taken appropriately and it is certainly not the duty of the investigating agency to alter or amend the charge. But that duty must be cast upon the Court to do so. I had the occasion in one of my previous judgment to deal with the similar aspect and observed that on coming to know of the new adequate materials if the police wants to investigate further for an offence taken cognizance of already without the permission of the Court or giving any opportunity to the accused, then, such investigation cannot be termed as valid in law. What is precluded by the statute for a police is that they must investigate and place all the materials collected before the Court and that could be done only with the permission of the Court, for the very reasoning that the Court is seized of all the facts and materials already and if the Court come across with the new materials and further evidence on hearing the accused and by giving full opportunity to put forth his objections, the Court must proceed further in accordance with the procedural law, if not, the whole proceedings could be termed as not only irregular but also vitiates the whole proceedings for the reason of serious prejudice caused to the accused. Implicating false persons roping in innocents into the criminal cases has become more possible if such procedures are subscribed. It is, therefore, in the light of the said view, the law has been settled as referred to above by the Apex Court.
15. Importing the above ratio to the facts of instant case, I may straightway observe that the impugned order passed by the learned trial Magistrate in rejecting the discharge petition became vulnerable and cannot be countenanced because there was no explanation or reasoning given by the prosecution that as to why the fourth witness of the prosecution has been transposed as the second accused in this case at a later stage. It is not known under what circumstances, in what context and what materials and for the materials or omissions the earlier final report of the investigating agency took the revision petitioner as one of the witness for the prosecution and subsequently transposed him from the rank of the witnesses to the position of the accused by adding not any individual acts or overt acts but for the reason of adding Section 109 of the Indian Penal Code. Admittedly, no permission has been obtained from the Court of law. It is also noticed that the case against Sivaprakasam taken cognizance of by the learned Judicial Magistrate was pending. It seems a so called voluntary further investigation has been claimed to have been done in this case. But no new materials or further evidence has been placed before the Court below. Even so, the proposed accused-revision petitioner has not been given any chance or opportunity to put forth his case or contentions with regard to the same. It was in this context, I have observed already that there was some force in the argument advanced by the learned counsel for the revision petitioner in the alleged motive attributed against the investigating agency.
16. I have carefully and very meticulously perused the case records and the impugned order. It is worthwhile to note that the learned Judicial Magistrate while passing the impugned order, has not exercised his judicial mind in the legal ratio enunciated above, but however, seen that he has proceeded only on the basis of presumptions and conjectures, viz., that the revision petitioner would have committed the offences. The further observation of the Judicial Magistrate that the revision petitioner being the Sub-Inspector of Police and the Station House Officer must have had the knowledge of the false endorsements and entries made by the other accused cannot at all be deemed as a valid one at this stage. It is rather curious and astonishing to see that under what basis of the evidence or materials the learned Magistrate has come to the said conclusion and in fact there was no iota of materials placed by the investigating agency in this case to have such a conclusion or observation. Of course it was true the transfers of the revision petitioner or his wife to different places at very short intervals may be claimed due to the routine matter, but that is not the parameter, which can be looked into the facts of the instant case. It is significant to note that the settled principle of law above referred and the mandate inbuilt in sub-section (8) of Section 173, Cr.P.C. has not at all been followed in the instant case while passing the impugned order by the learned trial Magistrate. The various other observations made by the learned trial Magistrate in the impugned order with regard to the possibility for presumption and the possibility for the revision petitioner to get himself involved in the offence are totally uncalled for and unwarranted at this stage. Enough for me at this stage to say that so long as the impugned order lacks any legality and propriety, i.e., the lack of new materials and further evidence making the revision petitioner to involve in the offence, in my considered view, the impugned order cannot at all be sustained for any reason. It is thus seen the very approach adopted by the learned trial Magistrate, is not correct and totally erroneous and that, therefore, it has to be set aside. The observations and findings of the trial Magistrate in rejecting the objections seems to be not sound and not correct and thus having considered the entire case records and the impugned order in the context of the rival contentions and the settled principle of law above referred, I am fully constrained to hold that the impugned order lacks every legality and propriety and as such, it is liable to be set aside by interfering with the same. No more discussion is required than the one had already and above referred to.
17. In the result, the revision succeeds and accordingly, it is allowed. Consequently, the impugned order dated 10-5-1995 passed by the learned Judicial Magistrate No. I, Kancheepuram, in Crl.M.P. No. 56/95 C.C. No. 88/93 is hereby set aside and the revision petitioner is hereby discharged from the charge framed against him. The learned Judicial Magistrate is hereby directed to proceed with the trial of the case against the other accused and dispose of the same in accordance with law as expeditiously as possible.
18. Revision allowed.