Full Judgment
1. Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondent.
2. This revision has been preferred under Section 397 of the Code of Criminal Procedure, challenging the order, dated 15.11.2010 made in Cr.M.P.No.2425 of 2010 in C.C.No.357 of 2009 on the file of the Judicial Magistrate, Valliyoor.
3. Learned counsel appearing for the petitioner submits that the aforesaid Criminal Miscellaneous Petition was filed in the case in C.C.No.357 of 2009 under Section 173 (8) Cr.P.C, seeking a direction against the respondent police to conduct further investigation and to file charge sheet against the accused. As per the impugned order, the Court below has dismissed the application, aggrieved by which, this revision has been preferred by the petitioner / defacto-complainant.
4. It is seen from the material papers that the petitioner / defacto- complainant had filed complaint against one Chandrapanika marthandan, Ananthajothi, Stainis Ravichandran Annammal, Sugumar and Rajendran that they had created false documents with an intention to cheat the petitioner herein.
5. Learned counsel appearing for the petitioner submits that a land measuring 6.85 cents in S.No.435/3 of kuttam village was purchased by one Kumarasamy Nadar in the name of his three sons. The petitioner herein is one of the three sons of the said Kumarasamy Nadar. The said property was not partitioned between the three sons of Kumarasamy Nadar, hence, the petitioner herein was also entitled to 1/3rd undivided share in the said property, however, A1 in the case, Chandrapanika marthandan had fraudulently executed a settlement deed, dated 12.04.2006 in favour of his wife Ananthajothi.
6. Document writer, without verifying the fact whether the said Chandrapanika marthandan had got transferable right, drafted the settlement deed in favour of Anantha Jothi and the same was registered as Document No.766/2006 on the file of the Sub-Registrar, Tisayanvilai. On the strength of the said settlement deed, Anantha Jothi, the co-accused executed a general power of attorney deed on 22.06.2006 in favour of one Annammal and Stanis Ravichandran, S/o. Annammal. In turn the said Annammal executed a sale deed in favour of one Sugumar, who is the Managing Director of B.M.C Ltd., at kuttam and its Manager Ganesan. In pursuance of the sale deed, the patta relating to the land got transferred in the name of (1) M/s. Beach Minerals Company, (2) Balasubramanian Marthandan @ Dhanasekaran, (3) Lingapandi Marthandan and (4) Ananthajothi. The accused with the connivance of the Revenue officials had got the patta transferred in their names. However, the Investigating Officer, without conducting proper enquiry filed final report before the Court below, hence, the petitioner / defacto-complainant filed the Criminal Miscellaneous Petition, seeking direction against the respondent to conduct further investigation.
7. It is seen from the impugned order that the respondent therein had filed counter, wherein it is stated that the Crl.O.P.No.6042 of 2007 was filed before this Court, based on the direction given, a case was registered under Sections 420, 467, 468 and 506 (ii) IPC before the Court below.
8. According to the learned counsel for the petitioner, the land in dispute was stated approximately 20 acres, originally purchased by the father of the three brother, including the petitioner herein and the accused / A1.
9. In the impugned order, the Court below has held that the relief sought for by the petitioner, seeking further investigation and to file fresh charge sheet was not legally sustainable.
10. It is not in dispute that Cr.M.P.No.2425 of 2010 was filed by the petitioner / defacto-complainant. However, the relief sought for is to stay the criminal proceeding and to order further investigation by the respondent police or any other investigating agency and to file fresh charge sheet.
11. It is seen that as per Section 173 (8) Cr.P.C, every investigation shall be completed without unnecessary delay and file final report, however, nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) is forwarded to the Magistrate, 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 in the code. The provisions of sub-sections (2) to (6) to Section 173 Cr.P.C., shall be applicable in relation to such report forwarded under the section.
12. Learned counsel appearing for the petitioner, in support of his contention relied on the following decisions :
1. Sandeep Jain vs. N.C.T of Delhi, 2000 (2) SCC 66
2. Bhagwant Singh vs. Commr. of Police, AIR 1985 SC 1285
13. In Bhagwant Singh vs. Commr. of Police reported in AIR 1985 SC 1285, the Hon'ble Supreme Court has held the scope under Section 173 (2) Cr.P.C., when the Magistrate decides 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 the First Information Report. In this regard, the Hon'ble Apex Court has ruled thus :
"4...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 S.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 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 sec.2 (i) of S.173 decides 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 the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report..."
14. It has been made clear that though Section 173 of the Code of Criminal Procedure contemplates that investigation shall be completed without unnecessary delay and on completion of investigation final report shall be filed before the concerned Court, nothing precludes further investigation in respect of an offence, if report under sub-section (2) forwarded to the Magistrate, when the case needs further investigation, as per the report.
15. Learned counsel appearing for the petitioner drew the attention of this Court to the copy of the final report, dated 22.07.2008 field by the respondent before the Court below in Crime No.99 of 2007 under Sections 467, 468 and 420 IPC against Chandrapanika Marthandan, brother of the defacto- complainant, whereby charge is made out against the said accused in respect of the land in S.No.435/3 in Kuttam Village, Ramanathapuram Taluk, an extent of 6.85 acres, which had been purchased by Kumarasamy Nadar under Document No.2601/64. Though the said accused was entitled to claim 1/3rd share in the property as stated by the petitioner, in order to cheat the petitioner and the other brother, he had executed a settlement deed in favour of his wife Ananthajothi on 12.04.2006 as if he was the absolute owner of the entire property, whereby committed offence punishable under Sections 467, 468 and 420 IPC. After the enquiry and investigation, the respondent filed the aforesaid charge sheet before the Court below.
16. In the said circumstances, the petitioner / defacto-complainant is at liberty to seek appropriate remedy under the Code of Criminal Procedure, however, he cannot insist the respondent to make further investigation and ask the Court to stop the criminal proceeding and to direct the respondent to file fresh charge sheet. The petitioner / defacto-complainant is not entitled to seek further investigation and to fresh charge sheet under Section 173 (8) Cr.P.C. The power is vested with the Court to pass such order for further investigation, based on the final report. In the aforesaid circumstances, the decisions cited by the learned counsel appearing for the petitioner is not applicable to the facts and circumstances of this case.
17. Considering the aforesaid facts and circumstances, I am of the view that this revision is liable to be dismissed. Accordingly, this criminal revision is dismissed. Consequently, connected miscellaneous petition is also dismissed. However, it is open to the petitioner to seek appropriate other remedy, as per the Code of Criminal Procedure, if he is so advised.