V. Mohan Vs. State Rep.by The Inspector of Police, Thanjavur and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1189058
CourtChennai Madurai High Court
Decided OnAug-11-2016
Case NumberCrl.RC(MD) No. 177 of 2016 & Crl.MP(MD)No. 2488 of 2016
JudgeThe Honourable Dr. Justice P. Devadass
AppellantV. Mohan
RespondentState Rep.by The Inspector of Police, Thanjavur and Others
Excerpt:
(prayer: criminal revision petition is filed, under section 397 r/w 401 cr.p.c., against the order passed in c.r.m.p.no.394 of 2015 in s.c.no.238 of 2015, on the file of the additional assistant sessions judge, thanjavur, dated 04.03.2016.) 1. mohan, the defacto complainant dissatisfied with the decision of the learned additional assistant sessions judge, thanjavur, dismissing his petition in cr.mp.no.394 of 2015 filed in s.c.no.238 of 2015, under section 173 cr.p.c., for further investigation. 2. based on the complaint of the said mohan, the thanjavur east police station, registered a case in crime no.575 of 2013, for offences under sections 368, 386 and 506(ii) ipc. the investigation officer conducted the investigation, concluded it, filed final report under section 173(2) cr.p.c., before the learned judicial magistrate no.1, thanjavur, for offences under sections 368, 386 and 506(ii) ipc. the learned magistrate took cognizance thereon in prc.no.38/2014. thereafter, the magistrate supplied the copies of documents to the accused. the learned magistrate having found certain offences are exclusively triable by a court of sessions, committed the case to the court of principal sessions judge, thanjavur, under section 209 cr.p.c. the learned principal sessions judge, thanjavur, made over the case to the learned additional assistant sessions judge, thanjavur, in s.c.no.238 of 2015, for trial. 3. the accused have appeared before the trial court. in the trial court, mohan filed crl.m.p.no.394 of 2015, seeking a direction to the thanjavur east police station, to conduct further investigation, under section 173(8) cr.p.c. 4. the learned magistrate relying on the decision of the hon'ble supreme court in reeta nag vs. state of west bengal and others (air 2010 sc (cri) 401) : (2010 crl.l.j.2245), held that under section 173(8) cr.p.c., the defacto complainant cannot ask for further investigation and only police can do it, dismissed the petition. that is how mohan, is before us. 5. the learned counsel for the revision petitioner would contend that much water has flown under the bridge since reeta nag's case. the issue as to whether at the instance of the defacto complainant can the police be directed to undertake further investigation has been considered subsequently, by the hon'ble supreme court in vinay tyagi vs. irshad ali (air 2013 sc (cri) 292), and their lordships of the hon'ble supreme court have held that under the scheme of code of criminal procedure, to unravel the truth of the matter, a defacto complainant can request the magistrate to direct the police to undertake further investigation, when the facts and circumstances of the case so demands. 6. the learned counsel for the petitioner would also submit that the facts of this case would show that the investigation has not been properly conducted and the truth of the matter has not been properly unraveled. justice should not fail. justice should be rendered. in such circumstances, police shall be asked to probe further. 7. according to the learned government advocate (crl.side), investigation has been done fairly, evidence has been collected and final report has been filed. 8. the learned counsel for the respondents 2 to 5 / accused would submit that the dismissal of the petition by the trial court is solely based on the decision in reeta nag's case, but that has been deviated in vinay tyagi's case. as on date, there was no adjudication on the points raised by the defacto complainant in his petition for further investigation and on the counter filed by the accused. 9. i have anxiously considered the rival submissions, perused the impugned order and the decisions cited. 10. field of investigation is vast. it is stated that it is within the province of police. within the filed of investigation it is stated that police is the master. but, who is monitor them. who is to keep them within the bounds of law. who is to pull their legs, when they tried to over step. who is to tell them that they are not above the law. who is to make them to focus on the principles laid down in the criminal procedure code and the relevant statutes. who is to tell them to do fair investigation, effective investigation, unbiased and impartial investigation. who is to remind them to inspire confidence of the complainant. necessarily the mantle should fall on the courts. in a democratic country, when especially, police have the power of arrest and the power to register cases they must be made accountable to some authority. that is how the courts started interfering the investigation done by the police only when it is slipshod, ineffective and impartial. 11. the zeal of the court is to see that justice should not be a causality. the truth must be unraveled. the innocent must be protected and the guilt must be dealt with appropriately. in this view of the matter, the view taken by the hon'ble supreme case in reeta nag's case, (cited supra) that the police alone can do further investigation has been deviated subsequently by the hon'ble supreme court in vinay tyagi's case (cited supra) and also in chandra babu vs. state (2015 cr lj 4538). 12. now, it is well settled that not only at the instance of the police, even at the instance of the defacto complainant, further, investigation under section 173(8) can be undertaken by the police to find out the truth of the matter. therefore, it seems that the learned additional assistant sessions judge, thanjavur, has not been informed of the latest trend of law on this aspect. judges and lawyers should update themselves with the latest trend of law. law is a living organism. it grows every day. otherwise, it will be a dull subject. there bound to be march of law. 13. as rightly pointed out by the learned counsel for the respondents 2 to 6 / accused that the issue has not been adjudicated before the trial court. it has been left open by the judge. thus, we are of the view that in the light of the current trend of law. (see vinay tyagi's case) supra, the trial court should be asked to do redo the work. 14. in view of the forgoings it is ordered as under: (i) this revision is allowed. (ii) the impugned order passed by the learned principal additional assistant sessions judge, thanjavur, in c.r.m.p.no.394 of 2015 filed in s.c.no.238 of 2015, is set aside. (iii) the learned judge will restore c.r.m.p.no.394 of 2015 to his file. (iv) in the light of the guidance provided in this order, the learned judge will rehear the matter and after giving reasonable opportunity to both sides decide the application filed under section 173(8) cr.p.c., according to law, at an early date. consequently, connected miscellaneous petition is closed.
Judgment:

(Prayer: Criminal Revision Petition is filed, under Section 397 r/w 401 Cr.P.C., against the order passed in C.R.M.P.No.394 of 2015 in S.C.No.238 of 2015, on the file of the Additional Assistant Sessions Judge, Thanjavur, dated 04.03.2016.)

1. Mohan, the defacto complainant dissatisfied with the decision of the learned Additional Assistant Sessions Judge, Thanjavur, dismissing his petition in CR.MP.No.394 of 2015 filed in S.C.No.238 of 2015, under Section 173 Cr.P.C., for further investigation.

2. Based on the complaint of the said Mohan, the Thanjavur East Police Station, registered a case in Crime No.575 of 2013, for offences under Sections 368, 386 and 506(ii) IPC. The Investigation Officer conducted the investigation, concluded it, filed final report under Section 173(2) Cr.P.C., before the learned Judicial Magistrate No.1, Thanjavur, for offences under Sections 368, 386 and 506(ii) IPC. The learned Magistrate took cognizance thereon in PRC.No.38/2014. Thereafter, the Magistrate supplied the copies of documents to the accused. The learned Magistrate having found certain offences are exclusively triable by a Court of Sessions, committed the case to the Court of Principal Sessions Judge, Thanjavur, under Section 209 Cr.P.C. The learned Principal Sessions Judge, Thanjavur, made over the case to the learned Additional Assistant Sessions Judge, Thanjavur, in S.C.No.238 of 2015, for trial.

3. The accused have appeared before the trial Court. In the trial Court, Mohan filed CRL.M.P.No.394 of 2015, seeking a direction to the Thanjavur East Police Station, to conduct further investigation, under Section 173(8) Cr.P.C.

4. The learned Magistrate relying on the decision of the Hon'ble Supreme Court in Reeta Nag Vs. State of West Bengal and Others (AIR 2010 SC (Cri) 401) : (2010 Crl.L.J.2245), held that under Section 173(8) Cr.P.C., the defacto complainant cannot ask for further investigation and only Police can do it, dismissed the petition. That is how Mohan, is before us.

5. The learned Counsel for the Revision Petitioner would contend that much water has flown under the bridge since Reeta Nag's case. The issue as to whether at the instance of the defacto complainant can the Police be directed to undertake further investigation has been considered subsequently, by the Hon'ble Supreme Court in Vinay Tyagi Vs. Irshad Ali (AIR 2013 SC (Cri) 292), and their Lordships of the Hon'ble Supreme Court have held that under the scheme of Code of Criminal Procedure, to unravel the truth of the matter, a defacto complainant can request the Magistrate to direct the Police to undertake further investigation, when the facts and circumstances of the case so demands.

6. The learned counsel for the Petitioner would also submit that the facts of this case would show that the investigation has not been properly conducted and the truth of the matter has not been properly unraveled. Justice should not fail. Justice should be rendered. In such circumstances, Police shall be asked to probe further.

7. According to the learned Government Advocate (crl.side), investigation has been done fairly, evidence has been collected and final report has been filed.

8. The learned counsel for the respondents 2 to 5 / accused would submit that the dismissal of the petition by the trial Court is solely based on the decision in Reeta Nag's case, but that has been deviated in Vinay Tyagi's case. As on date, there was no adjudication on the points raised by the defacto complainant in his petition for further investigation and on the counter filed by the accused.

9. I have anxiously considered the rival submissions, perused the impugned order and the decisions cited.

10. Field of investigation is vast. It is stated that it is within the province of Police. Within the filed of investigation it is stated that Police is the Master. But, who is monitor them. Who is to keep them within the bounds of law. Who is to pull their legs, when they tried to over step. Who is to tell them that they are not above the law. Who is to make them to focus on the principles laid down in the Criminal Procedure Code and the relevant statutes. Who is to tell them to do fair investigation, effective investigation, unbiased and impartial investigation. Who is to remind them to inspire confidence of the complainant. Necessarily the mantle should fall on the Courts. In a democratic country, when especially, Police have the power of arrest and the power to register cases they must be made accountable to some authority. That is how the Courts started interfering the investigation done by the Police only when it is slipshod, ineffective and impartial.

11. The zeal of the Court is to see that justice should not be a causality. The truth must be unraveled. The innocent must be protected and the guilt must be dealt with appropriately. In this view of the matter, the view taken by the Hon'ble Supreme Case in Reeta Nag's case, (cited supra) that the Police alone can do further investigation has been deviated subsequently by the Hon'ble Supreme Court in Vinay Tyagi's case (cited supra) and also in Chandra Babu Vs. State (2015 Cr LJ 4538).

12. Now, it is well settled that not only at the instance of the Police, even at the instance of the defacto complainant, further, investigation under Section 173(8) can be undertaken by the Police to find out the truth of the matter. Therefore, it seems that the learned Additional Assistant Sessions Judge, Thanjavur, has not been informed of the latest trend of law on this aspect. Judges and Lawyers should update themselves with the latest trend of law. Law is a living organism. It grows every day. Otherwise, it will be a dull subject. There bound to be March of Law.

13. As rightly pointed out by the learned counsel for the respondents 2 to 6 / accused that the issue has not been adjudicated before the trial Court. It has been left open by the Judge. Thus, we are of the view that in the light of the current trend of law. (see Vinay Tyagi's case) supra, the trial Court should be asked to do redo the work.

14. In view of the forgoings it is ordered as under:

(i) This revision is allowed.

(ii) The impugned order passed by the learned Principal Additional Assistant Sessions Judge, Thanjavur, in C.R.M.P.No.394 of 2015 filed in S.C.No.238 of 2015, is set aside.

(iii) The learned Judge will restore C.R.M.P.No.394 of 2015 to his file.

(iv) In the light of the guidance provided in this order, the learned Judge will rehear the matter and after giving reasonable opportunity to both sides decide the application filed under Section 173(8) Cr.P.C., according to law, at an early date.

Consequently, connected Miscellaneous Petition is closed.