IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.06.2017 CORAM:
THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN Crl.R.C.No.701 of 2017
D.Sivashanmugam ... Petitioner Vs
1. State by Inspector of Police, Palacode Police Station, Dharmapuri District.
2. Ramachandran
3. Selvaraj
4. Kamaraj
5. Dhanalakshmi
6. Sasireka
7. Kalaivani
8. Govindammal
9. Srinivasan
10. Mohan
11. Murali
12. Krishnan
13. Nagaraj
14. Janakammal
15. Meena
16. Malar
17. Akkumaran
18. Kalaimani
19. Madhesh
20. Murugesan
21. Munusamy @ Pattakattiyan
22. Kanchana
23. Magi
24. Moorthy. ... Respondents
Prayer:- This Criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C., praying to call for the records of the learned Judicial Magistrate, Palacode, Dharmapuri district and set aside the order passed in Crl.M.P.No.606 of 2017 in C.C.No.90 of 2013 on its file.
For Petitioner : Mrs.S.Arivazhagan For Respondents : Mr.R.Ravichandran Govt. Advocate (Crl side) for R1
O R D E R
This revision has been filed to call for the records of the learned Judicial Magistrate, Palacode, Dharmapuri district and set aside the order passed in Crl.M.P.No.606 of 2017 in C.C.No.90 of 2013 on the file of the learned Judicial Magistrate, Palacode, Dharmapuri district.
2. The petitioner is the de-facto complainant in C.C.No.90 of 2013 on the file of the learned Judicial Magistrate, Palacode, Dharmapuri district. Based on the complaint given by the petitioner a case was registered in Crime No. 541 of 2011 against 23 persons as accused. After investigation final report has also been filed and the same was also taken on file in C.C.No.90 of 2013. Now at this stage the petitioner filed an application under Section 173(8) Cr.P.C seeking further investigation on the ground that some of the accused were also involved in this case but they were not shown as accused in the final report. The Court below dismissed the petition, challenging the same the present revision petition has been filed.
3. Heard both sides.
4. The issue involved in this revision is covered by the decision of the Division Bench of this Court reported in 2017(2) CTC judgment in Chinnathambi @Subramani Vs. State wherein it has held as follows:-
"We sum up our conclusions as follows:-
(i) An order of the Magistrate taking cognizance of offences 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 cancelling 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]".
5. Thus, the de-facto complainant cannot maintain a petition under Section 173(8) of Cr.PC. and it is only the investigating agency can file a petition for further investigation.
6. In the above circumstances, I find no irregularity or illegality in the order passed by the Court below. The petitioner, being a de-facto complainant cannot maintain the petition. However, it is always open to the petitioner to file an application under Section 319 Cr.PC. during the trial if it appears from any evidence that any other person has committed any offence. Accordingly this Criminal Revision Petition is dismissed.
06.06.2017
Index : Yes/No Internet : Yes/No dpq Note: Issue order copy on 08.06.2017
V.BHARATHIDASAN, J
dpq
To
1. The Inspector of Police, Palacode Police Station, Dharmapuri District.
2. The learned Judicial Magistrate, Palacode, Dharmapuri district.
3. The Public Prosecutor High Court, Madras.
Crl.R.C.No.701 of 2017
06.06.2017
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