(Prayer: Petition filed under Section 397 r/w. 401 Cr.P.C., against the order passed by the Learned Judicial Magistrate, Alangudi dated 12/9/2013 in Cr.M.P.No. 4301 of 2013 by dismissing the petition filed under Section 173 (8) of Cr.P.C.

1. The Petitioner/Defacto complainant has filed the present Criminal revision case as against the Order dated 12/9/2013 in Cr.M.P.No. 4301 of 2013 passed by the Learned Judicial Magistrate, Alangudi.

2. The Learned Judicial Magistrate, Alangudi, while passing the impugned order in Cr.M.P.No. 4301 of 2013 (filed by the Revision Petitioner/Defacto complainant) on 12/9/2013, has among other things in paragraph 5 has observed that

As per Section 173 (8) Cr.P.C., the investigation officer is having right to seek further investigation if he obtains further evidence, oral or documentary and he shall forward the further report or reports regarding such evidence in the form prescribed to the Judicial Magistrate. So, as per the Section, the defacto complainant has no right to seek further investigation in this case. Moreover, the Honble Supreme Court of India held in a case Reeta Nag Vs. State of West Bengal and Others reported in 2009 (4) MLJ (Crl) page 1004 (Supreme Court) that

Investigating authorities did not apply for further investigation and it was upon the application filed by the defacto complainant under Section 173 (8) of Cr.P.C. Such course of action was beyond jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing the investigation on the application made by the defacto complainant but he also exceeded his jurisdiction in entertaining the said application filed by the defacto complainant.

So, in view of the above observation of the Honble Supreme Court of India defacto complainant has no right to seek further investigation and the Judicial Magistrate also has no power to order for further investigation at the request of the defacto complainant. Therefore, in view of the law laid down by the Honble Apex Court of India the request of the defacto complainant cannot be accepted to order for further investigation. At the same time, it is at the liberty of the defacto complainant to file necessary complaint before this Court if so advise subsequent to the protest petition.

and consequently, dismissed the Protest Petition and granted liberty to the Petitioner/Defacto Complainant to take necessary further action as per law.

3. Assailing the correctness of the order dated 12/9/2013 in Cr.M.P.No. 4301 of 2013 passed by the Learned Judicial Magistrate, Alangudi, the Learned Counsel for the revision Petitioner/Defacto Complainant submits that the trial Court, failed to appreciate the fact that the Respondent/Complainant has the power to file either positive final report or negative final report. However, in the instant case on hand, the Respondent/Complainant, filed the final report stating that Further Action was dropped, which is contrary to law.

4. The principal contention advanced on behalf of the Petitioner/Defacto complainant is that the Learned Judicial Magistrate, Alangudi has necessary powers to order further investigation, which is to be exercised sparingly to secure the ends of Justice.

5. Lastly, it is the submission of the Learned Counsel for the Petitioner/Defacto Complainant that the trial Court failed to take note of a very vital fact that the Respondent/Police registered a case as against seven named Accused in respect of offences under Sections 419, 467, 468, 471, 420 and 120 (b) of IPC, which are very serious in nature.

6. The Learned Counsel for the Petitioner cites the decision of the Honourable Supreme Court in Vinay Tyagi Vs. Irshad Ali Alias Deepak and Others ((2013) 5 Supreme Court Cases 762) [LQ/SC/2012/1138] at special page Nos. 765 to 767 has held thus-

Investigation can be ordered in varied forms and at different stages. Right at the initial stage of receiving the FIR or a complaint, the court can direct investigation in accordance with the provisions of Section 156 (1) in exercise of its powers under Section 156 (3) CrPC. Investigation can be of the following kinds:

(i). Initial investigation,

(ii). Further investigation,

(iii). Fresh or de novo or reinvestigation.

The initial investigation is the one which the empowered police officer shall conduct in furtherance of registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173 (2) CrPC and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the Court of competent jurisdiction in terms of Section 156 (3) CrPC.

Further investigation is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173 (8). This is a kind of continuation of the previous investigation. The basis of further investigation is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a reinvestigation, fresh or de novo investigation. The scope of further investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage of the primary investigation. The report submitted in pursuance of further investigation is commonly described as supplementary report as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the Investigating agency.

Though there is no specific requirement in the provisions of Section 173 (8) to conduct further investigation or file a supplementary report with the leave of the Court, the investigating agencies have not only understood but also adopted it as a legal practice and a procedure of property to seek permission of the courts to conduct further investigation and file supplementary report with the leave of the Court. The Courts, in some of the decisions, have also taken a similar view. The requirement of seeking prior leave of the Court to conduct further investigation and/or to file a supplementary report will have to be read into, and is a necessary implication of the provisions of Section 173 (8).

The matter which are understood and implemented as a legal practice and are not opposed to the basic rule of law would be good practice and such interpretation would be permissible with the aid of doctrine of contemporance exposition. Even otherwise, to seek such leave of the Court meet the ends of justice and also provide adequate safeguard to a suspect/accused.

There is no specific embargo upon the power of the Magistrate to direct further investigation on presentation of a report in terms of Section 173 (2) CrPC. The Magistrate before whom a report under Section 173 (2) is filed is empowered in law to direct further investigation and require the Police to submit a further or a supplementary report. Any other approach or interpretation would be in contradiction to the very language of Section 173 (8) and the scheme of CrPC for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the Court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. CrPC is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the Police even after filing a report, but intended to curtail the power of the Court to the extent that even where the facts of the case and the ends of justice demand, the Court can still not direct the investigating agency to conduct further investigation which it could do on its own. Neither the scheme of CrPC nor any specific provision therein bars exercise of such jurisdiction by the Magistrate. The language of Section 173 (2) cannot be construed so restrictively as to deprive the Magistrate of such powers particularly in face of the provisions of Section 156 (3) and the language of Section 173 (8) itself. In fact, such power would have to be read into the language of Section 173 (8). It will be a travesty of justice, if the Court cannot be permitted direct further investigation to clear its doubt and to order the investigating agency to further substantiate its charge-sheet. The satisfaction of the Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct further investigation or not is again a matter which will depend upon the facts of a given case.

7. Conversely, it is the contention of the Learned Government Advocate (Criminal side) appearing for the Respondent/Complainant that the trial Court has rightly come to the conclusion in Cr.M.P.No. 4301 of 2003 holding that the Defacto Complainant has no right to seek further investigation and consequently dismissed the said Miscellaneous Petition filed by the Revision Petitioner under Section 173 (8) of Cr.P.C., seeking further investigation of the case.

8. By way of Reply, the Learned Counsel for the Petitioner/Defacto Complainant submits that the investigation Officer cannot permit the parties to compromise the matter and no such power is conferred on the Investigation Officer in this regard under Section 173 of Cr.P.C.

9. The Learned Counsel for the Petitioner/Defacto Complainant proceeds to submit that in a non-compoundable offence, a Police cannot permit the parties to enter into a compromise and in the instant case, nowhere, the Investigation Officer has stated that the Petitioner/Defacto Complainants complaint is a false one.

10. It comes to be known that the allegation against the Accused is that with an ulterior motive to grab the Petitioner/Defacto Complainant have created sale deed as if the Petitioner/Defacto Complainant and his family members executed the sale deed in favour of the Accused persons vide sale deed dated 10/6/1999 on the file of Sub-Registrar, Ponnamaravathi.

11. A perusal of the First Information Report in Crime No. 15/12 shows that the Revision Petitioner is the Complainant and one Chidambaram, Sigapiachi, Murugappan, Rasu, Sadaiyan, Rasu and Durairaj have been shown as Accused. Based on the complaint of the Petitioner/Revision Petitioner dated 31/5/2012, a case was registered on 31/5/2012 in District Crime Branch in Crime No. 15/12 under Sections 419, 467, 468, 471, 420 and 120 (b) of IPC.

12. On 25/7/2013, the Respondent filed a report of Dropping Further Action in the matter by observing that the Petitioner/Complainant already in respect of this property obtained a relief before the District Crime Branch, Pudukottai, by resolving the same through his brother and subsequently, because of the present increase of price of properties, filed a case before the Madurai Bench of Madras High Court and only based on the same, a complaint was registered and because of the rise in price, with a view to obtain more money, has converted the civil case into that of criminal case and wrongly used the service of Police Department which has come to light through investigation and ultimately, found that there are no proper reasons for filing of the final report. Also that the Complaint Petition of the Petitioner was closed on the District Crime Branch because of the fact that money was received and matter was compromised by the two brothers in respect of properties mentioned in sale deed bearing No. 869/99 for which a complaint was given in the year 2009 before the District Crime Branch and dropped further action in the matter.

13. The Learned Counsel for the Petitioner brings it to the notice of this Court that as per the direction issued by this Court in O.P.No. 1633 of 2012 on 12/3/2012, FIR in Crime No. 15/12 was registered. Further more, it is the submission of the Learned Counsel for the Petitioner that there cannot be a Cat Panchayat and no legal sanctity can be attached in respect of the purported compromise arrived at between the parties when the subject matter in issue relates to a cause of impersonation.

14. At this stage, this Court very relevantly points out that the charge sheet is a final report within the meaning of Section 173(2) of Cr.P.C. It is filed so as to enable the competent Court to apply its mind as to whether cognizance of the offence there upon and to be taken or not. One of the essential requirements for filing of the Police report is whether any offence appears to have been committed and if so, by whom etc.

15. Indeed, the report visualized under Section 173 of Cr.P.C. is that it should contain the information required by the said provision. The Investigation Officer is neither expected to record findings of fact nor to give clean chit by exercising the power of Court or Judicial Authority. It cannot also be forgotten that the Magistrate is not justified in accepting the final report of the Investigating Agency and closing the case without any notice to the affected and behind his back.

16. It is needless for this Court to point out that the Magistrate is not bound to accept the Police Report and he may even direct further enquiry or may take cognizance of the offence on the material placed before him. If the Magistrate feels that the evidence and material collected during investigation justified the prosecution of the Accused, he may not accept the final report and take cognizance of the offence. Certainly, this act of the Magistrate does not amount to interference with the investigation, as opined by this Court. Although Section 173 (8) of Cr.P.C., speaks of further investigation. The said term has not been define in the Criminal procedure Code.

17. As a matter of fact, Section 173 (8) Cr.P.C., confers an express power upon the Police to carry out further investigation after cognizance is taken by the Court as per the decision of the Honourable Supreme Court reported in Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanatha Maharaj V. State of Andhra Pradesh (AIR 1999 SC 2267 [LQ/SC/1999/527] ). It is to be noted whether there exists sufficient and valid grounds for further investigation is purely left to the consideration of the Investigating Officer and the Court cannot give any direction restraining the Investigation Officer from conducting further investigation, as per decision Hasan Khan Vs. State of Rajasthan (1996 Crl.L.J. 4303), at special page 4304. It is to be remembered that the further investigation in a particular matter cannot be ruled out just because the same may delay the conduct of trial proceedings. The ultimate aim is only to find out the truth. Even de hors any direction from the Court of Law, it is open to the Police to conduct proper investigation as per decision of the Honourable Supreme Court in Hasanbhai Valibhai Quereshi V. State of Gujarat (AIR 2004 SC 2078 [LQ/SC/2004/471] ). In reality, when the defective investigation is brought to the force during the course of trial, even that can be cured by further investigation, if the circumstances so warrant.

18. Even after filing of the final report, the prosecuting agency has power to further investigate the case, if fresh facts come to light. But the Investigating Officer ought to apply to the Magistrate/Special Judge and to get necessary permission in this regard. In fact, where the Learned Magistrate has accepted the report filed under Section 173 (2) of Cr.P.C., on fresh material, further investigation under Section 173 (8) of Cr.P.C., is permissible and notice to the Accused is not necessary under Section 173 (8) Cr.P.C. After investigation, further report is to be submitted under Section 173 (8) of Cr.P.C. In case, where additional/further investigation brings to light fresh/additional new materials, the Learned Judicial Magistrate is not fettered/prevented from taking cognizance, just because on an earlier occasion, he accepted the final report. But one cannot ignore a vital fact that the Investigating Officer is not vested with unbridled power to reinvestigate and rope in any individual without any sufficient evidence to proceed against him. It is to be borne in mind that the well known principle in criminal law is that Crime Never Dies.

19. The Learned Judicial Magistrate can order reinvestigation even without hearing the Accused. Section 173 (8) of Cr.P.C., does not speak of any obligation on a Court of Law to hear the Accused before any such direction is issued. The power of Police to investigate any cognizable offence is uncontrolled by the Magistrate and it is only in case where the Police decide not to investigate the case viz., where the final report is filed, the Magistrate can intervene and either investigate or alternatively may proceed to enquire into the case. Further investigation by Police is not without jurisdiction or contrary to law when trial in a Court of Session is denying especially in view of the vide powers of the Police under Section 173 (8) of Cr.P.C., as per decision Chand Vs. State (1993 Cri.L.J. 3052).

20. At this stage, this Court aptly points out that in the Enquiry Report dated 27/12/2011 (in respect of reference No.C.No. 1294/SP/GDPPDK/2011G2/30430/11/11) in Na.Ka.No. 487/AIGSC/II/2011, the Inspector of Police, Anti-Land Grabbing, Special Cell, Pudikottai has inter alia stated that in the enquiry conducted in respect of an impersonation committed in relation to the Registration of sale deed and creating a fictitious document, the place mentioned in the petition belongs to the Petitioner and those connected with him by means of joint patta and further, the Respondent who purchased the property already obtained a decree in O.S.No. 22 of 2000 from Thirumayam District Munsif Court and therefore, the Petitioners (P.L. Sekappan, P.L. Ramanatha, P.L. Subbaiya) were advised to seek redressal of their grievance through proper documents before a Court of Law and closed the Petition. The said Enquiry Report of Investigating Officer, Anti-Land Grabbing, Special Cell, Pudukottai dated 27/12/2011 has also been forwarded by the Deputy Superintendent of Police, District Crime Branch, Pudukottai on 28/12/2011.

21. It transpires that the Respondent (Chidambaram) in C.No.1294 (SP) GDP/PDC/2011, G2/034/ALGSC/II/2011 filed W.P.(MD).No. 10970 of 2012 before this Court, arraying the Deputy Superintendent of Police, Land Grabbing Cell, District Crime Branch, Pudukottai and the Inspector of Police, Land Grabbing Cell, District Crime Branch, Pudukottai as R.3 and R.4. In the said Writ Petition, the Third Respondent/Deputy Superintendent of Police, Land grabbing Cell, District Crime Branch, Pudukottai filed a Counter wherein in paragraph Nos.4 to 6 it is averred as follows:-

4. I submit that it is averred in the statement given by the said PL. Subbiah that the Lands situated in Karaiyur Village and Sankaranpatti Village, Ponnamaravathi Taluk, Pudikottai District in S.No. 753/3, 754/1, 754/3, 754/4 to an extent of 4.23 Acres in their ancestral properties and undivided Hindu joint-family properties, all their family members having right and title over the said property due to business purpose, the defacto-complainant and some of the male numbers of the abovesaid family were shifted their occupation for their livelihood to some other places. The Writ Petitioner/A.1 by using the said opportunity in his favour and with the help of P.L. Subbiahs mother and his sister A-2, joining together and conspired with them and alienate the above said property in favour of them by way of impersonation as if the said P.L. Subbiah signed and make a thumb impression and registered the same before the Sub-Registrar Office, Ponnamaravathi in Doc.No.869/99.

5. I submit that after registered the case in the abovesaid crime number being a Investigating Officer, I proceed in accordance with law and only after registration of FIR, we issued a notice u/w. 160 Cr.P.C., calling Petitioner/Accused No.1 for enquiry and which would not violates his constitutional rights. I further submit that the writ petitioner/A-1 in the abovesaid crime number categorically admitted in his affidavit in para No.3 of his our version that he purchased the land under registered sale deed vide in Doc.No.869/1999 dated 10.6.1999 for valuable consideration, it is a genuine document that would not amounts to self incriminate and not violation of Article 20(3) of the Constitution of India.

6. I further submit that on the basis of complaint given by the defacto-complainant, we registered the abvoesaid case, it is averred in the complaint that the thumb impression and his signature was impersonated and forged but it is pertinent to note that the Petitioner claims that the document in genuine and he purchased a property for valuable sale consideration, then it would not goes against him.

22. On 3/9/2013, the Respondent/Deputy Superintendent of Police, Anti Land Grabbing, Special Cell, Pudukottai has submitted a Further Action Drop Report to the trial Court inter alia stating that .. already in the year 2009, a complaint was given before the District Crime Branch and since both sides gave in writing that they had compromised the matter after receiving the money and because of that the District Crimes Branch had closed the Petition which fact was suppressed and again with some motive/intention in view of the rise in price, the Police Department service was wrongly used and the civil case was converted into a criminal case and in order to obtain more money from the Accused, the complaint was lodged with certain intention which came to light during the course of investigation. Since strong reasons are there for not taking further auction, the investigation was dropped with the submission of Further Action Drop report.23. From the aforesaid contents of theion Drop Report dated 3/9/2013 of the Respondent as referred to supra, this Court is of the considered view that the aforesaid Further Action Dropped Report dated 3/9/2013 submitted by the Respondent is not in consonance with the requirements of Section 173 (8) of Cr.P.C. At the risk of repetition this Court relevantly points out that the reason is in law is only required to submit a report in terms of Section 173 of Cr.P.C., and nothing more than that. Further, this Court is very much alive and conscious of the fact that a Court of Law is not to keep track of an investigation and watch this day-today progress. But when an investigation culminates into a final report as mentioned under Section 173 of Cr.P.C., then the concerned Court is endowed with a duty to meticulously and scrupulously analyse the final report along with enclosures by applying its judicial mind and come to a conclusion either to accept or reject the final report. Even giving a clean chit to the Accused as in the instant case, the Respondent/Complainant dropping further action through his report dated 3/9/2013 is nothing but an act/function which is not to be performed by it him. In fact, no finding should be recorded by the Respondent/Complainant nor he can give a clean chit which is the function and power of a Judicial Magistrate which is bound to exercise the said power as adumbrated under the Criminal Procedure Code.

24. A perusal of the impugned order of the Learned Judicial Magistrate, Alangudi in Cr.M.P.No. 4301 of 2003 dated 12/9/2013 clearly points out that in paragraph 5, a reference was made to the decision of the Honourable Supreme Court in 2009 (4) MLJ Crl.1004 (SC) to the effect that the Defacto Complainant has no right to seek further investigation and also the Learned Judicial Magistrate has no power to order for further investigation at his request.

25. It is true that the Police enjoy more unbridled powers in the realm of investigation. Also that an order rejecting a final report must be reasoned and speaking order, as per decision Ram Kumar Rai V. State of M.P. (2002 Cr.L.J. 4372, 4373, 4374).

26. At this juncture, this Court to prevent a aberration of justice, cites the decision of the Honourable Supreme Court in Reeta Nag Vs. State of west Bengal and others, (2009 (4) MLJ (Crl) 1004 (SC) at special page 1005, it is held as follows:-

Once a charge-sheet is filed under Section 173 (2) Cr.P.C., and either charge is framed or the accused are discharged, the Magistrate may, on the basis of a protest petition, take cognizance of the offence or on the application made by the investigating authorities permit further investigation under Section 173 (8) of the Code. The Magistrate cannot suo moto direct a further investigation under Section 173 (8) or direct re-investigation of the case, on account of the bar of Section 167 (2) of the Code.

27. On a careful consideration of the impugned order dated 12/9/2013 in Cr.M.P.No. 4301 of 2013 passed by the learned Judicial Magistrate, Alangudi, this Court comes to an irresistible conclusion that the Learned Judicial Magistrate, Alangudi has referred to theion Drop Report of the respondent but has not gone into the aspect as to whether the final Report submitted by the Respondent/Complainant is within the four corners of Law and also whether the said dropping of Final report of the respondent/Complainant is quite in conformity with the requirement of Section 173 of Cr.P.C. Further, there is no indication in the impugned Order of the Learned Magistrate in Cr.M.P.No. 4301 of 2013 dated 12/9/2013 as to whether he has scrutinized theion Drop Report/Final Report with the enclosures/accommodate means by applying his Judicial mind. The real position of Law is that the Judicial Magistrate is not bound to accept the final Report of the Police. In fact, he may even direct a further enquiry or may take cognizance of the offence on the material placed before it. In this connection, the grievance of the Revision Petitioner is that thumb impression and signature were impersonated and forged in the sale deed thereby a sale deed was executed bearing Document No. 869/99 dated 10/6/1999 on the file of the Sub-Registrar, Ponnamaravathi. In the light of the aforesaid discussions and further this Court taking note of the attendant facts and circumstances of the present case in an encircling fashion comes to an inescapable conclusion that the impugned order passed by the Learned Judicial Magistrate, Alangudi dated 12/9/2013 in Cr.M.P.No. 4301 of 2013 is not a legally valid one in the eye of Law and on this simple ground alone, this Court interferes with the said order, (without expressing any opinion as to whether the Revision Petitioner is entitled to ask for further investigation of the case in terms of Section 173 (8) Cr.P.C) and sets aside the same in furtherance of substantial cause of Justice. Consequently, the Revision Petition succeeds.

28. In the result, the Criminal Revision Petition is allowed. Resultantly, the order passed by the Learned Judicial Magistrate, Alangudi in Cr.M.P.No. 4301 of 2013 is set aside for the reasons assigned in this Revision. The Learned Judicial Magistrate, Alangudi is directed to restore Cr.M.P.No. 4301 of 2013 to this file within two weeks from the date of receipt of the copy of this order and is directed to pass afresh, a reasoned, speaking order in a fair, just and dispassionate manner (even touching upon the aspect of locus standi of the Petitioner to file Cr.M.P.No. 4301 of 2013) by scrutinizing the available material records along with the enclosures of Final Report/Further Action Drop Report in a thread bare fashion, after applying his Judicial mind within four weeks thereafter, and to report compliance to this Court without fail. It is open to the respective parties to raise all factual and legal pleas before the Learned Judicial Magistrate, Alangudi, at the time of fresh hearing of Cr.M.P.No. 4301 of 2013 in the manner known to law and in accordance with law. In this regard, the Learned Judicial Magistrate, Alangudi is directed to provide adequate opportunities to the parties.