Mariaglory vs John Britto @ John and 2 others

Rengasamy, J.—This revision is against the order of acquittal passed by the learned Chief Judicial Magistrate, Nagercoil, in C.C. No.

191/88 for the offences under Sections 498-A and 406 Indian Penal Code and Section 4 of the Dowry Prohibition Act.

The revision Petitioner herein, who is the wife of the first Respondent, filed a complaint before the third Respondent police alleging that her

husband and her mother-in-law, the second Respondent, were harassing her demanding dowry and that she was also driven out from the house,

that though 8 1/2 sovereigns of jewels, cash Rs. 5,000 and articles worth Rs. 4,500 were given to her at the time of the marriage, Respondents 1

and 2 had returned only 10 grams of jewels and articles worth Rs. 1,500/- and therefore she had filed this complaint for breach of trust. The

learned Chief Judicial Magistrate, after going through the papers, has found that already the police had forwarded a report u/s 173, Code of

Criminal Procedure stating that it was mistake of fact, that the learned Chief Judicial Magistrate also had accepted the report and recorded the

same, but subsequently on the direction of the Superintendent of Police, further investigation was done and a fresh report was filed on the basis of

which, the case was reopened for trial and as this procedure is against law, the accused cannot be punished. With regard to the merit of the

allegations also, the learned Chief Judicial Magistrate had gone through the evidence and has found that the allegations against the accused are not

established and therefore they cannot be punished.

With regard to the merit of the case, the learned Counsel for the revision Petitioner Mr. R. Subramanian submitted that he cannot seek to re-

assess the evidence in the revisional stage and therefore, he is not challenging the order of the learned Chief Judicial Magistrate with regard to the

merit of the allegations, but his contention is only with regard to the finding of the learned Magistrate holding that the further investigation by the

police is illegal. Even on a perusal of the evidence of the witnesses and the documents, there are inconsistencies to doubt the Petitioner''s version.

In the complaint Ex.P-1 it is alleged that the first accused insisted to bring Rs. 2,000, but in the evidence it was stated that he was demanding Rs.

20,000. P.W.4 said to be a panchayatdar has also stated in his evidence that during his panchayat nobody represented that the complainant wife

was harassed demanding dowry. Anyhow, as the evidence cannot be re-assessed in this revision and the learned Counsel also does not argue

upon the merit of the allegations in the complaint, the findings of the learned Chief Judicial Magistrate holding that the prosecution has not proved

the offence has to be accepted.

The legal contention taken up by the learned Counsel for the revision Petitioner is that the second investigation by the police is not illegal in this

case as Section 173(8) Code of Criminal Procedure permits for such further investigation and therefore fresh report sent by the police after the first

report, is permissible under law and therefore, the court was right in taking up this case for trial on the basis of the second report. The learned

Counsel Mr. Subramanian referred to a decision of the Allahabad High Court in Rama Shanker Vs. The State of Uttar Pradesh, holding that

submission of the charge-sheet is not a judicial act and even if the previous report of the police officer did not support the allegation of the

complaint, the subsequent charge-sheet can be acted upon. But following the decision of the Supreme Court in Kamlapati Trivedi Vs. State of

West Bengal, this Court in Chandrasekhara Pandian v. Muthukaruppa Thevar (1983 L.W.(Crl.) 347) has held that the acceptance of the report of

the police is a Judicial order. The learned Chief Judicial Magistrate has referred to the decision in Kamlapati Trivedi Vs. State of West Bengal,

wherein it is held that once the Magistrate had recorded the report of the police that the complaint was a mistake of fact, the aggrieved party

should agitate the matter in the higher court if he wanted to re-open the case for investigation. In this case, the learned Magistrate has referred that

a charge-sheet Ex.D-1 was sent to the Chief Judicial Magistrate court and on 26.10.87 the learned Chief Judicial Magistrate also had accepted

this report. According to the learned Chief Judicial Magistrate, this order of the learned Magistrate is found from Ex.P-4. He has referred to

Exs.D-2 and P-4 for acceptance of the learned Magistrate. It appears that after this order of the Chief Judicial Magistrate, the Superintendent of

Police had given direction to further investigate the case and a request was sent to the Chief Judicial Magistrate for permission to further investigate

the case. The learned Magistrate has taken the view that the then Chief Judicial Magistrate did not pass any order permitting for the fresh

investigation, but he had simply ordered under Ex.P-6 to keep the First Information Report without closing it. The lower Court has found that

when once the learned Chief Judicial Magistrate had passed a Judicial Order accepting the report of the police, unless that order was set aside by

the higher Court, there cannot be a fresh investigation by the police and the learned Magistrate also had no powers to permit the police for further

investigation. In Tarigoppula Venkata Ramadas v. State of Andhra Pradesh (1990 M.L.J.694) the Andhra Pradesh High Court has held that when

the Magistrate had accepted the referred report of the police and closed the case, the police cannot re-investigate the case and even the charge-

sheet filed by the police after such second investigation is illegal and the Magistrate cannot act upon that. No doubt, the complainant must be

informed of the acceptance of the report by the Magistrate and therefore the notice to the complainant is mandatory as held by the Supreme Court

in Bhagwant Singh Vs. Commissioner of Police and Another, This Court in Nallaya Gounder v. Thiruvengadam (1992 L.W.(Crl.) 316) has held

that even if the report was accepted by the Magistrate and the complaint was closed, when the complainant was not informed of it, a second

complaint is maintainable. But in the case on hand, there was no second complaint but the police which once referred the case as mistake of fact,

had conducted the fresh investigation even after the judicial order was passed by the learned Chief Judicial Magistrate accepting the report and the

learned Magistrate has accepted the charge-sheet filed by the police. The lower Court in paragraph 18 has referred to the notice to P. Ws. 1 and

2 about the referred charge-sheet. When once the referred charge-sheet has been accepted by the Magistrate, as held in Tarigoppula Venkata

Ramdas v. State of Andhra Pradesh (referred supra) the fresh investigation and filing of the charge-sheet on the direction of the Superintendent of

Police is illegal and therefore, the learned Magistrate taking cognizance of the offence in pursuance of that charge-sheet is equally illegal. Therefore,

I find that the order of the learned Chief Judicial Magistrate is perfectly correct and no interference is required.

In the result, the revision is dismissed.