N. Maniraj vs The Inspector of Police and Kamachi Periasamy @ Gokul

A. Arumughaswamy, J.—This Criminal Revision Petition is filed by the petitioner/3rd Party against the order passed in C.M.P. No. 5301 of

2012 in C.C. No. 10 of 2012, on the file of the learned Judicial Magistrate No. II, Karur, dated 10.05.2013. The petitioner is a practising

advocate at Karur. He filed a petition before the learned Judicial Magistrate No. II, Karur, u/s 173(8) Cr.P.C., seeking direction to the respondent

to conduct further investigation in Cr. No. 31 of 2011 in C.C. No. 10 of 2012.

The facts of the case are as follows:

On a complaint of one Kamachi Periasamy @ Gokul against the accused before the respondent police registered a case in Crime No. 31 of 2011

on 19.09.2011 u/s 147, 120(b), 365, 347, 420 and 506(ii). During the course of investigation, the Deputy Superintendent of Police, Crime Branch

filed an application before the trial Court in Cr. M.P. No. 10928 of 2011 to record the statement of the complainant. On 05.01.2012, the trial

Court has recorded the statement of the complainant u/s 164(5) Cr.P.C. In that statement, the complainant has implicated V. Senthil Balaji (sitting

Minister in Tamilnadu Cabinet) and two other persons viz., Ashok and Banumathi. Based on the said statement, the present petitioner filed a

petition in C.M.P. No. 5301 of 2012 in C.C. No. 10 of 2012 before the trial Court u/s 173(8) Cr.P.C. seeking a direction to the respondent to

conduct further investigation in the above case. The learned Judicial Magistrate, however, dismissed the same. Challenging the same, the present

Criminal Revision Petition has been filed.

Notice to the defacto complainant has also been ordered and he has not appeared before this Court.

The learned Counsel appearing for the petitioner contended that the petitioner is a practising advocate and therefore, he has locus standi to file

the application seeking further investigation. Since, according to the alleged statement of the complainant u/s 164 Cr.P.C., Mr. Senthil Balaji and

two others are involved in the crime, according to hi, further investigation should be ordered. In support of contentions, he has also relied on the

following judgments:

(i) Roopchand Lal and another vs. State of Bihar and another reported in AIR 1968 SC 117;

(ii) Ram Lal Narang Vs. State (Delhi Administration),

(iii) Sarlaben Virsing and Another Vs. State of Gujarat and Another,

(iv) Sampat Singh and Others Vs. State of Haryana and Others,

(v) State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Others,

(vi) Sakiri Vasu Vs. State of U.P. and Others,

(vii) Kishan Lal Vs. Dharmendra Bafna and Another,

(viii) Dinesh Sarda Vs. State of Maharashtra,

(ix) Dharmatma Singh Vs. Harminder Singh and Others,

(x) Samaj Parivartan Samudaya and Others Vs. State of Karnataka and Others,

(xi) K. Anbazhagan Vs. Superintendent of Police, Chennai and Others,

The learned Additional Advocate General appearing for the respondent contended that the petitioner has no locus standi to file this petition and

hence, the present Criminal Revision Petition has to be dismissed.

Heard the learned Counsel for the petitioner and the learned Additional Advocate General appearing for the respondent and perused the

materials available on records.

From the perusal of the records it is seen that at the first instance, the present petitioner has filed a Writ Petition in W.P. (MD) No. 11928 of

2012 seeking for a writ of mandamus directing the respondent to conduct further investigation of the case in Crime No. 31 of 2011 on the file of

the respondent police u/s 173(8) Cr.P.C. and the same petition was dismissed as withdrawn before the Division Bench of this Court on

03.10.2012.

Later on, the accused No. 1, accused Nos. 3 to 5 and the accused No. 7 have filed a Criminal Original Petition before this Court in Crl. O.P.

(MD) No. 7303 of 2012, praying to call for the records pertaining to the charge sheet in C.C. No. 10 of 2012, on the file of the learned Judicial

Magistrate No. II, Karur and quash the proceedings as against the petitioners/A. 1, A. 3 to A. 5 and A. 7. That petition has also been dismissed

as not pressed on 21.11.2012 by the order of the Honourable Mr. Justice T. Sudanthiram, further directing the learned Judicial Magistrate No. II,

Karur to expedite the trial and complete the same within a period of six months from the date of receipt of copy of this order.

Thereafter, the complainant has filed another Criminal Original Petition before this Court in Crl. O.P. (MD) No. 18451 of 2012 seeking a

direction to the first respondent police to conduct further investigation of the case in Cr. No. 31 of 2011 in C.C. No. 10 of 2012 pending on the

file of the learned Judicial Magistrate No. II, Karur and include the respondents 2 and 3 as accused and file a further report before the Court of

Judicial Magistrate No. II, Karur within a time frame and that petition has also been dismissed as withdrawn on 23.01.2013, by the order of the

Honourable Mr. Justice T. Sudanthiram.

Later on, once again the complainant has filed a Criminal Original Petition before this Court in Crl. O.P. (MD) No. 19039 of 2012 seeking for

transfer of the case in C.C. No. 10 of 2012 in Crime No. 31 of 2011 pending on the file of the learned Judicial Magistrate No. II, Karur to some

other Court. That application was also dismissed by Honourable Ms. Justice K.B.K. Vasuki, further directing the trial Court to dispose the case in

C.C. No. 10 of 2012 expeditiously not later than the end of June 2013.

Under this backdrop of the matter, the present petition in C.M.P. No. 5301 of 2012 was filed by the present revision petitioner before the trial

Court.

Admittedly, the petitioner is the third party to the case neither eyewitness nor a person knowing the relevant facts involved in the case. Now

the question is whether such a third party has locus standi to file a petition u/s 173(8) Cr.P.C. seeking for further investigation. On this legal issue,

one need not labour much. Law has well settled in K. Anbazhagan Vs. Superintendent of Police, Chennai and Others, 4. In the said case, the

petitioner/third party against the accused was permitted to file the transfer of the case. In the said judgment, the Honourable Supreme Court held

that the concept of locus standi should not differ the court from doing justice to the parties. In view of the settled position of law, in my considered

opinion, on the ground of locus standi, the trial Court ought not to have dismissed the petition. To that extent the order of the trial Court deserves

to be interfered with.

Now coming to the facts of the case, nowhere in the petition, the petitioner has made out a case. Any defect in the investigation, the only

ground upon which the petitioner had filed the petition before the lower Court that in the statement recorded u/s 164(5) Cr.P.C. the defacto

complainant implicated one Senthil Balaji, Ashok Kumar as perpetrators of the crime. In my view on that score, there need not be any further

investigation. When the defacto complainant is examined during the trial, there are prodigal material parts in his evidence. Implication of any person

other than the accused absolutely it is for the scrutiny of the Judicial Magistrate to invoke Section 319 Cr.P.C. so as to summon/add accused. In

such view of the matter, I find that it is not possible to order for further investigation.

Further, it is an admitted case that on previous occasion, under such circumstance, the petitioner has come up with this petition seeking further

investigation and the same was dismissed.

Except the decision in K. Anbazhagan vs. Superintendent of Police and Others reported in AIR 2004 Supreme Court 524, the petitioner

placed reliance related to the power of the Court to order further investigation u/s 173(8) Cr.P.C., Regarding such power of the Court, I do not

have any doubt. Therefore, I do not venture to make any elaborate discussion with each judgment relied on the petitioner. It will add length to the

judgment.

As per Section 173(8) Cr.P.C., the Police Officer can do further investigation if any materials are available and at the time of such

investigation, the Investigating Officer obtains further evidence, oral or documentary, he shall forward to the Magistrate and in turn, a further report

or reports regarding such evidence in the form prescribed.

The learned Counsel for the petitioner by citing the aforesaid judgments, contended that the Judicial Magistrate has suo motu power to give

direction for further investigation, will not arise at this juncture. As per the provisions of Section 173(8) Cr.P.C., the Investigating Agency has got

power to investigate the matter further. At the time of further investigation, if he finds any evidence, he shall forward a further report or reports

regarding such evidence in the form prescribed, before the Judicial Magistrate.

From the perusal of the records it is seen that at the time of giving the complaint, the complainant has not chosen to include the name of the two

persons viz. Mr. Senthil Balaji, sitting Minister in Tamilnadu Cabinet and the other person. After lapse of five months, as a second thought, the

complainant himself voluntarily gave the statement which was recorded u/s 164(5) Cr.P.C. Because of this, one cannot give much importance to

the statement recorded u/s 164(5) Cr.P.C. In fact, the complainant himself alone gave the complaint. Thereafter only the final report has been filed.

After filing final report, the complainant himself filed Crl. O.P. for further investigation before this Court and it has been not pressed by himself and

the same was dismissed as withdrawn.

The second statement given by the complainant before the learned Judicial Magistrate and the same was recorded u/s 164 Cr.P.C., will not be

a ground for ordering further investigation. It is nothing but after thought and it was not mentioned as to why this aspect has not been mentioned in

his complaint.

Generally, if the complaint is given and the law is sit in motion, the Investigating Officer prima facie satisfied on the complaint, they will

commence the investigation and examine the witnesses and thereafter file a final report. The Court may interfere either suo motu or at the instance

of the third party to ensure that there is a fair investigation and fair trial. But in this case, to settle the personal grievance and for publicity, a person

who has not seen the occurrence and not affected and only on the information, he has filed the application before the trial Court as well as before

this Court for which the Court cannot consider his application, since it is lack in so many aspects. It is pertinent to note that in this application, the

defacto complainant figured as the second respondent and inspite of notice sent to him, he has not chosen to receive and support the case of the

petitioner.

Therefore, by all these cumulative circumstances it is seen that the complainant has already filed a petition for further investigation and it has

already been dismissed. At this stage, now this Court cannot consider the petition seeking direction to the respondent police for further

investigation. Therefore, this Court has already directed the learned Judicial Magistrate concerned to dispose of the case in a time bound manner,

the learned Judicial Magistrate is directed to proceed with the trial as per the procedure known to law. With the above observations, this Criminal

Revision Petition is dismissed. Consequently the connected Miscellaneous Petition is closed.