TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 1360
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....ed on the file of Economic Offences Wing-II, Madurai as Crime No. 28 of 2010 for alleged offences punishable under Sections 406, 420 and 120-B I.P.C. and Section 5 of the Tamil Nadu Protection of Interests of Depositors (In Financial Establishments) Act, 1997. The Deputy Superintendent of Police, E.O.W.II, Madurai, took up the investigation of the case and submitted a report dated 21.11.2012 before the learned Special Judge under TANPID Act, Madurai on 07.12.2012. The learned Special Judge under TANPID Act, Madurai at the first instance returned the said report pointing out six mistakes. Thereafter, the Investigating Officer resubmitted the same supplying the missing materials and also answering the returns. Such resubmission was made on 09.01.2013. On 23.01.2013, the learned Special Judge passed an order taking cognizance of the offences based on the said report without specifying the offences and without noting the names of the accused persons against whom cognizance was taken. The short order passed by the learned Special Judge on 23.01.2013 reads as follows: "Seized Book perused. In the Book - headings scheme II conditions in crime, investment perused. Take this case on file ....
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....P.C. and that the said power which is inherent can be exercised by the High Court even in a case filed as a revision if the ends of justice requires doing so. In support of the said contention, learned senior counsel referred to a Judgment of this Court (Principal Bench) in Subhiksha Trading Services Ltd. & Anr. v. Azim H. Premji reported in 2011 CRL.L.J. 2769. In support of the other contentions, learned senior counsel relied on the following Judgments: "(i) Dharmendra Tripathi v. State of U.P. reported in 1996 (20) ACR 801. (ii) Bandi Kotayya v. State reported in AIR 1966 AP 377. (iii) T.V. Sarma v. Smt. Turgakamala Devi and Others reported in 1976 Cri.L.J. 1247. (iv) Hari Chand and Raj Pal v. State reported in (1977) ILR 2 Delhi 367. (v) Kamal Lochan Sen v. State of Orissa reported in 54 (1982) CLT 509. (vi) Bhartendu Pratap Singh v. State of U.P. and Another reported in 2011 (4) ADJ 466 (Allahabad Lucknow Bench). (vii) A.V. Dharma Reddy v. State of A.P. reported in 2011 Cri.L.J. 185. (viii) A. Vinayagam and 3 others v. Dr. Subash Chandran and another reported in 2000-1-L.W. (Crl.) 460 : 2000 (1) CTC 225." 5. Out of the above Judgments cited by the learned senio....
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....ges of the Subordinate Courts/Judicial Magistrates adopting the practice of returning the final reports pointing out certain defects to be represented after rectification of the defects. Specific instructions have also been issued to the Judicial Magistrates/Judges of the Subordinate Courts that in case of any defect found in the final report submitted by the Investigating Officer, the Court must retain the final report on its file, issue a memo to the Investigating Officer pointing out the mistakes and direct him to come and rectify the mistakes by supplying the missing materials or correcting the mistakes as the case may be. Above all in the beginning of the year 2000, a Division Bench of this Court in A. Vinayagam and 3 others v. Dr. Subash Chandran and another reported in 2000 (1) CTC 225 made this point very clear. Still the Judicial Magistrates/Judges of the Subordinate Courts are following the irregular procedure which has been deprecated time and again by this Court. In this regard, this Court is constrained to reiterate the said point that under no circumstance the report of the police presented in the Jurisdictional Court should be returned and if the Judges of the Subord....
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....Bench of the Andhra Pradesh High Court made this point clear. The relevant portions of the Judgment of the Andhra Pradesh High Court in the said case are reproduced hereunder: "5. So that, the two questions that fall for decision are first, whether in a Preliminary Register Case the Magistrate takes cognizance of the offence upon the filing of a preliminary charge-sheet, or whether he takes cognizance only after the filing of the final charge-sheet; and secondly, in the present case, whether in point of fact, the preliminary charge sheet was a police report as envisaged by Section 173(1), Criminal Procedure Code and whether the Magistrate had taken cognizance on it." "9. It is clear from the terms of Sub-section(1) that the report under Section 178 Criminal Procedure Code, is submitted by the police only after the investigation is completed and not before. Where in a given case, before the completion of the investigation, a report, which is styled a preliminary charge-sheet, is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173, Criminal Procedure Code, upon the receipt of which alone a Magistrate, acting under Section 207A, Criminal Procedu....
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.... meaning of Sub-Section(2) of Section 173, Crl. P.C. Admittedly in this case, there is no such report. The so-called preliminary charge-sheet filed in this case is not a police report because the investigation is not yet completed, and so the proviso to Section 167 Sub-section(2) is attracted. In this connection the learned Public prosecutor has relied upon Sub-Section(8) of Section 173, Cr.P.C. in order to contend that even a preliminary charge-sheet is a police report within the meaning of Sub-section(2) of that section. But a reading of Subsection(8) of Section 173, Cr.P.C. shows that after a police report under Sub-section(2) is sent to the Magistrate, further investigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore, Sub-section (8) of Section 173, Cr.P.C. comes into play only after a report under Sub-Section(2) is sent but not before". "Where in a given case, before the completion of the investigation, a report, which is styled a preliminary charge-sheet is forwarded to a Magistrate, that report cannot be regarded as a report under Section 173, Criminal Procedure Code...." 12. A lea....
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.... by Section 167(2) Proviso. If investigation has, in fact, been completed, mere description of the charge-sheet as incomplete or preliminary would not take the report out of the category of reports contemplated by Section 173(2)". 14. A learned Single Judge sitting at Lucknow Bench of Allahabad High Court in Bhartendu Pratap Singh v. State of U.P. and Another reported in 2011 (4) ADJ 466, in a similar case made the following observations: "5.......It is stated that it means that the Investigating Officer is permitted to file the charge sheet only on completion of the investigation, particularly for the facts which were within his knowledge, therefore, he was obliged to complete the proceeding for collection of evidence, which was in his knowledge and then only to file the charge-sheet, whereas the Investigating Officer, as is evident from the charge sheet, though was well aware with the documentary evidence and was also making efforts to collect them yet before collecting the said evidence, he submitted the charge sheet, which is said to be incomplete charge-sheet, therefore, the learned Magistrate was not empowered to take cognizance of offence on such a police report, which is....
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....estigation is not precluded and if upon such investigation further evidence is obtained a further report should be sent to a Magistrate. Therefore sub Section (8) of Section 173 Code of Criminal Procedure comes into play only after a report under sub section (2) is sent and not before. In this case since no report under sub section (2) is sent, sub section (8) does not come into operation at all. Since the preliminary report is not the one sent to the court after a report under sub-section (2) was sent, the learned Public Prosecutor cannot invoke the provisions of sub-section (8) of Section 173, Criminal Procedure Code....." The Hon'ble Judge of the Allahabad High Court (Lucknow Bench) observed: "From the aforesaid observations of the Hon'ble Supreme Court, it is evident that the stage of further investigation under Section 173(8) of the Code of Criminal Procedure comes only after submission of complete police report under Sub-Section (2) of Section 173 of the Code of Criminal Procedure". 16. In yet another case namely, State of Maharashtra v. Sharad Chandra Vinayak Dongre reported in 1995 (1) SCC 42, when cognizance of the offence was taken by the Magistrate on a repo....
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....port as contemplated under the said provision and taking cognizance of the offences based on such report shall be an error apparent on the face of the record. In case of such incomplete report, the police cannot fall back on Section 173(8) Cr.P.C. to baptise their continuation of the investigation as a further investigation contemplated under Section 173(8) Cr.P.C. On the other hand, Section 173(8) Cr.P.C. comes into picture only after the completion of the investigation and submission of the final report. It pre-supposes that the Investigating Officer had collected all the materials which had been brought to his notice and submitted the final report based on such materials and that after the filing of such final report, new materials come to his knowledge, whereupon he embarks upon further investigation. On the other hand, for the purpose of denying the statutory right conferred on the accused persons under the proviso to Sub-section 2 of Section 167, the police cannot adopt the practice of filing interim reports or incomplete reports and the Magistrate or the Judge as the case may be, also cannot take cognizance of the offences based on such interim or incomplete reports. 19. In....