TaxTMI 
TaxTMI 
2019 (11) TMI 1783
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....On 27.06.2006, the Petitioner and his brother along with their father, Ramukutty Gounder had sold the said 4 acres of land to the accused persons, namely, K.P. Ramasamy, K.P. Deivasigamani and K.P. Nataraj, who are the Respondents 2 to 4 herein, for a valuable sale consideration. The wife of the Petitioner, Parameswari had filed OS. No. 245 of 2006, before the Subordinate Judge, Tiruppur and it was subsequently transferred to I Assistant Subordinate Judge, Coimbatore, in OS. No. 72 of 2013, on behalf of her minor children, namely, Nandhini and Sampath against the Defendants/the Respondents 2 to 4 herein, claiming equal right of share over the ancestral property. Hence, enmity arose between the Petitioner's family and the Respondents 2 to 4 herein. b) While so, the Respondents 2 to 4 along with the Respondents 5 and 6 had created a forged agreement for sale, by forging the signature of the Petitioner and his family Members to sell 1.60 acres to the 6th Respondent. Using the forged agreement for sale dated, 15.03.2006, the 6th Respondent had filed OS. No. 438 of 2009, seeking specific performance, before the District Judge, Coimbatore and the Petitioner had also filed hi....
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.... had closed the case, stating that they were not in a position to ascertain as to whether the sale agreement was genuine. f) Even after the directions of this Court in the Contempt Petition, forged sale agreement was not produced, though the accused persons were called for an enquiry. Finding that unless the First Information Report is registered, the Police has no authority to search the same and investigate the matter, this Court on 4.4.2016 had directed the Police to register the First Information Report and produce the same before this Court on or before 12.04.2016 and posted the matter for reporting compliance on 12.04.2016. Thereafter, a case was registered in Cr. No. 306 of 2016 against the accused persons for the offences under Sections 420, 468, 471 read with 472 of IPC and without conducting proper enquiry, notice dated 5.8.2016 was served on the Petitioner, stating that further action dropped. Hence, the Petitioner had filed Crl.O.P. No. 15756 of 2016, seeking transfer of investigation to the file of the Central Crime Branch, Coimbatore for reinvestigation. By order dated, 11.08.2016, this Court, while setting aside the closure report in Cr. No. 306 of 2016, had....
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.... totally 31 witnesses were examined and 78 documents were collected. The disputed forged document, dated 15.03.2006 was collected from the Petitioner and subjected to forensic examination. After conducting investigation, finding that the accused N.J. Subramanian, had fraudulently created the forged sale agreement to grab 1.60 acres of land belonging to the defacto complainant, the final report was filed against the accused N.J. Subramanian for the offences under Sections 420, 468, 471 and 472 of IPC and 467, 468, 471, 204, 420 read with 511 of IPC on 06.12.2018, which was taken on file in CC. No. 324 of 2018 on 26.12.2018, by the Chief Judicial Magistrate, Coimbatore. b) The allegation that the Respondents 2 to 4 along with the Respondents 5 and 6 had created the forged documents, by forging the signatures of the Petitioner and his family Members, has not been proved in the investigation. The investigation revealed that the 6th Respondent alone had forged the signatures and created the alleged forged sale agreement dated 15.03.2006. The allegation of the Petitioner that the 2nd Respondent used to criminally intimidate the wife of the Petitioner to withdraw the suit was not....
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....er submit that the Judicial Magistrate failed to appreciate the legal proposition that while taking cognizance of an offence to find out who is the real offender and once if he comes to the conclusion that apart from the persons arrayed as the accused by the Police some other persons are also involved, it is his duty to proceed against them by summoning them as additional accused and it is part of the proceedings while taking cognizance and the Judicial Magistrate need not wait till the stage of Section 319 of Cr.P.C. and that the Judicial Magistrate failed to appreciate the legal proposition that when the Investigating Officer with an ulterior motive did not send up other accused persons against whom prima facie incriminating materials are available, it is imperative for the Judicial Magistrate to order for further investigation. 7. The learned counsel for the Revision Petitioner would further submit that the law mandates notice on the victim and the Judicial Magistrate having found that the Petitioner is an interested person and a victim and on whose efforts, the case was registered and later transferred for further investigation, ought not to have taken cognizance of the fina....
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....agistrate is not denuded of the power to order further investigation even at the post cognizance stage. He would ultimately contend that law mandates notice on the victim and when no notice has been served on the Petitioner prior to the Magistrate taking the final report on file, the dismissal of the protest petition as not maintainable on the ground that it has been filed after taking of cognizance is illegal and thereby would seek to set aside the impugned order. 10. The learned Additional Public Prosecutor for the 1st Respondent Police would submit that though the names of the Respondents 2 to 5 found a place in the First Information Report, the 1st Respondent after conducting due investigation, finding no averments against the Respondents 2 to 5, had dropped their names in the final report and that the notice of closure was served on R. Ganesamoorthy, the defacto complainant, brother of the Petitioner and that the Petitioner had filed the protest application only on 29.1.2019 and the Judicial Magistrate, finding that cognizance has already been taken on 27.12.2018, had dismissed the protest petition, stating that it is not maintainable and that the Judicial Magistrate had fo....
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....ich would come into operation in the course of any inquiry into or trial of an offence or treat the protest petition as a Private Complaint under Section 200 of Cr.P.C. In the present case on hand, the private complaint has already been separately filed by the Petitioner, which has been taken on file as Cr.M.P. No. 426 of 2019 and as such, the present protest petition is not maintainable and no separate order is necessary. Further, the reliefs prayed for in the protest application is not at all maintainable and without any basis. Added to that this Court has no jurisdiction to set aside its own order dated 27.12.2018. Since, the Private complaint is pending, this Court has not gone into the merits of the case. Considering all aspects, this Court finds that the present application is not maintainable, which is liable to be dismissed. 17. The remedy available to the Petitioner is that 1. to proceed with the private complaint under Section 200 of Cr.P.C. or 2. approach the Honourable High Court under Section 482 of Cr.P.C. and Article 226 of the Constitution of India to set aside the order of this Court, dated 27.12.2018. "18. In the result, this Co....
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....n Petitioner, this Court deems it appropriate to refer to the following decisions in the subsequent paragraphs, which would be sufficient and relevant for deciding the case and the issue on hand. 17. In 2017 2 CTC 241 (Chinnathambi @ Subramani Vs. State), a Full Bench of this Court, in paragraph 44, had held as under:- "44. 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 ....
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....-investigation and also informed the particular agency by whom he seeks such investigation, the valid right of de facto complainant to have his protest petition considered on merits cannot be defeated on mere technicalities or errors in wording. This Court would consider the prayer that would be maintainable before it and ignore that which is not. A reading of the order of the Court below reveals that it has totally failed to consider the material/factual aspects of the matter. The particular grievance of petitioner/de facto complainant is of commission of offences u/s. 463, 477-A and 467 IPC i.e., offences of forgery, falsification of accounts and cheating. Material records necessary to bring home such offence have not been gathered by the investigation agency. Although learned counsel for petitioner has sought to impress upon this Court that this Court may issue suitable directions for further investigation by way of orders in Crl.O.P. No. 27092 of 2009, considering that the offences alleged in the instant case are all matters of record, this Court is of the view that it would be appropriate to direct Court below to treat Crl.M.P. No. 5599 of 2008 in C.C. No. 122 of 2008 as a pro....
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.... subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the first information report lodged becomes wholly or partially ineffective. Therefore, this Court indicated in Bhagwant Singh case [Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537: 1985 SCC (Cri.) 267] that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard." 22. This Court, in Gangadhar Janardan Mhatre [Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768: 2005 SCC (Cri.) 404], also stressed on the need to issue notice to the informant in the following discussion: (SCC p. 774, para 12). "12. Therefore, the stress is on the issue of notice by the Magistrate at the time of....
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.... case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case." 20. In a recent decision of the Honourable Supreme Court reported in MANU/SC/1427/2019 (Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another), it was held as under:- "38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh ....
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.... Magistrate is denuded of power to order further investigation. 21. In MANU/SC/1427/2019 (Vinubhai Haribhai Malaviya and others Vs. State of Gujarat and another), referred to above, the three Judged Bench has overruled the earlier decision of the Honourable Supreme Court reported in 2017 4 SCC 177 (Amrutbhai Shambubhai Patel v. Sumanbhai Kantibai Patel) with regard to the finding that 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 the request made by the investigating agency and not at the instance of anyone else or even suo motu and thereby setting aside clause (vii) of paragraph 44 of the decision of the Full Bench of this Court reported in 2017 2 CTC 241 (Chinnathambi @ Subramani Vs. State). 22. The proposition of law from the above decision is that 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 t....
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....ding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. The stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly since the right is conferred on the informant. iv. The power of the Magistrate to permit the Police to further investigate the case as provided under Section 173(8) of Cr.P.C. is an independent power and the exercise of such power shall not amount to varying, modifying or cancelling the earlier order of the Magistrate on the report of the Police, notwithstanding the fact that whether the said earlier order is a judicial order or a non judicial order of the Magistrate. 25. In this case, it is a situation where though specific allegations have been made against the Respondents 2 to 5 in the First Information Report with regard to scam made in respect of the high value lands, by creating false bogus and forged documents ....