PRAYER
Criminal Revision Petition has been filed under Section 397 r/w 401 of Cr.P.C, to call for the records pertaining to the order passed by the learned Judicial Magistrate, Vadipatti in Cr.M.P.No.532 of 2018 in C.C.No.767 of 2017, dated 28.06.2022 and set aside the same.
ACCUSED ADDED IN THE FIR WAS LEFT IN THE CHARGE SHEET
- The petitioners are the proposed accused. On the basis of the complaint lodged by the second respondent/defacto complainant, FIR came to be registered in Crime No. 20 of 2013, dated 09.06.2013 against five person, including the petitioners herein for the offence under Sections 498(A) and 406 IPC. The first respondent, after completing the investigation, has laid a final report under Section 173 Cr.P.C, dated 25.02.2014, against one person Kannan, who is the husband of the second respondent/defacto complainant for the alleged offences under Sections 498(A) and 406 IPC and thereby deleting the name of the petitioners, who were shown as accused in the FIR. After filing of charge sheet, the same was taken on file in C.C.No.767 of 2017 and is pending on the file of the Court of Judicial Magistrate, Vadipatti.
PROTEST PETITION WAS DISMISSED BY MAGISTRATE AND REVISIONAL COURT ALLOWED THE PETITION
3.The second respondent, after coming to know about the deletion of the petitioners in the charge sheet, has filed a protest petition in Cr.M.P.No.532 of 2018 and the learned Magistrate, after enquiry, has passed an order, dated 31.05.2018, dismissing the said petition. Aggrieved by the said order of dismissal, the second respondent/defacto complainant has preferred a revision in Cr.R.C.No.51 of 2018 and the learned VI Additional District and Sessions Judge, Madurai, upon hearing the arguments of the learned counsel on either side, has passed an order, dated 09.04.2019, setting aside the order passed in Cr.M.P. No.532 of 2018, dated 31.05.2018, directed the trial Court to take the said petition again on file and to conduct enquiry and pass orders.
MAGISTRATE DIRECTED THE I.O TO FILE ADDITIONAL CHARGESHEET
- In pursuance of the directions of the Additional District and Sessions Court, the learned Judicial Magistrate, after restoring the petition in Cr.M.P. No. 532 of 2018 to the file of that Court and after enquiry, has passed the impugned order, dated 28.06.2022, by holding that the deletion of the proposed accused is not proper, allowed the protest petition, directing the Investigating Officer to examine additional witnesses and to file a additional charge sheet within a period of one month. Aggrieved by the said order, the proposed accused have come forward with the present criminal revision.
PETITIONERS ARGUMENT THAT NO NOTICE WAS GIVEN TO THEM BY MAGISTRATE
- The learned counsel for the petitioners would mainly contend that the learned Judicial Magistrate committed an error in not issuing notice to the petitioners in the above petition; that the decision of the learned Magistrate to conduct the enquiry of the above petition, without issuing notice to the petitioners by observing that there was no direction in the revision order of the Additional District and Sessions Court, is unfair and unsustainable and that the learned Magistrate has unilaterally concluded the above Cr.M.P, without affording opportunity to the petitioners.
6.No doubt, Section 401(2) of Cr.P.C mandates that no order under the said provision shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
MAGISTRATE NEED NOT GIVE NOTICE TO THE PROPOSED ACCUSED AT PRE-COGNIZANCE STAGE
- In compliance of the above provision, the learned Additional District and Sessions Court, after issuing notice to the proposed accused and after hearing the arguments of the learned counsels on record, has passed the order, dated 09.04.2019. But, it is pertinent to note that such an opportunity of being heard contemplated under Section 401(2) Cr.P.C, has no application to the proceedings before the Magistrate at pre-cognizance stage.
ACCUSED HAS NO LOCUS STANDI DURING INVESTIGATION AND HE CANNOT INSIST FOR HEARING BEFORE PROCESS ISSUED TO HIM
8.The Hon’ble Supreme Court in Prabha Mathur and Anotherr. Vs. Pramod Aggarwal and Others in Crl.A.No.1532 of 2008, dated 26.09.2008, by referring to the earlier decisions of the Hon’ble Supreme Court, has reiterated the legal position that the accused has no locus standi at the stage of investigation and he cannot insist for hearing before process is issued against him and the relevant passages is extracted hereunder:
“…………………..”
- Just because the revisional Court in compliance of the mandate of Section 401(2) Cr.P.C, has issued notices to the accused and gave an opportunity of being heard, it cannot be said that the Magistrate has to adopt the same procedure.
- As already pointed out, as per the legal dictum above referred, the Magistrate has no power or jurisdiction to issue notice to the accused and to hear them at pre-cognizance stage and as such, correspondingly, the accused has no right of attendance and he cannot claim as of right. Hence, the contention of the learned counsel for the petitioners that non sending of the notices to the petitioners and non affording of opportunity to participate in the enquiry in Cr.M.P.No.532 of 2018 is fatal and vitiates the order passed by the learned Magistrate, is absolutely devoid of merits and is liable to be rejected.
MAGISTRATE EXCEEDED JURISDICTION BY DIRECTING THE I.O TO FILE ADDITIONAL CHARGE SHEET
11.But, on perusal of the impugned order, this Court is constrained to say that the learned Judicial Magistrate has exceeded her jurisdiction. If the learned Magistrate is of the view that there are materials available on record for taking cognizance against the petitioners/proposed accused, she can very well pass an order, directly taking cognizance of the case against the petitioners. But here, the learned Magistrate, after taking a position that the deletion of the petitioners is not proper, has directed the Investigating Officer to examine additional witnesses and to file an additional charge sheet.
- In the case on hand, as already pointed out, the learned Magistrate has directed the Investigating Officer to file a further final report by adding the petitioners as accused.
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CONCLUSION – SET ASIDE THE DIRECTION AND FURTHER DIRECTED TO CONDUCT FRESH INQUIRY:
- Considering the above, this court has no hesitation to hold that the Magistrate by directing the Investigating Officer to examine additional witnesses to file a additional charge sheet by adding the petitioners as accused, has exceeded jurisdiction and as such, the same is liable to be set aside.
19.In the result, this Criminal Revision is allowed and the impugned order, dated 28.06.2022 in Cr.M.P.No.532 of 2018 in C.C.No.767 of 2017, is set aside and the learned Magistrate is directed to conduct fresh enquiry in the petition in Cr.M.P.No.532 of 2018 and pass orders in accordance with the said legal position above referred. Consequently, connected Miscellaneous Petition is
closed.
PARTY: 1.A.Ochathevar 2.O.Mayalakshmi 3.S.Murugan 4.M.Thedaselvi : Petitioners Vs. 1.State rep.by The Sub Inspector of Police, All Women Police Station, Samayanallur, Madurai District. Crime No.20 of 2013. 2.M.Deepa : Respondents – CRL.R.C.(MD).No.705 of 2022 and CRL.M.P.(MD)No.8603 of 2022 – Delivered on : 11.10.2022 CORAM THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR.
https://www.mhc.tn.gov.in/judis/index.php/casestatus/viewpdf/849598
Further study on this subject
HIGH COURT CANNOT DIRECT THE INVESTIGATING AGENCY TO FORM AN OPINION ON FINAL REPRT:
Supreme court in Shariff Ahmed & ors vs. State (NCT OF DELHI)– CRIMINAL APPEAL No. OF 2009 – April 24, 2009 while discussing the question of law [“A very short point of is involved in this petition. The question is whether the court can direct that the Investigating agency has to focus on any particular offence and do the investigation accordingly”] has quoted its previous judgment State of Bihar and Anr. Vs. J.A.C.Saldanha and Ors. 1980 (1) SCC 554 Para 10 as follows:
“In the instant case the investigation is in progress. It is not necessary for us to comment on the tentative view of the investigating agency. It is the statutory duty of the investigating agency to fully investigate the matter and then submit a report to the concerned Magistrate. The Magistrate will thereafter proceed to pass appropriate order in accordance with law. It was not appropriate for the High Court in these circumstances to issue a direction that the case should not only be investigated, but a charge sheet must be submitted. In our view the High Court exceeded its jurisdiction in making this direction which deserves to be set aside. While it is open to the High Court, in appropriate cases, to give directions for prompt investigation etc., the High Court cannot direct the investigating agency to submit a report that is in accord with its views as that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency.”
And finally held that In view of what is stated in MC.Abraham’s case (supra) the order of High court is clearly unsustainable and is set aside.
FORMATION OF OPINION MUST BE BY THE I.O AND NONE ELSE:
There is no material difference regarding general powers of investigation by police as between the present Code and the corresponding provisions contained in Chapter XIV of the erstwhile Code of Criminal Procedure 1898. In HN. Rishbud and Inder Singh v. The State of Delhi, [1955) 1 SCR 1150 a three Judge Bench of this Court, after delineating the different steps in investigation as contemplated in the Code, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else [R.Sarla vs. T.S.Velu & Others – 2000 (3) SCR 1=2000 INSC 216 –R. Sarla vs. T.S.Velu].
