Dismissed

L.Srinivasan v. the Inspector of Police

Madras HC13 Sept 2013CRL OP/22035/2013

Case brief

AI extract

What is this about?

The court dismissed a criminal miscellaneous petition challenging an order permitting further investigation under Section 173(8) Cr.P.C. held that new information revealed by a witness during court examination justified reopening the case despite prior closure.

What did the court decide?

The Criminal Miscellaneous Petition was dismissed; connected miscellaneous petitions were closed.

L.Srinivasan Vs the Inspector of Police — Civil Procedure and Limitation | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 13.09.2013

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CORAM:

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THE HON'BLE MR.JUSTICE P.DEVADASS

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Crl.O.P.No.22035 of 2013

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and M.P.Nos.1 and 2 of 2013 L.Srinivasan ... Petitioner/A6 Vs

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State rep by The Inspector of Police, E-2, Thirukkazhukundram Police Station, Kancheepuram District. (Crime No.96 of 2008) ... Respondent/Complainant

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Prayer: Petition filed under Section 482 of the Criminal Procedure Code to set aside the order dated 8.7.2013 passed in CMP No.2312 of 2013 in C.C.No.113 of 2012 on the file of the learned District Munsif cum Judicial Magistrate, Thirukazhukundram.

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For Petitioner : Mr.Kumar Talrejaa & Mr.T.R.Sivaram

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For Respondent : Mr.C.Emalias, Addl. Public Prosecutor

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ORDER

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The petitioner, who is A-6 in C.C.No.113 of 2012 on the file of the learned Judicial Magistrate, Thirukkazhukundram, seeks to set aside the order of the learned Judicial Magistrate passed under Section 173(8) Cr.P.C in CMP No.2312 of 2013 on 8.7.2013.

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2.In Kancheepuram District, in Nerumbur, there is Arulmigu Neelamanicka Perumal Temple. In it, there were many idols. One Ravi is its Battachariyar. Selvakumar a priest in the nearby temple used to visit the said Perumal temple.

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3.On 11.3.2008, doors of the temple were found broken. Six idols were found missing. Maraimalai, the temple 'Fit person', complained to Thirukkazhukundram Police Station. A case in Crime No.96 of 2008 for offences under Sections 457 and 380 IPC was https://hcservices.ecourts.gov.in/hcservices/ registered by the said police.

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4.On 26.4.2011, near the Red Hills Bus-stop, a Government Jeep was searched by Idol Theft Wing Police. Joseph, Govindaraj and Srinivasan (petitioner) were nabbed. Certain idols parcelled in a gunny bag were also recovered from the Jeep. Among them, some of the idols stolen from Neelamanicka Perumal Temple were also found. Police registered a case in Crime No.2 of 2011 under Section 41(d) r/w Section 102 Cr.P.C. Priest Selvakumar identified them as idols of Neelamanicka Perumal temple.

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5.Petitioner filed Crl.O.P.No.29038 of 2011 seeking expeditious investigation in Crime No.2 of 2011. This Court directed the Idol Theft Prevention Wing to complete the investigation within two months. In the meanwhile, in Crime No.96 of 2008, investigation was completed and final report was filed. The learned Magistrate took cognizance in C.C.No.113 of 2012 for offences under Section 457 and 380 IPC as against A-1 to A-3, while under Section 414 IPC as against A-4 to A-6. Among them, petitioner is A-6.

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6.On 30.5.2013, priest Selvakumar was examined as P.W.2 in the said Court. When accused persons (including A-6) were present, the priest shown three accused and told that 2 or 3 days prior to the occurrence, they have enquired him about the temple, he replied them that the temple belongs to Pallava period, thereafter, on enquiry by the Assistant Public Prosecutor they were turned out to be Joseph, Govindraj and Srinivasan (petitioner).

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7.In the circumstances, the Investigating Officer filed petition in Crl.M.P.No.2312 of 2013 under Section 173(8) Cr.P.C seeking permission to make further investigation since from the said evidence of P.W.2, some new information as to the offence had come to light and it becomes necessary to enquire the accused persons as to why they came to that place and why enquired about the temple and their connections.

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8.On 8.7.2013, the learned Magistrate passed the impugned order, permitting the Investigating Officer to undertake further investigation and file his report within a month.

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9.Aggrieved, as against the said order, as stated at the outset, A-6 wants to set it aside.

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10.According to the learned counsel for the petitioner, there was no reference about A-6 in the FIR. The statement of P.W.2 has been recorded by the Investigating Officer twice. Never P.W.2 had stated to the Investigating Officer that the petitioner and others so visited the temple and enquired him about the temple. The learned counsel contended that under the guise of making further investigation, prosecution cannot put up altogether a new case. In this respect, the learned counsel cited an unreported decision of the Patna High Court in Criminal M.P.No.14598 of 2009, dated 20.12.2011 [ARUN KUMAR VS. STATE OF BIHAR AND OTHERS] and a https://hcservices.ecourts.gov.in/hcservices/ decision of the Hon'ble Apex Court in KISHAN LAL VS. DHARMENDRA

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BAFNA AND ANOTHER [2009 (3) SCC (Cri) 611].

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11.The learned counsel further contended that the FIR was registered on 11.3.2008, however, after several years, on 31.5.2013, the Investigating Officer has filed the petition under Section 173(8) Cr.P.C. Further, before ordering further investigation, the learned Magistrate must pinpoint the points which are required to be probed further. However, in this case it has not been done. Therefore, the impugned order of the learned Magistrate is flawed.

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12.On the other hand, the learned Additional Public Prosecutor submitted that the information furnished by P.W.2 was known to the Investigating Officer for the first time only on 30.5.2013. It had vital clue with regard to the commission of the crime, which the Investigating Officer has to verify and also gather additional evidence, if any.

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13.The learned Additional Public Prosecutor also submitted that only part of the idols were seized and further idols are required to be seized. In this connection, based on the new information received, the Investigating Officer has to necessarily verify those aspects. Thus, it has become necessary to probe the case further. In such circumstances, question of delay will not arise.

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I have considered the rival submissions, perused the materials on record and also the decisions cited.

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15.Commission of a cognizable offence when reported results in registration of FIR under Section 154 Cr.P.C., thereafter, it is the duty of the Investigating Officer to investigate the crime reported [See : Section 2(h), 156 (1) and 157 Cr.P.C.], namely, collect evidence, recover the case properties, trace the culprits and bring them to justice. Finally, he has to report to the Court the result of his investigation [See : Sections 2(r) and 173(2) Cr.P.C.].

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16.It is not that thereafter whatever might be the reason, the closed investigation cannot be further investigated. Under certain circumstances, after filing the 'police report', the Investigating Officer may come across certain new information, having bearing on the crime reported. Such new information has to be verified. It could be done only by undertaking further investigation. That is how, to meet such a situation, Section 173 (8) Cr.P.C has been inserted in the 1973 (New) Code. After making such further investigation, if need be the Investigating Officer may submit his supplemental report to the Court. It will also be a police report under Section 173 Cr.P.C.

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17.In this Country, right from the Privy Council decision https://hcservices.ecourts.gov.in/hcservices/ [EMPEROR VS. KHWAJA NAZIR AHMAD (AIR 1945 PC 18)] upto the latest

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Hon'ble Apex Court decisions, the settled proposition of law is that process of investigation is the province of police, police has unrestricted right to investigate and their such statutory right [duty] cannot be scuttled. The Patna decision and the Hon'ble Apex Court decision cited by the learned counsel for the petitioner also restates the above position of law.

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18.In the Patna decision, it has been stated that when the Investigating Officer finds some new material in respect of the case, then it is his duty to further investigate the case.

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19.In KISHAN LAL [2009 (3) SCC (Cri) 611] (supra), the Hon'ble Apex Court pointed out that the learned Magistrate passing direction for further investigation under Section 173(8) Cr.P.C., must pinpoint the grey areas in the investigation so far conducted and the points which are to be further probed and the court cannot pass a vague order.

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20.Now, keeping the above principles in our mind, let us see the case before us.

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21.The present case is an idol theft case. The price of idols depends on their antiquity. Certain Idols were found missing from the Perumal temple in Nerumbur. FIR was lodged on 11.3.2008. Then the perpetrators of the loot were not known. Thus, FIR did not name any person. On 30.5.2013 when priest Selvakumar (P.W.2) deposed in the Court, he had the chance to see three accused and one of them is the petitioner (A-6), a Joint Director in the State Small Savings Department, in such circumstances he had pointed out to the prosecutor that they came to the place 2 or 3 days prior to the missing of idols and enquired about the temple. It is pertinent to note that before that P.W.2 had no occasion to mention about them. It is also pertinent to note that after the occurrence and before 30.5.2013, it is not the case of the prosecution that P.W.2 had seen them. That is how, either in his first statement or in his statement recorded under Section 161 Cr.P.C., the priest had not stated about what he had stated when he was examined in the Court on 30.5.2013.

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22.Thus, on 30.5.2013, for the first time, a new information which has bearing on the commission of the crime came to light. Necessarily, the Investigating Officer must pursue the clue and unravel it. It is to be noted that by that time the investigation was over, final report also has been filed, the learned Magistrate has taken cognizance and the case is also pending. To meet this contingency, namely, to probe the new information, provision under Section 173(8) Cr.P.C has been made in the Code of Criminal Procedure. These aspects were noted by the learned Magistrate in his impugned order. Thus, the learned Magistrate gave green signal to the Investigating Officer to go ahead. https://hcservices.ecourts.gov.in/hcservices/

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23.In the facts and circumstances, it will not be setting up of a new case. In the light of the said new information, it is sheer pursuing of further probe. In such circumstances, question of delay will not arise.

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24.Real occurrence and the offenders have to be brought to justice and they must be dealt with accordingly and justice be rendered. This is the aim of the prosecution, court and everybody. That is the hallmark of administration of criminal justice. For doing so, the required evidence must be gathered by the Investigating Officer as provided under law.

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25.In this connection, it is relevant here to note the legislative history behind the introduction of Section 173(8), Cr.P.C. in the New Code.

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26.During pre-constitutional era, under the Old Code of Criminal Procedure, 1898, now, a relic of the past of the British regime, there was an obnoxious practice of police filing statements on instalment basis in the court, consequently, the investigation was deemed to be pending, as a result, accused persons languished in jails endlessly, thus, the prisons were flooded with them, there was continued violation of human rights of arrested persons, inspite of the hue and cry of activists and the comments of the Law Commission.

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27.The post-constitutional era [See Article 21, Constitution of India] increased the voice of protest against this curtailment of personal freedom and individual liberty and it was felt that this human right violation must end, at the same time, right of the State to prosecute the offenders and gather evidence (investigate) as against them to establish the crimes committed has also been pondered over and striking a balance between the (human) right of the accused persons and the right (duty) of the Police to investigate at any time on getting further credible information as to the crime committed, in the New Code of Criminal Procedure, 1973, Section 167 Cr.P.C has been suitably amended to grant default / statutory / indefeasible bail in case the investigation is not completed within 60 days or 90 days, as prescribed and at the same time, clause (8) has been added to Section 173 enabling the police to make further investigation when they come across new information / materials, even after closure of the investigation in view of the said safety valve introduced in Section 167 Cr.P.C to protect individual liberty, which has been guaranteed to the masses by a Republican Constitution.

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28.Thus, the order of the learned Judicial Magistrate, dated 8.7.2013 passed in C.M.P.No.2312 of 2013 in C.C.No.113 of 2012 permitting further investigation under Section 173(8) Cr.P.C cannot be faulted.

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https://hcservices.ecourts.gov.in/hcservices/ 29.In view of the foregoings, this Crl.O.P. fails and it is

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dismissed. Consequently, connected miscellaneous petitions are closed.

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Sd/ Asst.Registrar

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/true copy/
Sub Asst.Registrar
vvk
To
1.The District Munsif-cum-
Judicial Magistrate,
Thirukazhukundram.
2.The Chief Judicial Magistrate,
Chengalpet.
3.The Inspector of Police,
E-2, Thirukkazhukundram Police Station,
Kancheepuram District.
4.The Public Prosecutor,
High Court, Madras.
+1cc toMr.Kumar talrejaa,Advocate sr no.48796.
Crl.O.P.No.22035 of 2013
rj(co)
rd1/10.

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https://hcservices.ecourts.gov.in/hcservices/

L.Srinivasan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

L.Srinivasan v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

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