Madras High Court
G.Varadharajan vs The State on 10 March, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
CRL.O.P.No.360 of 2021
G.Varadharajan ...Petitioner
.Vs.
1.The State
Represented by Sub Inspector of Police,
District Crime Branch,
Salem.
2.The Deputy Superintendent of Police,
Crime Branch Crime Investigation
Department (CBCID),
Krishna Street,
Nedunchalai Nagar,
Salem 636 005.
3.The Director General of Police,
Crime Branch Crime Investigation
Department (CBCID),
SIDCO Electronics Complex,
Block No.3, 1st Floor,
Guindy Industrial Estate,
Chennai 600 032. ..respondents
PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure, to set aside the alteration report
dt.25.03.2018 filed by the 1st respondent police before the
https://www.mhc.tn.gov.in/judis/
2
Judicial Magistrate in Crime No.23 of 2017 and C.C.No.227/2018
and to consequently reopen and reinvestigate FIR No.23/2017
dt.06.12.2017.
For Petitioner : Mr.G.Murugendran
For Respondents : Mr.C.Raghavan
Government Advocate
ORDER
This Criminal Original Petition has been filed
challenging the alteration report filed by the respondent Police in
Crime No.23 of 2017.
2.The petitioner gave a complaint to the respondent
Police to the effect that he was cheated by the accused persons to
the tune of Rs.1 Crore. Based on the complaint, an FIR came to
be registered in Crime No.23 of 2017, against 8 accused persons
for an offence under Section 406, 420 and 120B IPC.
3.During the course of investigation, an alteration
report seems to have been filed by the respondent police by
dropping the name of
https://www.mhc.tn.gov.in/judis/ 7 accused persons. On completion of
investigation, a final report was filed only as against A-1. A-1
seems to have died and consequently the case itself was closed as
abated by the Judicial Magistrate No.VI, Salem by an order
dt.23.01.2019.
4.The petitioner came to know about this
development only subsequently and the present petition has been
filed before this Court, challenging the alteration report which
formed part of the final report filed by the 2nd respondent police.
5.Heard Mr.G.Murugendran, learned counsel for
petitioner and Mr.C.Raghavan, learned Government Advocate,
appearing on behalf of respondents.
6.A status report has been filed by the 1st respondent.
The relevant portions in the status report are extracted hereunder:
“5.It is submitted that during the course of
investigation, on 06.12.2017, the Sub Inspector of Police
arrested A-1 and recorded his confession statement in the
presence of witnesses. Later, he produced before the
learned Judicial Magistrate, Omalur and sent to remand for
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judicial custody.
6.It is submitted that during the course of
investigation, the accused persons A-2 to A-7 filed
anticipatory bail petition before the Hon'ble High Court,
Madras vide Crl.OP.No.29227 of 2017 and the same was
granted on 14.02.2018.
7.It is submitted that based on the confession
statement of A-1, witnesses statements and material
evidence, the accused persons A-2 to A-8 were deleted form
this case on 25.03.2018 and on the same day a copy was
served and intimated to the defacto complainant.
8.It is submitted that after completion of
elaborate and detailed investigation, based on the statements
of witnesses and material evidences, on 15.05.2018, the then
Sub Inspector of Police altered the section into 406, 420 IPC
and filed charge sheet against A-1 before the Judicial
Magistrate Court, Omalur and the same was taken on file vide
C.C.No.227 of 2018, dated 13.12.2018.
9.It is submitted that during the course of trial
period, A-1 died on 06.12.2018 due to road accident, the
charge was abetted on 23.01.2019”.
7.The de facto complainant comes into picture only at
the time when the final report is filed before the concerned Court
and notice is issued to the de facto complainant. Till then,
except recording the statement of the de facto complainant under
Section 161 of Cr.P.C., there is no occasion for the defacto
complainant to know about the progress in the investigation.
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Therefore, obviously the defacto complainant could not have
questioned the alteration report that was filed during the course
of investigation. The FIR was registered against 8 accused
persons and the final report was filed only as against A-1 and the
names of the other accused persons have been dropped.
8.The moment a final report is filed by dropping the
names of some of the accused persons, a notice has to be issued
to the de facto complainant and the de facto complainant must be
given an opportunity to file a protest petition. The law on this
issue is well settled. Useful reference can be made to the
judgment of this Court in C.Ve.Shanmugam Vs. The Deputy
Superintendent of Police, Tindivanam Sub-division, Rosanai Police
Station, Tindivanam, Villupuram District and others] reported in
(2010) 2 MLJ Crl 833.
9.In the present case, the Court below ought to have
taken cognizance of the final report only after ensuring that the
notice is served on the de facto complainant and the de facto
complainant is given a chance to file a protest petition for
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dropping the names of the remaining 7 accused persons.
Admittedly, this mandatory procedure has not been followed by
the Court below. The final report was taken cognizance by the
Court below only as against A-1 and A-1 died as a result of the
same, the proceedings abated.
10.In view of the above discussion, the cognizance
taken by the Court below in C.C.No.227 of 2018, Judicial
Magistrate No.VI, Salem, is hereby set aside. Since A-1 has died,
the charges against him stands abated. The petitioner is
permitted to file a protest petition before the Court below
questioning the dropping of the names of the remaining 7 accused
persons. The Court below shall entertain the protest petition and
consider the same strictly in accordance with law, after taking into
consideration the materials collected by the respondent police in
the course of investigation. Orders shall be passed in the protest
petition within a period of six weeks from the date of filing of the
protest petition.
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11.This criminal original petition is accordingly allowed
with the above directions.
10.03.2021
Index : Yes/No
Internet: Yes/No
KP
To
1.The Sub Inspector of Police,
District Crime Branch, Salem.
2.The Deputy Superintendent of Police,
Crime Branch Crime Investigation
Department (CBCID),
Krishna Street, Nedunchalai Nagar,
Salem 636 005.
3.The Director General of Police,
Crime Branch Crime Investigation
Department (CBCID),
SIDCO Electronics Complex,
Block No.3, 1st Floor,
Guindy Industrial Estate,
Chennai 600 032.
4. Judicial Magistrate No.VI, Salem.
5.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis/
N.ANAND VENKATESH.J.,
KP
CRL.O.P.No.360 of 2021
10.03.2021
https://www.mhc.tn.gov.in/judis/
