Madras High Court
Gopalakrishnan vs S.Anandeeswaran on 7 October, 2021
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 07.10.2021
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Crl.OP.Nos.12570/2014, 6684/2016, 1453/2018, 6413/2019 &
Crl.MP.Nos.3477,3478/2016 & 549,550/2018 & 3571/2019,4198/2019
& 7575/2019
[Video Conferencing]
Gopalakrishnan,
Head Constable, Presently working at
C-3, Saibaba Colony Police Station,
Coimbatore. ... Petitioner
in Crl.OP.No.6684/2016
Renuga Devi,
Sub-Inspector of Police,
District Crime Records Bureau,
Coimbatore. ... Petitioner
in Crl.OP.No.1453/2014
S.Anandeeswaran,
Son of Mr.Samudi,
Advocate, Door No.414, 4th Floor,
Sri Devar Compled, Avinashi Road,
Coimbatore – 641 018. ... Petitioner
in Crl.OP.No.6413/2019
1.Chinnaraj
2.Mohamed Ismail
3.Suji ... Petitioners
in Crl.OP.No.12570/2014
https://www.mhc.tn.gov.in/judis/
1
Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
Versus
S.Anandeeswaran,
Son of Mr.Samudi,
Advocate, Door No.414, 4th Floor,
Sri Devar Compled, Avinashi Road,
Coimbatore – 641 018. ... Respondent
in Crl.OP.Nos.12570/2014,
6684/2016, 1453/2018
1.Renugadevi
2.Gopalakirushnan
3.Chinnaraj
4.Mohanmathu Issmayil
5.Suji
6.Maruthapillai ... Respondents
in Crl.OP.No.6413/2019
Prayer of Crl.OP.No.6684/2016, 1453/2014: - Criminal Original
Petition filed under Section 482 of Cr.P.C., to call for the records in
S.C.No.22/2014 pending on the file of the Learned Chief Judicial
Magistrate, Coimbatore, quash the same.
Prayer of Crl.OP.No.6413/2019:- Criminal Original Petition filed
under Section 482 of Cr.P.C., to order transfer of the case pending before
the Chief Judicial Magistrate Court, Coimbatore in SC.No.22/2014, to be
tied along with CC.No.92/2017 and CC.No.91/2017 pending before the
Chief Judicial Magistrate, Tirupur and transfer the same.
Prayer of Crl.OP.No.12570/2014:- Criminal Original Petition filed
under Section 482 of Cr.P.C., to call for the records in PRC.No.14/2013
on the file of the Learned Chief Judicial Magistrate, Coimbatore and
quash the same.
For Petitioners in
Crl.OP.No.12570/2014 : Ms.V.S.Usharani
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Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
For Respondent in
Crl.OP.No.12570/2014 : Mr.V.Gopinath
Senior counsel assisted by
Mr.S.Suresh
For Petitioner in
Crl.OP.No.6684/2016 : Mr.Arun Anbumani
For Respondent in
Crl.OP.No.6684/2016 : Mr.V.Gopinath
Senior counsel assisted by
Mr.S.Suresh
For Petitioners in
Crl.OP.No.1453/2018 : Mr.M.Guru Prasad
For Respondent in
Crl.OP.No.1453/2018 : Mr.V.Gopinath
Senior counsel assisted by
Mr.M.Thamaraiselvan
For Petitioner in
Crl.OP.No.6413/2019 : Mr.V.Gopinath
Senior Counsel assisted by
Mr.S.Venkatesan
For R1 in Crl.OP.
No.6413/2019 : Mr.Arun Prasath
For RR 2 to 5 in
Crl.OP.No.6413/2019 : Ms.V.S.Usharani
For R6 in Crl.OP.
No.6413/2019 : Mr.M.Guru Prasad
COMMON ORDER
(1) Since the facts in all the four Criminal Original Petitions are
intricately connected and also emanate from the same
occurrence, a common order is passed.
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(2) Arguments were also advanced by the learned Senior
Counsel/counsels covering the same set of facts and points of
law necessitating a common order to be passed in all the four
petitions.
(3) Crl.OP.No.12570/2014 had been filed by A3, A4 and A5 in
PRC.No.14/2013 which was at that particular point of time, was
pending before the learned Chief Judicial Magistrate at
Coimbatore, seeking to quash PRC.No.14/2013.
(4) It must be stated that subsequently, the case had been committed
to the Court of Sessions and had been taken on file as
SC.No.22/2014. Seeking to quash the further proceedings in
SC.No.22/2014, A2 has filed Crl.OP.No.6684/2016. Seeking
the very same relief, A1, for good measure, has filed
Crl.OP.No.1453/2018.
(5) The parties have alleged inter-se commission of criminal
offences and therefore, the defacto complainant in
SC.N0.22/2014 had filed Crl.OP.No.6413/2019 seeking to
transfer SC.No.22/2014 from the file of the learned Chief
Judicial Magistrate, Coimbatore, to be tried along with two
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other Calendar Cases, which had emanated from police reports,
viz., CC.Nos.92/2017 and 91/2017, both of which are pending
before the learned Chief Judicial Magistrate at Tiruppur.
(6) An advocate by name S.Anandeeswaran who probably practices
in Coimbatore, had occasion to visit Thudiyalur Police Station
on 07.10.2011. He had gone over there owing to the fact that
one Parameswaran had been summoned for an enquiry. He
accompanied the said Parameswaran. At the Police Station,
words had been exchanged between the advocate and the police
officials which escalated to physical assault and this had led to
both of them filing of complaints against each other.
(7) On the basis of the complaint given by him, a FIR in Crime
No.1565/2011 had been registered on the very same
day/07.10.2011 under Sections 147, 148, 294-b, 341 and 307
IPC. He had named six specific police personnel and had also
stated that there were several others who were not in uniform but
were also involved in the commission of the offences alleged by
him.
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(8) The petitioner in Crl.OP.No.1453/2018 who was the Sub
Inspector of Police at the said Police Station, had also given a
complaint against the advocate Anandeeswaran. This was
registered as Crime No.1564/2011 again on 07.10.2011 and in
that particular FIR, the offences alleged were under Sections
294[b], 341, 354, 332 and 506[i] IPC and also under Section 4 of
the Tamil Nadu Prohibition of Harassment of Woman Act, 1998.
(9) Investigation proceeded with respect to the allegations in both
the FIRs and Final Reports were filed with respect to both the
crime numbers on 27.02.2012. The Final Report filed pursuant
to investigation in FIR in Crime No.1565/2011 was taken
cognizance as CC.No.115/2012 by the learned Chief Judicial
Magistrate, Coimbatore. There were only two named accused in
the Final Report. The other named police personnel were cited
as witnesses. The offences under which the accused were
charged, were under Sections 323, 324 and 326 IPC.
(10) The Final Report filed pursuant to investigation in FIR in
Crime No.1564/2011, had been taken cognizance by the learned
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Chief Judicial Magistrate, Coimbatore, as CC.No.114/2012 and
the accused therein was S.Anandeeswaran and the offences
charged were under Sections 332, 353 IPC and also under
Section 4 of the Tamil Nadu Prohibition of Harassment of
Woman Act, 1998.
(11) During the course of arguments, it had been informed that
subsequently, owing to transfer of the two Calendar Cases to the
learned Chief Judicial Magistrate, Tiruppur, by an earlier order
of this Court, CC.No.114/2012 had been transferred and
renumbered as CC.No.91/2017. I am informed that evidence
had been recorded in full and the matter is posted for judgment.
(12) CC.No.115/2012 had also been transferred to the learned Chief
Judicial Magistrate Court at Tiruppur, and was renumbered as
CC.No.92/2017. The trial has not yet commenced in the said
Calendar Case,
(13) In the meanwhile, owing to reasons which had been advanced
and justified during the course of arguments, Anandeeswaran
had also given a private complaint under Section 200 Cr.P.C.,
naming six accused which included the two accused who were
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arrayed in the Final Report on investigation in Crime
No.1565/2011 and also three other police personnel who were
actually cited as witnesses in the said Final Report and another
individual.
(14) The complainant alleged that the accused had committed
offences punishable under Sections 147, 148, 294-b, 342 and
307 IPC. He also sought compensation under Section 357
Cr.P.C., to be paid to him. That complaint was taken
cognizance as PRC.No.14/2013 and subsequently, committed to
the Court of the Chief Judicial Magistrate, Coimbatore, who had
taken it on file as SC.No.22/2014.
(15) Even before proceeding further with the facts of the case or
rather, the progress of the Calender/Sessions Cases, it must also
be stated that the matter had meandered around this Court on
various earlier occasions and also before a Division Bench of
this Court and there was a direction to change the investigation
agency. Various other directions had been given. Let me not
enter into a discussion on the same because they are all judicial
orders and I am sure that whatever directions had been given,
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had been complied with by those against whom such directions
had been issued.
(16) Necessity for preferring a private complaint under Section 200
Cr.P.C., is now being very seriously questioned and it is to shake
that particular foundation, the accused filed
Crl.OP.Nos.6684/2016, 1453/2018 quite apart from filing
Crl.OP.No.12570/2014.
(17) As stated, Crl.OP.No.12570/2014 had been filed at the earlier
stage, seeking to quash PRC.No.14/2013. Subsequently, the
case had been committed and taken on file as SC.No.22/2014.
(18) Heard arguments advanced by Mr.Arun Anbumani, learned
counsel appearing for the petitioner in Crl.OP.No.6684/2016 ;
Mr.M.Guruprasad, learned counsel appearing for the petitioner
in Crl.OP.No.1453/2018 and also Ms.V.S.Usha Rani, learned
counsel appearing for the petitioners in Crl.OP.No.12570/2014.
(19) It must also be mentioned that Crl.OP.No.12570/2014 had a
stuttered life. It was dismissed and it was restored. It was again
dismissed and today, by an order in Crl.MP.No.10308/2021, the
matter has been restored again.
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(20) Heard also arguments advanced by Mr.V.Gopinath, learned
Senior Counsel who appeared on behalf of the
respondent/defacto complainant in all the aforesaid Criminal
Original Petitions.
(21) The complainant had also filed Crl.OP.No.6413/2019 seeking
transfer of SC.No.22/2014 from the list of the Chief Judicial
Magistrate, Coimbatore, to the list of the Chief Judicial
Magistrate, Tiruppur, where, as stated, the other two Calendar
Cases, namely, CC.Nos.91/2017 and 92/2017 are pending as on
date.
(22) Mr.V.Gopinath, learned Senior Counsel while advancing
reasons/arguments regarding the necessity for filing a private
complaint under Section 200 Cr.P.C., in the teeth of a Final
Report being filed by the Investigating Officer with respect to
the allegations raised in the FIR in Crime No.1565/2011 stated
that though in the complaint, the respondent Anandeeswaran had
named several police officials as accused, in the Final Report,
only two persons have been shown as accused and a major
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charge under Section 307 IPC had been dropped and further, the
other named police officials had been cited as witnesses.
(23) The learned Senior Counsel wondered as to how that could
render justice to the defacto complainant particularly as named
accused persons are now invited by the prosecution to speak for
the complainant and against the originally named co-accused
persons. The learned Senior Counsel stated that the entire trial
proceedings would only be a mockery and it was this factor that
had necessitated the defacto complainant to move forward to file
a petition under Section 200 Cr.P.C., seeking the learned Chief
Judicial Magistrate, Coimbatore, to take on file, his complaint,
enquire into it for the offences alleged against the named
accused, who also included the three police officials whom he
had originally named in Crime No.1565/2011 and whom, after
investigation, had been cited as witnesses in CC.No.91/2017. In
the complaint, a further plea was made to also include section
307 IPC.
(24) Filing of that very complaint and taking cognizance of that
particular complaint, has been very seriously questioned by both
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Mr.Arun Anbumani, learned counsel and Mr.M.Guruprasad,
learned counsel, who pointed out that a police report had been
filed on the complaint given by the defacto complainant /
Anandeeswaran and investigation had been conducted. After
filing of Final Report, the procedure, as enunciated, would
naturally be to go forward with the trial proceedings.
(25) It is also the contention of the learned counsels that if a
particular offence under Section 307 IPC, had been dropped, it
would only indicate that in the considered opinion of the
Investigating Officer, such an offence had not occurred.
(26) It is the further contention of the learned counsels that if in the
opinion of the Investigating Officer, the named accused could be
more effectively used by the prosecution as witnesses to drive
home the charge against the other accused persons, then there
cannot be a presumption that those witnesses would speak
adverse to the case of the prosecution. It was pointed out that
the trial has not yet commenced in the said Calendar Case and
therefore, the stand taken by Mr.V.Gopinath, learned Senior
Counsel was very seriously disputed and it was stated that the
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witnesses must be permitted to adduce evidence and if during the
course of evidence, they state or rather, if any of the independent
witnesses state that further persons wereinvolved in the series of
events which took place on that eventful day, then the Trial
Judge can always invoke the provisions under Sections 319
Cr.P.C., and add those persons as accused after following due
procedure.
(27) It is therefore contended by the learned counsels that permission
must be granted to proceed further with the trial in
CC.No.92/2017 and witnesses must be given an opportunity to
speak the facts as they know it and as they had perceived it and
as they have seen it.
(28) On the other hand, Mr.V.Gopinath, learned Senior Counsel
stated that filing of the Final Report pursuant to investigation in
Crime No.1565/2011 was never brought to the knowledge of the
defacto complainant / Anandeeswaran and it is very emphatically
contended by the learned Senior Counsel that the said Final
Report had not been served on the defacto complainant and the
learned Senior Counsel took efforts to point out that service of
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that particular Final Report on the defacto complainant
particularly when named accused have been dropped from facing
trial and charges indicated in the FIR have also been dropped is
mandatory and the defacto complainant should be given an
opportunity to file a protest petition against such Final Report
and place his submissions / averments for further consideration
before the Court in the said Final Report was filed.
(29) The learned Senior Counsel stated that violation of that
particular statutory right of the defacto complainant, namely,
service of the Final Report, renders and has rendered the
proceedings unlawful and therefore, the defacto complainant was
forced to take recourse to the statutory right available to him as
provided under Section 200 Cr.P.C., and had lawfully exercised
such statutory right to prefer a complaint before the concerned
jurisdictional Court, namely, the Chief Judicial Magistrate Court
at Coimbatore.
(30) The issue which therefore, now arises for consideration is
whether preferring that complaint under Section 200 Cr.P.C., can
be upheld in law or should be interfered with by this Court.
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(31) The scheme as laid down in the Code of Criminal Procedure
when an informant goes to a Police Station to give an
information about the occurrence of an offence and its
subsequent progress had been laid down from Sections 154
onwards in the Code of Criminal Procedure.
(32) Even before entering into further discussion, it must be made
clear that an informant is different from a complainant. Though
it is a matter of language, an informant gives information to the
police about the occurrence of a particular offence which had
taken place. A complaint, on the other hand, has been
specifically defined under Section 2[d] of the Code of Criminal
Procedure, which reads thus:-
2(d)"complaint" means any allegation made
orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report.
Explanation.-A report made by a police
officer in a case which discloses, after investigation,
the commission of a non-cognizable offence shall be
deemed to be a complaint; and the police officer by
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whom such report is made shall be deemed to be the
complainant.
(33) Primarily a complaint would mean an allegation made to a
Magistrate seeking to take action with respect to an offence said
to have been committed by a known person or by an unknown
person. It does not include a police report.
(34) In 2015 [4] Law Weekly 443, a learned Single Judge of this
Court [M.M.SUNDRESH, J., as His Lordship then was] in
A.V.Bellarmin and Others Vs. V.Santhakumaran Nair and
Others, had an occasion to discuss about this particular
difference between an informant and a complainant. The words
cannot be used interchangeably, though of course, it is so used in
common parlance.
(35) On receipt of information of cognizable offence, an obligation is
placed on the concerned police official to record the same in the
General Diary and register a FIR. It has also been held by the
Court that there is no other alternative for the police official to
register a FIR. This has been emphasized in Lalithakumari Vs.
State of Uttar Pradesh reported in 2014 [2] SCC 1 wherein the
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Hon'ble Supreme Court had made it obligatory, in fact,
mandatory on the part of the police official to receive, in his
official capacity, information about the occurrence of a
cognizable and to register the same. Of course, exceptions had
also been given in the said judgment. But still, the duty of the
police officer to record the information has been reiterated and
emphasized by the Hon'ble Supreme Court.
(36) Section 154 Cr.P.C., prescribes the manner in which the said
information has to be recorded. Section 156 Cr.P.C., prescribes
the manner in which investigation into such a cognizable offence
has to be conducted. Section 157 Cr.P.C., provides that
investigation can be initiated either by information or otherwise.
After registration of such FIR and after conducting investigation
and following the procedure of recording the statements of
witnesses and collecting documents, finally, the Investigating
Officer is obliged to file a Final Report before the jurisdictional
Court.
(37) Section 172 Cr.P.C., makes it obligatory that a Diary should be
maintained with respect to the proceedings in investigation. The
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Report of the police officer on completion of investigation, has
to be filed under Section 173 Cr.P.C. Under Section 173[2]
Cr.P.C., the nature of the form of the Report has been stipulated.
(38) At this juncture, it must be kept in mind that a Court, on receipt
of a Final Report, takes cognizance of the offence and not of the
offenders.
(39) It has also been held in Neeharika Infrastructure Private
Limited Vs. State of Maharashtra and others reported in 2021
SCC Online 315 that the Court without examining the contents
of a Final Report or of the FIR, cannot embark on an enquiry as
to the reliability or genuineness or otherwise of the allegations
made in the FIR or in the complaint. It has also been pointed out
that the Final Report is, an opinion of the Investigating Officer,
to enable the learned Magistrate to take cognizance of the
offence as provided under Section 190 Cr.P.C.
(40) Under Section 173[2] Cr.P.C., it had been stipulated that the
Investigating Officer shall also communicate the action taken by
him to the person by whom the information relating to the
commission of the offence was first given. This would indicate
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that the informant must be informed about the nature of the Final
Report filed by the Investigating Officer.
(41) Under Section 173[8] Cr.P.C., if the Investigating Officer
obtains further evidence after filing the Final Report or obtains
further oral or documentary evidence, he can forward the same to
the jurisdictional Magistrate Court and file a further Report
recording such evidence, which had been collected in the form
prescribed under Section 173[2] Cr.P.C. This provision is
normally called 'further investigation' and has come up for
interpretation quite often. Questions have been raised as to
whether the informant can seek further investigation or whether
the Magistrate can seek further investigation or whether further
investigation should be precluded by an application by the
Investigating Officer. I am not called upon to enter into a
discussion upon that aspect.
(42) What has been seriously questioned is that in the Final Report
filed in the instant case, on the information given by
S.Anandeeswaran, not only some of the named accused had been
dropped but also the major offence under Section 307 IPC ahd
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been dropped. It is asserted again and again that a copy of the
Final Report had not been or was never served on the informant,
S.Anandeeswaran. Had such copy been given, it was pointed out
by Mr.V.Gopinath, learned Senior counsel, there was a
possibility that Anandeeswaran would have filed a petition
normally called a 'protest petition' and a judicial order could
have been passed by the learned Chief Judicial Magistrate on
such petition.
(43) The legality of filing a separate complaint under Section 200
Cr.P.C., has been very seriously questioned by the learned
counsels appearing for the petitioners in Crl.OP.Nos.6684/2016
and 1453/2018. They have stated that the complaint under
Section 200 Cr.P.C. cannot be maintained by the complainant
particularly because a Final Report had already been filed and it
is incumbent on him to proceed with the trial in the said
Calendar Case and as aforesaid, if during the course of evidence
it transpires that further persons are also culpable and they can
always be arrayed as accused under Section 319 Cr.P.C.
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(44) Maintainability of the complaint filed under Section 200 Cr.P.C.,
is the main thrust of arguments as advanced by Mr.Arun
Anbumani, learned counsel and Mr.M.Guruprasad, learned
counsel.
(45) Mr.V.Gopinath, learned Senior Counsel however contended that
the complaint was maintainable. He relied on a judgment of a
learned Single Judge of this Court reported in 2014 [3] MLJ
[Cri.] 337 [Senthil Kumar and Others V. N.Bharathi Mohan],
wherein, under more or less similar circumstances, a learned
Single Judge had held as follows:-
''16.The grievance of the defacto complainant
in the case on hand is that the second petitioner /
accused is guilty of offence under Section 307 and
his name should not have been deleted at the time
of filing the charge sheet in the Police case.
Further, it is the case that there are medical
evidence to prove the knife injuries on both sides of
neck and in this regard, witnesses have been
examined and the statements have been obtained.
Therefore, the decisions rendered in the case of
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Mokkaraj V. Pandiyammal reported in 2012 [6]
CTC 803, does not render any support to the case
of the petitioners.
17.As pointed out by Hon'ble Supreme Court
in the case of Manikandan V. Pandian reported in
1989 Supp [2] SCC 648, the private complaint
contained reasons as to why the respondent thought
fit to move the learned Magistrate. The grievance is
that though the ingredients of the offence of
Section 307 were fully present and the injuries
were recorded, the Police erroneously deleted the
name of the second petitioner and omitted the
offence of Section 307 by filing an alteration
report. Therefore, the learned Magistrate had
rightly entertained the private complaint.
18.As regards the case of double jeopardy, as
already observed that it is not a case of prior
conviction, which has occurred and in respect of the
same allegation, a second case has been given as a
private complaint. Further, the averments in the
private complaint and what prompted the
respondent to approach the Magistrate is a very
relevant factor of the case on hand. Therefore, the
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contention that it is a case of double jeopardy stands
rejected and there is no infringement of Article
20[2] of the Constitution of India.
19.The submissions of the learned counsel
appearing for the petitioner by referring to Section
210 Cr.P.C., also does not merit acceptance, as in
the present case, the private complaint was not filed
before the Magistrate, when the police was
conducting the investigation, but after the charge
was laid and only thereafter, the
respondent/complainant had a grievance, sine the
name of the 2nd petitioner was dropped and the
offence under Section 307 was deleted. Therefore,
when cognizance has already been taken on a police
report and subsequently, complaint is filed with a
different version together with medical evidence,
which were not subject matter of the Police Report,
then the provision of section 210 Cr.P.C., will not be
attracted.'' [Emphasis Supplied]
(46) It is contended by Mr.V.Gopinath, learned Senior counsel that
since the major offence under Section 307 IPC had been dropped
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in the Police Report, the complainant had every right to file a
complaint under Section 200 Cr.P.C.
(47) On the other hand, both Mr.Arun Anbumani and
Mr.M.Guruprasad, learned counsels also relied on precedents
and in this connection, they drew my attention to the judgment
reported in 2001 [6] SCC 181 [T.T.Antony and Others Vs. State
of Kerala and Others], wherein the Hon'ble Supreme Court has
held as follows:-
''27.A just balance between the fundamental
rights of the citizens under Articles 19 and 21 of the
Constitution and the expansive power of the police
to investigate a cognizable offence has to be struck
by the court. There cannot be any controversy that
sub-section (8) of Section 173 CrPC empowers the
police to make further investigation, obtain further
evidence (both oral and documentary) and forward
a further report or reports to the Magistrate.
In Ram Lal Narang V. State [Delhi Admin] [(1979)
2 SCC 322 : 1979 SCC (Cri) 479] it was, however,
observed that it would be appropriate to conduct
further investigation with the permission of the
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court. However, the sweeping power of investigation
does not warrant subjecting a citizen each time to
fresh investigation by the police in respect of the
same incident, giving rise to one or more cognizable
offences, consequent upon filing of successive FIRs
whether before or after filing the final report under
Section 173(2) CrPC. It would clearly be beyond the
purview of Sections 154 and 156 CrPC, nay, a case
of abuse of the statutory power of investigation in a
given case. In our view a case of fresh investigation
based on the second or successive FIRs, not being a
counter-case, filed in connection with the same or
connected cognizable offence alleged to have been
committed in the course of the same transaction and
in respect of which pursuant to the first FIR either
investigation is under way or final report under
Section 173(2) has been forwarded to the
Magistrate, may be a fit case for exercise of power
under Section 482 CrPC or under Articles 226/227
of the Constitution.''
(48) It had been the main thrust of the reasons of the Hon'ble
Supreme Court that multiplicity registrations of FIRs on the
same allegations should not be encouraged and rather, further
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investigation should be directed to be conducted on the Final
Report as filed by the Investigating Officer.
(49) Placing reliance on the ratio laid down, it is contended that the
complaint preferred by S.Anandeeswaran before the learned
Chief Judicial Magistrate, Coimbatore, should be interfered with
by this Court.
(50) One factor troubles me is that there has been no answer to the
statement made by Mr.V.Gopinath, learned Senior Counsel
across the Bar that a copy of the Final Report filed under Section
173[2] Cr.P.C., had not been served on the
informant/Anandeeswaran, particularly when a conscious
decision has been taken by the Investigating Officer to drop
several of the accused and not just that, but adding them as
witnesses and also dropping the major offence alleged under
Section 307 IPC.
(51) If that step of serving a copy of the Final Report had not been
taken by the Investigating Officer, then whether it would vitiate
taking of cognizance by the learned Magistrate or whether it
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would give a leverage to the informant to file a complaint under
Section 200 Cr.P.C., are allied questions to be answered.
(52) It had been often held that taking cognizance is a very serious
issue and the Hon'ble Supreme Court has also held that a
Magistrate should apply his mind, come to subjective
satisfaction and thereafter, take cognizance of the Final Report.
(53) The trail of judgments in this regard started with M/s.Pepsi
Food Limited and Another Vs. Special Judicial Magistrate and
Another reported in 1998 [5] SCC 749 and it had also been
referred again in 2015 [12] SCC 420 [Mehmood Ul Rehman v.
Khazir Mohammad Tunda and Others].
(54) Application of mind by a Magistrate is with respect to whether
summons should be served on the accused and whether
cognizable offences are made out necessitating summons to be
served on the accused. It should also be examined by the
Magistrate whether as against the accused individually, offences
as alleged, are made out.
(55) In the instant case, in the Final Report, there has been dropping
of the names of three of the accused/police personnel and
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alternatively, bringing them as witnesses to support the case of
the prosecution. Improbability of that stares at the face of the
Final Report. They were named as co-accused and it would be
highly impossible to expect that they would give evidence in
favour of the prosecution against their own co-accused. I know
that this is a typical defence statement. But still, reality of trial
proceedings forces me to state that particular fact.
(56) In view of the prevalent circumstances, I would give the
following directions:-
(a) The cognizance taken on the Final Report filed pursuant to
investigation in Crime No.1565/2011 by the learned Chief
Judicial Magistrate, Coimbatore, is set aside and the matter is
remanded back for fresh appreciation by the learned Chief
Judicial Magistrate, to examine whether notice had been served
on the informant as necessitated under Section 173[2][ii]
Cr.P.C.
i. If such notice had not been given, then the learned Chief
Judicial Magistrate, should revisit the procedures to be
adopted from that stage. If notice had indeed been
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served, then the Chief Judicial Magistrate, may proceed
further and take cognizance of the Final Report in
manner known to law.
ii. If notice had not been served, the learned Chief Judicial
Magistrate, Tiruppur, should ensure that such notice is
served on the informant Anandeeswaran and give him an
opportunity to file a petition and I leave it to the wisdom
of the informant Anandeeswaran to take up such
opportunity.
iii. If such an opportunity is taken by the informant
Anandeeswaran, then the matter can proceed further and
the learned Chief Judicial Magistrate, Tiruppur, may pass
further orders in accordance with the provisions of the
Code. If such an opportunity is not taken by the
informant, then the Chief Judicial Magistrate may move
forward by taking cognizance in manner known to law.
(57) Even in 2015 [12] SCC 420 [Mehmood Ul Rehman v. Khazir
Mohammad Tunda and Others], where the Hon'ble Supreme
Court had held that the cognizance taken by the Magistrate
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suffered for want of procedural application of mind, the Hon'ble
Supreme Court had only remanded the matter back to the learned
Magistrate for fresh application of mind on the Final Report.
Therefore, I am justified in calling upon the learned Chief
Judicial Magistrate, Tirppur, where CC.No.92/2017 is pending
and go through the steps as provided under Section 173 Cr.P.C.,
and thereafter, take cognizance.
(58) In view of the fact that a major offence under Section 307 IPC
and also the fact that three named accused have been shown as
witnesses for the prosecution, I hold that the
petitioner/Anandeeswaran is justified in lodging a complaint
before the learned Chief Judicial Magistrate, at Coimbatore,
pointing out the lacuna in the Final Report filed in FIR in Crime
No.1564/2011 and therefore, I hold that the complaint under
Section 200 Cr.P.C., is maintainable.
(59) Explanations have been given as to why the complainant had
approached the Court once again by way of Section 200 Cr.P.C.
In view of that fact, I would not interfere with further progress of
SC.No.22/2014.
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(60) The complainant has also filed Crl.OP.No.6413/2019 seeking to
transfer SC.No.22/2014 from the file of the learned Chief
Judicial Magistrate, Coimbatore, to the file of the learned Chief
Judicial Magistrate, Tiruppur, where the other two Calendar
Cases, viz., CC.Nos.91/2017 and 92/2017, are pending.
(61) It has been stated across the Bar that the matter had been
transferred from the file of the learned Chief Judicial Magistrate,
Coimbatore, to the file of the learned Chief Judicial Magistrate,
Tiruppur, by an earlier order of this Court. It would only
therefore be appropriate that such order is respected by me and
therefore, SC.No.22/2014 is also transferred from the file of the
learned Chief Judicial Magistrate, Coimbatore, to the file of the
learned Chief Judicial Magistrate, Tiruppur.
(62) Let the entire records be transferred and let the learned Chief
Judicial Magistrate, Tiruppur, take the records on file and
proceed in manner known to law.
(63) At that stage, the learned Chief Judicial Magistrate, Tiruppur,
would have two separate cases on record, one on a Police Report
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with respect to Crime No.1565/2011 in CC.No.92/2017 and the
other on a complaint under Section 200 Cr.P.C., which was
SC.No.22/2014 on the file of the Chief Judicial Magistrate,
Coimbatore.
(64) The procedure or trial to be adopted have been given in the Code
of Criminal Procedure and I am confident that the learned Chief
Judicial Magistrate, Tiruppur, would follow the proper procedure
as laid down by law and in manner known to law.
(65) With respect to CC.No.91/2017, which is now posted for
judgment, I direct the learned Chief Judicial Magistrate,
Tiruppur, to proceed further and deliver judgment on
appreciation of evidence already recorded.
(66) In the result,
[a] Crl.OP.Nos.12570/2014 ; 1453/2018 and 6684/2016 are
dismissed ; and
[b] Crl.OP.No.6413/2019 is allowed and SC.No.22/2014 is
directed to be transferred to the Court of the Chief Judicial
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Magistrate, Tiruppur, to be tried in manner known to law in
conjuction with CC.No.92/2017.
Consequently, connected miscellaneous petitions are closed.
07.10.2021
AP
Internet : Yes
To
1.The Chief Judicial Magistrate,
Coimbatore.
2.The Chief Judicial Magistrate
Tiruppur.
3.The Public Prosecutor
High Court, Madras.
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Crl.OP.Nos.6684/2016,1453/2018,6413/2019&12570/2014
C.V.KARTHIKEYAN, J.,
AP
Crl.OP.Nos.12570/2014, 6684/2016,
1453/2018,6413/2019&
07.10.2021
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