Crl.O.P.No.

15152 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22.06.2022

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

Crl.O.P.No.15152 of 2020
and
Crl.M.P.No.5760 of 2020

State Represented by
The Inspector of Police,
E-2 Royapettah Police Station,
Chennai – 600 014. ... Petitioner
Vs.

1.S.Immanuel Devakadatcham,
Presbyter-in-Charge,
CSI Zion Church,
No.4, AM Arunachalam Street,
Chintadripet,
Chennai-600 002.

2. Samuel Aarun,
Sexton, St.George's Cathedral Church,
224, Cathedral Road,
Chennai-600 086.

3. Shiva,
Staff, St.George's Cathedral Church,
224, Cathedral Road,
Chennai-600 086.

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 Crl.O.P.No.15152 of 2020

4. John Mathew

5. Kovil Pitchai

6. Linora James

7. Samuel Devaprasad

8. Stella Alfred ... Respondents

Prayer: Criminal Original Petition filed under Section 482 of Criminal

Procedure Code, to set aside the order dated 7.2.2020 made in

Crl.M.P.No.3705 of 2019 in C.C.No.463 of 2015 on the file of the XVIII

Metropolitan Magistrate Court, Saidapet, Chennai and order

reinvestigation/further investigation in C.C.No.463 of 2015 on the file of

the said Court in Crime No.515 of 2014 on the file of E-2 Royapettah

Police Station, Chennai by a Superior Officer of the rank of Assistant

Commissioner of Police.

For Petitioner : Mr.A.Gopinath

Govt.Advocate (Crl.Side)

For R1, R2, R6, R7 : Mr.V.Raghavachari

For R3, R4, R5, R8 : Mr.R.C.Paul Kanagaraj

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 Crl.O.P.No.15152 of 2020

ORDER

This petition has been filed to set aside the order dated

07.02.2020 made in Crl.M.P.No.3705 of 2019 in C.C.No.463 of 2015 on

the file of the XVIII Metropolitan Magistrate Court, Saidapet, Chennai,

whereby dismissed the petition filed under Section 173(8) of Cr.P.C to

permit the Investigation Officer to conduct further investigation in Crime

No.515 of 2014.

2. The defacto complainant lodged complaint and on receipt

of the same, the petitioner registered FIR in Crime No.515 of 2014 for

the offences punishable under Sections 147, 451, 380 and 506(i) of IPC

as against the accused persons. After completion of investigation in

Crime No.515 of 2014, the petitioner filed final report and the same has

been taken cognizance in C.C.No.463 of 2015 on the file of the XVIII

Metropolitan Magistrate Court, Saidapet, Chennai. When the matter was

pending for Trial, the defacto complainant gave a representation to the

Assistant Commissioner of Police, Royapettah, stating that certain

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 Crl.O.P.No.15152 of 2020

documents have been stolen by the accused from the Trust Office and

requested for further investigation. While the said request was under

consideration, the defacto complainant approached this Court for further

investigation in Crl.O.P.No.3052 of 2016. This Court dismissed the

petition as infructuous and observed that it is open to the Investigation

Officer to approach the learned Magistrate Court by filing an appropriate

application under Section 173(8) Cr.P.C, seeking permission for further

investigation. Therefore, the petitioner is being the Investigation Officer

filed a petition under Section 173(8) Cr.P.C, seeking permission for

further investigation. The Trial Court dismissed the petition for seeking

further investigation and aggrieved by the same, the present petition is

filed.

3. The learned Government Advocate (Crl.Side) submitted

that the Investigation Officer can lay all the fresh evidence which is even

available after filing the final report to substantiate the charge made

against the accused persons. At any time in the course of Trial, when

further evidence is available, the investigation agency should be afforded

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 Crl.O.P.No.15152 of 2020

an opportunity to unearth the same and place it before the Trial Court.

The details of the documents which were stolen and the names of the key

witnesses not examined by the Investigation Officer have already

furnished by the defacto complainant by his representation to the Deputy

Commissioner of Police and also the Assistant Commissioner of Police

which cannot be revealed to the accused as it will tamper the evidence

and hamper the investigation. He also pointed out that when the defacto

complainant filed petition seeking further investigation in which this

Court held that, it is clear that as per Section 173(8) Cr.P.C, further

investigation can be ordered only on the request of the Investigation

Officer. Further, the investigation cannot be asked by the defacto

complainant. But in that case, admittedly, the defacto complainant has

not filed any application before the Magistrate Court to give direction to

the Investigation Officer for further investigation. However, this Court

had given liberty to the Investigation Officer to approach the Trial Court

seeking permission for investigation under Section 173(8) Cr.P.C.

Accordingly, the Investigation Officer rightly approached the Trial Court

and however, the Trial Court without considering the above aspect,

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 Crl.O.P.No.15152 of 2020

dismissed the petition for the reason that the Investigation Officer

represented before this Court in Crl.O.P.No.3052 of 2016, that basis on

the complaint given by the defacto complainant, a case has been

registered in Crime No.515 of 2014 and thereafter they had completed

the investigation and filed final report and the same has been taken

cognizance in C.C.No.463 of 2015 and as such there is no necessity to

conduct further investigation.

4. That apart, the Investigation Officer failed to state about

any new facts about the documents said to have been stolen by the

accused persons and the prosecution failed to furnish any details about

the documents as stated in the final report. In support of his contentions

he relied upon the Judgment of the Hon'ble Supreme Court of India in

2004 5 SCC 347 in the case of “Hasanbhai Valibhai Quershi Vs. State

of Gujarat and others”, wherein held as follows,

“The police should inform the Court and seek

formal permission to make further investigation when
fresh facts come to light instead of being silent over
the matter keeping in view only the need for an early
trial since an effective trial for real or actual offences
found during course of proper investigation is as

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 Crl.O.P.No.15152 of 2020

much relevant, desirable and necessary as an

expeditious disposal of the matter by the courts. In
view of the aforesaid position in law, if there is
necessity for further investigation, the same can
certainly be done as prescribed by law. The mere fact
that there may be further delay in concluding the trial
should not stand in the way of further investigation if
that would help the court in arriving at the truth and
do real and substantial as well as effective justice.”

5. Thus, the provisions under Section 173(8) Cr.P.C confers

power upon the officer in charge of the police to further investigate and

submit evidence, oral or documentary, after forwarding the report under

sub-section (2) of Section 173 Cr.P.C. Therefore, it is always open for

the Investigation Officer to apply for further investigation, even after

forwarding the report under sub-section(2) of Section 173 Cr.P.C and

even after the discharge of the accused. However, it shall be at the

instance of the Investigation Officer in charge and the Magistrate has no

jurisdiction to suo motu pass an order for further investigation after he

discharges the accused.

6. The learned Government Advocate (Crl.Side) relied upon

the Judgment reported by the Hon'ble Supreme Court of India in 1979

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 Crl.O.P.No.15152 of 2020

(2) SCC 322 in the case of “Ram lal Narang Vs. State (Delhi

Administration)” and “Om Prakash Narang and another Vs.State

(Delhi Administration)”, wherein held as follows

“21. As observed by us earlier, there was no

provision in the Code of Criminal Procedure, 1898
which, expressly or by necessary implication, barred
the right of the police to further investigate after
cognizance of the case had been taken by the
Magistrate. Neither Section 173 nor Section 190
lead us to hold that the power of the police to further
investigate was exhausted by the Magistrate taking
cognizance of the offence. Practice, convenience and
preponderance of authority, permitted repeated
investigations on discovery of fresh facts. In our
view, notwithstanding that a Magistrate had taken
cognizance of the offence upon a police report
submitted under Section 173 of the 1898 Code, the
right of the police to further investigate was not
exhausted and the police could exercise such right
as often as necessary when fresh information came
to light. Where the police desired to make a further
investigation, the police could express their regard
and respect for the Court by seeking its formal
permission to make further investigation.”

7. He also relied upon the Judgment of the Hon'ble Full Bench

of this Court in Crl.A.No.663 of 2016 in the case of “ Chinnathambi @

Subramani Vs. State Rep. By the Inspector of Police, Vellakovil Police

Station, Tirupur District. [Crime No.555 of 2005]”.

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 Crl.O.P.No.15152 of 2020

“40. Section 173(8) Cr.P.C., empowers

the Police to further investigate. Though the said
provision does not explicitly say that the
Investigating Officer should get prior permission
from the jurisdictional Magistrate before whom
earlier a report was submitted by him, the Courts
have held the view that in order to maintain
procedural propriety, the Investigating Officer is
required to seek a formal permission from the
Court to do further investigation if the conditions
of Section 173(8) Cr.P.C., are satisfied. This
power of the learned Magistrate under Section
173(8) Cr.P.C., is not a power to review, revise,
vary or cancel the earlier judicial order passed
by the learned Magistrate accepting the final
report under Section 173 (2) Cr.P.C.
Notwithstanding the fact whether the order of the
learned Magistrate is either a judicial order or a
mere ministerial order, the power of the learned
Magistrate under Section 173(8) Cr.P.C., is an
independent judicial power to grant permission
because, statutorily the Investigating Officer has
been empowered to do further investigation
provided the conditions of the said provisions are
satisfied.”

8. The learned counsel for the respondents submitted that

further investigation is not an automatic. If any material is available on

record, then the Investigation Officer can go for further investigation.

Whereas, in the case on hand there is absolutely no new material

available to order further investigation. In fact, the Investigation Officer

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 Crl.O.P.No.15152 of 2020

himself reported before this Court in Crl.O.P.No.3052 of 2016 filed by

the defacto complainant for further investigation that there is no

necessity to conduct further investigation, since already the investigation

officer completed the investigation and filed final report and the same

has been taken cognizance in C.C.No.463 of 2015 on the file of the

XVIII Metropolitan Magistrate Court, Saidapet, Chennai. The

Investigation Officer now seeking further investigation only on the

ground that the defacto complainant made representation before the

Assistant Commissioner of Police, alleging that some of the documents

have been stolen by the accused. Even till today, no details were

furnished about what are all the documents have been stolen by the

accused. On mere allegation the Investigation Officer cannot seek further

investigation, without any material to substantiate the allegation. The

defacto complainant or the Investigation Officer even till now failed to

produce any new facts about the documents said to have been stolen by

the accused and failed to furnish any details about the documents as

stated in the final report. Therefore, the Court below rightly rejected the

request made by the petitioner for further investigation.

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 Crl.O.P.No.15152 of 2020

9. Heard Mr.A.Gopinath, learned Govt.Advocate (Crl.Side)

appearing for the petitioner, Mr.V.Raghavachari, learned counsel

appearing for the respondents 1, 2, 6 and 7 and Mr.R.C.Paul Kanagaraj,

learned counsel appearing for the respondents 3, 4, 5 and 8.

10. The Investigation Officer/Petitioner herein filed a petition

seeking permission for further investigation under Section 173(8) Cr.P.C

in Crime No.515 of 2014, registered against the respondents herein for

the offences under Sections 147, 451 and 506(i) of IPC by deleting the

offence under Section 380 of IPC. However, while pending the Trial, the

defacto complainant submitted representation and alleged that some of

the documents of the Trust were stolen by the accused persons and in

that regard, the defacto complainant seeks further investigation. Though,

the petition filed by the defacto complainant was rejected by this Court

in Crl.O.P.No.3052 of 2016, by an order dated 20.08.2018, this Court

had given liberty to the Investigation Officer to approach the Trial Court

for further investigation by filing an application under Section 173(8) of

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 Crl.O.P.No.15152 of 2020

Cr.P.C. Accordingly, the Investigation Officer filed a petition seeking

permission for further investigation. However, the Trial Court rejected

the said request for the reason that there is no new facts or material

available for further investigation. It is relevant to extract the provision

under Section 173(8) of Cr.P.C as herein under,

“173(8) Nothing in this section shall be

deemed to preclude further investigation in respect
of an offence after a report under sub-section (2)
has been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of the
police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence in
the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply in
relation to such report or reports as they apply in
relation to a report forwarded under sub-section
(2).”

11. A mere reading of the above provision makes it clear that

irrespective of the report under Sub-section (2) forwarded to the

Magistrate, if the Investigation Officer obtains further evidence, it is

incumbent on his part to forward the same to the Magistrate with a

further report with regard to such evidence in the form prescribed. Thus,

it is clear that further investigation is permissible. That apart, law does

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not mandate taking prior permission from the Magistrate for further

investigation. Even after filing of the charge-sheet, further investigation

is a statutory right of the Investigation Officer.

12. The Hon'ble Supreme Court of India held in 1979 (2) SCC

322 in the case of “Ram lal Narang Vs. State (Delhi Administration)”

and “Om Prakash Narang and another Vs.State (Delhi

Administration)” that there was no provision in the Code of Criminal

Procedure, 1898 which, expressly or by necessary implication, barred the

right of the police to further investigate after cognizance of the case had

been taken by the Magistrate. Neither Section 173 nor Section 190 lead

us to hold that the power of the police to further investigate was

exhausted by the Magistrate taking cognizance of the offence, where the

police decide to make further investigation, the police can express their

regard and respect for the Court by seeking its formal permission to make

further investigation. Thus, it is clear that the investigation agency can do

further investigation by seeking its formal permission from the Trial

Court, since already the investigation officer filed final report under

Section 173(8) Cr.P.C.

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13. The Hon'ble Full Bench of this Court also held in

Crl.A.No.663 of 2016 in the case of “ Chinnathambi @ Subramani Vs.

State Rep. By the Inspector of Police, Vellakovil Police Station,

Tirupur District. [Crime No.555 of 2005]”, in order to maintain

procedural propriety, the Investigation Officer is required to seek a

formal permission from the Court to do further investigation if the

conditions of Section 173(8) Cr.P.C., are satisfied. Further held that the

learned Magistrate under Section 173(8) Cr.P.C., has no power to review,

revise, vary or cancel the earlier judicial order passed by the learned

Magistrate accepting the final report under Section 173 (2) Cr.P.C.

14. Thus, it is a settled law that carrying out further

investigation even after filing of the charge-sheet is a statutory right of

the police. The material collected in further investigation cannot be

rejected only because it has been filed at the stage of Trial.

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 Crl.O.P.No.15152 of 2020

15. Insofar as the objections of the accused is concerned, the

Hon'ble Supreme Court of India held in Crl.A.No.353 of 2020 in the case

of “Sathishkumar Nyalchand Shah Vs. State of Gujarat and others”,

that the accused has no locus or any say in the application filed by the

Investigation Officer for further investigation under Section 173(8) of

Cr.P.C. The accused is not a necessary or a proper party. There is nothing

in Section 173(8) Cr.P.C to suggest that the Court is obliged to hear the

accused before any direction for further investigation is made. Therefore,

when the accused against whom the further investigation is sought for, is

not required to be heard and there is no question of hearing all the

accused against whom the charge-sheet is already filed. Therefore, the

respondents have no say who are being the accused in this case while

ordering further investigation under Section 173(8) Cr.P.C.

16. In view of the above, the order dated 07.02.2020 made in

Crl.M.P.No.3705 of 2019 in C.C.No.463 of 2015 on the file of the XVIII

Metropolitan Magistrate Court, Saidapet, Chennai is hereby set aside.

The petitioner is directed to complete the further investigation and file

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 Crl.O.P.No.15152 of 2020

additional report in Crime No.515 of 2014, within a period of three

months from the date of receipt of a copy of this order. On receipt of the

additional final report if any, the Trial Court is directed to complete the

Trial, within a period of six months thereafter.

17. Accordingly, this Criminal Original Petition stands

allowed. Consequently, connected Miscellaneous Petition is closed.

22.06.2022

Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
mn/cda

To

1. The XVIII Metropolitan Magistrate Court, Saidapet,

Chennai.

2. The Inspector of Police,

E-2 Royapettah Police Station,
Chennai – 600 014.

3. The Public Prosecutor,

High Court of Madras.

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 Crl.O.P.No.15152 of 2020

G.K.ILANTHIRAIYAN, J.

mn

Crl.O.P.No.15152 of 2020
and
Crl.M.P.No.5760 of 2020

22.06.2022

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