REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 461 OF 2015
[Arising out of S.L.P.(Crl.)No.5746 of 2014]
M. Mahendar Kumar .....Appellant
Versus
M. Mani & Ors. .....Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Heard learned counsel for the parties. Leave granted.
The appellant is an accused in a complaint case bearing Crime No.147 of
2009 pending in the file of learned Judicial Magistrate at Gingee, Tamil
Nadu. He is aggrieved by impugned order dated 10.01.2014 passed by the
High Court of Judicature at Madras in a petition under Section 482 of the
Code of Criminal Procedure (for brevity, 'Cr.P.C.') bearing Crl.O.P.No.707
of 2014 preferred by the de facto complainant, respondent no.1 herein,
whereby the Crime No.147 of 2009 has been treated as pending before the
Deputy Superintendent of Police, Villupuram District, Tamil Nadu and as
such transferred to the file of CBCID, Chennai for investigation.
The facts relevant for deciding this appeal may be noted in brief as
follows. The first respondent, Mr. Mani, an assistant of Thiru
Kadambapathy Thiru Madam/Mutt lodged a complaint with the Sathyamangalam
Police Station alleging that unknown persons had stolen jewels of the Mutt.
His complaint led to F.I.R. No.147 of 2009 registered against unknown
persons for offences under Sections 457, 380 and 394 of Indian Penal Code
(IPC). The de facto complainant/respondent no.1 subsequently moved the
High Court of Judicature at Madras for transfer of investigation to CBCID,
Chennai but such petition bearing Crl.O.P.No.21269 of 2010 was rejected by
the High Court on 22.02.2011. In the meantime, the investigation had been
transferred to Inspector of Police, Valathi Police Station and again it was
transferred by the DIG, Villupuram to Deputy Superintendent of Police,
District Crime Branch Villupuram who completed the investigation and filed
a chargesheet on 26.01.2012 against 11 persons. The appellant is accused
no.9 in P.R.C.No.4 of 2012 on the file of learned Judicial Magistrate,
Gingee, Tamil Nadu. According to appellant, the allegation against him is
of being a receiver of stolen goods attracting Section 412 of the IPC. The
learned Magistrate issued process in said P.R.C. No.4 of 2012 on
02.03.2012. The de facto complainant, respondent no.1 moved a petition
under Section 173(8) of Cr.P.C. before the learned Magistrate bearing
Crl.M.P.No.3602 of 2012 and prayed for allowing further investigation into
the case by CBCID. The said petition was rejected by the learned Judicial
Magistrate on 29.06.2012 by holding that the de facto complainant was not
competent to maintain such an application for further investigation.
Against that order respondent no.1 preferred Crl. Revision Petition bearing
Crl.R.C. No.1283 of 2012 before the High Court of Madras which came to be
dismissed on 07.11.2012. Respondent no.1 then preferred
S.L.P.(Crl.)No.2156 of 2013 against the order of the High Court dated
07.11.2012 and the same was also dismissed on 08.04.2013.
Respondent no.1 made allegations against the first Investigating Officer of
the case Mr. N. Gajendran, Inspector of Police, Sathyamangalam Police
Station before the learned Chief Judicial Magistrate, Villupuram that he
had committed malpractice and illegality during investigation of Crime
No.147 of 2009. Dissatisfied by inaction on the part of Magistrate,
respondent no.1 filed Crl.O.P.No.18904 of 2012 before Madras High Court in
which order was passed on 13.08.2012 and the High Court directed the
Superintendent of Police, Villupuram to register a case against the former
Investigating Officer named above. This led to registering of FIR in
Sathyamangalam Police Station on 18.09.2012 as Crime No.180 of 2012 under
Sections 196, 206, 218, 219, 221 and 471 of the IPC against Mr. N.
Gajendran. Respondent no.1 filed another Crl.O.P.No.28305 of 2012 before
the High Court of Madras which was allowed on 10.12.2012 and the High Court
directed the CBCID, Chennai to investigate that case.
In the aforesaid facts and circumstances respondent no.1, after about 8
months of dismissal of Special Leave Petition on 08.04.2013, in the month
of January 2014 filed the case at hand being Crl.O.P.No.707 of 2014 before
the High Court again seeking transfer of investigation of Crime No.147 of
2009 from DSP, Crime Branch, to CBCID, Chennai so that such investigation
may go along with investigation in Crime No.180 of 2012 pending against the
former Investigating Officer.
The appellant or other accused persons were not made parties to this case
and it was allowed by the impugned order dated 10.01.2014 by simply
believing the statement made by respondent no.1 which created the
impression that the matter was still pending before the police authority
when in fact chargesheet had already been submitted long back and the
accused persons had also been summoned. A copy of the Crl.O.P.No.707 of
2014 is available on record and a perusal thereof reveals that respondent
no.1 omitted to disclose that his prayer under Section 173(8) of the
Cr.P.C. for further investigation by CBCID had been turned down by the
concerned Magistsrate; that order was affirmed by the High Court and his
S.L.P. against the same had also been dismissed by this Court.
In the aforesaid facts and circumstances, learned counsel for the appellant
has submitted that the impugned order has been obtained by suppression of
relevant facts and the High Court also erred in allowing such an
application under Section 482, Cr.P.C. because in absence of the accused
persons nobody pointed out that there was specific provision available
under Section 173(8) of the Cr.P.C. for ordering further investigation and
hence the High Court ought not to have exercised extraordinary inherent
jurisdiction in view of specific provision in the Cr.P.C. being available
for the purpose.
On the other hand, learned counsel for the respondent no.1 submitted that
the impugned order would advance the cause of justice and therefore
requires no interference by this Court. However, he could not meet the
allegation and the submission that respondent no.1 did not disclose
material facts which could have revealed that his earlier application for
further investigation by CBCID had been rejected at all stages and the
S.L.P. had also been dismissed by this Court. The impugned order further
discloses that the learned Single Judge was not properly assisted in the
matter and he could not notice that Crime No.147 of 2009 was no longer
pending in the file of Dy.S.P. of Police or any other police authority
because investigation had been completed and chargesheet was submitted long
back. It was clearly on account of non application of mind to such
relevant fact that the impugned order came to be passed at the initial
stage of admission without noticing any counter affidavit or reply and/or
its absence.
In the aforesaid facts and circumstances, we are constrained to and hereby
set aside the impugned order as it has been passed on account of
suppression of material facts and under a wrong impression that Crime
No.147 of 2009 was still pending before the police authorities at the
investigation stage. Accordingly, the appeal stands allowed.
................................................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
................................................................J.
[SHIVA KIRTI SINGH]
New Delhi.
March 17, 2015.
-----------------------
6
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 461 OF 2015
[Arising out of S.L.P.(Crl.)No.5746 of 2014]
M. Mahendar Kumar .....Appellant
Versus
M. Mani & Ors. .....Respondents
J U D G M E N T
SHIVA KIRTI SINGH, J.
Heard learned counsel for the parties. Leave granted.
The appellant is an accused in a complaint case bearing Crime No.147 of
2009 pending in the file of learned Judicial Magistrate at Gingee, Tamil
Nadu. He is aggrieved by impugned order dated 10.01.2014 passed by the
High Court of Judicature at Madras in a petition under Section 482 of the
Code of Criminal Procedure (for brevity, 'Cr.P.C.') bearing Crl.O.P.No.707
of 2014 preferred by the de facto complainant, respondent no.1 herein,
whereby the Crime No.147 of 2009 has been treated as pending before the
Deputy Superintendent of Police, Villupuram District, Tamil Nadu and as
such transferred to the file of CBCID, Chennai for investigation.
The facts relevant for deciding this appeal may be noted in brief as
follows. The first respondent, Mr. Mani, an assistant of Thiru
Kadambapathy Thiru Madam/Mutt lodged a complaint with the Sathyamangalam
Police Station alleging that unknown persons had stolen jewels of the Mutt.
His complaint led to F.I.R. No.147 of 2009 registered against unknown
persons for offences under Sections 457, 380 and 394 of Indian Penal Code
(IPC). The de facto complainant/respondent no.1 subsequently moved the
High Court of Judicature at Madras for transfer of investigation to CBCID,
Chennai but such petition bearing Crl.O.P.No.21269 of 2010 was rejected by
the High Court on 22.02.2011. In the meantime, the investigation had been
transferred to Inspector of Police, Valathi Police Station and again it was
transferred by the DIG, Villupuram to Deputy Superintendent of Police,
District Crime Branch Villupuram who completed the investigation and filed
a chargesheet on 26.01.2012 against 11 persons. The appellant is accused
no.9 in P.R.C.No.4 of 2012 on the file of learned Judicial Magistrate,
Gingee, Tamil Nadu. According to appellant, the allegation against him is
of being a receiver of stolen goods attracting Section 412 of the IPC. The
learned Magistrate issued process in said P.R.C. No.4 of 2012 on
02.03.2012. The de facto complainant, respondent no.1 moved a petition
under Section 173(8) of Cr.P.C. before the learned Magistrate bearing
Crl.M.P.No.3602 of 2012 and prayed for allowing further investigation into
the case by CBCID. The said petition was rejected by the learned Judicial
Magistrate on 29.06.2012 by holding that the de facto complainant was not
competent to maintain such an application for further investigation.
Against that order respondent no.1 preferred Crl. Revision Petition bearing
Crl.R.C. No.1283 of 2012 before the High Court of Madras which came to be
dismissed on 07.11.2012. Respondent no.1 then preferred
S.L.P.(Crl.)No.2156 of 2013 against the order of the High Court dated
07.11.2012 and the same was also dismissed on 08.04.2013.
Respondent no.1 made allegations against the first Investigating Officer of
the case Mr. N. Gajendran, Inspector of Police, Sathyamangalam Police
Station before the learned Chief Judicial Magistrate, Villupuram that he
had committed malpractice and illegality during investigation of Crime
No.147 of 2009. Dissatisfied by inaction on the part of Magistrate,
respondent no.1 filed Crl.O.P.No.18904 of 2012 before Madras High Court in
which order was passed on 13.08.2012 and the High Court directed the
Superintendent of Police, Villupuram to register a case against the former
Investigating Officer named above. This led to registering of FIR in
Sathyamangalam Police Station on 18.09.2012 as Crime No.180 of 2012 under
Sections 196, 206, 218, 219, 221 and 471 of the IPC against Mr. N.
Gajendran. Respondent no.1 filed another Crl.O.P.No.28305 of 2012 before
the High Court of Madras which was allowed on 10.12.2012 and the High Court
directed the CBCID, Chennai to investigate that case.
In the aforesaid facts and circumstances respondent no.1, after about 8
months of dismissal of Special Leave Petition on 08.04.2013, in the month
of January 2014 filed the case at hand being Crl.O.P.No.707 of 2014 before
the High Court again seeking transfer of investigation of Crime No.147 of
2009 from DSP, Crime Branch, to CBCID, Chennai so that such investigation
may go along with investigation in Crime No.180 of 2012 pending against the
former Investigating Officer.
The appellant or other accused persons were not made parties to this case
and it was allowed by the impugned order dated 10.01.2014 by simply
believing the statement made by respondent no.1 which created the
impression that the matter was still pending before the police authority
when in fact chargesheet had already been submitted long back and the
accused persons had also been summoned. A copy of the Crl.O.P.No.707 of
2014 is available on record and a perusal thereof reveals that respondent
no.1 omitted to disclose that his prayer under Section 173(8) of the
Cr.P.C. for further investigation by CBCID had been turned down by the
concerned Magistsrate; that order was affirmed by the High Court and his
S.L.P. against the same had also been dismissed by this Court.
In the aforesaid facts and circumstances, learned counsel for the appellant
has submitted that the impugned order has been obtained by suppression of
relevant facts and the High Court also erred in allowing such an
application under Section 482, Cr.P.C. because in absence of the accused
persons nobody pointed out that there was specific provision available
under Section 173(8) of the Cr.P.C. for ordering further investigation and
hence the High Court ought not to have exercised extraordinary inherent
jurisdiction in view of specific provision in the Cr.P.C. being available
for the purpose.
On the other hand, learned counsel for the respondent no.1 submitted that
the impugned order would advance the cause of justice and therefore
requires no interference by this Court. However, he could not meet the
allegation and the submission that respondent no.1 did not disclose
material facts which could have revealed that his earlier application for
further investigation by CBCID had been rejected at all stages and the
S.L.P. had also been dismissed by this Court. The impugned order further
discloses that the learned Single Judge was not properly assisted in the
matter and he could not notice that Crime No.147 of 2009 was no longer
pending in the file of Dy.S.P. of Police or any other police authority
because investigation had been completed and chargesheet was submitted long
back. It was clearly on account of non application of mind to such
relevant fact that the impugned order came to be passed at the initial
stage of admission without noticing any counter affidavit or reply and/or
its absence.
In the aforesaid facts and circumstances, we are constrained to and hereby
set aside the impugned order as it has been passed on account of
suppression of material facts and under a wrong impression that Crime
No.147 of 2009 was still pending before the police authorities at the
investigation stage. Accordingly, the appeal stands allowed.
................................................................J.
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
................................................................J.
[SHIVA KIRTI SINGH]
New Delhi.
March 17, 2015.
-----------------------
6
