IMPORTANT POINT
While exercising revisional power High Court cannot act as appellate court.
Magistrate is not bound to accept final report filed under section 173(8).
Investigation by another agency is not covered by ‘further investigation’.

Judgment

Dipak Misra, J.

Leave granted.

2. In this appeal, by special leave, the informant-appellant calls in question the defensibility of the order dated 13.12.2011 passed by the learned Single Judge of the High Court of Judicature of Madras at Madurai in Criminal Revision No. 790/2011 whereby he has annulled the order dated 2.9.2010 passed by the learned Chief Judicial Magistrate, Nagercoil directing further investigation in exercise of power under Section 173(8) of the Code of Criminal Procedure (CrPC) and also directing the investigation to be carried out by C.B.C.I.D.; on the foundation that in the obtaining fact situation there are no exceptional circumstances for ordering re-investigation.

3. As the facts would unfurl, the appellant filed an FIR with the Sub-Inspector of Police, Kulasekaram Police Station, upon which Crime No. 119/2007 was registered u/s 147, 148, 341, 324, 323 and 307 of Indian Penal Code (IPC). The informant had alleged that on 05.06.2007 about 2 p.m., Manikandan, Jegan, Murugan, Vijayan, Sunil and some others attacked him with ‘Vettu Kathi’, knife and iron rod and in the said attack he sustained multiple injuries. The motive behind the assault, as per the FIR, was due to business rivalry that existed between the appellant and Manikandan, as both are contractors. The Inspector of Police, Kulasekaram Police Station conducted the initial investigation and subsequently the case was transferred to the District Crime Branch Police, Kanyakumari and thereafter, the Inspector of Police, District Crime Branch filed a final report before the learned Judicial Magistrate, Padmanabhapuram stating that the case was a mistake of fact. The learned Judicial Magistrate on intimation to the informant accepted the final report.

4. In the meantime, the appellant had filed a protest petition dated 5.1.2009 forming the subject matter of Crl. M.P. no. 1974/2009 on the file of the learned Judicial Magistrate praying therein to direct CBCID to re-open the case and file a fresh report. However, as the final report had already been accepted before disposing the protest petition, the appellant preferred Crl. O.P. no. 1727/2009 before the Madurai Bench of the Madras High Court. The High Court called for the report from the Magistrate’s Court and, thereafter, set aside the order accepting the final report and directed the Magistrate to consider the final report along with the protest petition.

5. The learned Magistrate vide order dated 29.07.2009 dismissed the protest petition. It took note of the decisions in Hasanbhai Valibhai Quareshi vs. State of Gujarat and Ors., (2004) 5 SCC 347 and Hemant Dhasmana vs. CBI and Anr., (2001) 7 SCC536 and held that as the investigation officer had examined all the witnesses as averred by the informant and received the evidence and as no new witnesses were cited to be examined, there was no justification for directing reinvestigation of the case. It further directed that the protest petition to be treated as a separate private complaint.

6. Being aggrieved by the said order, the appellant preferred Criminal Revision Petition, i.e., Crl. R.C. No. 458 of 2009 in the High Court. Before the High Court, the appellant contended that the order of the Magistrate was based on the acceptance of the final report submitted by the police and the order did not reflect any application of mind on his part. It was further urged that the order was bereft of discussion of the evidence gathered by the Investigating Officer, and that apart there was total non-application of mind either for acceptance or rejection of the statements of the witnesses filed along with the final report. The High Court while setting aside the order of learned Magistrate observed that the lower court fell into error by neither discussing the material available, nor clearly spelling out the reasons and shirked its duty by merely permitting the petitioner, therein, to pursue his cause by way of private complaint. The learned Single Judge, according