The Magistrate is not bound by the conclusion of the police report and can take cognizance of the offence even if the police report is to the effect that no case was made out.

M. KARPAGAVINAYAGAM, J.

melancholic episode of the death of young man suspected to be at the hands of police personnel with whom the investigation was entrusted by this Court and who referred the said case as 'mistake of fact' which gave rise to the filing of the private complaint before the learned Chief Judicial Magistrate, Nagercoil, for the offence of murder, which was also thrown out at the threshold, has been laid before me for redressal in this revision

2. The petitioner Ponnumony is the complainant. On 14-7-1992, his son Sivalingam died under a suspicious circumstance. When he came to know that the death of his son was at the brutal hands of the local policemen, he presented a petition to the District Superintendent of Police Nagercoil. On the direction of the Superintendent of Police, the case was registered in Cr. No. 727 of 1992 under Section 174, Cr.P.C. on the file of Thuckalay Police Station, by the Sub-Inspector one of the accused in this case. As expected, there was no proper investigation, since they themselves were involved in the offence of murder. Therefore, the petitioner filed a petition under Section 482, Cr.P.C. before this Court in Crl.O.P. No. 12679 of 1992, for transfer of the investigation in this case from the file of Sub-Inspector of Police, Thuckalay to some other agency, by narrating the various circumstances. On 11-11-1992, this Court after hearing the parties and considering the case records, directed the Deputy Superintendent of Police, Thuckalai, to investigate this case with an open mind, since the earlier investigation by the Sub-Inspector of Police was not found to be bonafide

3. The petitioner along with the order of this Court dt. 11-11-1992, made in Crl.O.P. No. 12679 of 1992 approached the Deputy Superintendent of Police, Thuckalay, on 19-12-1992 and presented a petition requesting of investigation as per the orders of this Court dated 11-11-1992. Despite the same, no action was taken and so he submitted another petition on 15-1-1993. Even then no further action was taken. After having waited for more than four months, on 16-3-1993, the petitioner filed a private complaint before the learned Chief Judicial Magistrate, Nagercoil, requesting him to take the case on file against the respondent/accused for the offence of murder, by mentioning the entire events and the earlier happenings which led to the filing of the complaint. The said complaint was numbered as Crl. M.P. No. 781 of 1993 and on the same day i.e. on 16-3-1993, the learned Chief Judicial Magistrate, referred the case under Section 156(3) Cr.P.C. directing the Deputy Superintendent of Police, Thuckalay, to investigate the case through some other police officer, other than Thuckalay police and to send a report before 16-4-1993, giving one month's time

4. Again on 16-4-1993, since no report has come from the police, learned Chief Judicial Magistrate, sent a reminder to the Deputy Superintendent of Police, to finish the investigation soon by giving another month's time and posted the matter on 18-5-1993 for report. Even on 18-5-1993, there was no reply or any report from the police. The learned Chief Judicial Magistrate, Nagercoil, as a silent spectator to the lethargic attitude of the police, simply adjourned the matter from 18-5-1993 to 18-6-1993 for want of report. At that stage, the petitioner received a registered cover, which contained a notice informing the petitioner that his complaint in Cr. No. 285 of 1993 under Ss. 147, 299, 300, 302, 364, 365 and 34, I.P.C. has been referred as 'mistake of fact'. The said registered cover did not contain the sender's address. However, on 18-6-1993, to which date the case was posted by the learned Chief Judicial Magistrate, the petitioner presented a protest petition, against the report of the police referring his complaint as 'mistake of fact' and requested the Court to reject the said report and take cognizance of his private complaint and call him to adduce evidence to pro