The accused in C.C. No. 173 of 1986 on the file of the Sub-Divisional Judicial Magistrate, Dindigul, has filed this application under S. 482 Cr.P.C. to quash the said proceedings against him.

2. The said petition came to be filed in the following circumstances. The Assistant Divisional Engineer T. N. E. B. Palani, gave a complaint on 27-8-1984 alleging that during the inspection of S.C. 160 Neikkarapatti distribution, belonging to the petitioner, he noticed M.R.T. seals provided in three phase meter in the service missing and that the petitioner has committed theft of electricity by opening the cover of the meter and reduced the recorded units thereunder. On the basis of the said complaint a case was registered against the petitioner in Cr. No. 435 of 1984 Palani Taluk, Police station, under S. 397 I.P.C. read with Sections 39 and 44(c) of the Indian Electricity Act. The said complaint was investigated by one Muthuswami, Sub-Inspector, and he examined as many as ten witnesses and after obtaining opinion of the Assistant Public Prosecutors (Grade I and Grade II) sent the final report dt. 7-5-1985 under S. 173 Cr.P.C. to the Court, to the effect that no case was made out against the petitioner, and the case was referred as 'mistake of fact'. Refer notice under S. 169, Cr.P.C. was also served on the petitioner on 18-5-1985 and his acknowledgment was obtained. The Sub-Divisional Magistrate, Dindigul also on receipt of the final report and after perusing the connected records accepted the final report sent by the said Muthuswami and passed an order on 12-6-1985 as follows-Recorded as "mistake of fact". The referred charge-sheet has been numbered as 104 of 1985.

3. The Inspector of Police, Palani, as per the direction of the Superintendent of Police, Madurai, and on the advice of the Public Prosecutor, Madurai Dt. reopened the investigation on 27-9-1985 and filed charge-sheet under sections 39 and 44(c) of the Indian Electricity Act read with S. 379, I.P.C. in the same crime number, on 22-1-1986. When the charge-sheet was returned by the Magistrate on 14-2-1986, whether permission has been obtained to reopen, the respondent resubmitted the same on 15-2-1986 stating the circumstances under which it was reopened and seeking permission to investigate the same. The Magistrate passed an order on 19-2-1986 to the effect that permission is granted to investigate the case. He took cognisance of the case and numbered the same as C.C. 173 of 1986 and issued summons to the accused. On receipt of the said summons the accused has filed this application.

4. According to the petitioner, the earlier order passed by the Magistrate on the police report, as mistake of fact, is a judicial order passed by him in his capacity as court and it has become final. Further, the same has not been reversed by a competent forum at the instance of the respondents. Hence, the entire proceedings are vitiated with illegality and have to be quashed. It is further submitted that on the date when the charge-sheet was filed no police report was pending since the Magistrate has not taken cognisance on the basis of the earlier report submitted by the Sub-Inspector, and as such, the respondent, though a superior officer cannot reinvestigate or reopen the case and file a fresh charge-sheet.

5. The only point that arises for consideration in this quash proceedings is whether, in view of the fact that the Sub-Inspector who investigated the case submitted a report under S. 173 Cr.P.C. to the Magistrate that the matter has been referred as 'mistake of fact' and on the basis of the report the Magistrate accepted the finding and passed orders to the effect 'Recorded as mistake of fact' the subsequent investigation by the Inspector of Police and filing the charge-sheet is legal and proper. Already a similar question came up for consideration before this Court and the Supreme Court. In Namasivayam v. State, 1981 Mad LW (Cri) 151 : 1982 Cri 707), Sathar Sayeed J. after consid