The magistrate does not have the power to order re-investigation, and further investigation cannot be ordered under Section 173(8) of the Criminal Procedure Code at the behest of the defacto complainant. However, the magistrate has the option to order further investigation on a protest petition filed by the defacto complainant and should pass a detailed speaking order.

The second respondent is the defacto complainant in Cr.No.568 of 2014, on the file of the first respondent. The said case was registered for the offences under Sections 294(b) and 506(i) I.P.C. and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002. On completing the investigation, the first respondent filed a final report on 30.12.2014, referring the case as mistake of fact. It appears that the learned Magistrate issued notice to the second respondent. Accordingly, the second respondent appeared and filed a protest petition. In the said case, the petitioner is one of the accused. The records revealed that the learned Magistrate received that petition on 22.05.2015 and passed the following order on 05.06.2015:

“Issue notice to the concerned PS for re-investigation and produce the charge sheet within one month.”

This order of the learned Magistrate is under challenge in this revision.

2. I have heard the learned Counsel for the petitioner, the learned Government Advocate (Crl.Side), appearing for the first respondent and the learned Counsel appearing for the second respondent. I have also perused the records carefully.

3. The learned Counsel for the petitioner would submit that the learned Magistrate has got no power to order for re-investigation. He would further submit that even further investigation can be ordered only on a petition filed by the police under Section 173(8) of the Criminal Procedure Code and not at the behest of the defacto complainant. For this proposition, the learned Counsel for the petitioner would rely upon the judgment of the Honourable Supreme Court in Reeta Nag Vs. State of West Bengal and Others reported in (2009)9 Supreme Court Cases 129. He would further submit that the order of the learned Magistrate is a non-speaking order which does not satisfy the legal requirements. Therefore, according to him, this order is liable to be set aside.

4. The learned Government Advocate (Crl.Side) would submit that the final report was filed by the police only after thorough investigation of the case.

5. The learned Counsel appearing for the second respondent/defacto complainant would submit that the learned Magistrate has got power to order for further investigation. For this proposition, the learned Counsel would rely upon the judgment of the Honourable Supreme Court in Vinay Tyagi Vs. Irshad Ali alias Deepak and Others reported in AIR 2013 SC (Criminal) 292.

6. I have considered the above submissions.

7. As has already been held by the Honourable Supreme Court in Vinay Tyagi Vs. Irshad Ali alias Deepak and Others reported in AIR 2013 SC (Criminal) 292, the learned Magistrate has got no power to order for re-investigation at all. In the case on hand, the learned Magistrate has ordered re-investigation. Therefore, as per law laid down by the Honourable Supreme Court, the impugned order is illegal and without jurisdiction. On that score, the impugned order is liable to be set aside.

8. So far as further investigation is concerned, the Honourable Supreme Court has held in Reeta Nag Vs. State of West Bengal and Others reported in (2009) 9 Supreme Court Cases 129 that further investigation cannot be ordered under Section 173(8) of the Criminal Procedure Code at the behest of the defacto complainant. Regarding that legal proposition also, there can be no doubt. But, at the same time, while considering the protest petition filed as against the negative final report, the learned Magistrate, as per settled law, has got three options, i.e., either to accept the negative report, or to take cognizance of the offences based on the available materials, or to order for further investigation. Ordering further investigation on the protest petition filed by the defacto complainant will be within his jurisdiction. The Magistrate may also treat the protest petition as a private complaint and proceed further. At any rate, when a protest petition is filed by the defacto complainant as against the negative final repo