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2014 (7) TMI 1360 - HC - Indian LawsCognizance of the offences - can be termed as final order or not - permissibility of conducting further investigation as provided under Section 173(8) Cr.P.C. - HELD THAT - A case which came up before the Orissa High Court, which is almost similar to the case on hand, was the one in KAMAL LOCHAN SEN VERSUS STATE OF ORISSA 1982 (10) TMI 221 - ORISSA HIGH COURT . In the said case, though the report purportedly filed under Section 173(2) Cr.P.C. did not state that it was a preliminary report and investigation had not been completed, from the contents of the report the Court held that the same was not a report contemplated under Section 173(2) Cr.P.C. as the statement contained in the charge sheet itself indicated that the investigation had not been completed. An attempt has been made on behalf of the contesting respondents to contend that the order taking cognizance of offences based on the incomplete report could be in the nature of interlocutory order against which a revision may not be maintainable and that hence the petitioners should be non-suited for the relief sought for in the revision and they should be relegated to challenge the order under Section 482 Cr.P.C. by filing a separate petition. This Court is not in a position to accept the above said contention raised on behalf of the contesting respondents. Section 482 Cr.P.C. does not restrict the inherent powers of the Court to pass any order in order to render complete justice - As such the impugned order cannot be termed a purely interlocutory order and as rightly contended by the learned senior counsel for the petitioners, it can be construed to be an intermediary order against which the revisional powers of the High Court can be invoked. Even otherwise, the restriction placed on the invocation of the inherent powers is the self-imposed restriction of the Court and in appropriate cases, even though the same will fall under the mischief of Sub-section 2 of Section 397 Cr.P.C., for avoiding miscarriage of justice, the Court can invoke its inherent jurisdiction and grant the necessary relief. The revision petition shall stand allowed.
Issues Involved:
1. Legality of the Special Judge's cognizance based on an incomplete police report. 2. The procedural correctness of returning the police report by the Special Judge. 3. The applicability of Section 173(2) and Section 173(8) Cr.P.C. regarding the final and interim police reports. 4. The nature of the order (interlocutory or intermediary) and its implications for revision under Section 397 Cr.P.C. and inherent powers under Section 482 Cr.P.C. Detailed Analysis: 1. Legality of the Special Judge's Cognizance Based on an Incomplete Police Report: The court found that the Special Judge took cognizance of offences based on a police report that explicitly stated the investigation was ongoing. The judgment emphasized that a report indicating incomplete investigation cannot be deemed a final report under Section 173(2) Cr.P.C. The court cited multiple precedents, including: - Bandi Kotayya v. State (AIR 1966 AP 377): A preliminary charge-sheet cannot be regarded as a report under Section 173 Cr.P.C. - T.V. Sarma v. Smt. Turgakamala Devi (1976 Cri.L.J. 1247): A report sent before the completion of the investigation is not a police report under Section 173(2) Cr.P.C. - Kamal Lochan Sen v. State of Orissa (54 (1982) CLT 509): The report must be complete for the Magistrate to take cognizance. - Bhartendu Pratap Singh v. State of U.P. (2011 (4) ADJ 466): Cognizance on an incomplete report is unsustainable. The court concluded that taking cognizance based on such a report was an error apparent on the face of the record. 2. Procedural Correctness of Returning the Police Report by the Special Judge: The court criticized the Special Judge for returning the police report to rectify defects, emphasizing that once a report is submitted, it becomes the court's property and should not be returned. Instead, the court should issue a memo to the Investigating Officer to rectify the errors while retaining the report. This practice was reiterated from the Division Bench decision in A. Vinayagam v. Dr. Subash Chandran (2000 (1) CTC 225). 3. Applicability of Section 173(2) and Section 173(8) Cr.P.C.: The judgment clarified the distinction between an incomplete report and a final report followed by further investigation: - Section 173(2) Cr.P.C.: Requires a complete report after the investigation is finished. - Section 173(8) Cr.P.C.: Allows further investigation after a final report has been submitted, not before. The court held that the police cannot submit an interim report to deny the accused's statutory rights and then rely on Section 173(8) Cr.P.C. to continue the investigation. 4. Nature of the Order and Implications for Revision: The court addressed whether the Special Judge's order was interlocutory or intermediary: - The order, affecting the accused's right to be served with process, was deemed an intermediary order, making it subject to revision under Section 397 Cr.P.C. - Even if considered interlocutory, the court could exercise its inherent powers under Section 482 Cr.P.C. to prevent miscarriage of justice, as supported by Subhiksha Trading Services Ltd. v. Azim H. Premji (2011 Crl.L.J. 2769). Conclusion: The revision petition was allowed, and the Special Judge's order dated 23.01.2013 was set aside. The court instructed that the ongoing investigation should culminate in a proper police report under Section 173(2) Cr.P.C., upon which the Special Judge should act according to the law. All connected miscellaneous petitions were closed.
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