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TMI Blog2014 (7) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Crl. R.C (MD) No. 231 of 2013 And M.P. (MD) Nos. 1 of 2013 and 1 of 2014 - - - Dated:- 31-7-2014 - P.R. Shivakumar, J. For the Appellant : A. Ramesh, Sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, learned senior counsel, has submitted that the proceeding of the learned Special Judge contains an error on the face of the record in so far as the learned Special Judge took cognizance of the offences based on a report of the police, which cannot be legally termed a final report in terms of Section 173(2) Cr.P.C. it is the further contention of the learned senior counsel that the irregularity in the proceeding is writ large as it will be obvious from the fact that a report of the police officer submitted to the Jurisdictional Court ought not to have been returned as it became the property of the Court and that the said irregularity culminated into an error on the face of the record, when the learned Special Judge took the case on file implying cognizance of the offences on the basis of a report, which contains a statement to the effect that investigation was not completed and it was still going on. The learned senior counsel has also pointed out the fact that the order taking cognizance of the offences by the learned Special Judge would reveal non-application of mind in so far as the order does not refer to the accused persons against whom the Special Court took cognizance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d all other cases dealt with the proprietary of taking cognizance of the offences based on an interim report, when the investigation was not completed at the time of filing of such report. 6. In this regard, Mrs. S. Prabha, learned Government Advocate (Criminal side), representing the police and Mr. B.N. Raja Mohamed, learned counsel representing the contesting respondents, would simply state that in view of the permissibility of conducting further investigation as provided under Section 173(8) Cr.P.C., there is nothing wrong in the Investigating Officer filing an interim report and the Court taking cognizance of the offences based on such interim report. It is their further contention that since numerous persons as depositors have made claims and they are to be examined and documents are to be collected, besides the distribution of amount seized from the accused and available in the freezed account of the accused persons, it should be treated as a special case and under such special circumstances the procedure adopted by the learned Special Judge cannot be found fault with and that therefore the challenge made to the impugned order of the learned Special Judge is bound to fail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s chosen to commit the very same blunder, much against the dictates of this Court. The police submitted a report titled as final report. On receipt of the same, the learned Special Judge, chose to return it pointing out as many as six defects. Of course, the same will not vitiate the case as it is only an irregularity which is curable when the said report was resubmitted supplying the missing materials and explaining the other defects pointed out by the learned Special Judge. On such resubmission of the report, the learned Special Judge chose to take it on file implying that he did take cognizance of the offences alleged in the report. However, as rightly pointed out by the learned senior counsel for the petitioners, the learned Special Judge failed to note what are all the offences alleged against each one of the accused and what are all the offences taken cognizance of against each one of the accused. A bald statement found in the impugned order to the effect Seized Book perused. In the Book - headings scheme II conditions in crime, investment perused. Take this case on file will show that the learned Special Judge failed to apply his mind to the contents of the final report f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he police sufficient time to complete their investigation and file a final charge sheet. The police accordingly continued the investigation by examining additional witnesses and holding test identifications, and after ascertaining the truth from all the available material, excluded Accused Nos. 16 to 18 from the list of accused and submitted a final charge sheet. The Magistrate thereafter took cognizance of the offence and proceeded to hold an inquiry against Accused Nos. 1 to 15 only. 10....... That being the position, a preliminary charge-sheet is no doubt a police report, but the Magistrate holding an inquiry under Section 207-A Criminal Procedure code, does not, indeed cannot, take cognizance of the offence mentioned in that report and proceed with the inquiry upon receipt of such a report. He must wait for the report under Section 173, which would be forwarded to him by the police after completing their investigation. Only then, can he commence the inquiry as is apparent from the provisions of Sub-section(1) of Section 207-A Criminal Procedure Code . 11. A learned Single Judge of the Andhra Pradesh High Court in T.V. Sarma v. Smt. Turgakamala Devi and Others reported i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the one in Kamal Lochan Sen v. State of Orissa reported in 54 (1982) CLT 509. 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. The following are the observations made in the said case: 5. Under the Code of Criminal Procedure, there is nothing like an incomplete or preliminary charge-sheet. Of the various reports that may be submitted by the police from time to time, the one which is submitted under Section 173(2) is called a charge-sheet and is required to be submitted after completion of investigation for taking cognizance of offence under Section 190(1)(b), Section 173(8) does not enable the investigating agency to submit an incomplete or preliminary charge-sheet and later on a final charge-sheet. Section 173(2) enjoins submission of a charge-sheet after completion of investigation. Section 173(8) operates at a stage after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Investigating Officer is of the opinion that he has not completed the investigation, he cannot forward a police report under Section 173(2) Code of Criminal Procedure. He also cannot get the advantage of Section 173(8) when the investigation is not completed in his opinion . 15. The Hon'ble Supreme Court also in T.V. Sarma V. Smt. Turgakamala Devi and Others reported in 1976 Cri.L.J. 1247, made a similar observation, which has been extracted by the learned Judge of the Allahabad High Court sitting in Lucknow Bench in the above cited case. The said observations made by the Hon'ble Supreme Court are reproduced here under: 15. In the case on hand only a preliminary charge sheet has been filed and it is specifically stated therein that the investigation is not yet completed. Therefore it cannot be treated as a police report within the meaning of sub section (2) of Section 173 Code of Criminal Procedure and so the Magistrate could not take cognizance of the offence in the present case and remand the accused under Section 309 Code of Criminal Procedure. 16. The learned Public Prosecutor has argued that in this case there is a charge sheet though styled preliminary and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e did not intend to file any further material by way of supplementary charge sheet before the trial Court and held that in view of such a statement, continuation of the investigation was ruled out. Thus the cognizance taken by the Magistrate was not disturbed. However, the Hon'ble Supreme Court made an observation that the statement made on behalf of the State relieved the Hon'ble Judges of the Supreme Court dealing with that case, to deal with the effect of Section 173(8) Cr.P.C. in the said case. 17. Distinguishing the said case decided by the Hon'ble Supreme Court, the Hon'ble Single Judge of the Allahabad High Court sitting in Lucknow Bench in Bhartendu Prata Singh v. State of U.P. and Another reported in 2011(4) ADJ 466 (cited above) held that since the investigation in that case was continuing as evidenced by the evidences disclosed in the said incomplete charge sheet and an observation came to be made to the effect that as soon as the investigation was completed and the police report would be filed before the Chief Judicial Magistrate, he would be at liberty to take cognizance of the offences on the basis of such police report. Similar is the observation m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort. The penultimate paragraph of the report reads thus: It is respectfully submitted that in this case further investigation to ascertain full ramifications of the fraud is continuing. Additional list of witnesses and documents will be submitted in due course of time if deemed necessary . The said paragraph itself will make it clear that the Investigating Officer was aware of the fact that he had not completed the investigation and he contemplated further investigation and he did not contemplate the contingency of a necessity arising in future to embark upon a further investigation, if new facts or new materials come to his knowledge. The above said report of the Investigating Officer, as rightly pointed out by the learned senior counsel for the petitioners, does not conform to the requirements of the police report contemplated under Section 173(2) Cr.P.C. and hence taking cognizance of the offences mentioned therein is no doubt an error apparent on the face of the record which requires to be corrected by this Court. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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