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Crl.A.@S.L.P.(Crl.)No.5746/14  

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  461 OF 2015 [Arising out of S.L.P.(Crl.)No.5746 of 2014]

M. Mahendar Kumar         …..Appellant

Versus

M. Mani & Ors.          …..Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Heard learned counsel for the parties.  Leave granted.

2. The appellant is an accused in a complaint case bearing  

Crime No.147 of 2009 pending in the file of learned Judicial  

Magistrate  at  Gingee,  Tamil  Nadu.   He  is  aggrieved  by  

impugned order dated 10.01.2014 passed by the High Court of  

Judicature  at  Madras in a  petition under  Section 482 of  the  

Code  of  Criminal  Procedure  (for  brevity,  ‘Cr.P.C.’)  bearing  

Crl.O.P.No.707 of 2014 preferred by the de facto complainant,  

respondent no.1 herein,  whereby the Crime No.147 of  2009  

has  been  treated  as  pending  before  the  Deputy  

Superintendent of Police, Villupuram District, Tamil Nadu and  

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as  such  transferred  to  the  file  of  CBCID,  Chennai   for  

investigation.

3. The facts relevant for deciding this appeal may be noted  

in brief as follows.  The first respondent, Mr. Mani, an assistant  

of Thiru Kadambapathy Thiru Madam/Mutt lodged a complaint  

with the Sathyamangalam Police Station alleging that unknown  

persons had stolen jewels of the Mutt.  His complaint led to  

F.I.R. No.147 of 2009 registered against unknown persons for  

offences under Sections 457, 380 and 394 of Indian Penal Code  

(IPC).  The de facto complainant/respondent no.1 subsequently  

moved the High Court of Judicature at Madras for transfer of  

investigation  to  CBCID,  Chennai  but  such  petition  bearing  

Crl.O.P.No.21269 of 2010 was rejected by the High Court on  

22.02.2011.   In  the  meantime,  the  investigation  had  been  

transferred to  Inspector  of  Police,  Valathi  Police  Station and  

again  it  was  transferred  by  the  DIG,  Villupuram  to  Deputy  

Superintendent of Police, District Crime Branch Villupuram who  

completed  the  investigation  and  filed  a  chargesheet  on  

26.01.2012 against 11 persons.  The appellant is accused no.9  

in P.R.C.No.4 of 2012 on the file of learned Judicial Magistrate,  

Gingee,  Tamil  Nadu.   According  to  appellant,  the  allegation  

against him is of being a receiver of stolen goods attracting  

Section 412 of the IPC.  The learned Magistrate issued process  

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in  said  P.R.C.  No.4  of  2012  on  02.03.2012.   The  de  facto  

complainant, respondent no.1 moved a petition under Section  

173(8)  of  Cr.P.C.  before  the  learned  Magistrate  bearing  

Crl.M.P.No.3602  of  2012  and  prayed  for  allowing  further  

investigation into the case by CBCID.  The said petition was  

rejected by the learned Judicial Magistrate on 29.06.2012 by  

holding that the de facto complainant was not competent to  

maintain such an application for further investigation.  Against  

that  order  respondent  no.1  preferred  Crl.  Revision  Petition  

bearing  Crl.R.C.  No.1283  of  2012  before  the  High  Court  of  

Madras  which  came  to  be  dismissed  on  07.11.2012.  

Respondent  no.1  then  preferred  S.L.P.(Crl.)No.2156  of  2013  

against the order of the High Court dated 07.11.2012 and the  

same was also dismissed on 08.04.2013.

4. Respondent  no.1  made  allegations  against  the  first  

Investigating Officer of the case Mr. N. Gajendran, Inspector of  

Police,  Sathyamangalam  Police  Station  before  the  learned  

Chief  Judicial  Magistrate,  Villupuram that  he  had committed  

malpractice and illegality during investigation of Crime No.147  

of  2009.   Dissatisfied by inaction on the part  of  Magistrate,  

respondent no.1 filed Crl.O.P.No.18904 of 2012 before Madras  

High Court in which order was passed on 13.08.2012 and the  

High Court directed the Superintendent of Police, Villupuram to  

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register a case against the former Investigating Officer named  

above.  This led to registering of FIR in Sathyamangalam Police  

Station on 18.09.2012 as Crime No.180 of 2012 under Sections  

196,  206,  218,  219,  221 and 471 of  the IPC against  Mr.  N.  

Gajendran.  Respondent no.1 filed another Crl.O.P.No.28305 of  

2012 before the High Court of Madras which was allowed on  

10.12.2012 and the High Court directed the CBCID, Chennai to  

investigate that case.

5. In  the  aforesaid  facts  and  circumstances  respondent  

no.1,  after  about  8  months  of  dismissal  of  Special  Leave  

Petition on 08.04.2013, in the month of January 2014 filed the  

case  at  hand being Crl.O.P.No.707  of  2014 before  the  High  

Court again seeking transfer of investigation of Crime No.147  

of 2009 from DSP, Crime Branch, to CBCID, Chennai so that  

such investigation may go along with investigation in Crime  

No.180  of  2012  pending  against  the  former  Investigating  

Officer.

6. The appellant or other accused persons were not made  

parties to this case and it was allowed by the impugned order  

dated 10.01.2014 by simply believing the statement made by  

respondent no.1 which created the impression that the matter  

was  still  pending  before  the  police  authority  when  in  fact  

chargesheet had already been submitted long back and the  

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accused  persons  had  also  been summoned.   A  copy of  the  

Crl.O.P.No.707 of  2014 is  available on record  and a perusal  

thereof reveals that respondent no.1 omitted to disclose that  

his  prayer  under  Section  173(8)  of  the  Cr.P.C.  for  further  

investigation  by  CBCID  had  been  turned  down  by  the  

concerned Magistsrate;  that order was affirmed by the High  

Court and his S.L.P. against the same had also been dismissed  

by this Court.

7. In the aforesaid facts and circumstances, learned counsel  

for the appellant has submitted that the impugned order has  

been obtained by suppression of relevant facts and the High  

Court also erred in allowing such an application under Section  

482,  Cr.P.C.  because  in  absence  of  the  accused  persons  

nobody pointed out that there was specific provision available  

under  Section  173(8)  of  the  Cr.P.C.  for  ordering  further  

investigation  and  hence  the  High  Court  ought  not  to  have  

exercised extraordinary inherent jurisdiction in view of specific  

provision in the Cr.P.C. being available for the purpose.

8. On the other hand, learned counsel  for the respondent  

no.1 submitted that the impugned order would advance the  

cause of justice and therefore requires no interference by this  

Court.   However,  he  could  not  meet  the allegation and the  

submission that respondent no.1 did not disclose material facts  

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which  could  have  revealed  that  his  earlier  application  for  

further investigation by CBCID had been rejected at all stages  

and the S.L.P.  had also been dismissed by this  Court.   The  

impugned order further discloses that the learned Single Judge  

was not properly assisted in the matter and he could not notice  

that Crime No.147 of 2009 was no longer pending in the file of  

Dy.S.P.  of  Police  or  any  other  police  authority  because  

investigation  had  been  completed  and  chargesheet  was  

submitted  long  back.   It  was  clearly  on  account  of  non  

application of mind to such relevant fact that the impugned  

order  came  to  be  passed  at  the  initial  stage  of  admission  

without  noticing  any  counter  affidavit  or  reply  and/or  its  

absence.

9. In  the  aforesaid  facts  and  circumstances,  we  are  

constrained to and hereby set aside the impugned order as it  

has been passed on account of suppression of material facts  

and under a wrong impression that Crime No.147 of 2009 was  

still pending before the police authorities at the investigation  

stage.  Accordingly, the appeal stands allowed.

                               ……………………………………………………….J.

   [FAKKIR  MOHAMED  IBRAHIM  KALIFULLA]

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                ... …………………………...............................J.

          [SHIVA KIRTI SINGH]

New Delhi. March 17, 2015.

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