Wednesday, 24 August 2016

Judges and Lawyers should update themselves with latest trend of law

Thus, it seems that the learned Additional Sessions Judge, Fast Track
Mahila Court, Thoothukudi, has not been informed of the latest trend of law
on this aspect.  Judges and Lawyers should update themselves with the latest
trend of law.  Law is a living organism.  It grows every day.  It must be
'dynamic' and also 'pragmatic.  And should not be 'static'.  Law and judge-
made law (case-law) must undergo change in tune with the change in Society.
Otherwise, it will be a dull subject.  Thus, March of Law is bound to be.
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 17.08.2016  

CORAM   
THE HONOURABLE DR.JUSTICE P.DEVADASS            

Crl.R.C.(MD) No.181 of 2016 
and 
Crl.M.P.(MD) No.2543 of 2016 

                                                                                       
Samuel Jebakani                                       ... Petitioner /   
Petitioner /
                                                                 De facto Complainant (LW-1) 
-vs-

The Superintendent of Police
        Samuel Jebakani, the de facto complainant dissatisfied with the
decision of the learned Additional Sessions Judge, Fast Track Mahila Court,
Thoothukudi, dismissing his petition in  Cr.M.P.No.90 of 2016 filed in
S.C.No.232 of 2015, under Section 173 Cr.P.C., seeking re-investigation.

        2. Based on the complaint of the said Samuel Jebakani, the Thoothukudi
North Police, registered a case in Crime No.444 of 2011, for 'Girl Missing'.
The Investigation Officer conducted the investigation, concluded it and filed
the final report under Section 173(2) Cr.P.C., before the learned Judicial
Magistrate No.II, Thoothukudi, for offences under Sections 366 and 376 I.P.C.
The learned Judicial Magistrate took cognizance thereon in P.R.C.No.1 of
2013.  Thereafter, the learned Judicial Magistrate supplied the copies of
documents to the accused.  The learned Judicial Magistrate, having found
certain offences are exclusively triable by a Court of Sessions, committed
the case to the Court of Principal Sessions Judge, Thoothukudi, under Section
209 Cr.P.C.  The learned Principal Sessions Judge, Thoothukudi, made over the
case to the learned Additional Sessions Judge, Fast Track Mahila Court,
Thoothukudi, in S.C.No.232 of 2015, for trial.
3. The accused has appeared before the Trial Court.  In the Trial Court,
Samuel Jebakani filed Crl.M.P.No.90 of 2016, seeking a direction to
Thoothukudi North Police Station, to conduct fresh investigation, under
Section 173(8) Cr.P.C.

4. The learned Additional Sessions Judge, relying on the decision of the
Hon'ble Supreme Court in Reeta Nag Vs. State of West Bengal and Others (AIR  
2010 SC (Cri) 401) : (2010 Crl.L.J.2245), held that under Section 173(8)
Cr.P.C., the de facto complainant cannot ask for fresh investigation and
dismissed the petition.

5. The learned counsel for the revision petitioner would contend that much
water has flown under the bridge since Reeta Nag's case (supra).  The issue
as to whether at the instance of the de facto complainant can the Police be
directed to undertake further investigation has been considered
subsequently, by the Hon'ble Supreme Court in Vinay Tyagi Vs. Irshad Ali [AIR
2013 SC (Cri) 292], and their Lordships of the Hon'ble Supreme Court have
held that under the scheme of the Code of Criminal Procedure, to unravel the
truth of the matter, a de facto complainant can request the Magistrate to
direct the Police to undertake further investigation, when the facts and
circumstances of the case so demands.  This decision has been reiterated in
Chandra Babu vs. State [2015 (5) CTC 214 (SC)].  (Also see P.Ravindranath vs.
K.Chandragandhi [2015 (3) MWN (Cr.) 236 and the latest decision in Ram Saran 
Varshney vs. State of U.P. [(2016) 2 SCC (Cri.) 190]).

6. The learned counsel for the petitioner would also submit that the facts of
this case would show that the investigation has not been properly conducted
and the truth of the matter has not been properly unraveled.  Justice should
not fail.  Justice should be rendered.  In such circumstances, Police shall
be asked to probe further.

7. According to the learned Government Advocate (Criminal Side),
investigation has been done fairly, evidence has been collected and final
report has been filed.
        
8. I have anxiously considered the rival submissions, perused the impugned
order and the decisions cited.

        9. Field of investigation is vast.  It is stated that it is 'within the
province of police' (See King Emperor vs. Khwaja Nazir Ahmed [AIR 1945 PC 
18]).  Within the field of investigation it is stated that Police is the
Master.  But, who is to monitor them.  Who is to keep them within the bounds
of law.  Who is to pull their legs, when they tried to over step.  Who is to
tell them that they are not above the law.  Who is to make them to focus on
the principles laid down in the Criminal Procedure Code and the relevant
statutes.  Who is to tell them to do fair investigation, effective
investigation and impartial investigation.  Who is to remind them to inspire
confidence of the complainant by their fair investigation. Necessarily the
mantle should fall on the Courts.  In a democratic country, when especially,
police have the power of arrest and the power to register cases they must be
made accountable to some authority.  That is how the Courts started
interfering with the investigation done by the Police when it is slipshod,
ineffective and impartial.
        
        10. The zeal of the Court is to see that justice should not become a
causality. The truth must be unraveled.  The innocent must be protected and
the guilty must be dealt with appropriately.

11. In this view of the matter, the view taken by the Hon'ble Supreme Case in
Reeta Nag's case, (supra) that the Police alone can do  further investigation
has been deviated subsequently by the Hon'ble Supreme Court in Vinay Tyagi's
case (supra) and also in Chandra Babu Vs. State [2015 Cr.LJ 4538].      


        12. Now, it is well settled that not only at the instance of the
Police, even at the instance of the de facto complainant, further
investigation under Section 173(8) Cr.P.C. can be undertaken by the Police to
find out the truth of the matter.  But, Subordinate Court is not competent to
direct fresh, new, de novo investigation, which is entirely different from
further investigation.

13. Thus, it seems that the learned Additional Sessions Judge, Fast Track
Mahila Court, Thoothukudi, has not been informed of the latest trend of law
on this aspect.  Judges and Lawyers should update themselves with the latest
trend of law.  Law is a living organism.  It grows every day.  It must be
'dynamic' and also 'pragmatic.  And should not be 'static'.  Law and judge-
made law (case-law) must undergo change in tune with the change in Society.
Otherwise, it will be a dull subject.  Thus, March of Law is bound to be.

        

        14. The issue involved in this case has not been adjudicated before the
Trial Court.  It has been left open by the learned Judge.  Thus, we are of
the view that in the light of the current trend of law (see Vinay Tyagi's
case) supra, the Trial Court should be asked to redo the work.


        15. In view of the forgoings, it is ordered as under:
(i)     This revision is allowed.
(ii)    The impugned order, dated 14.03.2016, passed in Cr.M.P.No.90 of 2016 in 
S.C.No.232 of 2015, by the learned Sessions, Fast Track Mahila Court,
Thoothukudi, is set aside.
(iii)   The learned Additional Sessions Judge will restore Cr.M.P.No.90 of 2016
to his file.
(iv)    In the light of the guidance provided in this order, the learned
Additional Sessions Judge will rehear the matter and after giving reasonable
opportunity to both sides decide the application filed under Section 173(8)
Cr.P.C., according to law, at an early date.    
(v)     Consequently, connected criminal miscellaneous petition is closed.

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