High Court of KeralaSingle Judge2023-10-31The Court disposed of the Crl.M.C. with directi...

Bala Devan v. State of Kerala & Others

Case / Petition Number:CRL.M.C. NO. 9053 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. Kunhikrishnan
Judgment Date: 2023-10-31
Court Decision / Holding: This Criminal Miscellaneous Case is disposed of in the following manner: i. The petitioner shall submit a representation narrating the additional materials to include the additional accused, before the Investigating Officer within ten days from the date of receipt of a stamped certified copy of this order. ii. Once such a representation is received, the Investigating Officer will look into it and take appropriate steps and communicate the decision to the petitioner within one month from the date of receipt of the representation. iii. Till final orders are passed in the representation by the Investigating Officer, the trial in CC.No.121/2012 shall be deferred. iv. Once the order is passed in the representation, the Investigating Officer will submit a copy of the same to the learned Magistrate for information.
Final Disposition: The Court disposed of the Crl.M.C. with directions for submitting a representation to include additional accused and for IO to decide within a month, deferring the trial until the IO acts, and forwarding the decision to the Magistrate.

Parties to the Case

Appellants / Petitioners

BALADEVAN AGED 48 YEARS S/O RAMANUNNI, PATTALI HOUSE, PRANAVAM NAGAR, MANNUTHI DESOM, OLLUKKARA, THRISSUR, PIN - 680586

Respondents

STATE OF KERALA, represented by the Public Prosecutor, High Court of Kerala, Ernakulam
ADDITIONAL DIRECTOR GENERAL OF POLICE, CRIME BRANCH, Elanchakkal, Thiruvananthapuram, Kerala
DISTRICT SUPERINTENDENT OF POLICE, VIYYUR, KUTTUMUK, THANIKUDAM ROAD, PALLIMOOLA, MANNUMKAD, RAMAVARMAPURAM, THRISSUR
SEENA APPUKUTTAN, aged 49 years, W/o APPUKUTTAN, 105/B WING, PAVITHRA HOUSING SOCIETY, DEENA DAYAL CROSS ROAD, THAKKUR VADY, DOMBIVALLY WEST, THANE VILA, MAHARASHTRA
NANDAKUMAR, S/O. K.K.KAIMAL, SAROJINI, HOUSE, NEAR THIRUVAMBADI TEMPLE, THRISSUR
SREENIVASAN, S/O. VARADARAJA IYYER, BHAGYAVILASAM HOUSE, AGRAHARAM ROAD, PUNKUNNAM, THRISSUR
K.K.SADANANDAN, S/O.KRISHNAN KUTTY, KOCHUPARAMBATHU HOUSE, PATTAN'S BUILDINGS, THRISSUR

Legal Representation & Advocates

Counsels for Petitioners

• Vinay Vijay Shanker
• Thomas Abraham
• Shahid Azeez

Counsels for Respondents

• Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

This Criminal Miscellaneous Case challenges Annexure-X, an order of the Chief Judicial Magistrate, Thrissur, dismissing the petitioner’s petition under Section 173(8) Cr.P.C. The petitioner is Charge Witness No.1 in C.C. No.121/2012 and sought reinvestigation to include additional accused, since earlier orders directed further investigation but the main culprits were not included in the supplementary charge sheet. The learned Magistrate relied on a Supreme Court decision in Vinubhai Haribhai Malaviya and Others v. State of Gujarat & Another (2019 KLJ 429), and held that, with trial already commenced, a Section 173(8) petition is not maintainable before the Magistrate. The High Court notes that the trial has begun and, on that basis, finds no reason to interfere with Annexure-X. However, it offers a practical route: the petitioner may submit a representation narrating the additional materials to include other accused within ten days from receipt of a certified copy of this order; the Investigating Officer will consider and decide within one month and communicate the result. Until final orders are passed, the trial in CC-121/2012 shall be deferred; the IO’s decision will also be communicated to the Magistrate. The order thereby channels the process for adding accused through the IO rather than further magistrate proceedings.

Provisions of Law Cited

Section 173(8) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that there are materials indicating involvement of other accused. He is ready to submit a representation narrating additional materials to include the other accused, so that the Investigating Officer can consider and take appropriate steps. He contends that if such a representation is received, the IO will examine it and inform the petitioner of the result; in the meantime, the trial should be deferred until the representation is processed.

Contentions of Respondents

The State/Prosecution submits that Section 173(8) Cr.P.C. petitions cannot be entertained by the Magistrate when the trial is already in progress; reliance was placed on the decision cited (Vinubhai Haribhai Malaviya). The court should not interfere with the order and the IO should handle any addition of accused through proper procedures.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vinubhai Haribhai Malaviya and Others v. State of Gujarat & Another	2019 (4) KLJ 429	Positive	Cited to support the proposition that a Magistrate is not competent to entertain a 173(8) Cr.P.C petition when a trial has already commenced; the High Court did not interfere with the order on this basis.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945** **CRL.MC NO. 9053 OF 2023** **CRIME NO.189/2011 OF Town East Police Station, Thrissur AGAINST THE ORDER/JUDGMENT CC 121/2012 OF CHIEF JUDICIAL** ## **MAGISTRATE ,THRISSUR** ## **PETITIONER(S)/1ST PETITIONER:** BALADEVAN AGED 48 YEARS S/O RAMANUNNI, PATTALI HOUSE, PRANAVAM NAGAR, MANNUTHI DESOM, OLLUKKARA, THRISSUR, PIN - 680586 BY ADVS. VINAY VIJAY SHANKER THOMAS C.ABRAHAM SHAHID AZEEZ ## **RESPONDENT(S)/STATE:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 ADDITIONAL DIRECTOR GENERAL OF POLICE, CRIME BRANCH, ELANCHAKKAL, THIRUVANANTHAOURAM, KERALA, PIN - 695008 3 DISTRICT SUPERINTEND OF POLICE, VIYYUR, KUTTUMUK, THANIKUDAM ROAD, PALLIMOOLA, MANNUMKAD, RAMAVARMAPURAM, THRISSUR, PIN - 680631 4 SEENA APPUKUTTAN, AGED 49 YEARS W/O APPUKUTTAN, 105/B WING, PAVITHRA HOUSING SOCIETY, DEENA DAYAL CROSS ROAD, THAKKUR VADY, DOMBIVALLY WEST, THANE VILLA, MAHARASHTRA., PIN - 400601 5 NANDAKUMAR, S/O. K.K.KAIMAL, SAROJINI, HOUSE, NEAR THIRUVAMBADI TEMPLE, THRISSUR, PIN - 673603 Crl.M.C.No.9053 of 2023 **==> picture [7 x 9] intentionally omitted <==** 6 SREENIVASAN, S/O. VARADARAJA IYYER, BHAGYAVILASAM HOUSE, AGRAHARAM ROAD, PUNKUNNAM, PIN - 680002 7 K.K.SADANANDAN, S/O.KRISHNAN KUTTY, KOCHUPARAMBATHU HOUSE, PATTAN'S BUILDINGS, THRISSUR, PIN - 680001 BY ADV. SMT. SREEJA V, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.9053 of 2023 3 **P.V.KUNHIKRISHNAN, J. -----------------------------Crl.M.C.No.9053 of 2023 ---------------------------------------------Dated this the 31[st] day of October, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed challenging Annexure – X order by which a petition filed by the petitioner under Section 173(8) Cr.P.C was dismissed by the Chief Judicial Magistrate Court, Thrissur. 2. Petitioner is the Charge Witness No.1 in C.C.No.121/2012 on the file of the Chief Judicial Magistrate Court, Thrissur. The petition was filed by the petitioner before the learned Magistrate because earlier there was an order directing to conduct further investigation and even then the main culprits were not included even in the supplementary charge sheet. The learned Magistrate dismissed the petition relying on the Crl.M.C.No.9053 of 2023 4 decision of the Apex Court in **Vinubhai Haribhai Malaviya and Others v. State of Gujarat & Another** [2019 (4) KLJ 429]. Admittedly, the trial in this case is already started. In such circumstances, the learned Magistrate is not competent to consider a petition under Section 173(8) Cr.P.C. In such situation, I see no reason to interfere with Annexure – X order. 3. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 4. Counsel appearing for the petitioner submitted that, there are materials to show that, other accused were also involved in this case and the petitioner is ready to submit the same before the Investigating Officer. If that be the case, the petitioner is free to submit a representation narrating the additional materials available to prosecute the other accused and if such a representation is received, the Investigating Officer will consider the same and take Crl.M.C.No.9053 of 2023 5 appropriate steps in it and will also intimate the petitioner about the result of the same. Therefore, this Criminal Miscellaneous Case is disposed of in the following manner: i. Petitioner will submit a representation narrating the additional materials to include the additional accused, before the Investigating Officer, within ten days from the date of receipt of a stamped certifed copy of this order. ii. Once such a representation is received, the Investigating Officer will look into it and take appropriate decision and communicate the decision to the petitioner within a period of one month from the date of receipt of the representation. iii. Till final orders are passed in the representation by the Investigating Officer, the trial in C.C.No.121/2012 shall be deferred. Crl.M.C.No.9053 of 2023 **==> picture [7 x 10] intentionally omitted <==** iv. Once the order is passed in the representation, the Investigating Officer will submit a copy of the same to the learned Magistrate also for information. Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM Crl.M.C.No.9053 of 2023 7 ## **APPENDIX OF CRL.MC 9053/2023** PETITIONER ANNEXURES ANNEXURE 1 A TRUE COPY OF THE COMPLAINT DATED 22.01.2011 FILED BEFORE THE DISTRICT SUPERINTEND OF POLICE THRISSUR ANNEXURE-II A TRUE COPY OF THE FIRST INFORMATION REPORT DATED 12.02.2011 ANNEXURE-III A TRUE COPY OF THE COPY OF THE CHARGE SHEET TAKEN ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT THRISSUR DATED 31.03.2012 ANNEXURE-IV A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR DATED 03.07.2012 IN CRL.M.P. NO: 3712/2012 IN C.C.NO: 121/2012 ANNEXURE-V A TRUE COPY OF THE SUPPLEMENTARY CHARGE SHEET DATED 31.10.2019 IN FIR NO: 484/CB/TSR/2012 FILED BY THE DETECTIVE INSPECTOR CRIME BRANCH, THRISSUR ANNEXURE-VI A TRUE COPY OF THE OP(CRL)NO: 693/2023 PETITION DATED 22.08.2023 FILED BEFORE THIS HON'BLE COURT ANNEXURE-VII A TRUE COPY OF THE JUDGMENT IN O.P (CRL) NO: 693/2023 DATED 25.09.2023 BEFOFE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM ANNEXURE-VIII A TRUE COPY OF THE CRL.M.P NO: 89487/2023 DATED 17.10.2023 FILED BEFORE THE HON'BLE CHIEF JUDICIAL Crl.M.C.No.9053 of 2023 8 MAGISTRATE COURT, THRISSUR ANNEXURE-IX A TRUE COPY OF THE COMPLAINT DATED 21.10.2023 SUBMITTED BEFORE THE ADDITIONAL DIRECTOR GENERAL OF POLICE ANNEXURE-X A TRUE COPY OF THE ORDER DATED 17.10.2023 IN CRL.M.P NO: 89487/2023 BEFORE THE CHIEF JUDICIAL MAGISTRATE, THRISSUR. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE