Crl.M.C. No. 1822 of 2006

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Crl.MC.No. 1822 of 2006() ------------------------AGAINST THE ORDER IN INCMP.2480/06 IN CC.179/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ALATHUR .................... PETITIONER: ACCUSED NO.2 ------------------------- C.V.MOINKUTTY HAJI, AGED 47 YEARS, S/O. MOIDEEN HAJI, CHERUVALATHU VEEDU, PATHIMANGALAM, KURUMANGALAM, KOZHIKODE DISTRICT. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.DEEPTHI S.NATH SRI.RENJITH B.MARAR SRI.PRABHU VIJAYAKUMAR SRI.RAJEEVKUMAR.K.S SMT.LAKSHMI.N.KAIMAL RESPONDENTS/COMPLAINANT: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, C.B.C.I.D., PALAKKAD. BY PUBLIC PROSECUTOR SHRI. THOMAS JOHN AMBOOKEN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL. M.APPL. NO: 3572 OF 2006 IN CRL. M.C. NO: 1822 OF 2006 DISMISSED: 3/9/2008 jj /TRUE COPY/ SD/- THOMAS P. JOSEPH, JUDGE P.A. TO JUDGE ## THOMAS P. JOSEPH, J. ------------------------------CRL. M.C. No. 1822 OF 2006 ------------------------------Dated this the 3[rd] September, 2008. ## O R D E R Petitioner is the second accused in crime No: 301/98 of Alathur police station, registered for offences punishable under Sections 420, 468 & 471 of Indian Penal Code. The case was registered against the petitioner and three others on the allegation that the petitioner and those three others in furtherance of their common intention to cheat the defacto complainant, sold the vehicle belonging to the fourth accused to the defacto complainant for Rs.4.50 lakhs but supressing the fact that the vehicle was covered by a hire purchase agreement and that amount was due to the financier. It is the further allegation that a forged RC book was given to the defacto complainant at the time of sale. Investigation was conducted by the Sub Inspector, Alathur who submitted final report before the Judicial First Class Magistrate's Court, Alathur on 13.2.2000 for offence as stated earlier. The Learned Judicial First Class Magistrate, Alathur took cognizance of the said offence and registered the case as C.C.179/03. While so, the State Government Crl.M.C.1822/06 2 handed over the case to the CBCID as per order dated 15.5.2003 for further investigation. On the strength of that order, the second respondent submitted Anneuxre 8 petition in the Court of Judicial First Class Magistrate, Alathur under Section 173(8) of the Code of Criminal Procedure seeking permission for 're-investigation'. In the petition it is stated that at the instance of the third accused, a petition was submitted in this Court as Crl.M.C.818/2006 and as per order dated 31.3.2006, this Court directed that further investigation could be conducted with the permission of the court concerned and accordingly, Annexure 8 petition is filed. The purport of the 're-investigation' stated is that the forged RC book and the original RC book are to be traced. Learned Magistrate vide Annexure 9 order dated 15.5.2006 allowed the prayer and directed 're-investigation'. Petitioner is aggrieved and preferred this petition. 2. Heard learned counsel for the petitioner and learned Public Prosecutor. 3. Learned counsel submitted that Section 173(8) of the Code does not contemplate 're-investigation' and therefore, the learned Magistrate was not correct in ordering 're-investigation'. The Crl.M.C.1822/06 3 further contention is that it was not based on any material that the order for 're-investigation' was passed by the learned Magistrate. 'Re-investigation' could not and ought not have been ordered after cognizance was taken. It is also contended that there is no provision to stop the trial as done by the learned Magistrate. Learned counsel placed reliance on the decision in State v. Gopakumar {1988(1) KLT 521} and in particular the observations in para 8. The learned Public Prosecutor submits that it is well within the power of the Magistrate to order further investigation under Section 173(8) of the Code. 4. Though, in Annexure 8 petition and consequently in Annexure 9 order what is requested for and permitted is 're-investigation', on going through the petition and the relevant records it is seen that it is not 're-investigation' but 'further investigation' which, it is not disputed by the learned counsel for the petitioner also is permitted under Section 173(8) Cr.P.C, that was really contemplated by the Investigating Officer and granted by the learned Magistrate as the attempt was to trace the forged R.C book and the original R.C. Book. Therefore, that part of the contention of the learned counsel has no legs to stand. Crl.M.C.1822/06 4 5. It is by now settled and as the latest decision of the Honourable Supreme Court in State of Andhra Pradesh v. A.S.Peter {(2008) 2 SCC 383} say, for the purpose of 'further investigation' a formal order granting permission from the court concerned is not required. In the case on hand the investigating officer requested for and the learned Magistrate granted such permission. Moreover, as seen from Annexure 7 order, this Court had while disposing of Crl.M.C.818/06 directed the investigating officer that it is open to him to approach the learned Magistrate and seek formal permission to proceed with the investigation. That exactly is what has been done by the second respondent by Annexure 8. Therefore, there can be no objection legally or factually, to the learned Magistrate deciding to grant permission for further investigation. 6. The learned counsel argued that there is no provision to grant permission for further investigation after the court takes cognizance of the offence as per the earlier Final Report, Section 173(8) of the Code however, does not create any such embargo. So much so, it is open to the Court to grant such permission at any time before pronouncing judgment in the case. 7. The next question for consideration is whether in the Crl.M.C.1822/06 5 absence of evidence as the learned counsel submits, the court below was justified in ordering further investigation. In paragraph 8 of State v. Gopakumar referred supra to which the learned counsel invited my attention, it is stated that under the guise of further investigation the police cannot make inroads into the right of the court to take action on the materials. Exercise of the right of further investigation should be in harmony with the right of the Court to take action on the materials already placed and the new materials that are brought in. It is further observed that “but a condition precedent to the exercise of that right as provided in Section 173(8) itself is the obtaining of 'further evidence' over and above what was collected or known earlier. Further report or reports must be solely “regarding such evidence” which was not collected or which was not available earlier.” 8. It is important to bear in mind that this Court while deciding State v. Gopakumar was concerned with the question whether further investigation and report can be made only regarding such evidence which could not be collected or was not available earlier. The learned counsel taking cue from that observation argues that this is not a case where the forged RC book Crl.M.C.1822/06 6 or the original RC book was not available at the time of submission of the final report and that the second respondent has no such case even. But, the purport of the further investigation itself has been clearly stated by the second respondent in Annexure 8, i.e., to collect further materials viz., the forged RC book as well as the original RC book to prove the charges under Sections 471 and 478 IPC. I am not inclined to think that the decision stands in the way of the Investigating Officer seeking permission of the Court (if at all such permission is warranted) for further investigation to collect further materials which could not be collected during the earlier investigation. 9. Moreover, in Annexure 7 order, this Court has specifically permitted the investigating officer to seek permission for further investigation. On the facts of the case also I am not inclined to think that there is anything illegal, irregular or improper in the learned Magistrate granting permission for further investigation. 10. Yet another argument advanced by the learned counsel is that pending further investigation the trial of the case has been stopped and that there is no provision for such stoppage of the trial. Even in the absence of a specific provision in the Code of Crl.M.C.1822/06 7 Criminal Procedure to enable the learned Magistrate to stop the trial in such contingencies, the power to stop the trial pending further investigation and report has to be read from Section 173(8) itself. Otherwise, there is no point in proceeding with the trial, even completing it, pronouncing judgment and then getting further report on the further investigation conducted. It is open to the Magistrate to stop or adjourn the trial pending receipt of further report. In fact, Annexure 9 does not say that the trial has been stopped. 11. At this stage learned counsel for the petitioner raised an apprehension that notwithstanding the existence of an order of bail in favour of the petitioner, he may be taken into custody by the investigating officer. The learned Public Prosecutor says that there is no merit in that apprehension, so far as the order of bail in favour of the petitioner stands. In the light of that submission I do not find any reason to entertain the apprehension of the petitioner. The learned counsel then submitted that time limit may be prescribed for the further investigation since otherwise trial of the case will be further delayed. On this aspect, I do not think it justifiable to prescribe time limit for further investigation. However, I direct the Crl.M.C.1822/06 8 investigating officer to expedite the further investigation and the submission of the report. With the above observation this petition is dismissed. THOMAS P. JOSEPH JUDGE jj