Crl.M.C. No. 2625 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 9TH DAY OF JULY 2013/18TH ASHADHA, 1935** ## **Crl.MC.No. 2625 of 2013** **---------------------------** **(AGAINST THE ORDER IN CRL.M.P.NO.1435/2013 IN S.C.NO.122/2013 DATED 28/05/2013 OF ADDITIONAL DISTRICT & SESSIONS COURT,ERNAKULAM** **.... (CRIME NO.289/2011 OF ANGAMALI POLICE STATION)** **....** ## **PETITIONER(S)/1ST ACCUSED:** **--------------------------------------------------** **PAUL, AGED 42 YEARS, S/O. OUSEPH, NJALIYAN HOUSE, PARAMBAYAM BHAGAM, THABORE KARA, MOOKKANNOOR VILLAGE.** **BY ADVS.SRI.DINESH MATHEW J.MURIKAN SRI.P.V.BALAKRISHNAN** ## **RESPONDENTS/COMPLAINANT & 3RD ACCUSED:** **-------------------------------------------------------------------------------** ## **1. STATE OF KERALA,** - **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **2. PAUL.P. JOSEPH,** **S/O. OUSEPH, PUTHUSSERY HOUSE, PRAMBAYAM BHAGAM, THABORE KARA, MOOKKANNOOR VILLAGE. PIN-683 577.** **R1 BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2013, THE COURT ON 09/07/2013 PASSED THE FOLLOWING:** **Kss** ## **Crl.MC.No. 2625 of 2013** ## **-----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **---------------------------------------------** **ANX.A1 COPY OF THE FINAL REPORT IN CRIME NO. 289/2011 OF ANGAMALI POLICE STATION.** **ANX.A2 COPY OF THE CHARGE FRAMED AGAINST THE ACCUSED IN S.C. NO. 122/2013 BY THE ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM DATED 6-5-13.** **ANX.A3 COPY OF THE REPORT FILED BY THE INVESTIGATION OFFICER DATED 23-5-2013.** **ANX.A4 COPY OF THE ORDER IN CRL. M.P. NO. 1435/13 IN S.C. NO. 122/2013 PASSED BY THE ADDITIONAL DISTRICT & SESSIONS COURT, ERNAKULAM DATED 28-5-13.** ## **RESPONDENT(S)' ANNEXURES:** **----------------------------------------------N I L** **/TRUE COPY/** **P.S.TO JUDGE** ## **Kss** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2625 of 2013 - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of July, 2013. ## ORDER Aggrieved by the order dated 28.5.2013 in Crl.M.P. No. 1435 of 2013 in S.C. No. 122 of 2013 by the Additional District and Sessions Court, Ernakulam, whereby the court below allowed the petition filed by the investigating agency under Section 173(8) of the Code of Criminal Procedure, the first accused has invoked the inherent power under Section 482 of the Cr.P.C. to quash the order. 2. In respect of an incident which took place on 25.2.2011 in which C.Ws.1 and 2 were injured, Crime No. 289 of 2011 was registered against the accused persons for having committed offences punishable under Sections 294B, 323, 324, 354 and 307 if Indian Penal Code. After investigation, final report was filed, which is produced as Crl.M.C. 2625/2013. 2 Annexure I. The court below before which the final report was laid, took cognizance of the offences and finding that the offences are exclusively triable by a court of Sessions, committed the case to Sessions Court, Ernakulam. That court made over the case to Additional District and Sessions Court, Ernakulam. The said court framed charges against the accused as per Annexure II and on the accused pleading not guilty to the charge, the case was posted for trial and the trial was to commence from 23.5.2013. On that day, it appears that the investigating officer filed an application pointing out that he had received advice from the Additional Public Prosecutor that the incidents in which C.Ws.1 and 2 were injured are two separate and distinct incidents and a common charge will not lie. According to the investigating officer, he was advised that two separate charges will have to be filed and therefore, Crl.M.C. 2625/2013. 3 he pointed out that if so, it is necessary to carry on further investigation and therefore, he was seeking the permission of the court to invoke the power under Section 173(8) of the Cr.P.C. 3. The petition was opposed by the accused persons, who pointed out that Section 173(8) of the Cr.P.C. was not intended for such purpose and it could be invoked only on discovery of fresh materials which necessitated further investigation, and not on the same materials which are already available on record. For the above proposition, they relied on the decisions reported in Ram Lal Narang v. State (Admn.)Delhi (AIR 1979 SC 1791) and Kishan Lal v. Dharmendra Bafna (2009 AIR SCW 4677). It was also pointed out that due to the proximity of the incident, the two incidents could be treated as part of the same transaction, and if that be so, there was no need Crl.M.C. 2625/2013. 4 to have two separate charges as now sought for and for the said purpose they relied on the decision reported in Mohan Baitha v. State of Bihar (AIR 2001 SC 1490). 4. The court below, after considering the rival contentions, especially the principle laid down in the decisions relied on by the accused persons, found that there is substance in the petition filed by the investigating agency and finding that the charge framed by the court on the initial final report filed by the investigating officer may not be sustainable, granted permission to the investigating agency to conduct further investigation and file split charge. 5. Learned counsel appearing for the petitioner reiterated the very same contentions that were raised before the court below. According to the learned counsel, by the wordings of Section 173(8) of Cr.P.C., it 5 Crl.M.C. 2625/2013. contemplates a situation where after the final report is filed, fresh evidence is obtained and which necessitated further investigation and the filing of a further charge. In the case on hand, according to the learned counsel, there is no such contingency and all that the investigating officer has pointed out is that two separate and independent incidents have been clubbed into one and this is found to be a wrong procedure adopted and it is necessary to file two separate charges. Learned counsel relied on the decision reported in Ram Lal Narang v. State (Admn.)Delhi (AIR 1979 SC 1791), wherein it was observed as follows: “Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further Crl.M.C. 2625/2013. 6 investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither S. 173 nor S. 190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts.” 6. Reliance was also placed on the decision reported in Kishan Lal v. Dharmendra Bafna (2009 AIR SCW 4677) wherein it was held as follows: “The Investigating Officer may exercise his statutory power of further investigation in Crl.M.C. 2625/2013. 7 several situations as, for example, when new facts come to its notice; when certain aspects of the matter had not been considered by it and it found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to its notice. Apart from the aforementioned grounds, the learned Magistrate or the Superior Courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice.” 7. Learned counsel appearing for the petitioner contended that the contingencies contemplated in the above decisions are not available in the case on hand and therefore, the order cannot be sustained. 8. The contention seems to be unfounded. It cannot be disputed that initially C.W.1 was attacked and Crl.M.C. 2625/2013. 8 that the victim had suffered injuries at the hands of the accused persons. It was a short while thereafter and at a different place that C.W.2 had suffered injuries at the hands of the accused. It is true that the motive alleged and the accused persons are the same as far as the attack on C.Ws.1 and 2 are concerned. But it could be seen that the two incidents are independent and separate. The investigating officer treated them as a part of the same transaction and filed a common final report. The court below acting on the same, framed charges also in that respect. Later on, when it was brought to the notice of the court that these are two separate incidents and it is necessary to file separate charges, the court realized the mistake committed by it and allowed the petition. It is true that the court can alter the charge under Section 216 of the Code of Criminal Procedure. But in the case on Crl.M.C. 2625/2013. 9 hand, it is not a case of alteration of charge and it is a question of the correctness of the charge framed. 9. It is seen that in respect of both the incidents, a common scene mahazar was prepared and so also such other documents relied on by the prosecution. In the light of the fact that two incidents are to be treated as separate and distinct, it becomes necessary to prepare fresh scene mahazar and it may also be necessary to collect further evidence in the case. Under such circumstances, if the court below felt that further investigation is necessary in the matter, it cannot be said to be incorrect. The mere fact that the court below had framed charges in tune with the final report filed by the investigating officer does not preclude the court below from granting permission to the investigating officer to carry out further investigation under Section 173(8) of Crl.M.C. 2625/2013. 10 Cr.P.C. It is true that going by the wordings of Section 173(8) of Cr.P.C., fresh materials are to be unearthed for invoking the provision in the Code. It cannot be disputed that two separate charges in respect of two incidents in which C.Ws. 1 and 2 were injured are to be drawn up. 10. The two decisions relied on by the learned counsel for the petitioner can have no application to the facts of the case. Even otherwise, the principle laid down in the above decisions do not run counter to the decision taken by the court below in this regard. The advice received by the investigating officer that the two incidents are separate and therefore, two separate charges will have to be filed necessitated further investigation in the matter and that is precisely the reason why the investigating officer had invoked Section 173(8) of the Cr.P.C. and sought permission of the court for conducting Crl.M.C. 2625/2013. 11 investigation. Considering the facts and circumstances, it could not be said that the order suffers from any infirmities. 11. Coming to the question as to whether two incidents can be treated as part of the same transaction, that question does not arise for consideration now. It is true that the motive alleged is the same and so also the accused are same. It is true that under Section 216 of the Cr.P.C., the court, at any time before the disposal of the case, can alter the charge. But the exercise of such a power does not arise for consideration in this case since it is pointed out by the prosecution that the two incidents are independent and distinct and two charges to be filed. The court below find it proper and granted permission to do so. Crl.M.C. 2625/2013. 12 12. The question whether the two incidents are part of the same transaction can be considered later also. At any rate, the illegality in filing a common charge needs to be rectified and for that purpose, the court below is justified in allowing the petition. 13. One may also note here that had the court realized at the appropriate time that two separate charges had to be filed, the court could have exercised the power and directed the investigating officer to do so. Under such circumstances, if the investigating officer feels that further investigation is necessary, he could have resorted to Section 173(8) of Cr.P.C. The only thing in the case on hand is that the investigating officer realised the mistake committed by him and brought it to the notice of the court and the court below found that there is justification in the relief sought for by the investigating officer and granted Crl.M.C. 2625/2013. 13 the same. It could not therefore be said that Section 173 (8) of Cr.P.C. Can have no application. For the above reasons, it is found that this Crl.M.C. is without any merits and it is liable to be dismissed. I do so. P. BHAVADASAN, JUDGE sb.