Crl.M.C.No.357 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935** ## **Crl.MC.No. 357 of 2012 ()** ## **-------------------------CC.NO. 394/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOTHAMANGALAM** **---------------** ## **PETITIONERS / ACCUSED 1 & 2 :** **-----------------------------------------------** ## **1. REV. FR. PAULOSE CHITTAYATH,** **NELLIMATTAM P.O., KOTHAMANGALAM.** ## **2. SANOJ PAUL** **S/O.FR.PAULOSE CHITTAYATH, NELLIMATTAM P.O. KOTHAMANGALAM.** **BY ADV. SRI.ROY CHACKO** ## **RESPONDENT/COMPLAINANT AND STATE :** **---------------------------------------------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA-682 031** ## **2. SKARIA THOMAS** **CHITTAYATH HOUSE, WARD NO.IV (OLD) KAVALANGAD GRAMA PANCHAYATH, NELLIMATTAM P.O. KOTHAMANGALAM 682 025.** **R1 BY PUBLIC PROSECUTOR SRI. JITHESH R. R2 BY ADVS. SRI.A.C.THOMAS ADHIKARAM** **SRI.M.S.UNNIKRISHNAN SRI.K.SUNIL SRI.P.Z.NIJAZ SRI.P.M.GIRIJAVALLABHAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 357 of 2012 ()** ## **APPENDIX** ## **PETITIONERS' ANNEXURES :** |**ANNEXURE A1**|**: **|**COPY OF THE FIR DATED 2.2.2008.**| |---|---|---| |**ANNEXURE A2**||**COPY OF THE DECREE IN OS NO.71/1991 DATED 16.3.1991.**| |**ANNEXURE A3**||**COPY OF THE DEED OF COMPROMISE IN OS 71/1991 DATED**| |||**15.3.1991.**| |**ANNEXURE A4**||**COPY OF THE FINAL REPORT SUBMITTED BY THE S.T. OF**| |||**POLICE, OONNUKAL DATED 30.7.2009.**| |**ANNEXURE A5**||**COPY OF CMP NO. 476/09 DATED 5.3.2009 FILED BY THE 2ND**| |||**RESPONDENT.**| |**ANNEXURE A6**||**COPY OF THE ORDER DATED 29.6.2009 PASSED BY JFMC,**| |||**KOTHAMANGALAM.**| |**ANNEXURE A7**||**COPY OF THE ORDER DATED 8.2.2010 PASSED BY JFMC,**| |||**KOTHAMANGALAM.**| |**ANNEXURE A8**||**COPY OF THE SUMMONS ISSUED BY THE SI OF POLICE,**| |||**OONNUKAL DATED 21.5.2011.**| |**ANNEXURE A9**||**COPY OF THE WRITTEN STATEMENT FILED IN OS NO. 488/2010**| |||**BEFORE THE MUNSIFF'S COURT, MUVATTUPUZHA IN MARCH**| |||**2011.**| |**ANNEXURE A10**||**COPY OF THE SETTLEMENT DEED DATED 8.10.2007**| |||**EXECUTED BY 2ND RESPONDENT IN FAVOUR OF HIS WIFE.**| |**ANNEXURE A11**||**COPY OF THE ORDER SHEET IN CC NO. 394/2009 OF THE**| |||**JFCM., KOTHAMANGALAM.**| |**ANNEXURE A12**||**COPY OF CMP NO. 242/2008 DATED 30.1.2008.**| |**ANNEXURE A13**||**COPY OF THE ORDER DATED 29.11.2011 IN CC NO. 495/2007,**| |||**JFMC, KOTHAMANGALAM.**| **(Contd...)** **Crl.MC.No. 357 of 2012 ()** |**ANNEXURE A14**|**COPY OF ORDER DATED 13.7.2011 IN CRL. RP NO. 38/2011 IN**| |---|---| ||**CC 456/2008 OF THE SC, ERNAKULAM.**| |**ANNEXURE A15**|**TRUE COPIES OF THE PETITION.**| |**ANNEXURE A16**|**COPY OF THE ORDER DTD. 7.5.2013.**| |**RESPONDENT'S**|**ANNEXURES : NIL**| **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **P.D. RAJAN, J.** ------------------------------------------Crl.M.C.No.357 of 2012 ---------------------------------------------Dated this the 27[th] day of January, 2014 ## **ORDER** This Criminal Petition is filed under Section 482 of the Criminal Procedure Code to quash the proceedings in C.C.No.394/2009 of the Judicial First Class Magistrate, Kothamangalam alleging offence punishable U/Ss. 419, 420, 467 and 474 r/w Section 34 IPC & 120B of IPC. 2. The 2[nd] respondent, who is the owner of 37 cents of property in Survey No.112/1A/40/7 of Kuttamangalam Village, claims that he is in possession of that property and enjoying it. The accused in the above case conspired together by forging documents transferred the property in the name of the 1[st] petitioner and subsequently transferred in the name of the 2[nd] petitioner. Thus, Oonnukal Police registered Annxure-A1 and after completing investigation, laid Annexure-A4 charge before the Court. The 3[rd] accused in the above case died and the petitioners are facing trial with the above case. In the Crl.M.C.No.357/12 2 circumstance, C.M.P.No.879/2011 was filed by the C.I. of Police for further investigation. Hence, the petitioners approached this Court with the above petition for quashing Annexure-A4 and further investigation u/s173(8). 2. Heard both sides. The learned counsel appearing for the petitioners contended that the 2[nd] respondent is the elder brother of the 1[st] petitioner and the 2[nd] petitioner is the son of the 1[st] petitioner. No ingredients are found in Annexure-A12 to prove dishonest intention of the petitioners to commit offence u/s.420 IPC and prima facie case is not made out against the petitioners. Moreover, the dispute between the petitioners and the 2[nd] respondent was settled and a compromise was entered into by them before the Munsiff Court, Moovattupuzha. Two conditions in Annexure-A3 were not considered by the 2[nd] respondent while lodging the above complaint. Moreover, learned Magistrate has no power to issue investigation suo motu. Since it is a pure abuse of process of Court, interference is necessary. The learned counsel for the petitioners relied decisions in _**Reeta Nag**_ v. _**State of West Bengal**_ [2009 (9) SCC 129], _**Dinesh Dalmia**_ v. _**CBI**_ [2007 Crl.M.C.No.357/12 3 (8) SCC 770], _**Babu Bhai**_ v. _**State of Gujarat**_ [2010 (12) SCC 254] 3. Respondents strongly resisted the above contention and contended that the investigation reveals that prima facie case is made out against the petitioners. All documents produced shows that the 1[st] petitioner is involved in several other cases and some of which are pending. The Forensic report shows that the documents were forged documents and to that effect, the handwriting expert made a detailed report. When final report was filed before the Court, the Court is bound to follow with that final report and interference at this stage is not warranted in this case. 4. Now the question that arises for consideration is whether the interference at this stage is possible. As per the facts of this case, the offence alleged against the petitioners is U/Ss. 419, 420, 467 & 474 r/w 34 IPC. They forged documents and executed a sale deed in favour of the 2[nd] respondent. The investigation conducted by the police officials shows that the petitioners made a new document in which the 2[nd] respondent is the owner of the property. The inherent Crl.M.C.No.357/12 4 jurisdiction can be used to prevent abuse of process of Court or to secure ends of justice. The Supreme Court in _**State of Hariyana**_ v. _**Bhajanlal**_ [1992 SCC 426] held that where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused, the proceedings are liable to be quashed. 5. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case ordinarily in criminal proceedings, when it feels that it is necessary to secure the ends of justice. As prima facie case is made out against the petitioners in this case, it is not necessary to invoke the jurisdiction at this stage. The petitioners also filed another petition Crl.M.P.No.10015/2013 to consider Annexure-A15 and A16 to show that 2[nd] respondent is making a dialatory tactics in this case. It is purely within the jurisdiction of the investigating officer to proceed further under Section 173 (8) when a new evidence obtains after final report. On the basis of the new evidence, he approached the Crl.M.C.No.357/12 5 Court and the Court allowed that petition. In _**Vinay Tyagi**_ v. _**Irshad Ali alias Deepak and Ors**_ . [2013 CRL. L.J. 754], in paragraph 15 it was held that “'Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of Crl.M.C.No.357/12 6 continuation of the previous investigation. The basis is discovery of fresh evidence are in continuation of the same offence and chain of events relating to the same occurrence are incidental thereto. In other words, it has to be understood in complete contradistinction to a 'reinvestigation' 'fresh' or 'de novo' investigation.” It is admitted fact that the investigation is purely within the discretion of the Investigating Officer and no Court can interfere into that aspect. Here, the final report was submitted by the Investigating officer. In the circumstances, I direct the investigating officer to give further report at the earliest within three months and submit a supplementary report at the earliest. 6. Considering the nature of offence and the nature of investigation, I direct that, as and when supplementary report is filed by the investigating officer, the trial Court shall expedite the matter within six months therefrom. Crl.M.C. is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd Crl.M.C.No.357/12 7 Crl.M.C.No.357/12 8