D. Kurian; Bini Thomas; Limi Thomas (minor) v. State of Kerala and Others

` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 3298 of 2008(P) ------------------------CC.863/2003 of J.M.F.C.,PALA .................... PETITIONER: ------------ 1. D.KURIAN, AGED 52 YEARS, S/O.DEVASIA, RESIDING AT KANIYAMTHAZHATHU VEETTIL, PATTITHANAM BHAGOM, KADAPPOOR KARA, KANAKKARI VILLAGE, KOTTAYAM, (FIRE OFFICER, FIRE STATION, PALA). 2. BINI THOMAS, W/O.LATE THOMAS, KEEZHEDATH HOUSE, ATHIRAMPUZHA, PADINJATTUBHAGOM KARA, KOTTAYAM. 3. LIMI THOMAS (MINOR) AGED 15 YEARS, REPRESENTED BY HER MOTHER AND GUARDIAN BINI THOMAS, DO. DO. BY ADV. SRI.T.M.RAMAN KARTHA RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. SUPERINTENDENT OF POLICE, KOTTAYAM. 4. CIRCLE INSPECTOR OF POLICE, ETTUMANOOR. 5. P.K.CHANDRAN NAIR, S/O.KOCHUKUTTAN NAIR, KALLOOR HOUSE, PEROOR P.O., KOTTAYAM. 6. SAJEEV KUMAR.K.C., S/O.P.K.CHANDRAN - NAIR, KALLOOR HOUSE, PEROOR P.O., KOTTAYAM. 7. NATIONAL INSURANCE COMPANY LIMITED, KOTTAYAM BRANCH, REPRESENTED BY ITS BRANCH MANAGER, KOTTAYAM. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** W.P.C.No.3298 of 2008 ---------------------------------------Dated this the 19[th] day of February 2008 ## **J U D G M E N T** The first petitioner is an injured in a road traffic accident. He was allegedly travelling in an autorickshaw which was driven by the predecessor in the interests of petitioners 2 and 3. The first petitioner as well as the said autorickshaw driver suffered injuries in the accident. The predecessor in interest of petitioners 2 and 3 succumbed to his injuries. Allegations were raised that the accident occurred on account of the rashness and negligence of the driver of another vehicle. Crime was registered. Investigation was conducted and final report was filed by the investigating officer alleging that the sixth respondent, allegedly the driver of the other vehicle, was guilty of rashness and negligence. On the final report filed by the police, the learned Magistrate took cognizance and C.C.No.863/03 was registered before the Judicial First Class Magistrate Court, Pala. 2. While C.C.No.863/03 was pending, the seventh respondent, National Insurance Company appears to have filed a complaint before the superior officials of the police alleging that the sixth respondent has unjustifiably been brought on the array W.P.C.No.3298/08 2 of accused solely with the intention of making the seventh respondent insurer of the said vehicle to be liable to compensate the petitioners. Further investigation under Section 173(8) Cr.P.C has been conducted subsequently and a further report has been filed by the investigator. The learned counsel for the petitioner submits that no decision has been taken by the learned Magistrate so far and the matter is pending before the learned Magistrate. 3. According to the petitioner, the further investigation conducted is totally unjustified. No proper further investigation under Section 173(8) Cr.P.C has been conducted. In these circumstances, it is prayed that the said further report may be set aside and appropriate directions may be issued to the learned Magistrate to proceed with the trial in C.C.No.863/03. 4. Petitioners are aggrieved by the further investigation conducted under Section 173(8) Cr.P.C. Admittedly, the further report is pending before the learned Magistrate and no decision has been taken by the learned Magistrate in the matter so far. The learned counsel for the petitioner was requested to explain how in the light of the decision in Sakri Vasu v. State of U.P & Others [2008 AIR SCW 309] this petition under Article 226 of the Constitution maintainable before this court. W.P.C.No.3298/08 3 5. The learned counsel for the petitioner only submits that the extraordinary circumstances available in this case must prompt this court to invoke the powers under Article 226 of the Constitution. 6. I am unable to agree. It is for the petitioners to appear before the learned Magistrate and raise appropriate objections against the final report submitted by the police under Section 173(8) Cr.P.C. It is for the learned Magistrate to consider such report in the light of such objection as may be raised by the petitioners and issue appropriate directions in the matter. I need not embark on any further discussions or suggest the nature of orders that can be passed by the learned Magistrate. Suffice it to say that the learned Magistrate must consider the report under Section 173(8) Cr.P.C along with the objections, if any, raised by the petitioners and pass appropriate directions to ensure a proper investigation as indicated in the decision in **Sakri Vasu Supra** . 7. With the above observations, this writ petition is dismissed. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge W.P.C.No.3298/08 4 W.P.C.No.3298/08 5 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007