Fathima v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.MC NO. 231 OF 2024** **AGAINST CMP NO.7391 OF 2022 OF JUDICIAL MAGISTRATE OF FIRST** **CLASS-I, PONNANI CRIME NO.369/2020 OF PERUMPADAPPU POLICE STATION,** ## **MALAPPURAM** ## **PETITIONER/COMPLAINANT:** **FATHIMA AGED 57 YEARS, W/O. HASSAN, PARAMBIL HOUSE, KADAVANADU AMSOM, PUTHU PONNANI DESOM, PONNANI SOUTH, PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679586** **BY ADVS. SRI.K.B.ARUNKUMAR SMT.POOJA K.S.** ## **RESPONDENTS/STATE/ACCUSED:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 THE STATION HOUSE OFFICER PERUMPADAPPU POLICE STATION, MALAPPURAM DISTRICT, PIN - 679580** **3 HAJIRA AGED 36 YEARS,W/O. SHARAFUDHEEN, KIZHAKKATHU VEETTIL, VELIYAMKODU, PONNANI TALUK, MALAPPURAM DISTRICT, PIN - 679579** **SRI. ASHI M.C., PUBLIC PROSECUTOR** Crl.M.C. No.231/24 **-:2:-** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.231/24 ## **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C. No.231 of 2024** **---------------------------------** Dated this the 18[th] day of March, 2024 ## **ORDER** Petitioner’s son, Sri. Shemeer sustained an injury on 04.11.2020 and subsequently died on 11.11.2020. A crime was registered as Crime No.369/2020 of Perumpadappu Police Station, which was referred as ‘further action dropped’. Another crime was registered as Crime No. 372/2020 of the same police station. A final report was filed in the said crime under sections 448 and 201 of the IPC. Petitioner alleges that her son was murdered, and she seeks directions for a proper investigation. Petitioner also challenges the order dated 10.05.2023 in C.M.P. No.7391/2022 on the files of the Judicial First Class Magistrate's Court, Ponnani, whereby the application for further investigation has been rejected and instead the learned Magistrate has decided to proceed under Chapter XV of the Cr.P.C. 2. On the morning of 05.11.2020, pursuant to information received, it was noticed that a person was lying unconscious in an Crl.M.C. No.231/24 ## **-:4:-** incomplete house, belonging to the defacto complainant. A crime was registered as FIR No. 372/2020 at Perumpadappu Police Station. In the meantime, it was realised that the injured was Sri. Shemeer - petitioner’s son who allegedly fell down inside the incomplete building of the defacto complainant on 04.11.2020. During the investigation, it was revealed that the 3[rd] respondent was apparently with the deceased at the time of the incident and even concealed the mobile phone of the injured after the fall. Therefore, the offence punishable under Sections 448 and 201 of the Indian Penal Code, 1860 was registered. In the meantime, Sri. Shemeer succumbed to his injuries. 3. Petitioner filed an application for further investigation alleging that the 3[rd] respondent murdered her son since she was having an extramarital affair with the deceased and that her son's wedding was fixed on 31-12-2020 with another lady. However, the learned Magistrate by order dated 10.05.2023, found that the police had properly investigated the case, and a further investigation is not necessary. 4. Sri. K.B.Arunkumar, the learned counsel for the petitioner contended that the investigation carried out by the police is too Crl.M.C. No.231/24 **-:5:-** shoddy and, therefore, a proper investigation is required to find out the real truth behind the incident. According to the learned counsel, the conduct of the 3[rd] respondent was quite suspicious and the Investigating Officer had not probed into the entire details. 5. Sri.M.C. Ashi, the learned Public Prosecutor, on the other hand contended that the learned Magistrate had perused the case diary and had concluded that the investigation was satisfactory and no cause existed warranting any further investigation. 6. Since the nature of the allegations raised some suspicion, this Court called for the case diary and perused it. It is noticed that when information was received regarding an injured lying in an incomplete building, police registered the crime and commenced an investigation. Subsequently, the mobile phone of the injured was seized from the 3[rd] respondent, who is alleged to have had an extramarital relationship with the injured. Sri. Suresh E.I., who was the investigating officer initially, went on medical leave on 11.11.2020, and the investigation was handed over to another officer. Curiously, the injured person succumbed to his injuries on 11.11.2020. A perusal of the statement of the 3[rd] respondent under section 164 Cr.P.C and the other statements given by her to the police indicates Crl.M.C. No.231/24 **-:6:-** that there are contradictions and inconsistencies between those statements. 7. Though experts are able to identify from the nature of injuries as to whether the fall from a building is an accidental fall or a fall caused by a push, investigation, unfortunately has not been carried out in that manner. The difference in trajectory can bring in a different type of injuries. As noticed from the postmortem report, the injuries are all on the back of the body especially on the back of the head. The nature of the injuries, as noticed from the postmortem certificate, thus raises some doubt regarding the manner in which those injuries would have been caused. It is also noticed that neither the case diary contains the wound certificate nor has all the witnesses been questioned effectively. 8. In the decision in **Vinay Tyagi v. Irshad Ali** (2013) 5 SCC 762, it was held that Constitutional courts have the jurisdiction under Section 482 of the Code or under Article 226 of the Constitution of India to direct ‘further investigation’ or ‘reinvestigation’. Of course, in **Dharam Pal v. State of Haryana and Others** (2016) 4 SCC 160, it was held that the direction for further investigation by another agency has to be very sparingly issued. Crl.M.C. No.231/24 ## **-:7:-** 9. Considering the entire circumstances, this Court believes that the investigation already carried out is insufficient. The wound certificate must be recovered apart from properly analysing the injuries and other attendant factors. A scientific probe is required with modern investigative measures. A proper and effective investigation is needed to be carried out in its entirety into both crimes. The circumstances depicted in this case compel this Court to exercise the power to order a re-investigation as that alone may do complete justice. The situation thus warrants a re-investigation by the District Crime Branch. 10. Accordingly, Annexure 3 order dated 10-05-2023 in C.M.P. No.7391/2022 on the files of the Judicial First Class Magistrate's Court, Ponnani is set aside. There will be a direction to the District Superintendent of Police, Malappuram, to hand over the investigation of Crime No.372/2020 and Crime No.369/2020 both of Perumpadappu Police Station to the District Crime Branch to conduct a re-investigation into the aforesaid crimes. Crl.M.C is allowed as above. **Sd/BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.231/24 ## **-:8:-** ## **APPENDIX** |**PETITIONER'S/S'**|**ANNEXURES**| |---|---| |**Annexure 1**|**THE TRUE COPY OF THE COMPLAINT FILED**| ||**BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT, PONNANI, NUMBERED AS**| ||**CMP NO. 7391/2022**| |**Annexure 2**|**THE TRUE COPY OF THE REPORT DATED**| ||**24.02.2023 SUBMITTED BY THE 2ND**| ||**RESPONDENT FILED HIS REPORT AGAINST**| ||**ANNEXURE-1 THROUGH PUBLIC PROSECUTOR**| |**Annexure 3**|**THE CARBON COPY OF THE ORDER DATED**| ||**10.05.2023 IN CMP NO. 7391/2022 ON THE**| ||**FILE OF JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT, PONNANI**|