Joseph v. State of Kerala and Ancy Mathew

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH DAY OF NOVEMBER 2013/6TH AGRAHAYANA, 1935 Crl.Rev.Pet.No. 2288 of 2012 () -------------------------------- AGAINST THE ORDER IN CMP 1682/2012 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ALUVA DATED 25-09-2012 REVISION PETITIONER/ ACCUSED: ---------------------------------------------------- JOSEPH, S/O.PETER, AGED 52 YEARS PUTHENPADAM HOUSE, 34/663E, KRWA 23 MAMANGALM PALARIVATTOM P.O, PIN-682025 BY SR.ADV.SRI.S.SREEKUMAR ADVS. SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ SRI.THOMAS P.KURUVILLA SRI.P.PRIJITH SRI.ANEESH JAMES RESPONDENTS/DEFECTO COMPLAINANT: ---------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM 2. ANCY MATHEW,AGED 43 W/O GEORGE JOSEPH, KOCHUPARAMBIL HOUSE, KOTHAVARA P.O ULLALA, NEAR VAIKOM, KOTTAYAM DISTRICT PIN-686607 R1 BY PUBLIC PROSECUTOR SMT.P.MAYA R2 BY ADVS. SRI.JOHN S.RALPH SMT.PREETHY KARUNAKARAN SRI.K.J.JOSEPH (ERNAKULAM) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30-10-2013, THE COURT ON 27-11-2013 PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2288 of 2012 () ## APPENDIX PETITIONER'S EXHIBITS : ANNEXURE-A : TRUE COPY OF F.I.R.NO.2512/2010 OF ALUVA POLICE ANNEXURE-B : TRUE COPY OF REMAND REPORT IN CRIME NO.2512/2010 OF ALUVA POLICE STATION ANNEXURE-C : TRUE COPY OF PETITION DATED 28.12.2010 FILED BEFORE THE STATE POLICE CHIEF, TRIVANDRUM ANNEXURE-D : TRUE COPY OF REPORT DTD.20.04.2011 OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT ANNEXURE-E: TRUE COPY OF FINAL REPORT IN CRIME NO.2512/2010 OBTAINED FROM COURT ANNEXURE-F : TRUE COPY OF ORDER IN REFER NO.01/2012 IN CRIME NO.2512/2010 DTD.30.05.2012 OBTAINED FROM THE COURT ANNEXURE-G : TRUE COPY OF LAWYER NOTICE DATED 27.07.2012 TO THE SUB INSPECTOR OF POLICE, CIRCLE INSPECTOR OF POLICE AND STATE OF KERALA ANNEXURE-H : TRUE COPY OF COMPLAINT NO.1501/2012 DTD.28.07.2012 FILED BY THE PETITIONER BEFORE THE LOK AYUKTA, TRIVANDRUM ANNEXURE-I : TRUE COPY OF COMPLAINT DATED 7.9.2012 FILED BY SUB INSPECTOR OF POLICE, OBTAINED BY PETITIONER UNDER RIGHT TO INFORMATION ACT ANNEXURE-J : TRUE COPY OF ORDER DTD.13.09.2012 BY INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT ANNEXURE-K : TRUE COPY OF ORDER DTD.17.09.2012 OF S.P OF POLICE, ERNAKULAM RURAL ALUVA ANNEXURE-L : TRUE COPY OF PETITION FILED BY THE DEPUTY SUPERINTENDENT OF POLICE, ALUVA BEFORE THE JFCM-I COURT, ALUVA ANNEXURE-M : TRUE COPY OF OBJECTION TO ANNEXURE-K PETITION ANNEXURE-N : CERTIFIED COPY OF ORDER IN C.M.P.NO.1682/2012 IN REFER NO.1/2012 IN CRIME NO. 2512 OF 2010 ANNEXURE-O : TRUE COPY OF COMPLAINT FILED BY THE DEFACTO COMPLAINANT TO THE SUPERINTENDENT OF POLICE, RURAL, ALUVA DATED 06.09.2010 RESPONDENTS' EXHIBITS : NIL /TRUE COPY/ P.A TO JUDGE AV ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. No. 2288 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of November, 2013. ## **ORDER** In this revision petition filed under Section 397 of the Code of Criminal Procedure, the petitioner mainly assails Annexure N order whereby the JFCM-I, Aluva in C.M.P. No. 1682 of 2012 in Refer No.1 of 2012, arising out of Crime No.2512 of 2010 of Aluva Police station, granted permission to conduct further investigation into the crime and to file a report within two months from 2.4.2013. 2. The facts absolutely necessary for the disposal of this petition are as follows: The petitioner claims to be working as Regional Business Head in HDFC Bank. The second respondent was married to George, who is a relative of the petitioner's wife and the couple had two children. As the relationship between the couple got strained, they took up separate residence. Crl.R.P.2288/2012. 2 Efforts to bring out a re-union failed. The second respondent took up residence in a rented house at Thammanam and thereafter shifted to Vaduthala. According to the petitioner, she came into contact with one Fr.Clement Vadakkedath and that it is understood that the Priest was financially helping the second respondent and children since September, 2009. Questions were raised about their relationship by the public. Fr. Clement Vadakkedath purchased a house in Aluva and the second respondent and her children shifted residence to that house. That further strengthened the rumour. Intervention of the petitioner was sought for to persuade the second respondent to sever the relationship with Fr.Clement Vadakkedath, and on 5.9.2010, it is claimed by the petitioner that he went to meet Fr.Clement Vadakkedath. Fr. Paulose, who was in the Ashramam, informed the petitioner that Fr. Clement was on a tour and will be available only after a few days. On his way back to Ernakulam, the petitioner happened to go over to the house of Fr.Clement Vadakkedath at Aluva Crl.R.P.2288/2012. 3 where the second respondent and her children were residing. To his surprise, he found Fr.Clement Vadakkedath in the house. The petitioner informed Fr.Clement Vadakkedath that he would like to talk to them in private. That was not to the liking of the second respondent, who created a scene at the place. The second respondent is alleged to have left the place in a car. 3. It is the claim of the petitioner that on 9.9.2010 the Sub Inspector of Police, Aluva informed the petitioner over phone that there is a complaint against him and he was summoned to the police station for an amicable settlement. On 10.9.2010 Fr.Clement at the instance of his superior authority met the petitioner at the office of Adv.Mathew B.Kurian and the petitioner was assured that the complaint filed by the second respondent would be withdrawn. However, on 13.9.2010 petitioner was again summoned to the Police Station. Even though the petitioner informed the Sub Inspector that the matter has been amicably settled and the Crl.R.P.2288/2012. 4 complaint was agreed to be withdrawn, the Sub Inspector was not in a mood to accept the said statement made by the petitioner and threatened him with dire consequences. On 14.9.2010, the petitioner along with Adv. Binod appeared before the Sub Inspector. But to his surprise, the Sub Inspector informed him that he is under arrest for the offence of attempted rape on second respondent. The petitioner would allege that the Sub Inspector concerned openly declared that he will teach him a lesson for having misbehaved with Fr.Clement Vadakkedath. According to the petitioner, the Sub Inspector was acting under the instructions of Fr.Clement Vadakkedath. Annexure A is the FIR in Crime No. 2512 of 2010 of Aluva Police Station. Events followed and the petitioner was remanded to custody from the hospital and Annexure B is the remand order. On 24.9.2010 the petitioner was enlarged on bail. The petitioner filed Annexure C petition before the State Police Chief, Thiruvananthapuram explaining the true facts and circumstances. A special team headed by a Crl.R.P.2288/2012. 5 Deputy Superintendent of Police was deputed to conduct an enquiry into the matter. The enquiry report dated 20.4.2011 indicated that the FIR dated 13.9.2010 is suspicious and appears to have been a creation due to personal vendetta. It was also mentioned in the enquiry report that the arrest of the petitioner was without making any investigation whatsoever and the officers concerned had acted in undue haste. The report recommended a further probe into the relationship between the second respondent and Fr.Clement Vadakkedath. The said report is produced as Annexure D. 4. The investigation of the Crime against the petitioner was handed over to Deputy Superintendent of Police, Crime Detachment. Aluva. After conducting a detailed investigation into the matter, the said officer filed Annexure E refer report. JFCM-I, Aluva issued notice to the second respondent as to why the refer report should not be accepted. There was no response from the second respondent and consequently Annexure F order was passed by the learned Crl.R.P.2288/2012. 6 Magistrate. 5. Aggrieved by the acts of the police officers, the petitioner issued Annexure G lawyer notice to the Sub Inspector of Police and Circle Inspector of Police under Section 80 of Cr.P.C. Annexure H complaint was filed before the Lok Ayukta also. 6. The petitioner has come to know that the Sub Inspector of Police filed a representation before the Inspector General of Police, Ernakulam Range complaining that in the arrest memo and in the general diary his signature has been forged by somebody and that action may be taken. The true copy of the complaint is produced as Annexure I. The I.G. Of Police, Kochi Range as per order dated 13.9.2012 directed the District Police Chief, Ernakulam to register a case and also directed to conduct further investigation under Section 173 (8) of Cr.P.C. into Annexure A crime. The copy of the said order obtained under the Right to Information Act is produced as Annexure J. Crl.R.P.2288/2012. 7 7. Presumably in pursuant to Annexure J order, the Superintendent of Police ordered further investigation as per Annexure K order. A petition was filed before the JFCM-I, Aluva seeking permission to conduct further investigation and the copy of the said order is produced as Annexure L. The petitioner filed a detailed objection to the said prayer made by the police officer concerned and the same is produced as Annexure M. The learned Magistrate passed the impugned order directing further investigation. 8. The petitioner would say that the order passed by the learned Magistrate is without application of mind and without ascertaining as to the necessity for further investigation. 9. Learned counsel appearing for the petitioner points out that it is true that the police is entitled to continue further investigation when circumstances are so warrant. But it is not a matter of course. There has to be materials to show that further investigation is warranted or justified. In Crl.R.P.2288/2012. 8 the case on hand, according to the learned counsel for the petitioner, on the refer report filed by the police, notice was issued to the second respondent and she had no complaint against the acceptance of the said report. It was on that basis that the learned Magistrate had passed Annexure F order. Learned counsel went on to point out that the learned Magistrate ought to have ascertained as to the reason for further investigation and without doing so, and without applying her mind, had simply passed the impugned order. That is not justifiable. Accordingly, it is prayed that the said order may be set aside. 10. Learned counsel appearing for the second respondent on the other hand pointed out that the police as a matter of right is entitled to continue further investigation and that exclusive right of the police cannot be prevented by orders of court. Learned counsel pointed out that strictly speaking Section 173(8) of Cr.P.C. does not contemplate seeking permission of the court and the police is, as a matter Crl.R.P.2288/2012. 9 of right, entitled to conduct further investigation. At any rate, according to the learned counsel for the second respondent, it is not at all necessary to hear the accused to decide whether further investigation is necessary or not and the accused had no role to play at that point of time. Accordingly, it is contended that the revision petition is without merits. 11. Strictly speaking, as rightly pointed out by the learned counsel for the second respondent, Section 173(8) of Cr.P.C. which enables the police officer concerned after filing the final report to conduct further investigation, does not envisage sanction of the court or permission of the court. But the decisions of the Apex Court has laid down the principle that in such cases, it will be only proper and just that the court concerned is informed about the necessity for further investigation and permission obtained. Even though permission may not be sought for and obtained, it cannot be said that, that by itself will nullify the further investigation. Crl.R.P.2288/2012. 10 12. So also, as rightly pointed out by the learned counsel for the second respondent, there can be no role for the accused at that stage when the court is called upon to grant permission for conducting further investigation. It could be said that the right to conduct further investigation is absolutely with the police. 13. In the case on hand however, it needs to be noticed that the second respondent was served with notice from the court as to why the refer report filed in Annexure A crime should not be accepted. The second respondent did not respond. It was under those circumstances the JFCM court concerned accepted the refer report. 14. It is interesting to notice that the order for further investigation, in fact re-investigation, was passed by Inspector General of Police on a complaint filed by the Sub Inspector concerned alleging that his signature had been forged in a few documents concerned with Annexure A crime. It was while ordering enquiry into the said complaint that the Crl.R.P.2288/2012. 11 order for investigation was also passed. Consequent orders were passed by the District Police Chief, Ernakulam Rural and consequently Annexure L was filed before the JFCM court concerned. 15. It would appear that the complaint filed by the Sub Inspector had nothing to do with the complaint with respect of which crime was registered as evidenced by Annexure A. Even though the police may have freedom to conduct further investigation, it was observed in the decision reported in Kishan Lal v. Dharmendra Bafna ((2009) 7 SCC 685) that it is not an absolute power and there have to be reasons for doing so. It is true that it is only by judicial precedence that the investigating officer concerned is called upon to inform the court about the requirement therein. 16. Neither in the order passed by the court concerned nor in the order of the Inspector General of Police, Ernakulam Range, there is any reflection or indication that the earlier investigation conducted by the Dy.S.P. as per the orders Crl.R.P.2288/2012. 12 of the Police Chief was either defective or was found wanting in any manner. There is also nothing to show that there is any new material which warranted further investigation. 17. In the light of the principle laid down in the decision reported in Kishan Lal v. Dharmendra Bafna ((2009) 7 SCC 685), there has to be some material produced before the JFCM court concerned which would justify the conduct of further investigation by the police officer concerned. At any rate, the order impugned does not reflect that any such material has been placed before the said court. Nor is there any indication in the order that the court was satisfied for any reason that the further investigation was necessary. 18. It is true that this Court cannot interdict further investigation which is a prerogative of the police. But this Court can certainly insist that there should be materials to justify such a course of action. 19. For the above reasons, the impugned order is set aside and the matter is remanded to JFCM Court-I, Aluva Crl.R.P.2288/2012. 13 for further consideration in accordance with law. This order will not preclude the second respondent from pursuing her remedies in accordance with law. P. BHAVADASAN, JUDGE sb.