K. S. Jose and Joykutty T. G. George v. State of Kerala represented by Public Prosecutor, Suja Mathew, Anni Shaji and Circle Inspector of Police, Pathanamthitta

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Crl.MC.No. 4757 of 2008() ------------------------AGAINST THE ORDER DATED 04/11/2008 IN CRMP 4561/2008 IN CC.124/2006 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): ACCUSED ---------------------- 1. K.S.JOSE, S/O. SAMUEL, KULANGARA VEEDU, PUTHENPEEDIKA, OMALLUR VILLAGE. 2. JOYKUTTY T.G.GEORGE, THAZHATHETHIL VEEDU KAIRALIPURAM, MUNDUKOTTAKKAL, VETTIPRAM MURI, PATHANAMTHITTA. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): COMPLAINANT -------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERLA, ERNAKULAM. 2. SUJA MATHEW, W/O.THOMAS, N.SHAJAN, KOCHALUMMOOTTIL VEEDU, KUTHATTUKULAM, KUNNAM MURI, KOLLAMULA VILLAGE. 3. ANNI SHAJI, W/O. SHAJI,KAZHUNNAKATTUMEKKETHILAYA KIDARATHIL VEEDU,PUTHENP PEEDIKA MURI, OMALLUR. 4. CIRCLE INSPECTOR OF POLICE, OFFICE OF THE CIRCLE INSPECTOR OF PPOLICE, PATHANAMTHITTA. R1 & R4 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R. BASANT, J.** - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4757 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of December, 2008 ## **O R D E R** The petitioners are accused 2 and 3 in a prosecution for offences punishable, inter alia, under Sections 420 and 468 r/w. 34 I.P.C. Cognizance in that case was taken on the basis of a final report submitted by the police after due investigation. Trial had commenced. At that juncture the defacto complainant, i.e. the second respondent herein, went before the learned Magistrate with an application under Section 173(8) Cr.P.C. That application was presented through a private counsel. 2. The crux of the grievance in that petition was that the allegedly forged documents have not been examined by an expert. An authentic opinion by the expert as to whether the signatures appearing there are genuine or not was required. But the same was not obtained, it was complained. The learned Magistrate, by the impugned order, allowed the said request and directed further investigation to be conducted under Section 173 (8) Cr.P.C. 2 Crl.M.C.No. 4757 of 2008 3. The petitioner claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioners raises four contentions to assail the impugned order. The learned counsel does not dispute the proposition of law laid down by a Division Bench in **Shaji v. State of Kerala** (2003 (2) KLT 929). Proposition No.5, which appears in paragrap 20 reads as follows: “5) If the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free to order further investigation to avoid failure of justice.” 4. In the light of the decision in **Shaji** (supra), there can possibly be no doubt that the complainant can file a petition pointing out the inadequacy in investigation and thereupon if the court is satisfied, it can invoke the jurisdiction under Section 173(8) Cr.P.C. to direct a further investigation to be conducted. The learned counsel for the 3 Crl.M.C.No. 4757 of 2008 petitioners first of all contends that such a complainant must be one who is participating in the trial by engaging a counsel with the requisite permission under Section 301 and/or 302 Cr.P.C. In as much as the complainant herein is one who has not been granted the requisite permission/leave under Section 301 and/or 302 Cr.P.C., the complainant must be held to be a stranger to the proceedings and further investigation at the instance of such a complainant is not maintainable, it is contended. 5. I am afraid, I am unable to accept this contention. Proposition No.5 in **Shaji** (supra) does not enable or permit this Court to impose a further requirement that such a complainant must come before court through a counsel, who is permitted to appear under Section 301 and/or 302 Cr.P.C. Such a requirement cannot be spelt out from the plain language of the decision in **Shaji** (supra). A complainant aggrieved can complain about the inadequacy of investigation before a Magistrate and proposition No.5 deals with such a complaint raised by a complainant. Even if he had not chosen to come before court with necessary application under Section 301 and/or 4 Crl.M.C.No. 4757 of 2008 302 Cr.P.C. it cannot be held that such a complainant is dis-entitled to bring to the notice of the learned Magistrate the inadequacy of investigation and to pray for invocation of the jurisdiction under Section 173(8) Cr.P.C. The first contention raised cannot hence succeed. 6. Secondly it is contended that though the application was filed by the complainant after appearance of the Prosecutor and the counsel for the accused, no notice whatsoever was given either to the Prosecutor or to the counsel for the accused before the impugned order was passed. I have no hesitation to agree that for a proper and just disposal of the case, notice must have been given to the parties, who have already appeared before court, so that they are granted an opportunity to raise appropriate contentions. But the only question is whether the non-compliance with such a requirement can lead to vacation of the order passed under Section 173(8) Cr.P.C. 7. The counsel for the petitioners further contends that the trial having already commenced, a strict view must have been taken and interference with the proceedings of the trial by a stranger Crl.M.C.No. 4757 of 2008 5 complainant, who is not represented before court by a counsel at that stage, should not have been permitted. 8. Lastly the counsel contends that in any view of the matter, the court could have invoked the jurisdiction under Section 311 Cr.P.C. and it was not at any rate necessary to invoke the jurisdiction under Section 173(8) Cr.P.C. 9. I have considered the last three contentions in detail. I have already observed that in fairness and fitness of things notice should have been given to the Prosecutor as well as the accused, who had already entered appearance in the trial and were available before the court. The order was passed in a pending proceedings and it would be idle for the court now to assume that either the Prosecutor or the counsel for the accused were not permitted to advance their submissions before the impugned order was passed. Even assuming that such hearing did not take place, in the nature of the facts and circumstances of this case, where further investigation is pointedly directed only to get expert opinion on the question of genuineness of the signatures in a forged document, I am of the opinion that the 6 Crl.M.C.No. 4757 of 2008 alleged non-furnishing of notice in the petition to the Prosecutor or the accused has not resulted in any such injustice or miscarriage of justice as to invalidate the order passed by the learned Magistrate on the ground that such notice has not been served. 10. The third contention raised is that the trial has commenced. It is by now trite that the mere fact that the trial has commenced does not fetter the option of the Magistrate to direct further investigation under Section 173(8) Cr.P.C. Similarly, the 4[th] contention that the powers under Section 311 Cr.P.C. are available with the Magistrate, though true, cannot justify the contention that the invocation of the jurisdiction under Section 173(8) Cr.P.C. is not proper. For a proper examination of the questioned documents, the specimen signatures and admitted signatures of the person concerned will have to be collected and will have to be forwarded along with the questioned document to the expert. Therefore, the fact that the court had chosen to direct a further investigation to be conducted under Section 173(8) Cr.P.C. and had not chosen to forward the document under Section 311 Cr.P.C. to the expert is again not a sufficient reason to justify the Crl.M.C.No. 4757 of 2008 7 invocation of the jurisdiction under Section 482 Cr.P.C. against the impugned order. 11. I am, in these circumstances, satisfied that the challenge raised on all the four grounds cannot be accepted and it is not necessary to invoke the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. against the impugned order. The challenge raised fails. 12. This Crl.M.C. is accordingly dismissed. **(R. BASANT)** Judge tm