M.A. Devassy v. Mary Joseph and State of Kerala and S.I. of Police, Central Police Station, Ernakulam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 Crl.MC.No. 4195 of 2008() ------------------------CMP.1679/2008 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): - --------------- M.A.DEVASSY, S/O. IYPE, MOONJELY HOUSE, PUTHENPALLY, VARAPUZHA, ERNAKULAM DIST. BY ADV. SRI.V.PHILIP MATHEW SRI.JEPH JOSEPH RESPONDENT(S): - --------------- 1. MARY JOSEPH, W/O. LATE E.P. JOSEPH, ELAMKUNNAPPUZHA HOUSE, T.D. ROAD, KOCHI -31. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, 3. S.I. OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. PUBLIC PROSECUTOR SRI.S.U.NAZER THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.4195 of 2008 ---------------------------------------Dated this the 5[th] day of November 2008 ## **O R D E R** The petitioner had filed a complaint before the learned Magistrate alleging that a document has been forged to make it appear that he had executed a sale deed in favour of his sister who was arrayed as an accused. According to the petitioner/ complainant he had not executed any such document and it must have been forged and brought into existence by the accused, his sister with the collusion of some others. The petitioner was not able to specify such others. The complaint was therefore filed arraying only the sister of the petitioner as an accused. 2. The learned counsel for the petitioner submits that considering the nature of the allegations, this was an eminently fit case where the learned Magistrate must have chosen to send the complaint to the police under Section 156(3) Cr.P.C at the pre-cognizance stage itself. But the learned Magistrate did not do the same. The learned Magistrate chose to take cognizance and proceed further. Sworn statement of the complainant was recorded. No other witnesses were examined. But the learned Magistrate then chose to direct an investigation to be conducted Crl.M.C.No.4195/08 2 under Section 202 Cr.P.C. The third respondent, the S.H.O of the local police station, was directed to conduct the investigation. The third respondent conducted the investigation and submitted a report. The petitioner is aggrieved by the said report. According to the petitioner, no meaningful investigation has been conducted by the third respondent. The third respondent has not taken pains to seize the original forged document which the accused has been undertaking before the civil court that she will produce and has been playing for time to produce such document. According to the petitioner, the police officier who was directed to conduct an investigation has all the powers which he would otherwise have if reference were made under Section 156(3) Cr.P.C subject to the only limitation that arrest cannot be effected without warrant issued by the court. 3. After receipt of the report Annexure II from the third respondent after his investigation, the learned Magistrate has now decided to continue with the enquiry under Section 202 Cr.P.C and has directed the petitioner to produce documents to enable the learned Magistrate to forward the documents to the handwriting expert. The petitioner has been directed to get the relevant registers summoned from the Sub Registrar's Office. Crl.M.C.No.4195/08 3 4. The learned counsel for the petitioner laments that the procedure adopted by the learned Magistrate is totally incorrect and perverse. In a case like this, even assuming that the Magistrate found reasons not to send the complaint before police for investigation under Section 156(3) Cr.P.C the learned Magistrate must have ensured that a proper investigation is conducted under Section 202 Cr.P.C. It is pointed out that the investigation is most unsatisfactory and even the scribe in whose hand the document appears has not been questioned by the investigating officer. In these circumstances, it is prayed that appropriate directions under Section 482 Cr.P.C may be issued to the third respondent and the learned Magistrate to ensure that a proper investigation is conducted and report submitted to court. I find considerable force in the submission of the learned counsel for the petitioner. I am satisfied that appropriate directions deserve to be issued to the learned Magistrate. 5. The learned Magistrate has powers to supervise an investigation conducted by the police in exercise of his powers under Section 156(3) Cr.P.C. The decision in **Sakiri Vasu v. State of U.P** [2008 AIR SCW 309] as followed in **Vasanthi Devi v. Sub Inspector of Police** [2008 (1) KLT 945] makes it clear Crl.M.C.No.4195/08 4 that the learned Magistrate has jurisdictional competence to monitor and supervise an investigation even when such an investigation is conducted pursuant to registration of the F.I.R independently by the police under Section 154 Cr.P.C. When investigation under Section 202 Cr.P.C is directed by the learned Magistrate, the learned Magistrate indisputably has jurisdiction to ensure that a proper investigation is conducted by such Investigating Officer. On the facts and circumstances of this case it appears to me that such duty/jurisdiction has not been properly exercised by the learned Magistrate. 6. I am satisfied that this Crl.M.C can be allowed in part and the petitioner can be permitted to approach the learned Magistrate with a proper application complaining about the inadequacy of the investigation and request the learned Magistrate to issue appropriate further directions regarding the conduct of the investigation in exercise of his powers under Section 202 Cr.P.C. Powers of the Magistrate while directing an investigation and supervising an investigation under Section 202 Cr.P.C must be held to be coextensive and coterminous with the jurisdiction of the Magistrate to supervise and monitor investigations otherwise on the basis of the F.I.Rs registered. Crl.M.C.No.4195/08 5 The powers of such investigation under Section 202 Cr.P.C is limited by the only exception that the Investigating Officer cannot arrest an accused without issue of warrant from the Magistrate. Except to that extent, a proper investigation has to be conducted by the Investigating Officer as directed by the learned Magistrate to conduct an investigation. 7. This Crl.M.C is, in these circumstances, allowed in part. The petitioner is given the option to file an application before the learned Magistrate raising his objections against the nature of investigation conducted by the Investigating Officer and the report submitted by him. The learned Magistrate shall consider the same and issue appropriate directions. Only thereafter need the other steps under Section 202 be pursued by the learned Magistrate. Every endeavour must be made by the learned Magistrate to expeditiously complete the enquiry under Section 202 Cr.P.C and pass appropriate orders under Section 204/203 Cr.P.C. 8. Hand over a copy of this order to the learned counsel for the petitioner. ## **(R.BASANT, JUDGE)** jsr Crl.M.C.No.4195/08 6 Crl.M.C.No.4195/08 7 ## **R.BASANT, J.** CRL.M.C.No. of 2008 ORDER 09/07/2008