Mahesh Kumar v. State of Kerala and S.H.O., Kalamassery Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938** **OP(Crl.).No. 400 of 2016 (Q)** **-----------------------------** **CC 1069/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ALUVA** ## **-------------** **PETITIONER(S): -------------** **MAHESH KUMAR, AGED 53 YEARS, S/O.LATE M.S.MENON, INDIRA NIVAS, VATTEKUNNAM, EDAPPALLY NORTH P.O, KOCHI - 24.** **BY ADVS.SRI.VARGHESE C.KURIAKOSE SMT.SEENU SADIQUE** **RESPONDENT(S): --------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. 2. THE STATION HOUSE OFFICER, KALAMASSERY POLICE STATION, KALAMASSERY - 682 039.** ## **BY GOVERNMENT PLEADER SMT.SAREENA GEORGE** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 26-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **OP(Crl.).No. 400 of 2016 (Q) -----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1. COPY OF THE FIR IN CRIME 569/2014 ON THE FILES OF KALAMASSERY POLICE STATION. EXHIBIT P2. COPY OF THE FINAL REPORT IN CRIME 569/2014 ON THE FILES OF KALAMASSERY POLICE STATION. EXHIBIT P3. COPY OF THE CMP 477/2016 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT II ALUVA. EXHIBIT P4. COPY OF THE ORDER DATED 23.6.16 IN CMP 477/16 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT II ALUVA.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ ## **O.P.(Cr) No.400 of 2016** ------------------------------------------ Dated this the 26[th] day of July, 2016 ## **J U D G M E N T** ## **~~~~~~~~~~** 1.The petitioner herein is the _de facto_ complainant in C.C.No.1069 of 2014 of the Judicial Magistrate of First Class-II, Aluva. Being dissatisfied with the investigation and the consequential laying of the final report, C.M.P.No.477 of 2016 was filed by the petitioner seeking the following reliefs: (i) To order further and better investigation under Section 173(8) of Cr.P.C. into Crime No.569 of 2014 of Kalamassery Police Station as to investigate whether the offence under Section 307 has been committed by the accused and (ii) to take cognizance of this complaint for the offence under Section 307 of the IPC after recording the sworn statement of the witnesses. 2.The said application was disposed of by the learned Magistrate by Ext.P4 order. **O.P.(Cr) No.400 of 2016** **-2-** 3.The grievance raised in this petition filed under Section 482 of Cr.P.C. is only with reference to an observation made by the learned Magistrate in paragraph 8 of the order. In paragraph 8, the learned Magistrate has observed that as cognizance has already been taken and summons has been issued to the accused, the learned Magistrate has no powers to order further investigation. On its basis, the learned Magistrate came to the conclusion that the first relief cannot be granted to the complainant. 4.The learned counsel appearing for the petitioner limits his prayers and submits that this observation of the learned Magistrate is against settled law. It is submitted that this observation of the learned Magistrate runs counter to the Division Bench judgment of this Court in **Shaji v. State of Kerala** [2003(2) KLT 929] and in **Abdul Latheef and Others v. State of Kerala** [2014 (3) KLT 905]. According **O.P.(Cr) No.400 of 2016** **-3-** to the learned counsel, these precedents are binding on the learned Magistrate and the court below was not justified in observing that the judgment of the learned Single Judge of this Court in **Valsalan P.D. and Another v. State of Kerala** [2015 (5) KHC 71] will govern the issue. In fact the Division Bench of this Court in **Shaji** (supra) had exhaustively considered the various aspects of further investigation under Section 173(8) of the Cr.P.C and after overruling the view taken by a Single Judge of this Court in **Natarajan v. Sasidharan** had affirmed the view of this Court in **Joisy v. Sub Inspector of Police** [2002 (3) KLT 172]. In paragraph No.20 of **Shaji** (supra) it was held as follows: 20. In the above circumstances, we arrive at the following conclusions: (1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) xxxx xxxx xxxx (4) xxxx xxxx xxxx (5) xxxx xxxx xxxx (6) xxxx xxxx xxxx **O.P.(Cr) No.400 of 2016** **-4-** (7) S.173(8) puts no bar on the Magistrate to order further investigation. If the Magistrate comes to the conclusion that in the interest of justice a further investigation is necessary, he can trigger the police to exercise the power under S.173(8) as police has power to conduct further investigation under S.173(8) even after taking cognizance of the offence. The Magistrate has got power to point out to the police to exercise their duties under S.173(8) if on the facts of the case, it is revealed that further investigation is necessary. But, such powers can be exercised sparingly only if the circumstances warrant in the interest of justice; (8) There is no provision in the Code prohibiting or fettering the power of the Magistrate from ordering further investigation if the circumstances warrant to prevent miscarriage of justice. It is the duty of the Court to see that ultimate truth is revealed and no innocent shall be punished and at the same time real culprits shall not escape; (9) xxxx xxxx xxxx 5.Further authority is available in **Kishan Lal v/s. Dharmendra Bafna** [(2009) 7 SCC 685] wherein the Supreme Court had held that it is permissible for the Magistrate to order further investigation even at the stage **O.P.(Cr) No.400 of 2016** **-5-** of trial. 6.The learned Public Prosecutor would point out that a Single Judge of this Court in **Prakash v. State of Kerala** [2015(3) KLT 528] relying on the Apex Court's decisions in **Randhir Singh Rana v. State, Delhi Administration** [AIR 1997 SC 639] and **Reeta Nag v. State of West Bengal** [2009(9) SCC 129] has taken a view that the learned Magistrate cannot order further investigation of his own. Those decisions will not apply to the facts of the instant case as it is evident that the petitioner had triggered the action by filing a petition before the learned Magistrate and it was not a case of the learned Magistrate _suo motu_ ordering further investigation. - 7.Having regard to the facts and circumstances, I am of the view that Ex.P4 order in so far as it run counters to the binding precedents of this Court cannot be sustained. Ext.P4 is set aside and the learned Magistrate is directed **O.P.(Cr) No.400 of 2016 -6-** to consider the matter afresh and pass appropriate orders in accordance with law. Petition is disposed off as above. Sd/- **RAJA VIJAYARAGHAVAN, V. JUDGE** Ps/26/7/16