MARIAMMA K. GEORGE v. STATE OF KERALA

**Crl.M.C. No.3395 of 2017** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **Crl.MC.No.3395 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CC 17/2010 DATED 18-01-2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KANJIRAPPALLY** **CRIME NO.251/2005 OF Ponkunnam Police Station , Kottayam** ## **PETITIONER/S:** **MARIAMMA K. GEORGE AGED 59 YEARS,W/O GEORGE,KALLIKATTU,KALAKETTY.P.O,KOTTAYAM DISTRICT.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SMT.REXY ELIZABETH THOMAS SRI.RAJEEV JYOTHISH GEORGE SRI.TOM E. JACOB** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** - **2 SUPERINTENDENT OF POLICE-KOTTAYAM OFFICE OF THE SUPERINTENDENT OF POLICE,CIVIL STATION,KOTTAYAM.** - **3 SUB INSPECTOR OF POLICE PONKUNNAM POLICE STATION,PONKUNNAM,KOTTAYAM DISTRICT.** - **4 TONY MATHEW POOVATHANIKUNNEL HOUSE,MANJUKULAM,KALAKETTY.P.O,KOTTAYAM DISTRICT.** ## **R1, R4 BY ADV. SRI.T.V.GEORGE R1 BY ADV. SRI.JIMMY GEORGE THADATHIL** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C. No.3395 of 2017** **2** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = Crl.M.C. No.3395 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 6[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. is as follows : _“.... to direct further investigation in Annexure-II crime No.251/2005 of the Ponkunnam Police Station and to direct JFMC-II, Kanjirappally to return the final report in the said case.”_ 2. Heard Sri.Liji J Vadakkedam, learned counsel for the petitioner (defacto complainant) Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 to R3. Sri.T.V.George, learned counsel for contesting respondent No.4 (accused No.1). 3. The petitioner is a defacto complainant in the instant CC No. 17/2010 on the file of the Judicial First Class Magistrate Court-II, Kanjirappally, in which cognizance has been taken of the offences under Secs. 406, 417, 419 and 465 of the IPC. 4. The case arose out of the impugned Annexure-1 private criminal complaint filed by the petitioner in which the learned Magistrate had issued directions under Sec.156(3) of the Cr.P.C. that the police should register the crime and conduct investigation. Pursuant thereto, FIR in Crime No.251/2005 of Ponkunnam Police Station was registered for **Crl.M.C. No.3395 of 2017** **3** offences punishable under Secs.406, 417, 419 and 465 of the IPC. The Police after investigation has filed Annexure-A4 final report/charge sheet in the said crime No.251/2005 of Ponkunnam Police Station, which has led to the pendency of the abovesaid calendar case CC No.17/2010 before the Judicial First Class Magistrate Court-II, Kanjirappally. 5. The brief of the allegations in Annexure-A1 private criminal complaint is that the accused persons had conspired together and had impersonated another person as the petitioner before the Sub-Registrar’s Office, Ponkunnam and had thus for provisionally executed a cancellation deed to cancel or register the agreement executed in favour of the petitioner by the 1[st] accused/4[th] respondent herein. Apart from accused No.1, two other persons were also arrayed as accused Nos. 2 and 3, who had person, who impersonated the petitioner. 6. It is pointed out during the course of the investigation, it has been disclosed in Anenxure-III Forensic Science Laboratory (FSL) report, the signature of the petitioner has been forged. It is thereafter that the investigating officer has filed the impugned Annexure-IV final report/charge sheet which has led to the pendency of the abovesaid calendar case CC No.17/2010 on the file of the Judicial First Class Magistrate Court-II, Kanjirappally. 7. The petitioner would point out that there are various serious defects and faults in the conduct of the investigation as can be seen from **Crl.M.C. No.3395 of 2017** **4** Annexure-IV final report and that the matter would require serious action for further investigation as otherwise, since the process of criminal investigation is highly flawed, the real culprit persons will escape only on account of the faults in the investigation process. Further, it can be seen from Annexure-IV final report, neither of the person, who created the forged document nor the person who identified the said executant has been identified. 8. The petitioner had earlier filed Annexure-V petition for further investigation which was dismissed on the ground that copy was not served. Later, the Apex Court had rendered the decision in the case in _**Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel**_ [2017 (1) KLT 707 (SC)] = [2017 4 SCC 177], wherein it has been held that the defacto complainant/first information cannot file petition/application for further investigation, but the same can be done only by the investigating agency. The petitioner had filed Annexure-VII representation before the 2[nd] respondent-Superintendent of Police pointing out the defects in the investigation and to conduct further investigation etc. which has fired on deaf ears. 9. The petitioner would point out that now, the Apex Court in the decision in the case in _**Vinubhai Haribhai Malaviya v. The State Of**_ _**Gujarat and anr** ._ [AIR 2019 SC 5233] = [2019 5 KHC 352 (SC)] has overruled the abovesaid decision of the two Judges Bench of the Apex **Crl.M.C. No.3395 of 2017 5** Court _**Amrutbhai's case**_ [2017 (1) KLT 707 (SC)] = [2017 4 SCC 177] etc. 10. After hearing both sides and after perusal of the pleadings and materials on record, it can be seen that there are patent defects which has been committed in the investigation as can be seen from the following aspects : _1) Admittedly, the petitioner (the defacto complainant) is a lady and therefore in every possibility, the petitioner who made the impersonation to execute the cancellation deed falsely in the name of the petitioner could have been only a lady, but no such person has been identified by the investigating agency and has been arrayed as an accused in Annexure-IV final report/charge sheet_ _2) None of the witnesses who had identified the person, who had executed the cancellation deed has been arrayed as the accused. No proper reasons have been given by the investigating agency in Annexure-IV report for not identifying and including such a person as an accused._ _3) The only person who has been shown as an accused is the 4[th] respondent, who is a beneficiary of the execution of the cancellation deed. His presence alone may not give a clear picture regarding the modus operandi in the execution of the cancellation deed so as to bring out a clear prosecution case regarding the entire criminal acts. Thus the investigation is vitiated by serious faults and it can be seen_ **Crl.M.C. No.3395 of 2017** **6** _that no effort has been taken by the investigating agency to diligently conduct investigation so as to ensure that the culprit persons are booked, so as to face the trial._ 11. According to the petitioner, he was not aware about the abovesaid defects in the investigation till she was summoned as a witness and on getting know of the said defects, she has filed Annexure-V petition. The learned Magistrate had then dismissed Annexure-V petition. It has been held by the Apex Court in the decisions as in _**Ram Lal Narang v. State (Delhi Admn.)**_ [AIR 1979 SC 1791] and _**Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors.**_ [(2004) 5 SCC 347] that when defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in **Crl.M.C. No.3395 of 2017** **7** arriving at the truth and do real and substantial as well as effective justice. 12. Earlier, it was held by the two Judge bench of the Apex Court in the case in _**Amrutbhai's case**_ [2017 (1) KLT 707 (SC)] = [2017 4 SCC 177], that the learned Magistrate _suo motu_ on an application filed by the first informant/complainant cannot issue an order for further investigation and that such a course of directive for further investigation would be opened only on the request made by the statutory investigating agency. The said view rendered by the two Judges Bench of the Apex Court has now been overruled by a three Judges Bench of the Apex Court in _**Vinubhai Haribhai Malaviya and Ors. v. State of Gujarat and anr**_ . [AIR 2019 SC 5233]. It has also been held by the Apex Court in decisions as in _**Chandra Babu alias Moses v. State through Inspector of Police**_ _**and others**_ [(2015) 8 SCC 774] that the superior courts have the jurisdiction under Sec.482 or even under Article 226 of the Constitution of India to direct the conduct of further investigation, the Apex Court has also held in decisions as in _**Pooja Pal v. UOI**_ [(2016) 5 SCC 135] that high courts under Article 226 of the Constitution of India could order for further investigation etc. 13. The upshot of the above discussion that the impugned investigation is seriously flawed on account of the abovesaid various factors dealt with hereinabove. No serious effort has been taken by the investigating agency to take diligent steps to ensure that the culprit persons **Crl.M.C. No.3395 of 2017** **8** are booked in the manner known to law. The present case if allowed to proceed for trial will be only a ritual and only the 4[th] respondent, who is the beneficiary of the cancellation deed alone is made an accused. The investigating agency is under the solemn statutory obligation to ensure that the unvarnished truth of the matter is disclosed and also to ensure that all diligent steps are taken to ensure that the culprit persons are booked, in the manner known to law. 14. Accordingly, it is ordered that the 2[nd] respondent-District Police Chief, Kottayam will immediately pass orders entrusting the further investigation in this case to an officer of not below the rank of Dy.Superintendent of Police in the District Crime Branch, who should commence and complete further investigation in this case, without any further delay, at any rate within 5 months from the date of production of a certified copy of this order. 15. The new investigating officer will immediately call for the entire CD files in relation to this case and will give a meticulous report to the 2[nd] respondent-District Police Chief about the various defects in the investigation and also the steps to be taken in the further investigation and the 2[nd] respondent may ensure that necessary guidelines and directives are given to the investigating officer of the rank of Dy.Superintendent of Police to ensure that further investigation is commenced and completed, as expeditious as possible. The further investigation by the officer of the rank **Crl.M.C. No.3395 of 2017** **9** of Dy.Superintendent of Police shall be closely monitored and supervised by the 2[nd] respondent-District Police Chief. All efforts and remedial measures should be taken in respect of the abovesaid aspects mentioned hereinabove to ensure that the serious faults in the present investigation are remedied and diligent steps are taken to ensure that the culprit persons are booked in the manner known to law. 16. Registry will forward a certified copy of this order to the 2[nd] respondent – District Police Chief and the 3[rd] respondent, Sub-Inspector of Police, Ponkunnam Police Station, at the cost of the petitioner. With these observations and directions, the above Criminal Miscellaneous case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.M.C. No.3395 of 2017** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I THE COPY OF THE PRIVATE COMPLAINT FILED BY THE PETITIONER AS CMP NO.5390/2005 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURTII,KANJIRAPPALLY** **ANNEXURE II THE COPY OF THE FIR IN CRIME NO.251/2005 OF THE PONKUNNAM POLICE STATION ANNEXURE III THE COPY OF THE REPORT DATED 21.12.2009 ISSUED FROM THE FORENSIC SCIENCE LAB,THIRUVANANTHAPURAM ANNEXURE IV THE CERTIFIED COPY OF THE FINAL REPORT IN CC.NO.17/2010 BEFORE TEH JUDICIAL FIRST CLASS MAGISTRATE COURT-II,KANJIRAPPALLY ALONG WITH THE TYPED COPY OF PAGES 6 AND 7 ANNEXURE V THE COPY OF THE PETITION DATED 16.7.2014 FILED BY THE PETITIONER FOR FURTHER INVESTIGATION ANNEXURE VI THE COPY OF THE ORDER DATED 18.1.2017 IN CMP NO.2513/2014 IN C.C.17/2010 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT II,KANJIRAPPALLY. ANNEXURE VII THE COPY OF THE REPRESENTATION DATED .4.2017 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.**