Mary KuriaKose v. State of Kerala and Madhusoodhanan Kartha

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 27[TH] DAY OF SEPTEMBER 2023 / 5TH ASWINA, 1945** **CRL.MC NO. 2793 OF 2021** **AGAINST THE ORDER/JUDGMENT CC 1570/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS I ,PERUMBAVOOR** ## **PETITIONER/DEFACTO COMPLAINANT:** MARY KURIAKOSE AGED 68 YEARS RETIRED GOVERNMENT SERVANT, W/O.KURIAKOSE, PARATHUVAYALIL (KALLARACKAL HOUSE), NEAR PARATHUVAYAL HOSPITAL, RAYAMANGALAM VILLAGE, PERUMBAVOOR. BY ADVS. S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER ## **RESPONDENTS/STATE /ACCUSED:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, (CRIME NO.822/2006 OF PERUMBAVOOR POLICE STATION, PERUMBAVOOR. 2 MADHUSOODHANAN KARTHA, S/O.NARAYANAN KARTHA, KARIMATTATHU HOUSE, PERUMBAVOOR KARA, PERUMBAVOOR VILLAGE, NOW RESIDING AT VILALGE OFFICE BHAGAM, PULLUVAZHIKARA, RAYAMANGALAM VILLAGE-683 542. BY ADV. ANIL K.MUHAMED SRI.HRITWICK C.S., PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.2793 of 2021 2 ## **P.V.KUNHIKRISHNAN, J.** **-----------------------------Crl.M.C.No.2793 of 2021 ---------------------------------------------Dated this the 27[th] day of September, 2023** ## **ORDER** This criminal miscellaneous case is filed challenging Annexure-III order passed by the Judicial First Class Magistrate-I, Perumbavoor in C.M.P.No.142(A)/21 in C.C.No.1570/2009. This is a petition filed by the Sub Inspector of Police, Perumbavoor under Section 173(8) Cr.P.C. The petitioner is the charge witness No.2 in Crime No.822/2006 of Perumbavoor Police Station, which was registered on the basis of a complaint filed by an Engineer attached with the Idamalayar Project alleging that a bull dozer which is entrusted by the department to the accused for the purpose of repair was not returned to the board as well as misappropriated the same for his own use. The crime Crl.M.C.No.2793 of 2021 3 was registered and the investigation was proceeded and subsequently, a final report was filed before the court below, which was taken on file as C.C. No.1570/2009. The workshop which was run by the accused is a partnership firm in which the late husband of the petitioner is also a partner and she is looking after the affairs after the death of her husband. So she is also very interested in the outcome of the prosecution is the submission. 2. It is submitted that, on verification of the final report it is revealed that so many vital documents were not seized and produced by the prosecution before court below. Hence the petitioner alerted the Police by submitting a detailed representation and on the basis of which the Station House Officer submitted a petition informing the court that they are conducting further investigation under Section 173 (8) Cr.P.C. and was requested the Crl.M.C.No.2793 of 2021 4 court to keep the proceedings in abeyance till the supplementary final report is filed with fresh materials. The learned magistrate dismissed that petition. Aggrieved by the same, this criminal miscellaneous case is filed. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. I also heard the counsel for the 2[nd] respondent. 4. The counsel for the petitioner reiterated the contentions raised in this criminal miscellaneous case. The Public Prosecutor also supported the case of the petitioner. The counsel for the 2[nd] respondent submitted that there is nothing to interfere with the impugned order. 5. It is settled position that for further investigation under Section 173(8) Cr.P.C., permission from the Court is not necessary and it is enough if the investigating officer informed the court Crl.M.C.No.2793 of 2021 5 concerned about the further investigation. That is why the Sub Inspector of Police, Perumbavoor submitted a petition under Section 173(8) Cr.P.C. The same is dismissed mainly for the reason that the case is 15 years old and the present petition is only to prolong the matter. It is also stated that, it is not averred in the petition that, what type of document is to be produced in this case and how much time is required for completing the further investigation. Hence the petition was dismissed. 6. I am of the considered opinion that the reasoning for dismissing the petition for further investigation is unsustainable for the simple reason that, no formal permission is necessary to the Investigating Officer from the court for further investigation. One of the reason mentioned by the lower court for rejecting the prayer for further investigation was that, this is a case of 15 years old Crl.M.C.No.2793 of 2021 6 and the present petition is only to prolong the matter. In **Gopalakrishnan P. alias Dileep v. State of Kerala and Others** [2022 KHC 180], this Court considered this aspect in detail. It will be better to extract the relevant portion of the above judgment: “20. The learned Senior Counsel Sri. B. Raman Pillai at the outset submitted that no further investigation can be undertaken once trial starts and here is a case where further investigation was sought at the fag end of the trial after the examination of all the prosecution witnesses except the investigating officer with the mala fide design to delay the trial. There is no merit in the said contention. It is trite that the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation. The hands of the investigating agency should not be tied down on the ground of mere delay as the ultimate object is to arrive at the truth (Hasanbhai Valibhai Qureshi v. State of Gujarat (2004 KHC 817 : 2004 (5) SCC 347 : 2004 (2) KLT SN 81 : 2004 (2) KLJ NOC 15 : AIR 2004 SC 2078 : 2004 CriLJ 2018)).” 7. As far as this case is concerned, no charge Crl.M.C.No.2793 of 2021 7 is framed and the trial is also not started. In such circumstances, the reasoning of the learned Magistrate that this is an old case and the petition for further investigation is to prolong the matter can not be accepted. 8. The counsel appearing for the accused contended that, there is nothing to interfere with the impugned order and the court below considered the matter in detail in the impugned order. I think the accused has no right to oppose an application for further investigation. This point is also considered by this Court in **Gopalakrishnan P. alias Dileep** 's case (supra). The relevant portion is extracted hereunder: “24. Further investigation is the privilege and prerogative of the investigating officer. Permission for it is only a formality. It is only as a matter of Courtesy that the investigating officer is required to inform the Court regarding the further investigation so as to enable the Court to decide the further action Crl.M.C.No.2793 of 2021 8 to be taken in the case. In Ram Lal Narang (supra), the Apex Court has only stated that it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation. In Rama Chaudhary (supra) and A. S. Peter (supra), the Apex Court has categorically held that the law does not mandate obtaining prior permission from the Magistrate for further investigation and that carrying out further investigation even after filing of the charge sheet is the statutory right of the police. Vinay Tyagi (supra) only recognizes the legal practice adopted by the investigating agencies to seek permission of the Court for conducting further investigation (See Vigilance and Anti - Corruption Bureau, Tvm. v. K. Sasikala and Others (2021 KHC 196 : 2021 (5) KHC SN 5 : 2021 (2) KLD 310 : 2021 KHC OnLine 196 : ILR 2021 (2) Ker. 316 : 2021 (2) KLJ 962 : 2021 (4) KLT SN 26 : 2021 (2) KLT OnLine 1068)). In Ram Lal Narang (supra), the Apex Court held that absence of permission by the Court does not render the further investigation illegal. 25. Annexure 10 report was submitted on 29/12/2021. The Court below considered the said report on 04/01/2022, accepted it holding that law does not mandate any permission from the Court to conduct further investigation and directed the investigating officer to file further report. The Crl.M.C.No.2793 of 2021 9 grievance of the petitioner is that the Court below did not hear the petitioner before accepting the report and giving such a direction. There is nothing in S.173(8) to suggest that the Court is obliged to hear the accused before any direction for further investigation is made. In Samaj Parivartan Samudaya v. State of Karnataka (2012 KHC 4296 : 2012 (7) SCC 407 : 2012 (2) KLT SN 119 : AIR 2012 SC 2326), the Apex Court has held that there is no requirement to hear the accused before any direction to further investigation is made. The further grievance of the petitioner is that even before the Court below considered Annexure 10 report on 04/01/2022, the investigating officer recorded the statements of Sri. Balachandra Kumar on 3/01/2022 and on 04/01/2022. At any rate, formal permission was granted by the Court on 04/01/2022 as evident from Annexure 13. Thus, the investigation, if any, conducted in between 29/12/2021 and 04/01/2022 stands ratified.” In the light of the above principle, I am of the considered opinion that the impugned order is unsustainable. Therefore, this Criminal Miscellaneous Case is allowed in the following manner: i) Annexure A3 order is set aside. Crl.M.C.No.2793 of 2021 10 ii) The Sub Inspector of Police, Perumbavoor Police Station is allowed to conduct further investigation in Crime No.822/2006, in accordance with law. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** Crl.M.C.No.2793 of 2021 11 ## **APPENDIX OF CRL.MC 2793/2021** PETITIONER ANNEXURES ANNEXURE I PETITIONER SUBMITTED A COMPLAINT BEFORE THE SUPERINTENDENT OF POLICE, ALUVA RURAL. ANNEXURE II A COPY OF THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION DATED 15.02.2021. ANNEXURE III A CERTIFIED COPY OF THE ORDER IN CMP NO.142(A)/2021 IN CC NO.1570/2009 DTED 16.04.2021. RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE