M.M. Vahab v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933** **Crl.MC.No. 1656 of 2011()** **------------------------AGAINST THE ORDER DATED 10/05/2011 IN CRMP 996/2011 IN CC.58/2008 of ENQUIRY COMMISSIONER & SPL. JUDGE, TRIVANDRUM** **....................** **PETITIONER(S): ACCUSED:** **-----------------------------------------** **M.M.VAHAB, S/O.MUHAMMED, FORMERLY ASSISTANT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE, KOLLAM.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM), SRI.R.JAYAKRISHNAN, SRI.PRASANTH M.P.** **RESPONDENT(S): STATE:** **---------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI. MANU** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **CRMC.NO.1656/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.1: COPY OF THE COURT CHARGE DTD. 28/02/2011.** - **ANEX.II: COPY OF THE PETITION FILED BY THE PROSECUTION DTD. 2/05/2011.** - **ANNEX.III: COPY OF THE COUNTER FILED BY THE PETITIONER TO ANNEXURE II PETITION.** - **ANNEX.IV: COPY OF THE ORDER DTD. 10/05/2011 PASSED IN CRL.M.P.NO. 996/2011 IN CC.58/2008 BY THE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.** ## **RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## **THOMAS P. JOSEPH, J.** **-------------------------------------Crl.M.C. No.1656 of 2011 -------------------------------------Dated this the 13[th] day of June, 2011.** ## **ORDER** Charge against petitioner is that while working as Assistant Geologist in Mining and Geology, District Office, Kollam during the period from 04.09.1997 to 28.03.2001, he in his capacity as a public servant misused his official position and with malafide intention unauthorisedly collected `.5,000/- from CW12 on 18.04.2000 under pretext of royalty for quarrying 500 tons of ordinary sand from his property. Petitioner informed CW12 that royalty amount will be remitted in the treasury and collected `.100/- for payment to the peon and without remitting the said amount in the treasury gave bogus quarrying permit No.3/20002001/MM/OS/467/DOQ/S2/2000 to CW12 without making any entry in the relevant records, as per the direction of petitioner CW12 printed Form-P, cash memorandum containing 50 sheets with duplicate and produced the same before petitioner on 19.04.2000 for affixing signature and accordingly got it signed. CWs 3 and 12 mined and transported 500 tons of ordinary sand from their property using the Form-P. By the above act of petitioner, Government suffered loss of `.5,100/- and thereby petitioner committed offences punishable under Sections 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and Sections 420, 465 and 471 of the Indian Penal Code. Learned Enquiry Commissioner and Special Judge, Thiruvananthapuram (for short, “the Special Judge') has framed a charge against him as above stated **Crl.MC No.1656/2011** 2 and put him for trial. At the time when all the witnesses for prosecution except the Investigating Officer were examined, the Investigating Officer came with Annexure-II, application informing learned Special Judge his intention to conduct further investigation into certain aspects of the matter as according to him such further investigation is necessary for a proper disposal of the case. Petitioner filed Annexure-III, objection to the said petition. Learned Special Judge vide Annexure-IV, order dated 10.05.2011 held that when a request for further investigation under Section 173(8) of the Code of Criminal Procedure (for short, “the Code”) is made, court cannot refuse to grant such permission, the function of the court is limited in that regard as granting of sanction is only a formality and hence the prosecution is at liberty to proceed with further investigation and granted sanction. Annexure-IV, order is under challenge at this proceeding at the instance of petitioner/accused. Learned counsel, placing reliance on the decisions in **Ram Lal Narang v. State (Delhi Administration) ((1979) 2 SCC 322)** and **State of Kerala v. Sreedharan (1993(2) KLT 490 – paragraph 7)** stated that once a report was filed before the court and cognizance was taken on it, the Police should seek formal permission of the court for fresh investigation, the court should ensure that there is no abuse of power under Section 173(8) of the Code. According to the learned counsel, learned Special Judge has not referred to all aspects of the matter and has wrongly granted permission with the observation **Crl.MC No.1656/2011** 3 that the court has no role in the matter when a request for further investigation is made by the Investigating Agency. Learned counsel submitted that on the facts of the case no further investigation is required. 2. Learned Public Prosecutor contended that petitioner being the accused has no right to be heard in an application under Section 173(8) of the Code. It is pointed out that since the request is for 'further investigation' what is required by the Investigating Agency is to seek formal permission of the court. Reliance is placed on the decision in **Narender G.Goel v. State of Maharashtra and another ((2009) 6 CC 65)** . 3. Time and again it has been held in various decisions that in the matter of further investigation (as distinguished from reinvestigation) what is required is only a formal permission of the court. Even the decisions relied by learned counsel reflect the said principle. **Ram Lal Narang v. State (Delhi Administration)** (supra) also says that in the matter of further investigation, the Police should ordinarily seek formal permission of the court for fresh investigation. 4. Section 173(8) of the Code says that nothing in that Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where **Crl.MC No.1656/2011** 4 upon such investigation the officer in charge of the Police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed. In paragraph 7 of ## **State of Kerala v. Sreedharan** (supra) it is held: “..........It cannot be laid down as a principle that the court shall necessarily adjourn the trial whenever there is a move for conducting further investigation. The court must verify the records to satisfy itself as to whether the permission sought for is bona fide and is based on sufficient materials. If the court finds that there is reasonable prospect of police reaching a different conclusion in such further investigation, the court may properly adjourn the trial till completion of such further investigation. Otherwise the court is not obliged to bridle the trial.” One of the latest decisions on the point is **State of Andhra Pradesh v.** **A.S.Peter ((2008) 2 SCC 383)** where a distinction between further investigation and reinvestigation is drawn. So far as further investigation is concerned, the law does not mandate taking of prior permission of Magistrate. 5. In the light of above principles I do not find any infirmity in the learned Special Judge observing that what is required is only a formal permission since the matter is pending before court. **Crl.MC No.1656/2011** 5 6. So far as right of petitioner/accused to object to further investigation is concerned, it has been held in various decisions that petitioner/accused has no right. It is not as if petitioner being the accused cannot point out the malicious intention if any in the request for further investigation. It is for the court to decide whether the request for further investigation is to be allowed or not considering the facts and circumstances. That does not mean that lack of bonafides if any in the request cannot be pointed out by the accused Here, attempt of petitioner is to point out lack of bonafides (as he says) in the request of Investigating Agency seeking further investigation. 7. Now coming to the factual issue, I referred to the charge framed by learned Special Judge. In Annexure-II, petition the Investigating Officer has stated that the source and circumstances of Ext.P4, document (cash memorandum) and the balance sheet of the same are to be ascertained. CWs 3 and 12 completed quarrying of 500 tons of ordinary sand from their property and transported the same using Ext.P4, cash memorandum. Investigating Agency wants to collect evidence as to where the said sand was deposited or sold. Genuineness of signature on Exts.P2 and P4 is to be ascertained by an expert. Learned counsel contends that all these matters are covered by the final report submitted by the Police and except the Investigating Officer all other **Crl.MC No.1656/2011** 6 witnesses are already examined, the request for further investigation is made with atmost malafides and to somehow prolong proceedings and put petitioner in difficulty. 8. Learned Public Prosecutor has submitted that several cash memorandums were printed by CW12 and signed by petitioner but the unused cash memorandums could not be recovered. It is submitted that around 100 printed forms were got prepared through CW12. The Investigating Agency has not so far collected the remaining printed forms. It is also pointed out by the learned Public Prosecutor that the signature in Exts.P2 and P4 are required to be identified by an expert. It is submitted by learned Public Prosecutor that no material has been collected by the Investigating Agency to show that making use of the (alleged) forged P-Forms mining was done and sand was transported. On the above facts further investigation is required. 9. Notwithstanding the question whether signatures in Exts.P2 and P4 are disputed by petitioner or not, I am inclined to think that prosecution owed an obligation to prove that the disputed signatures are of persons to whom it is attributed by the Investigating Officer. On going through Annexure-II, I am not inclined to think that matters sought to be further investigated are irrelevant for consideration. Nor are there any material to hold that Investigating Agency is actuated by any malicious intention. As the Supreme Court has pointed out in **Crl.MC No.1656/2011** 7 various decisions will have the liberty to challenge the further materials if any collected by the Investigating and produced in the court in the course of trial. Having regard to these aspects of the matter, I do not find reason to interfere. 10. But, further investigation cannot go endlessly. The alleged incidents happened during April 2000 and almost 11 years have expired. Hence the Investigating Officer is directed to expedite further investigation as sought for and permitted by learned Special Judge and submit report in the matter as early as possible. With the above direction, this Criminal Miscellaneous Case is disposed of. **THOMAS P.JOSEPH, Judge.** **cks**