M.M.Subaida v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941** **Crl.MC.No. 3850 of 2019** **AGAINST CC NO.94/2014 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS COURT, KOOTHATTUKULAM** **CRIME NO.258/2011 OF KOOTHATTUKULAM POLICE STATION, ERNAKULAM** ## **PETITIONER/3RD ACCUSED:** **M.M.SUBAIDA, AGED 52 YEARS, W/O.M.M.ADHRU, MANALOADU PUTHANPURA, PUTHUPPADI P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.T.P.PRADEEP SMT.NITHYA VIJAYAN SRI.P.K.SATHEES KUMAR SRI.S.SREEDEV** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. AJITH MURALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:3850/2019 2 ## **ORDER** The instant petition under Section 482 of the Cr.P.C is filed seeking to quash the order dated 29.02.2016 in C.M.P. No.5 of 2016 in C.C. No.94 of 2014 on the file of the Judicial First Class Magistrate Court, Koothattukulam. By the said order, the learned Magistrate has allowed the application filed by the Assistant Public Prosecutor (GradeII), Koothattukulam and the investigating officer was ordered to conduct a further investigation under Section 173(8) of the Cr.P.C. 2. For an effective adjudication of the disputes involved, essential facts will have to be narrated. Sometime in the year 2011, a certain Mary Jose and her husband produced an ownership certificate containing the seal and signature of the Secretary of the Palakkuzha Grama Panchayat and submitted the same before the Assistant Engineer (Electrical Section), KSEB, Koothattukulam. It was for the purpose of obtaining an electric connection to a building owned by the accused Nos.1 and 2. The Engineer forwarded the said ownership certificate to the Palakkuzha Grama Panchayat for verification. On verification, it was found that the signature seen in the certificate was not that of the Secretary. Based on the same, Crime No.258 of 2011 was registered against accused Nos.1 and 2, _inter alia_ , under Sections CRL.MC:3850/2019 3 468 and 471 of the IPC. 3. Detailed investigation was conducted, by the Sub Inspector of Police and final report was laid before the jurisdictional court on 10.10.2013. The case was taken cognizance of and numbered as C.C. No.94 of 2004 on the files of the Judicial First Class Magistrate Court, Koothattukulam. Trial commenced and on the side of the prosecution, as many as five witnesses were examined to prove its case. After examination, the learned Assistant Public Prosecutor filed a petition under Section 173(8) of the Code before the learned Magistrate seeking to order further investigation. It appears that the contention raised in Annexure-A4 petition is that the seal was actually in the possession of the petitioner herein, who was then working as a head clerk. The learned Magistrate allowed the said petition by Annexure-A5 order. It now appears that the petitioner herein is arrayed as the 3[rd] accused and report to that effect has been submitted to the learned Magistrate. When summons was issued to the petitioner calling upon her to appear before the learned Magistrate, she has approached this Court seeking to quash the proceedings. 4. The learned counsel appearing for the petitioner would contend that the learned Magistrate on the basis of a petition filed by CRL.MC:3850/2019 4 the State cannot order further investigation at the post cognizance stage. To substantiate his contention, he would rely on the decision of the Apex Court in **Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others** [AIR 2017 SC 774] and **Bikash Ranjan Rout v. State through the Secretary (Home), Government of NCT Delhi** [2019 (2) KLT 507]. It is submitted by the learned counsel that the investigating officer has not come forward with a petition for further investigation and hence, the order cannot be sustained. 5. Heard the learned Public Prosecutor and I have perused the records. 6. Admittedly, it was after the examination of the prime witnesses that the learned Magistrate had ordered further investigation by allowing the petition filed by the learned Assistant Public Prosecutor under Section 173 (8) of the Cr.P.C. It does not appear from the application filed by the learned Public Prosecutor that it was at the instance of the investigating officer that the application for further investigation was made. 7. In paragraph 48 of the judgment in **Amrutbhai Shambhubhai Patel** (supra), their Lordship has held as follows in Paragraphs 46 and 47 of the report: CRL.MC:3850/2019 5 “46. As adumbrated herein above, Chapter XIV of the Code delineates the conditions requisite for initiation of proceedings before a Magistrate. Section 190, which deals with cognizance of offences by Magistrate, sets out that any Magistrate of the first Class and any Magistrate of the second class specially empowered, as contemplated, may take cognizance of any offence either upon receiving a complaint of facts which constitute such offence or upon a police report of such facts or upon information received from any person other than the police officer, or upon his own knowledge that such offence had been committed. Section 156, which equips a police officer with the power to investigate a cognizable case mandates vide SubSection 3 thereof that any Magistrate empowered Under Section 190 may order such an investigation. The procedure for dealing with complaints to Magistrate is lodged under Chapter XV of the Code. Section 202 appearing therein predicates that any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which had been made over to him Under Section 192, may, if he thinks fit and shall in a case where the Accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the Accused and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The contents of this text of Section 202(1) of the Code unmistakably attest that the investigation that can be directed by the Magistrate, to be undertaken by a police officer would essentially be in the form of an enquiry for the singular purpose of enabling him to decide whether or another there is sufficient ground for proceeding with the complaint of an offence, of which he is authorised to take cognizance. This irrefutably is at the pre-cognizance stage and thus logically before the issuance of process to the Accused and his attendance in response thereto. As adverted to herein above, whereas Section 311 of the Code empowers a Court at any stage of any inquiry, trial or other proceeding, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, if construed to be essential to be just decision of the case, Section 319 authorizes a Court to proceed against any person, who though not CRL.MC:3850/2019 6 made an Accused appears, in course of the inquiry or trial, to have committed the same and can be tried together. These two provisions of the Code explicitly accouter a Court to summon a material witness or examine a person present at any stage of any inquiry, trial or other proceeding, if it considers it to be essential to the just decision of the case and even proceed against any person, though not an Accused in such enquiry or trial, if it appears from the evidence available that he had committed an offence and that he can be tried together with the other Accused persons. 47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and Accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.” 8. Thus, during the post cognizance stage only the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and after securing its approval. No such power is available, therefore, to the learned Magistrate after cognizance has been taken on the basis of the earlier CRL.MC:3850/2019 7 report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant can direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial. 9. In view of the above, the proceedings against the petitioner pursuant to the submission of the final report after undertaking further investigation will stand quashed. The learned Magistrate shall proceed with the trial on the strength of the original report. This petition will stand allowed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ CRL.MC:3850/2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 A TRUE COPY OF THE SERVICE RECORDS OF THE PETITIONER SUBMITTED BEFORE THE PANCHAYATH DEPUTY DIRECTOR, ERNAKULAM.** - **ANNEXURE A2 CERTIFIED COPY OF THE STATEMENT GIVEN BY THE SECRETARY OF THE PALAKKUZHA GRAMA PANCHAYATH AND A TRUE COPY OF THE FIR AND FIS IN CRIME NO.258/2011 OF KOOTHATTUKULAM POLICE STATION, ERNAKULAM DISTRICT.** - **ANNEXURE A3 CERTIFIED COPY OF THE DEPOSITION OF PW3 IN C.C.NO.94/2014 ON THE FILES OF JFCM COURT KOOTHATTUKULAM.** - **ANNEXURE A4 CERTIFIED COPY OF THE PETITION FILED BY THE PROSECUTION AS C.M.P.NO.5/2016 IN C.C.NO.94/2014 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOOTHATTUKULAM.** |**ANNEXURE A4**|**CERTIFIED COPY OF THE PETITION FILED BY THE**<br>**PROSECUTION AS C.M.P.NO.5/2016 IN C.C.NO.94/2014**<br>**ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE**<br>**COURT, KOOTHATTUKULAM.**| |---|---| |**ANNEXURE A5**|**CERTIFIED COPY OF THE ORDER DATED 29.2.2016 IN**| ||**C.M.P.NO.5/2016 IN C.C.NO.94/2014 ON THE FILES OF**| ||**JFCM COURT, KOOTHATTUKULAM.**| |**ANNEXURE A6**|**CERTIFIED COPY OF THE PROCEEDING INCORPORATING**| ||**PETITIONER AS 3RD ACCUSED C.NO.94/2014 ON THE**| ||**FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**KOOTHATTUKULAM.**| |**ANNEXURE A7**|**CERTIFIED COPY OF THE FINAL REPORT IN**| ||**C.C.NO.94/2014 ON THE FILES OF JFCM COURT,**| ||**KOOTHATTUKULAM.**| |**ANNEXURE A8**|**TRUE COPY OF THE COMPLAINT DATED 25.04.2011**| ||**SUBMITTED BY THE PANCHAYATH SECRETARY BEFORE**| ||**KOOTHATTUKULAM POLICE.**| ## **RESPONDENTS’ EXHIBITS:-NIL**