Ponnu Prabhaghar v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 16TH DAY OF APRIL 2021 / 26TH CHAITHRA, 1943** ## **WP(C).No.28870 OF 2020(G)** ## **PETITIONER/S:** **PONNU PRABHAGHAR AGED 45 YEARS TC 27/3107, RYSA VEEDU, MIDS LANE, NEAR JUBILY HOSPITAL, THYCADU VILLAGE, PALAYAM, THIRUVANANTHAPURAM CITY, KERALA-695034.** **BY ADV. SMT.MINI.M.NAIR** ## **RESPONDENT/S:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHAKKADU, THIRUVANANTHAPURAM-695010.** - **3 THE ASSISTANT COMMISSIONER OF POLICE, C BRANCH, POLICE GROUND, CV RAMAN PILLAI RD., THYCAUD, THIRUVANANTHAPURAM,KERALA.** - **4 THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE SUPERINTENDENT OF POLICE, CBI, KATHRIKADAVU, KALOOR P.O., COCHIN-686668.** - **5 THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, ULLOOR, THIRUVANANTHAPURAM, KERALA-695011.** - **6 DR. VENUGOPAL S. REDDIAR, 4903 BROADMOOR ST APT 85, MISSION, KS 662021452, U.S.A., PHONE NO.(319)-341-5723, (586) 757-6724, (810)757-6724, EMAIL ID PANSIGHT@GMAIL.COM REDDIAR@YAHOO.COM** 2 ## **W.P.(C) No.28870 of 2020** **R1-3, R5 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER** ## **OTHER PRESENT:** ## **ASG P.VIJAYAKUMAR FOR CBI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD** **ON 09-03-2021, THE COURT ON 16-04-2021 DELIVERED THE** **FOLLOWING:** **W.P.(C) No.28870 of 2020** 3 ## **JUDGMENT** Dated this the 16[th] day of April **,** 2021 **The petitioner had filed a complaint before the Vanchiyoor Police Station. It was alleged that the 6[th] respondent, who belongs to the forward caste Hindu Reddiyar community, had secured admission for MD General Medicine at Government Medical College, Thiruvannathapuram, claiming to be a person belonging to the Kondareddy community, which is recognised as a Scheduled Tribe Community in Tamil Nadu. The false claim was made on the strength of forged community and nativity certificates. The 6[th] respondent fraudulently obtained National Overseas Scholarship for students belonging to SC/ST category also. It was alleged that the 6[th] respondent contracted a second marriage while his first marriage was subsistence and had thereby committed the offence under** **W.P.(C) No.28870 of 2020** 4 **Section 494 of IPC. The petitioner's complaint resulted in Crime No.519 of 2019 being registered at the Vanchiyoor Police Station for offences under Sections 465, 468, 471, 494, 420 and 198 of IPC. After investigation, the police filed Ext.P2 final report and the Judicial First Class Magistrate-XI, Thiruvananthapuram took cognisance of the offences mentioned above. The case is now pending as C.C.No.831 of 2020.** **2. The writ petition is filed, aggrieved by the lackadaisical manner on which the investigation was conducted and final report filed. It is alleged that no effort was taken by the investigating officer to seize the relevant documents and question the crucial witnesses with respect to the fraud committed by the 6[th] respondent, forgery of certificates and other documents, the benefits received by the 6[th] respondent based on his false claim etc. It is** **W.P.(C) No.28870 of 2020** 5 **contended that the learned Magistrate took cognisance of the offences without application of mind, which is evident from the court having taken cognisance of the offence under Section 494 of IPC despite the specific bar under Section 198 Cr.P.C, The petitioner therefore prays for a** _**de novo**_ **investigation of the crime by constituting a special investigation team.** **3. Learned Senior Government Pleader fairly submits that a scrutiny of the case diary indicates certain flaws in the investigation, which may benefit the accused in his defence, but such flaws would not entitle the petitioner to demand** _**de novo**_ **investigation. That, the remedy of the petitioner is to approach the jurisdictional court with an application seeking further investigation.** **4. Having heard the learned Counsel for the** **W.P.(C) No.28870 of 2020** 6 **petitioner and the learned Senior Government Pleader, I find substance in the contention urged by the petitioner, of there being flaws in the investigation. It is settled law that there cannot be a direction to conduct** _**de novo**_ **investigation, merely on the de facto complainant or the victim pointing out certain flaws in the investigation. As rightly contended by the learned Senior Government Pleader, remedy of the petitioner is to approach the jurisdictional Magistrate Court seeking further investigation.** **In the result, the writ petition is disposed of, granting liberty to the petitioner to approach the Judicial First Class Magistrate Court-XI, Thiruvananthapuram seeking further investigation in Crime No.519 of 2019 of Vanchiyoor Police Station. If such request is made, the learned Magistrate shall pass a reasoned order thereon, keeping in mind the decision in** _**Vinubhai Haribhai**_ **W.P.(C) No.28870 of 2020** 7 _**Malaviya and others v. State of Gujarat [(2019) 17 SCC 1]**_ **wherein the Apex Court has held that mere taking of cognisance does not fetter the Magistrate from ordering further investigation in exercise of the power under Section 156 (3) Cr.P.C and that such power can be exercised either** _**suo motu**_ **or on application, on being convinced about the need to do so.** **Sd/V.G.ARUN JUDGE** Scl/16.04.2021 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** 8 **W.P.(C) No.28870 of 2020** **EXHIBIT P1 THE CERTIFIED COPY OF THE FIR DATED 6.3.2019. EXHIBIT P2 THE CERTIFIED COPY OF THE FINAL REPORT IN CC NO.831/2020.**