Raghavan S/O Pankunny, Ashokan S/O Velayudhan, Raju S/O Ragavan, Babu S/O Bhaskaran v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944 ``` ## `CRL.MC NO. 7569 OF 2022` ``` [TO QUASH THE ORDER DATED 30.08.2022 IN CRIMINAL M.P. NO.4186/2022 IN C.C.NO.1067/2010 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.1, THRISSUR] ``` ## `PETITIONERS/RESPONDENTS 1,2,4 AND 5:` ``` 1RAGHAVAN, S/O. PANKUNNY, AGED 58 YEARS MARANCH HOUSE, THANIKKAMUNAYAM, KODANNOOR VILLAGE, PIN - 680563 2ASHOKAN S/O VELAYUDHAN, ADIYOLI HOUSE, THANIKKAMUNAYAM, KODANNUR, PIN - 680563 3RAJU S/O. RAGHAVAN, MANKUZHI HOUSE, HASGMI NAGAR, KODANNOOR, PIN - 680563 4BABU S/O BHASKARAN, VELLIYATTUVALAPPIL, KODANNUR VILLAGE, PIN - 680563 BY ADV V.C.MADHAVANKUTTY ``` ## `RESPONDENT/RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,, PIN - 682031 ``` ## `OTHER PRESENT:` ``` ADV SREEJA V -SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC No.7569/2022 2 ``` O R D E R ``` ``` The petitioners are the respondents 1,2,4 and 5 in Crl.M.P.No.4186/2022 in C.C.No.1067/2010 on the file of the Judicial First Class Magistrate Court-1, Thrissur. The petitioners are also the accused in the aforesaid Calendar Case, which was registered against them for the offences punishable under sections 406,409 and 420 r/w. Section 34 of the Indian Penal Code (IPC). The aforesaid case arises from Crime No.332/2009 of Cherpu Police Station. ``` ``` 2.The prosecution case is that the accused Nos.1 to 9, in furtherance of their common intention and being ``` ``` the members of the Kodannoorvadakkummuri Sree Subrahmanya Samajam, collected fixed deposits during the ``` ``` period from 20.09.2006 to 20.03.2009 from its members and failed to return the same upon completion of the period of the fixed deposits and thereby cheated them. After completing the investigation, the Police submitted ``` ``` a final report against the accused persons and cognizance was taken by the Judicial First Class ``` CRL.MC No.7569/2022 3 ``` Magistrate Court-I, Thrissur, as C.C.No.1067/2010. While ``` ``` the trial of the said case was in progress, the prosecution submitted Crl.M.P.No.416/2002 under Section 173(8) of the Code of Criminal Procedure (Cr. PC), seeking formal permission from the court to conduct further investigation in the matter. Annexure A2 was the application submitted by the prosecution in this regard, wherein it was mentioned that, in the final report now submitted before the learned Magistrate, 42 instances of cheating, viz. the act of cheating of 42 persons had been clubbed together, and a single final report has been submitted. It was pointed out in Annexure A2 application that such a procedure is not in tune with the statutory stipulation contained under sections 218 and 219 of Cr.PC, and therefore, further investigation is to be conducted for collecting additional materials to enable the prosecution to submit separate charge sheets regarding the said instances. ``` ``` 3.The petitioners herein submitted Annexure-A3 objection to the same, highlighting that the proposal to split the cases into 14 separate cases would cause ``` CRL.MC No.7569/2022 4 ``` serious prejudice to them mainly because of the delay likely to occur during the said process. It is pointed out that crime was registered in the year 2009, and the final report was submitted in the year 2010. The trial was getting prolonged, and the present application for further investigation was submitted after the commencement of the trial. In such circumstances, the dismissal of the said application was sought. However, after considering all the relevant aspects, Annexure-A4 order was passed by the learned Magistrate, allowing the application submitted by the prosecution and permission was granted to the Investigating Officer to commence and complete further investigation and file the supplementary final report as expeditiously as possible. Challenging Annexure-4 order, this Crl.M.C is filed by the petitioners. ``` ``` 4.Heard Sri. M.P.Madhavankutty, the learned counsel for the petitioners and Smt. Sreeja V., the learned Senior Public Prosecutor for the State. ``` ``` 5.The learned counsel for the petitioners pointed out that the order allowing further investigation would ``` CRL.MC No.7569/2022 5 ``` cause serious prejudice to the accused. It is pointed out that the Calendar Case has been pending from 2010 onwards, and now the trial has begun, and the prosecution has examined 11 witnesses. Therefore, if such a prayer is allowed at this belated stage, serious prejudice would be caused to the petitioners. According to him, splitting up the charge sought by the prosecution is not at all necessary, and the same was only to harass the accused persons by prolonging the trial. ``` ``` 6.On the other hand, the learned Public Prosecutor would oppose the contention of the petitioners by pointing out that all the objections raised by the petitioners were elaborately considered by the learned Magistrate and a detailed order has been passed specifically highlighting the reasons justifying the permission granted to such prayer. In such circumstances,nointerferenceiswarranted, particularly when no prejudice will be caused to the petitioners on account of further investigation being conducted, as the same was intended only for curing some ``` CRL.MC No.7569/2022 6 ``` inherent defects in the final report. ``` ``` 7.I have gone through the records. The crucial contentions raised by the learned counsel for the petitioner are with regard to the prejudice caused to the petitioners on account of the delay that is likely to cause consequent to the further investigation to be conducted. The petitioners also challenge the sustainability of the said order by pointing out that such a course is not at all necessary. On the other hand, on going through the reasons stated by the prosecution for invoking the powers of the Investigating Officer under section 173(8) of the Cr.PC, it can be seen that it was intended to ensure that the defect in the final report is removed. It is the specific case of the prosecution that even though there are materials indicating the acts of cheating committed by the accused persons against 42 persons, all the said incidents were clubbed together, and a single final report has been submitted. It is pointed out that, as per Section 218 of Cr.PC, for every distinct offence of which any person is accused, there shall be a separate charge, and every ``` CRL.MC No.7569/2022 7 `such charge shall be tried separately. As per section 219 of Cr.PC, the clubbing of charges together is permissible only in respect of three offences of the same kind committed within twelve months. In this case, 42 instances of cheating were clubbed together, and thereby, there is an inherent defect in the final report, which would give an undue advantage to the accused if they were prosecuted on the basis of the said charge sheet. Therefore, splitting up charges was necessary to ensure a fair trial, and such an object could be achieved only by conducting further investigation. It was pointed out that the invocation of the powers under Section 173(8) of Cr.PC is the only option available for the prosecution to ensure a fair prosecution.` ``` 8.When examining the entire sequence of events in the case, I find some force in the contention put forward by the learned Public Prosecutor. This is particularly because it is the bounden duty of the prosecution to ensure not only a fair trial but also an effective trial to see that the real culprit is punished. ``` CRL.MC No.7569/2022 8 ``` Even while giving due emphasis to the rights of the accused, it is also to be ensured that no culprit escapes from the clutches of law. Therefore, when there is an inherent defect in the final report, and the investigation Officer is vested with the power to investigate the matter further, nothing would preclude the Investigation Officer from invoking his powers for conducting such further investigation to ensure a successful prosecution. Of course, it is true that, while invoking such power, it should be ensured that no undue prejudice is caused to the accused and his rights are not violated. In this case, the main prejudice highlighted is the possible delay in the disposal of the Calendar Case, as it has been pending trial since 2010. It is pointed out that the prosecution already examined 11 witnesses, and at this belated stage, no prayer for further investigation can be allowed. However, when examining the statutory stipulation in Section 173(8) of Cr.PC, it can be seen that no time limit has been prescribed anywhere in the provisions of the Cr.PC regarding the invocation of the powers by the ``` CRL.MC No.7569/2022 9 ``` Investigation Officer for further investigation. The ``` ``` investigation and further investigation are the prerogative of the Investigation Officer, and the court can interfere in such power only in exceptional circumstances. This Court in Gopalakrishnan alias Dileep ``` ``` v. State of Kerala[2022(2)KLT OnLine 1183], it was observed that: ``` ``` 35…...The inherent power vested with this court under S.482 of Cr.P.C. to quash further investigation could only be exercised sparingly and with circumspection save in exceptional cases such as, the further investigation is frivolous, vexatious, or it is maliciously initiated with an ulterior motive for wreaking vengeance on the accused, or is barred by any law, or the power of the investigating officer under S.173 (8) is exercised mala fide, or where there is abuse of power or such exercise is justified by the test specifically laid down in the provision itself.” ``` ``` Thus, it is evident that the power of the investigating officer under section 173(8) is vast, and the same can be exercised by him if there are justifiable reasons. It is also the well settled position of law in this regard, as held inGopalakrishnan's case (supra) and also various other decisions rendered by the Hon'ble Supreme Court and this Court that, even if further investigation is conducted without the permission of the court, that would not vitiate the proceedings as such. However, it ``` CRL.MC No.7569/2022 10 ``` is only proper that the investigating officer obtain formal permission from the court concerned. ``` ``` 9.In this case, the scope of challenge against Annexure-4 is very much limited. As observed, there are broad powers for the investigating officer to conduct further investigation, and his obligation is only to seek formal permission in this regard from the court concerned.Afterelaboratelyconsideringthe justifiability of the reasons cited by the prosecution, the court passed Annexure-4 order granting formal permission to conduct further investigation. As observed above, inGopalakrishnan's case (supra), this Court clearly laid down that interference in any such orders could be made only in exemptional circumstances. In this case, the specific reason cited by the prosecution for conducting further investigation is to remove the technical infirmity in the final report, as the contents of the final report were apparently against the stipulation contained under section 219 of Cr.PC. When such an infirmity is there in the final report, the continuation of the prosecution without attempting to ``` CRL.MC No.7569/2022 11 `cure the same would be a futile exercise. This is particularly when such infirmity can be legally removed by invoking the powers under section 173(8) of Cr.PC. In my view, it is the duty of the prosecution to ensure that a fair trial is conducted by balancing the rights of the accused and the victims. If anomalies in the final report are allowed to continue, even after identifying the same, that would defeat the very purpose of the prosecution. In this case, upon realizing the said anomaly, steps were taken by the prosecution to remove the same and to submit separate final reports in respect of separate incidents in compliance with the stipulations contained in section 173(8) of Cr.PC. Under no circumstances the petition filed for the said purpose can be treated as a petition without any bonafide. Of course, if it causes any prejudice to the accused, interference can be made by this court. However, in this case, even if separate charge sheets were filed in respect of the incidents above, a proper and ample opportunity will be granted to the accused to answer those charges. Therefore, under no circumstances any` CRL.MC No.7569/2022 12 ``` prejudice would be caused to him. Of course, there is some chance of delay in the disposal of the case, but that cannot be treated as an instance of causing prejudice to the accused. In my view, even though a fair trial is the right of the accused, that cannot go against the right of the prosecution to ensure an effective trial. In this case, steps taken by the prosecution to conduct further investigation were to ensure an effective trial. Hence, I do not find any prejudice being caused to the accused on account of the same. The order of the learned Magistrate is a very detailed one, passed after considering all the objections raised by the petitioners in this regard. Hence, I do not find any justifiable reasons to interfere with the said order. ``` `In such circumstances, I do not find any merit in` . `this Crl.M.C, and accordingly, it is dismissed` Sd/- `ZIYAD RAHMAN A.A. JUDGE` ``` pkk ``` CRL.MC No.7569/2022 13 ## `APPENDIX OF CRL.MC 7569/2022` ``` PETITIONERS’ ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME 332/09 OF CHERPU POLICE STATION Annexure A2TRUE COPY OF THE PETITION CRL.M.P.NO. 4186 OF 2022 IN CC.NO. 1067/2010 FILED BY THE PROSECUTION DATED 09.12.2021 Annexure A3TRUE COPY OF THE COUNTER FILED BY ACCUSED NO1,2,4,AND 5 INCRL.M.P.NO. 4186 OF 2022 IN CC.NO. 1067/10 DATED 16.03.2022 Annexure A4TRUE COPY OF THE ORDER IN CRL.M.P.NO. 4186 OF 2022 IN CC.NO. 1067/2010 DATED 30.08.2022ON THE FILE OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT, THRISSUR ```