High Court of KeralaSingle Judge2022-01-05Criminal Misc. Petition dismissed; no order for...

Santosh v. State of Kerala

Case / Petition Number:CRL.M.C No. 3524 of 2021

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dr. Kauser Edappagath
Judgment Date: 2022-01-05
Court Decision / Holding: The Crl.M.C. stands dismissed.
Final Disposition: Criminal Misc. Petition dismissed; no order for further investigation.

Parties to the Case

Appellants / Petitioners

Santosh

Respondents

State of Kerala
Superintendent of Police, Thrissur (Rural)
Shaja (3rd respondent)

Legal Representation & Advocates

Counsels for Petitioners

• Rajit
• Arjun S.

Counsels for Respondents

• Sri M P Prashant (Public Prosecutor)

Case Synopsis & Summary

Santosh, the accused in SCNo.879/2016 before the Fast Track Special Court (POCSO), Irinjalakuda, seeks a further investigation under section 173(8) Cr.P.C. through CRL.M.C. No.3524/2021. He is charged under sections 363, 366A, 354 r/w 34 IPC and section 8 r/w 7 POCSO for alleged sexual exploitation of a minor across Kerala and Andhra Pradesh, including an incident on 23/11/2005 at Uppal, where he allegedly exploited the victim under a pretext of arranging employment. After initial investigation, a final report was filed on 30/08/2016; a subsequent investigation under 173(8) Cr.P.C. culminated in another final report dated 09/02/2018 naming him as accused No.2. The petitioner contends that his inclusion stems from biased, defective inquiry with lapses such as failure to question crucial witnesses and verify call records/mobile tower data; hence a fresh probe is necessary to secure ends of justice and he invokes the inherent power under 482 Cr.P.C. The de facto complainant was impleaded as additional respondent. The State and police, represented by the Public Prosecutor, opposed the prayer, arguing that further investigation is a prerogative of police and cannot be directed by the accused, and that the grounds are for defence. The High Court, while acknowledging the police’s power to investigate under 173(8) and the binding authorities cited, found no sufficient or valid reason to order further investigation, and dismissed the Crl.M.C. resulting in the case continuing on its existing course.

Provisions of Law Cited

Section 363 IPCSection 366A IPCSection 354 IPCSection 34 IPCSection 8 POCSO ActSection 7 POCSO ActSection 173(8) Cr.P.C.Section 482 Cr.P.C.Section 161 Cr.P.C.Section 164 Cr.P.C.

Legal Doctrines & Maxims

Judicial restraint: the judiciary should refrain from interfering with police investigations except in appropriate cases (Emperor v. Khwaja Nazir Ahmad)
Ends of justice: a Court should be satisfied that there exist sufficient and valid reasons to order further investigation to secure ends of justice
Inherent powers of High Court: notwithstanding 173(8) Cr.P.C., the High Court retains power under Section 482 Cr.P.C. to order fresh or further investigation when warranted

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends bias and defects in the investigation, including failure to question crucial witnesses and verify call data, and challenges his inclusion as accused No.2 in the final report. He seeks a further investigation under 173(8) Cr.P.C. and invokes the inherent power under 482 Cr.P.C., arguing that the grounds are not well founded for a fresh probe and that the investigation is a prerogative of the police; no prayer for further investigation was urged by the police themselves, and the de facto complainant also requests inquiry. The argument frames investigation as part of a defence and asserts judicial intervention is permissible only to secure ends of justice.

Contentions of Respondents

The respondents contend that the police have authority to conduct further investigation under 173(8) Cr.P.C., even after filing a final report and cognizance, and that the accused cannot dictate the mode of investigation. They observe that the de facto complainant seeks further inquiry and that such power rests with the police, with the court exercising restraint and caution. They rely on statutory provisions and precedents to argue that mere inclusion of the accused in a final report does not compel a court to order a fresh probe, and that there must be valid reasons on record for interference.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Ram Lal Narang v. State (Delhi Administration)	AIR 1979 SC 1791	Positive	Cited to support the proposition that police may conduct further investigation under 173(8) Cr.P.C. after cognizance and that courts can direct such inquiry in appropriate cases.
Minu Kumari and Another v. State of Bihar and Others	AIR 2006 SC 1937	Positive	Cited for authority that supports continuing investigation under 173(8) Cr.P.C. post-cognizance.
Hemant Dhasmana v. CBI and Another	AIR 2001 SC 2721	Positive	Cited to reinforce the permissibility of further investigation under 173(8) Cr.P.C. and court involvement when necessary.
Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another	2019 (5) KHC 352	Positive	Kerala High Court decision cited regarding the court’s power to direct further investigation under 173(8) Cr.P.C. even after cognizance.
Emperor v. Khwaja Nazir Ahmad	AIR 1945 PC 18	Positive	Privy Council principle cited on judicial restraint and the relationship between judiciary and police, with exceptions enabling intervention.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **WEDNESDAY, THE 5[TH] DAY OF JANUARY 2022 / 15TH POUSHA, 1943 CRL.MC NO. 3524 OF 2021** **(SC 879/16 OF THE FAST TRACK SPECIAL COURT (POCSO)IRINJALAKUDA IN CR.NO.886/15 OF VARANDARAPILLY POLICE STATION** ## **PETITIONER/ACCUSED:** SANTHOSH,AGED 40 YEARS,S/O. VELAYUDHAN, RESIDING AT MANIKYAPARAMBIL HOUSE, KOLATHUNADU DESOM, CHALAKKAL VILLAGE, THRISSUR. BY ADVS.RAJIT, ARJUN S. ## **RESPONDENT/STATE:** 1 STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. 2 SUPERINTENDENT OF POLICE, THRISSUR (RUAL), G5CRH2C, KALYAN NAGAR, AYYATNHOLE, THRISSUR, KERALA 680 003. *3 SHAIJA,AGED 48 YEARS, W/O SHAJU, PRESENTLY RESIDING AT HOUSE NO.233, WARD NO.13, ALAGAPPANAGAR PANCHAYATH, NEAR MANNAMPETTA BHAGAVATHYKAAVU TEMPLE, AMBALLUR VILLAGE, THRISSUR DISTRICT-680301 (*ADDL.R3 IMPLEADED AS PER ORDER DT.19/11/21 IN CRL.M.A.3/21 IN CRL.MC NO.3524/2021 SRI M P PRASHANT-PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.01.2022, THE COURT ON 5.01.2022 PASSED THE FOLLOWING: Crl.M.C.No.3524/2021 ## -:2:- ## O R D E R Dated this the 5[th ] day of January, 2022 This Crl.M.C. has been filed by the accused No.2 in SC No. 879/2016 on the file of the Fast Track Special Court (POCSO), Irinjalakuda, seeking further investigation u/s 173(8) of Cr.P.C. 2. The petitioner faces trial for the offence punishable under Sections 363, 366(A), 354 r/w 34 of IPC and S.8 r/w 7 of the POCSO Act. 3. The prosecution case in short is that the petitioner along with the remaining accused sexually exploited the minor victim girl on several occasions at Kerala and Andhra Pradesh and thereby committed the offence. The specific allegation against the petitioner is that, on 23/11/2005, he took the victim to various parts of Kerala, Chennai and Uppal in Andhra Pradesh under the pretext that he would arrange a job for her and sexually exploited her against her consent at a flat at Uppal. 4. Initially, the crime was registered on the basis of a complaint filed by the mother of the victim. Annexure A1 is the Crl.M.C.No.3524/2021 -:3:- FIR. After the completion of the investigation, final report was filed on 30/8/2016. Annexure A6 is the said final report. Thereafter, the investigation officer sought the permission of the trial Court for further investigation u/s 173(8) of Cr.P.C. and after conducting further investigation, final report dated 9/2/2018 was filed arraying the petitioner as the accused No.2. Annexure A9 is the said report. 5. According to the petitioner, his inclusion as the accused No.2 in the final report is the result of a biased and inefficient investigation with ulterior motives and is therefore an abuse of process of Court. It is alleged that he is no way connected with the crime and the accused No.3 is the actual offender. It is further alleged that the investigation agency failed to question crucial witnesses and also failed to verify the call records, mobile tower location etc., of the victim and the accused on the relevant dates. According to him, there are severe and intentional lapses on the part of the investigation officer. It is in these circumstances the request for further investigation has been made invoking S.482 of Cr.P.C. 6. The _de facto_ complainant has been impleaded as the Crl.M.C.No.3524/2021 -:4:- additional respondent No.3. Notice has been served to her. But, there is no appearance. 7. I have heard the learned counsel for the petitioner Sri.Rajit and the learned Public Prosecutor Sri.M.P.Prashant. 8. The power of police to conduct further investigation after laying final report is recognised u/s 173(8) of Cr.P.C. Even after the Court took cognizance of an offence, on the strength of the police report first submitted, it is open to the police to conduct further investigation {see _**Ram Lal Narang v. State (Delhi Administration**_ (AIR 1979 SC 1791), _**Minu Kumari and Another v. State of Bihar and Others**_ (AIR 2006 SC 1937) and _**Hemant Dhasmana v. CBI and Another**_ (AIR 2001 SC 2721)}. The Court has also power to direct the investigating agency to conduct further investigation u/s 173(8) of Cr.P.C. even after taking cognizance of the final report filed by the investigating agency before it {see _**Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another**_ (2019 (5) KHC 352)}. But, here is a case where the accused himself has come up with an application seeking further investigation. The investigating agency has not come forward with any prayer for further Crl.M.C.No.3524/2021 -:5:- investigation. On the other hand, it opposed the prayer for further investigation sought for by the petitioner. The _de facto_ complainant/3[rd ] respondent also sought for further investigation. Further investigation is the prerogative of the police. The accused cannot ask to conduct investigation in a particular manner and fashion he wants. 9. The power of investigation is a statutory one and ordinarily and save and except some exceptional circumstances, no interference therewith by any Court is permissible. The Privy Council in _**Emperor v. Khwaja Nazir Ahmad**_ (AIR 1945 PC 18) stressed upon the restraint of judiciary against interference with the police in matters which were within its province holding that the role of these two institutions were complimentary and not overlapping, subject however to the right of the courts to intervene in an appropriate case. Though sub-section (8) of Section 173 of Cr.P.C. cannot affect or limit the inherent powers of the High Court to pass an order under Section 482 of Cr.P.C. for fresh or further investigation, the subsequent reopening of the investigation could not be ordered without any basis or materials on record. Before passing an order of further investigation, the Crl.M.C.No.3524/2021 -:6:- Court must be satisfied that there exits sufficient and valid reason to order further investigation and it is necessary to secure ends of justice. 10. Coming to the facts of the case, the perusal of the records would show that the investigation disclose the complicity of the petitioner in the crime. The victim gave statement u/s 161 of Cr.P.C as well as under S.164 of Cr.P.C. that the petitioner took her to Andhra Pradesh under the pretext that he would arrange a job for her and sexually exploited her several times against her consent. The petitioner alleges that the investigating agency failed to question material witnesses to confirm whether the statement given by her against the petitioner is true or not. The petitioner also alleges that the investigating agency failed to verify the mobile records and tower location of the victim and the petitioner. As stated already, the accused cannot dictate the manner in which investigation is to be carried out. It is the prerogative of the investigating agency. The grounds canvassed by the petitioner are matter for defence. The investigation discloses that the petitioner committed the offence. After perusing the final report, the Court below took cognizance as Crl.M.C.No.3524/2021 -:7:- well. I also went through the final report in detail. There are sufficient materials to connect the petitioner with the crime. For all these reasons, I am of the view that, on facts also, the petitioner has not made out a case to order further investigation. The attendant factual setting does not demonstrate any defective investigation which demands curation through a further probe. In these circumstances, I have no hesitation to conclude that no sufficient and valid reason exists to order further investigation as prayed for. The Crl.M.C. is only to be dismissed. In the result, the Crl.M.C. stands dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp** Crl.M.C.No.3524/2021 ## -:8:- ## **APPENDIX OF CRL.MC 3524/2021** PETITIONER'S ANNEXURES - Annexure A1 A TRUE COPY OF THE FIR NO 886/2015 OF VARANTHARAPPILLY POLICE STATION DATED 26.1.2015. - Annexure A2 A TRUE COPY OF THE STATEMENTS DATED 26.11.2015 AND 27.11.2015. - Annexure A3 A TRUE COPY OF THE VICTIM'S STATEMENT DATED 28.11.2015. - Annexure A4 A TRUE COPY OF THE VICTIM'S ADDITIONAL STATEMENT STATING THE ALLEGATIONS RECORDED ON 03.12.2015. - Annexure A5 A TRUE COPY OF THE SCENE MAHAZAR IN CRIME 886/2015 DATED 18.8.2016. - Annexure A6 A TRUE COPY OF THE FINAL REPORT IN CRIME 886/2015 DATED 30.08.2016. - Annexure A7 A TRUE COPY OF THE STATEMENT OF THE VICTIM RECORDED ON 15.10.2017. - Annexure A8 A TRUE COPY OF THE REPORT DATED 09.02.2018 FILED BY THE INVESTIGATING OFFICER. - Annexure A9 A TRUE COPY OF THE FINAL REPROT DATED 09.02.2018 FIELD BY THE INVESTIGATING OFFICER BEFORE THE HONBLE IST ADDITIONAL SESSIONS COURT, THRISSUR. - Annexure A10 A TRUE COPY OF THE CIRCULAR NO. 6/2017 OF DGP DATED 02.02.2017. ## Crl.M.C.No.3524/2021 -:9:- Annexure A11 A TRUE COPY OF THE REPRESENTATION DATED 15.07.2021 ALONG WITH THE ACKNOWLEDGEMENT.