U. J. Iyyappan v. The State of Kerala and Others

**CR** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934 Crl.Rev.Pet.No. 155 of 2002 ( ) ------------------------------AGAINST THE JUDGMENT IN CC.82/1997 OF CHIEF JUDICIAL MAGISTRATE, THRISSUR ## - REVISION PETITIONER(S)/DE FACTO COMPLAINANT.: U.J.IYYAPPAN, SON OF JOHN, URUVATH HOUSE, SOORYAGRAMAM, THRISSUR-5. BY ADV. SRI.O.V.MANIPRASAD ## COMPLAINANT(S)/STATE & ACCUSED NOS. 1 & 5. 1. THE STATE OF KERALA (SUB INSPECTOR OF POLICE, THRISSUR EAST POLICE STATION, CRIME NO.552/1996) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. ROSY, WIFE OF ALAPPAT JOHN, POTTA DESOM, CHALAKKUDY VILLAGE, MUKUNDAPURAM TALUK. 3. ABRAHAM @ AVARACHAN, SON OF THOMAS, IPPAN PARAMBIL VEEDU, MODAPPALLUR, PALAKKAD DIST. BY ADV. SMT.DHANYA P.ASHOKAN FOR R2 ADV. PUBLIC PROSECUTOR SMT. JASMINE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **CR** ## **N.K.BALAKRISHNAN, J.** **........................................................** ## **Crl.R.P. No. 155 of 2002** **..........................................................** **Dated this the 28th day of February, 2013.** ## **ORDER** The defacto complainant is the revision petitioner. A complaint was filed by him against six accused persons alleging offences under Secs.419, 420, 463, 464, 465, 466, 468, 470 and 471 r/w 34 of IPC. After investigation, the charge sheet was laid against five accused persons. Out of them, A1 and A5 faced trial in C.C. 82/97. A2 and A3 are stated to be no more. Hence charge against them stood abated. A4 was absconding and so the case against him was split up and re-filed as C.C. 145/2001. A1 and A5 who faced trial were acquitted by the trial court. 2. The case of the prosecution can be stated in brief as follows: 3. PW1 was in possession and ownership of 75 cents of **Crl. R.P. 155 of 2002** -:2:- property in Survey Nos.1064/4 and 981/3 situated near Shakthan Thamburan bus stand in Thrissur town. It is alleged that the accused, in furtherance of their common intention to cheat PW1, committed impersonation and executed a document on 13.03.1979 wherein A5 personated himself as PW1 and executed a document (sale deed) in favour of A1 and A2. A2 is the son of A1. A1 is the sister of PW1. Subsequently A2 gifted his right in that property to his son -A3. Based on the complaint given by PW1, FIR was registered. After conducting investigation, charge sheet was laid. 4. Before the learned Magistrate PW1 to PW12 were examined and Exts.P1 to P12 were marked. One witness was examined on the side of defence as DW1. The certified copy of the plaint was marked as Ext.D1. 5. The learned Magistrate acquitted the accused mainly on the ground that the signatures purported to be of the executant found on the original document (Sale deed) were not sent along with the specimen signatures of PW1 to the expert **Crl. R.P. 155 of 2002** -:3:- for comparison to prove whether Ext.P4 was actually a forged document. Though the investigating officer had obtained the specimen signatures of PW1, as seen in Ext.P2, it was not sent for getting the opinion of the expert after comparing the signatures purported to be of the executant seen on Ext.P4. Other lapses and shortcomings on the part of the prosecution were also pointed out by the learned Magistrate to hold that the prosecution could not prove the case beyond reasonable doubt. Thus A1 and A5 were acquitted. That judgment was rendered by the learned Magistrate on 29.09.2001. This revision petition was filed on 21.12.2001. 6. Sri.O.V.Maniprasad, the learned counsel for the revision petitioner submits that PW1 cannot be found fault with for the latches or lapses in the conduct of the investigation or the prosecution since PW1 was not in control of the prosecution or the investigation. He came to know of the latches or lapses in the investigation only when the accused were acquitted. It is also submitted that the complaint was that A5 had **Crl. R.P. 155 of 2002** -:4:- impersonated himself as PW1 and appeared before the Scribe and the Sub-Registrar for executing the document. The complainant is not expected to know the niceties of law; how the prosecution case has to be proved, since it is in the domain of the investigating officer and the prosecuting agency. The learned counsel has highlighted the total insincerity or inept handling of the case by the investigating officer (PW11). Though the specimen signatures of PW1 were obtained, he did not send it for obtaining the expert's opinion. Similarly though PW11 claims to have seen the admitted signatures of PW1, he did not seize any document for comparison as to whether the signatures purported to be of PW1 seen on Ext.P4 were the actual signatures or whether the signatures were forged. In reexamination, PW11 has stated that he did not find it necessary to send the handwriting or the signatures to the expert, since he did not think it necessary, as according to him, the signatures were patently different. It is not the opinion of the investigating officer, that can be relied on by the court to prove **Crl. R.P. 155 of 2002** -:5:- the prosecution case, but such a statement was made by PW11, evidently to cover up his own latches, the learned counsel submits. 7. The learned counsel for the respondent (A1) submits that PW1 could not feign ignorance and now contend that the accused happened to be acquitted because of the latches on the part of the investigating officer or the prosecuting agency. Ext.P4 is dated 27.02.79. The complaint was filed by PW1 before the Magistrate in 1996. That is about 17 years after the execution of Ext.P4 document and so, that itself will show the falsity of the complaint, the learned counsel submits. It is further submitted that in 1979, the property in question was practically marshy and in an abandoned condition used for dumping waste materials and only after 1986 when Sakthan Thamburan Bus stand was constructed, the property became valuable. It is not disputed that now the property is worth several crores of Rupees. It is further submitted by the learned counsel that, sitting in revision this court cannot upset the **Crl. R.P. 155 of 2002** -:6:- verdict of acquittal since based on the evidence on record, it cannot be said that the approach made by the learned Magistrate was perverse nor can it be said that there was total non-consideration of the evidence. 8. The learned counsel for the revision petitioner submits that the petitioner was away in Orissa serving there continuously and since his sister (A1) was here in the native place he had nothing to doubt about the ownership or possession of the property. It is further contended that there is nothing on record to show that PW1 had come to know of the execution of the impugned sale deed in 1979. Only when he came back to his native place in 1996 and when he was thinking of selling the property and when the encumbrance certificate was obtained it could be seen that a sale deed was executed in 1979 by the accused persons by cheating and impersonation. On going through the judgment of the court below and the evidence collected by the investigating agency which was placed before Court it is indubitably clear that the **Crl. R.P. 155 of 2002** -:7:- Investigating Officer had made every endeavour to help the accused by not taking steps which a reasonable and prudent Investigating Officer ought to have taken. The evidence would show that thumb impressions of the executants would be obtained in the thumb Impression Register maintained in the Office of the Sub Registrar. The Investigating Officer also admits that fact. The thumb impression of P.W.1 could have been obtained by the investigating officer to prove that the impugned sale deed was not executed by the petitioner. It is also surprising to note that the thumb impression of the executant was not obtained on the reverse of the first sheet of the original sale deed. That casts serious doubt as to whether the fraud was played with the assistance of the Sub Registrar as well, for, there was no reason or justification for not obtaining the thumb impression of the executant. There is no case that the executant was personally known to the Sub Registrars or the executant is a very important person coming under certain category whose thumb impressions may not be **Crl. R.P. 155 of 2002** -:8:- required to be obtained on the documents or the thumb Impression Register. Since it is stated that the thumb impression of the executant was obtained in the thumb Impression Register, it eludes comprehension why the said thumb impression was not got compared with the actual thumb impression of the complainant. Since the case put forward by the prosecution was that it was A5 who impersonated himself as Iyyappan that fact also could have been proved had the thumb impression seen in the Thumb Impression Register and the thumb impression of A5 had been sent for comparison. Even if it is accepted for the worst position that the prosecution could not prove who actually impersonated as Iyyappan (who was shown in the document as executed, who signed and put the thumb impression), still A1 and A2 cannot plead ignorance since A1 is none other than the sister of the complainant (PW1). A2 is the son of A1. It is contented that the impugned sale deed (Ext.P4) was executed at the behest of A1 and A2 for which the assistance of A5 was sought for. Though the document was **Crl. R.P. 155 of 2002** -:9:- shown to have been executed on 27-2-1979 it was registered only on 13.3.1979. It is stated that the property covered by Ext.P4 was subsequently mortgaged with the bank and obtained loan. It is also in evidence that subsequently the property was gifted by A1 and A2 in favour of A3, the son of A2. According to the complainant after PW1 came from Orissa to the native place he wanted to sell the property and for that purpose, as the purchaser wanted encumbrance certificate to be verified; the encumbrance certificate was obtained. It was only then he came to know the forgery and cheating committed in the manner as stated above. Therefore, the learned counsel for the revision petitioner submits that the delay of 18 years in lodging the complaint cannot in such circumstances be taken as a ground to say that the case of the prosecution is untrue. When there could be scientific examination to prove with precision and certainty as to whether Ext. P4 document was actually executed by P.W.1 or by somebody else the delay in lodging the complaint alone cannot be a reason to reject the **Crl. R.P. 155 of 2002** -:10:- prosecution case. 9. The learned counsel for the revision petition has pointed out certain admitted signatures of P.W.1 which are totally dissimilar to the signatures found on Ext. P4 assignment deed. It cannot be disputed that the signatures in the vakalath and other papers produced by PW1 along with the revision petition will show that the signatures appearing in those papers are totally different from the signatures of the executant seen on Ext.P4 document. Of course, that alone will not be decisive. Documents of contemporaneous origin could have been collected and got compared. When the report of thumb impression would be conclusive that would be the best evidence which the prosecution can bring in. 10. The learned counsel for the complainant/ revision petitioner submits that it can not be an innocuous or inadvertent act on the part of the Investigating Officer since he cannot have reason to believe that the court will find an accused guilty merely on the opinion expressed by the **Crl. R.P. 155 of 2002** -:11:- Investigating Officer. Therefore, the learned counsel submits that it was a deliberate omission or laches on the part of the Investigating Officer in not sending the thumb impression found in the thumb Impression Register maintained in the Sub Registrar's Office and the thumb impression of P.W.1 and of A5 (which ought to have been obtained during investigation) to get it compared, which would have clinched the issue. The forensic certainty could have been had, if the Investigating Officer had done it. The learned counsel further submits that the Investigating Officer cannot be allowed to have predominance in such matters, for, otherwise justice would become casualty at the hands of such Investigating Officers. It is in such circumstances, the court has to step in to promote the cause of justice. It is a case where the definite case of the complainant (PW1) is that he was throughout in the State of Orissa and that he came back to his native place only in 1996 and that he had not executed the assignment deed assigning the property mentioned earlier. The persons responsible for committing **Crl. R.P. 155 of 2002** -:12:- cheating, forgery impersonation etc., cannot be allowed to go scot free only because of the inept handling of the case by the Investigating Officer and the prosecuting agency and so the Court should invoke the inherent jurisdiction under Section 482 Cr.P.C. besides the power under Sec. 397 and 401 Cr.P.C., the learned counsel submits. 11. It is true that if the case is to be decided purely on the evidence on record, the learned counsel for the respondent may be justified in his submission that ordering remand of the case may not serve any purpose since the vital evidence which ought to have been produced in the case was not produced by the prosecution. The concept of fair trial entails familiar triangulation of interest of the accused, the victim and the society. The Court has a duty to maintain public confidence in the administration of justice to vindicate and uphold the majesty of the law. It was held by the Apex court in **Zahira Habibulla H. Sheikh v. State of Gujrat - AIR 2004 SC 3114 :** **Crl. R.P. 155 of 2002** -:13:- _**"** The principles of rule of law and due process are closely lined with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice was resulted. It will be not correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses or the cause which is being tried is eliminated"._ 12. The learned counsel for the petitioner would submit that the purpose of the criminal trial is to arrive at a correct judgment on an issue. The trial should be a search for the truth and not a bout over technicalities. 13. The documents containing the signatures of P.W.1 were produced by the learned counsel for the petitioner to compare the admitted signatures/writings with the disputed signatures/writings. The learned counsel has fairly submitted that it is not intended to hold that because of the total disparity **Crl. R.P. 155 of 2002** -:14:- in the signatures of PW1 found in the documents produced by him and in Ext.P4 the case can be held to be proved; but the attempt made is only to enlighten the court that it is not at all possible for the court to come to a finding that the signatures purported to be of PW1 found on Ext.P4 were actually the signatures of P.W.4. The court cannot venture to form an opinion merely by comparison of the signatures to enter a definite finding but at the same time, as has been pointed out by the learned counsel, the documents have been produced only to convince the court that it was the duty of the Investigating Officer and the prosecuting agency to send the thumb impressions and signatures for comparison to arrive at the truth, rather than leaving it to the fanciful idea or the opinion of the Investigating Officer. 14. Sri.Venugopalan, the learned counsel appearing for the respondent/accused has cited the decision of the Hon'ble Supreme Court in **Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu - AIR 1975 SC 1854** in support of **Crl. R.P. 155 of 2002** ## -:15:- his submission that the order of acquittal passed by the trial court cannot be called for in exercise of revisional jurisdiction only on the ground that the appreciation of evidence made by the trial Court was not correct. The learned counsel submits that so far as the case on hand is concerned the trial Court cannot be found fault with in giving a verdict of acquittal as the evidence was totally insufficient to prove the charges levelled against the accused. In the case Supra, the revision petition was filed before the High Court by a private party in a case which was not instituted upon a complaint. The High Court set aside the acquittal and directed re-trial of the accused. It was found by the Apex Court that the Sessions Court analised and discussed the evidence and held that the witnesses, on their own showing had not seen the occurrence and, therefore, their evidence could not assist the prosecution in proving the charges against the accused. The facts dealt with therein are entirely different from the facts of this case. 15. To fortify the submission that the revisional court **Crl. R.P. 155 of 2002** -:16:- shall not ordinarily interfere with an order of acquittal except in exceptional cases, where interest of public justice requires for the correction of manifest illegality or the prevention of gross miscarriage of justice, the decision of this Court in **Krishnan Kutty v. State of Kerala - 2005 KHC 136** has also been relied upon. 16. The revisional power is extra-ordinary discretionary power vested in the superior court to be exercised in aid of justice. The High Court is invested with this power to see that justice is done in accordance with the recognized rules of criminal jurisprudence. In the absence of serious legal infirmity and failure of justice the High Court should not exercise its jurisdiction to upset a verdict of acquittal. The learned counsel further submits that there should be some glaring defect in the procedure or a manifest error on a point of law and consequently there must have been a flagrant miscarriage of justice so as to interfere in revision against a judgment of acquittal. But the learned counsel for the **Crl. R.P. 155 of 2002** -:17:- petitioner submits that there is no dispute regarding the proposition of law but here it is a case where there was flagrant miscarriage of justice since the material documents and evidence which would have clinche the issued had not been produced by the Investigating agency nor was it taken note of by the prosecuting agency at the time of trial. The learned counsel submits that had the learned Assistant Public Prosecutor applied his mind it would have been easy for him to point out the infirmity to the investigating agency then and there so that further investigation could have been done to bring to the notice of the court the relevant evidence which would have thrown light to arrive at a just decision. It is further submitted that it is a case where there was manifest illegality and so, in order to prevent perpetuation of that gross injustice done to the complainant and to the society at large the order of acquittal is to be set aside, for, otherwise the Society would lose confidence in the justice delivery system itself. 17. The decision of the Apex Court in **Seethala Prasad v.** **Crl. R.P. 155 of 2002** -:18:- ## **- (2010) 2 SCC 190** has also been cited by the learned counsel for the respondent, wherein it was held: _"Without making the categories exhaustive, revisional jurisdiction can be exercised by exercised by the High Court at the instance of a private complainant_ - _1) where the trial court has wrongly shut out evidence which the prosecution wished to produce,_ - _2) where the admissible evidence is wrongly brushed aside as inadmissible._ _3) where the trial court has no jurisdiction to try the case and has still acquitted the accused,_ _4) Where the material evidence has been overlooked either by the trial court or the appellate court or the order is passed by considering irrelevant evidence, and_ _5) where the acquittal is based on he compounding of the offence which is invalid under the law_ _13. By now, it is well settled that the revisional jurisdiction, when invoked by a private complainant against an order of acquittal, cannot be exercised lightly and that it can be exercised only in exceptional cases where the interest of public justice requires interference for correction of manifest illegality or the prevention of gross miscarriage of justice. In these cases, or cases of similar nature, retrial or rehearing of the appeal may be ordered"._ 18. The learned counsel for the petitioner would submit that the case on hand is actually an exceptional case where the interest of public justice requires interference for correction of manifest illegality or to prevent gross miscarriage of justice. **Crl. R.P. 155 of 2002** -:19:- 19. The decision of of the Supreme Court in **Mookaian v. Kannika and Others - 2011 KHC 6224** has also been cited by the learned counsel for the respondent in support of his submission that the High Court sitting in revision cannot reappraise the evidence as is sitting in appeal when the Government has not preferred any appeal or revision from the acquittal and that even if there is misappreciation of evidence and wrong view of law on the part of the court below, the High Court should not interfere in a revision filed by a private party/complainant. 20. The learned counsel for the petitioner would submit that it was because such a victim was left without any remedy other than filing a revision as the law then stood, the Parliament thought of introducing a proviso to Section 372 Cr.P.C. which provided a right to a victim to prefer an appeal against an order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate sentence. Though proviso to Sec.372 as mentioned above can **Crl. R.P. 155 of 2002** ## -:20:- not be applied to the facts of this case (as the proviso has been introduced only recently) the reason or necessity which prompted the Parliament to introduce that provision also cannot be lost sight of. Even other wise, so far as the case on hand is concerned if the court finds that there was gross failure of justice by not producing the evidence which ought to have been produced before court to get at the truth and if because of the same, persons engaged in cheating and fraud happened to be acquitted this Court sitting in revision can exercise the power under Section 482 Cr.P.C. also to do complete justice to the parties. 21. The decision of the Supreme Court in **Logendranath Jha and Others v. Shri. Polai Lal Biswas - AIR 1951 SC 316** has also been relied upon by the learned counsel for the respondent in support of his submission that the High Court cannot reverse the pure findings of fact holding that the appreciation of evidence done by the trial Court was wrong. 22. In **D Stephens v. Nosibulla - AIR 1951 SC 196** it **Crl. R.P. 155 of 2002** -:21:- was held by the Apex Court, while considering the scope of a revision petition filed by a private party against an order of acquittal that it could be exercised only in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality, for the prevention of a gross miscarriage of justice. In **Logendranath Jha's Case** (supra) also the Apex Court considered the limited power of the Revisional Court against an order of acquittal. The accused therein were tried before the Sessions Court for the offences under Section 147, 148, 323, 324, 326 and 302 read with Sec. 149 I.P.C. The learned Sessions Judge acquitted the accused. The order of acquittal was not challenged by the State before the High court. In the Revision, the High Court re-appreciated the evidence and disagreed with the Sessions Judge's finding of fact holding that it was perverse and the judgment disclose a lack of true perspective in a case of that nature. The Apex Court held that the High Court cannot when dealing with a Revision Petition filed by a private party, against an order of **Crl. R.P. 155 of 2002** -:22:- acquittal, in the absence of any error on a point of law, reappraise the evidence and reverse the findings of fact on which the acquittal was based by resorting to the device of stopping short of finding the accused guilty and passing sentence on him. Following the earlier decisions, the Apex Court, again in **Chinnaswamy v. State of Andhra Pradesh - AIR 1962 SC 1788** considered the aspect of converting a finding of acquittal into one of conviction by exercising the revisional jurisdiction against an order of acquittal. The revisional Court cannot convert the finding of acquittal into one of conviction by the indirect method of ordering re-trial when it cannot itself direct convert the finding of acquittal into a finding of conviction. 23. It was also held by the Apex Court in Sathi Prasad v. State of U.P. - (1972) 3 SCC 613 that it is well settled that if the police records becomes suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied upon and such lapses ignored. **Crl. R.P. 155 of 2002** -:23:- 24. It was held by the Apex Court in Awadh Bihari Yadav v. State of Bihar - (1995) 6 SCC 31 that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law enforcement agency but also in the administration of justice. 25. In Dhanaj Singh v. State of Punjab - (2004) 3 SCC 654 it was held by the Supreme Court that in the case of a defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. 26. Dealing with the cases of omission and commission it was held by the Supreme Court in Prasad Yadav v. State of Bihar - AIR 1999 SC 644 that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors **Crl. R.P. 155 of 2002** -:24:- such omissions to find out whether the said evidence is reliable or not. 27. It was held that the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, for, otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. It was not a case where the Court in the appellate stage directed further investigation of the case. But the main point that was projected in these decisions is that justice should not be a causality at the hands of the investigating officer and that primacy should be given to the Court. 28. It was held by the Apex Court in State of Karnataka v. Yarappa Reddi - AIR 2000 SC 185, thus: "But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case ? If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the investigating officer in conducting investigation or in preparing the records so unscrupulously ? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court int he case cannot be **Crl. R.P. 155 of 2002** -:25:- allowed to depend solely on the probity of investigation. It is well-nigh settled that even if the investigation is illegal or even supicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by the investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case". ## 29. It was held by the Apex Court in Zahira Habibullah ## Sheikh v. State of Gujrat - (2006) 3 SCC 374 thus : **"** 42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above, to the needs of the society. On the contrary, efforts should be to ensure a fair trial where the accused and the prosecution both get a fair deal. Public interest in proper administration of justice must be given as much importance, if not more, as the interest of the individual accused. In this courts have a vital role to play". 30. It was also held by the Supreme Court in N.H.R.C. v. State of Gujrat - (2009) 6 SCC 767 - thus: "The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the **Crl. R.P. 155 of 2002** -:26:- community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in th trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the Judges as impartial and independent adjudicators". ## It was held by the Apex Court Karnel singh v. State of M.P. - (1995) 5 SCC 518 thus: "In case of defective investigation the court has to be circumspect (while) evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective" This decision was followed by the Supreme Court in Ram Bali v. State of U.P. - (2004) 10 SCC 598 . **Crl. R.P. 155 of 2002** -:27:- 31. It was argued on behalf of the accused that there is no evidence to show that Ext. P2 is a forged document and that even if it is a forged document as there is no evidence to show that it is the accused who forged the document, it cannot be said that an offence was committed by the accused. In this connection, the learned counsel for the petitioner has relied upon a decision in A.S. Krishnan and Another v. State of Kerala - AIR 2004 SC 3229 where it is held that in order to attract Sec. 471 it is not necessary that a person to be held guilty under the provision must have himself forged the document or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood establihsed or proved to be a forged one. Therefore, the learned counsel submits that if evidence could be obtained by sending the document to the expert for comparison along with the thumb impressions contained in the thumb impression register, it can be **Crl. R.P. 155 of 2002** -:28:- very well proved that the document was forged and when such a forged document was used by none other than the sister of the complainant and her son. There would be no difficulty to hold that the document was forged with their knowledge and that they used such a forged document knowing it to be a forged document so as to attract the offence under Sec. 471 I.P.C. If A, who is not having valid title but executes the document stating that he is having title then the position would be different. Here the property belongs to B (the petitioner herein , Iyyappan but A personates himself as B and executes the document. Therefore, the decision of the Supreme Court in Muhammed Ibrahim and Others v. State of Bihar and Another - (2009) 8 SCC 751 is not applicable to the facts of this case. 32. The learned counsel for the respondent has relied upon the decision in Pakalapati Narayana Gajapathi Raju v. Bonapalli Peda Appadu - 1975 KHC 921 in support of his submission that the revisional jurisdiction under Sec. 401 cannot be invoked by the High Court merely because the lower court has not appreciated **Crl. R.P. 155 of 2002** -:29:- the evidence properly. Here the question is entirely different. The question is not whether the evidence on record is sufficient for entering a conviction. The petitioner's counsel is also aware of the fact that the evidence on record is not sufficient to upset the concurrent verdict given by the courts below in favour of the accused but it is a case where public justice requires interference for the correction of a manifest illegality and prevention of a gross miscarriage of justice, for the investigating officer though was aware of the fact that the disputed thumb impression found on Ext. P2 should be got compared with the admitted thumb impression of the de facto complainant. That was deliberately not done evidently to help the accused but at the same time gave an unreasonable and unpalatable explanation before Court that he did not send the document as he was so sure that the signature was not that of P.W.1. As has been already said, it was not for the investigating officer to decide and abstain from doing his duty as enjoined under the Code. It is true, as has been held by the Supreme Court in Logendranath Jha and Others **Crl. R.P. 155 of 2002** -:30:- v. Shri Polai Lal Biswas - AIR 1951 SC 316 that it is not open to a High Court to convert a finding of acquittal into one of conviction indirectly ordering retrial of the accused when the State has not thought to fit to file appeal. But at the same time it was held that the revisional jurisdiction can be exercised by the High Court in exceptional cases where there is some glaring defect in the procedure or there is manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. The case on hand is one such case. 33. The learned counsel for the petitioner submits that Secs. 397, 401 and 482 of the new Code are analogous to Secs. 435, 439 and 561 (A) of the Old Code except for certain substitutions, omissions and modifications. It was held by the Supreme Court in Janata Dal v. H.S. Chowdhary - AIR 1993 SC 892 thus: "The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the **Crl. R.P. 155 of 2002** -:31:- High Court under S. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of his power is based on sound principles". It was held by tyhe Apex Court the rule of inhereint powers has its source in the maxim "Quadolex aliquid aliqui concedit, concedere videtur id sine quo ipsa, ess uon potest" which means that when the law in anything is anyone it is also those things without which the thing itself could not exist. The said decision has been relied upon by the learned counsel for the petitioner in support of his submission that merely because there was delay in the petitioner approaching the Court at the first instance and also the fact that one of the accused is an aged person that should not deter the court since the complainant is also an aged man but at the same time justice should not be buried on such technical considerations, for otherwise, it would inculcate a feeling that because of delay everything would be buried and that the accused can go scot free untouched by the law of the land. 34. It was held by the Apex Court in Babubai v. State of **Crl. R.P. 155 of 2002** -:32:- Gujrat and Others - (2010) 12 SCC 254 that if investigation has not been conducted fairly, such vitiated investigation cannot give rise to a valid charge-sheet and such investigation would ultimately prove to be a precursor of miscarriage of criminal justice and in such a case the court would simply try to decipher the truth only on the basis of guess or conjectures as the whole truth would not come before it. It was was held in the decision that: _"Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation"._ This decision has been very much relied upon by the learned counsel for the petitioner to contend that in exceptional circumstances the Court, in order to prevent miscarriage of criminal justice, if considers necessary, may direct investigation **Crl. R.P. 155 of 2002** -:33:- de novo if there are exceptional circumstances. Therefore, the learned counsel justifies the claim made by the petitioner that the verdict of acquittal has to be set aside and the case is to be remanded to the trial court and a further direction should be issued ordering further investigation of the case to bring home the real truth before Court for which the admitted thumb impression of the de facto complainant and the thumb impression contained in the Thumb Impression Register should be got compared by sending it to an expert. Since the report of the finger print would be conclusive as to the forgery alleged, there can be no difficulty at all . The Investigating Officer also may have to obtain the thumb impressions and signatures of the accused also. It is not necessary to give further direction as to how further investigation should be conducted in this case. Sufficient indications have been made in this judgment as to the foul play played by the Investigating Officer. 35. Dealing with the cases of omission and commission the Supreme Court in Prasad Yadav's case enunciated the **Crl. R.P. 155 of 2002** -:34:- principle, in conformity with the previous decisions on the point that if the lapse or omission is committed by the investigating agency, negligently or otherwise, the prosecution evidence is required to be examined de hors such omissions to find out whether the said omission is reliable or not. It was further held that the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts, for, otherwise the designed mischief would be perpetuated and justice whould be denied to the complainant party. The aforesaid decisions were followed by the Hon'ble Supreme Court in Gajoo v. State of Uttarakhand - (2012) 9 SCC 532. The Apex Court in K.Chandrasekhar v. State of Kerala - (1998) 5 SCC 223 , Nirmal Singh Kahalon v. State of Punjab - (2009) 1 SCC 441 , Mithabhai Pashabhai Patel v. State of Gujrat - (2009) 6 SCC 332 and Kishanlal v. Dharmendra Bhafna and Another - (2009) 7 SCC 685 emphasised that where the Court comes to the conclusion that there was a serious irregularity in the investigation the Court may direct further investigation under Sec. 173 **Crl. R.P. 155 of 2002** -:35:- (8) of Cr.P.C.. Here, according to the petitioner, the case on hand depicts an extra ordinary case of gross misuse of power by the officer who was in-charge of the investigation and so the court should not be loath to exercise the inherent power under Sec. 482 also. It was held by the Supreme Court in Dayal Singh's Case (supra): " _Even the present case is a glaring example of irresponsible investigation. It in fact, smacks of intentional mischief to misdirect the investigation as well as to withhold material evidence from the Court. It cannot be considered a case of bona fide or unintentional omission or commission. It is not a case of faulty investigation simpliciter but is an investigation coloured with motivation or an attempt to ensure that the suspect can go scot-fee. This can safely be gathered from the following:"_ Sec. 401 (1) of Cr.P.C. makes it clear that the discretion is vested with the High Court to exercise the power conferred on a Court of Appeal by various provisions like Sec. 386, 389, 390,391 and 307. To sum up, it is true, that there was delay in the petitioner approaching the Court in filing the complaint alleging **Crl. R.P. 155 of 2002** -:36:- forgery, cheating by personation and using of the forged document etc. but sufficient explanation was offered stating that the de facto complainant /revision petitioner was in Orissa for several decades and that the property was managed by his sister (A1) and other near relatives and so he had nothing to doubt about the management of the same by A1 and her son. But it was only later when he came from Orissa after retirement and when he thought of settling down in Thrissur and when he wanted to sell away the property he could come to know that the accused (A5) impersonated himself as Iyyappan (the petitioner herein) and executed the sale deed and committed the offences as mentioned above. It is also true that the accused is an aged man but as has been stated above the complainant also is an aged man. There was flagrant miscarriage of justice in this case as has been enunciated earlier. Such injustice should not be allowed to be perpetuated. Considering the totality of the evidence and circumstances, I have no hesitation to hold that the verdict of acquittal given by the courts below is to be set aside **Crl. R.P. 155 of 2002** -:37:- and the case is to be remanded to the trial Court to have a proper redressal of the grievance, regarding the forgery alleged to have been committed. It was already found that the investigation was tainted and unfair and so in order to see that complete justice is done to the parties, further investigation is also absolutely necessary. In the result, this Revision Petition is allowed. The verdict of acquittal is set aside and the case is remanded to the trial court for fresh disposal. The investigating officer (the successor in office) shall cause a further investigation to be conducted in the light of what has been stated earlier. Such further report should be filed within three months from the date posted for appearance of the parties. The learned Magistrate can grant further time for completing the further investigation and to file further report, if the Magistrate is convinced of the reasons stated. On receipt of such report, the learned Magistrate will see that the case is disposed of as expeditiously as possible. The parties will appear before the learned Magistrate on 14-3-2013. **Crl. R.P. 155 of 2002** -:38:- After appearance and granting bail to the accused the learned Magistrate can grant exemption to the accused from personal appearance, if applied for, for such period as the learned Magistrate deem fit. ## Dated this the 28th day of February, 2013. ## **Sd/-N.K. BALAKRISHNAN, JUDGE.** _Transmit the lower court records to the trial court forthwith._ ani/das /true copy/ P.S. to Judge **Crl. R.P. 155 of 2002** -:39:- **N.K.BALAKRISHNAN, J. ........................................................ Crl.R.P. No. 155 of 2002 .......................................................... Dated this the 28th day of February, 2013. ORDER** # **Crl. R.P. 155 of 2002** -:40:-