IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE R.BASANT
WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929
Crl.Rev.Pet.No. 3872 of 2007()
-----------------------------CRL.M.P. 5900 IN CC.81/2000 of CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM ....................
REVN. PETITIONER: ACCUSED NO.1 AND 2:
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1. UNNIKRISHNAN PILLAI, S/O. GOPINATHA PILLAI, KOLATTU VADAKKATHIL VEEDU, KOTTOOR KULATHINU THEKKU, KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM.
2. RAJENDRAN, S/O. KRISHNA PILLAI, KOLATU VADAKKATHIL VEEDU, KOTTOOR KULATHINU THEKKU KANNIMMEL CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM.
BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR
RESPONDENTS: COMPLAINANT AND STATE:
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1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. G. ROBERT, S/O. GEORGE,
SREE SAILAM, PATTATHANAM WEST,VADAKKEVILA VILLAGE, SINO TAILORS, KOLLAM BEACH ROAD, KOLLAM, PIN-691010.
R2 BY ADV. SRI.C.RAJENDRAN
R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **R. BASANT, J.**
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Crl.R.P.No. 3872 of 2007
- - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of January, 2008
## **O R D E R**
This revision petition is directed against an order passed by the learned Magistrate on an application filed by the defacto complainant/respondent herein that a further investigation be conducted under Section 173(8) Cr.P.C.
2. This case has had a checkered career by now. Proceedings commenced on the basis of a private complaint filed by the second respondent herein against three accused persons. They are petitioners 1 and 2 and another. In the private complaint it was alleged that an item of property belonged to the first accused. He, in collusion with accused 2 and 3, misled the defacto complainant to believe that the third accused was the first accused and the third accused impersonating himself to be the first accused executed an agreement for sale in favour of the defacto complainant. The second accused allegedly attested the said document as an attester. In short, the allegation is that all
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the three accused in collusion fraudulently deceived the defacto complainant by making it appear by impersonation that the third accused is the first accused and induced him to part with an amount of Rs. 2 lakhs as advance of sale consideration under the said document.
3. On the reference under Section 156(3) Cr.P.C. a crime was registered. Investigation was conducted. Final report was filed and cognizance was taken of the offences punishable, inter alia, under Sections 420 and 468 I.P.C. The trial in that case started on 3.5.2004.
It did not make progress. The petitioner/defacto complainant came to this Court with a prayer that there may be a direction for expeditious disposal. Another Bench of this Court by order dt. 7.7.2006 directed expeditious disposal.
4. At that stage, the petitioner appears to have realised that the investigation is inadequate and deficient on material aspects. He wanted further investigation to be conducted. Finding that the earlier direction for expeditious disposal stands in the way of the learned Magistrate considering his application for further investigation, the petitioner came to this Court with a petition and this Court by
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judgment dt.14.11.2006 in W.P.C. 28559 of 2006 dismissed the petition with observations. It was mentioned that if in the interests of justice further investigation were found necessary, the Magistrate can seek extension of time for disposal.
5. Against the said judgment in WPC 28559 of 2006 an
unsuccessful challenge was raised before the Division Bench.
6. Thereafter the petitioner/defacto complainant filed an application as Crl.M.P. 5900 of 2006 for a further investigation under Section 173(8) Cr.P.C. The same was opposed on various grounds. The learned Magistrate overruled the objections of the accused and directed that a further investigation be conducted under Section 173(8) Cr.P.C.
7. Dissatisfied with the said order, the petitioner came to this Court with a Criminal Revision Petition and another Bench of this Court by order dt. 9.7.2007 set aside the said order and directed the learned Magistrate to dispose of the said petition afresh in accordance with law.
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8. The matter thus went back to the learned Magistrate. The learned Magistrate after hearing the defacto complainant, the accused and the learned Prosecutor has now chosen to pass the impugned order.
The learned Magistrate stuck to the earlier decision that a further investigation deserves to be conducted. Aggrieved by the said order, this revision petition has been filed by accused 1 and 2.
9. I have heard the learned counsel for the petitioners and the learned counsel for the second respondent/complainant. The learned counsel for the petitioners challenges the impugned order on four grounds.
10. First of all it is contended that an application by the defacto complainant is not maintainable. After discussions at the Bar, in the light of the decision in **Shaji** v. **State of Kerala** (2003 (2) KLT 929), the said contention is not pressed rightly so, I feel.
11. The second contention raised is that the defacto complainant has filed this petition belatedly. The defacto complainant, who had earlier asked for an early and expeditious disposal and who, it can be seen, had the requisite legal advice and assistance always, has not
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chosen to make an earlier and prompt application for further investigation. His prayer made belatedly should not be accepted, it is prayed. The learned counsel for the respondent/defacto complainant on the other hand argues that the application filed by the defacto complainant is bonafide and it can clearly be seen that the purpose is only to ensure that justice is done. Earlier he had come to this Court with a request for expeditious disposal. But when he realised that there were serious inadequacies in investigation, to vindicate justice, he has filed this petition. The fact that he had come earlier may not be reckoned as a negative factor against the defacto complainant. That may be reckoned as one indicating his absolute bonafides in the vindication of justice, submits the counsel for the defacto complainant. I do note that there is some delay in the defacto complainant making the application for further investigation. But that delay does not appear to me to be sufficient to persuade this Court to invoke the revisional jurisdiction of superintendence and correction against the impugned order. Such delay is not tainted by any malafides or oblique motives, it appears to me to be evident.
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12. Thirdly the learned counsel for the petitioners contends that the police have not made any application for further investigation. The counsel submits that primarily it is for the police to make an application for further investigation and though it is not impermissible for the court to invoke such powers suo moto or at the instance of any one, the fact that the police had not made an application for further investigation may not be lost sight of.
13. In this context my attention has been drawn to the impugned order, paragraph 12, wherein it is very clearly stated that the Deputy Director of Prosecution also requested for further investigation of the case as the Investigating Officer has not collected the material items of evidence and brought the same before Court. The mere fact that the Investigating Officer had not alertly requested the court to invoke its powers under Section 173(8) Cr.P.C. pales into insignificance in view of the specific stand taken by the learned Deputy Director of Prosecution in charge of the case.
14. Lastly and finally it is contended that no further investigation
is at all necessary in the facts and circumstances of the case. An
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agreement has been executed. That agreement, according to the accused was executed by the third accused mis-describing himself fraudulently as the first accused. Such mis-description was malafide and was done in active collusion with accused 1 and 2, it is further contended. I am in total agreement with the learned counsel for the defacto complainant that in the facts and circumstances of this case, it will first of all have to be ascertained whether the executant of the document was the first accused or the third accused. The first accused is described to have executed the document. But the allegation is that it was the third accused who executed the document. Science and technology can certainly afford satisfactory inputs to resolve the controversy. The Investigating Officer, for obscure reasons, has not chosen to take advantage of this availability of the scientific evidence and make expert testimony available to Court on this crucial aspect. I shall not advert to the other aspects in any greater detail. But I am satisfied that the learned Magistrate cannot be said to have committed any error warranting revisional interference in coming to the conclusion that this particular aspect deserves further
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investigation. Having ordered further investigation, it is not necessary to specify on what all aspects the investigation can be conducted.
15. At the Bar it is stated that a decree has been passed against accused 1 to 3 directing them to return the money collected from the defacto complainant. The counsel for the defacto complainant contends that the document relating to the said civil case can also afford crucial evidence in the matter now. I shall not embark on a more detailed discussion on merits. It is for the defacto complainant to make all material data before the Investigating Officer, who will now further conduct the investigation on the basis of the impugned order.
16. To sum up, I am satisfied that the impugned order does not warrant revisional interference.
17. This revision petition is accordingly dismissed upholding the impugned order.
## **(R. BASANT)**
## Crl.R.P.No. 3872 of 2007
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Judge
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