IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 13TH MARCH 2008 / 23RD PHALGUNA 1929 W.A.No.2690 of 2007 ----------------------------------- AGAINST THE ORDER DATED 23-10-2007 IN R.P.NO.903/2007 IN W.P.(C) NO.24565 OF 2006 & THE JUDGMENT DATED 6.12.2006 IN W.P.(C).NO.24565/2006. .................... APPELLANTS: REVIEW PETITIONERS:- ----------------------------------------------------- 1. SHAJI MATHEW, MADAPALLYMATTAM HOUSE, MOOZHOOR P.O., KOTTAYAM DISTRICT. 2. TOMY MATHEW, MADAPALLYMATTAM HOUSE, MOOZHOOR P.O., KOTTAYAM DISTRICT. 3. BABU CHERIAN, VADAKKEL HOUSE, MUTTOM P.O., IDUKKI DISTRICT. 4. SABU MATHEW, MADAPALLYMATTAM HOUSE, MOOZHOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL RESPONDENTS: RESPONDENTS 1 TO 6 IN R.P:- -------------------------------------------------------------------- 1. MATHAICHAN MATHEW, S/O. MATHEW, MADAPALLY MATTATHIL, MOOZHOOR P.O.,KUTTICKAL, KANJIRAPPALLY, KOTTAYAM, NOW RESIDING AT JUBILEE, SAUDI ARABIA, REP.BY HIS POWER OF ATTORNEY HOLDER ZAKARIA MATHEW, SENZO ENGINEER(PVT)LTD., 302-A, EVENING STAR, RAHEJA VIHAR COMPLEX, ANDHERI EAST, MUMBAI. W.A.NO.2690/2007 -2- 2. ZAKARIA MATHEW, SENZO ENGINEER (PVT) LTD., 302-A, EVENING STAR, RAHEJA VIHAR COMPLEX, ANDHERI EAST, MUMBAI. 3. SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 5. N. RAMACHANDRAN, DY. SUPERINTENDENT OF POLICE, ADMINISTRATION, KOTTAYAM. 6. CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REPRESENTED BY THE SUPERINTENDENT OF POLICE, KATHRUKADAVU, KOCHI-682 017. R1 & R2 BY ADV.SRI.PIRAPPANCODE V.S.SUDHIR R6 BY STANDING COUNSEL SRI.S.SREEKUMAR. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- H.L.Dattu,C.J. & K.T.Sankaran,J. ------------------------------------- W.A.No.2690 of 2007 ---------------------------------------------- Dated, this the 13th day of March, 2008 JUDGMENT H.L.Dattu,C.J. Accused persons in Crime No.96 of 2003 pending on Kanjirappally Police Station have filed this Writ Appeal questioning the correctness or otherwise of the orders passed by the learned Single Judge in W.P.(C).No.24565 of 2006 dated 6.12.2006 and the orders passed in R.P.No.903 of 2007 in W.P. (C).No.24565 of 2006 dated 23.10.2007. 2. Mathaichan Mathew and another were the de facto complainants in Crime No.96/2003 pending before the Kanjirappally Police Station. This Court in W.P.(C).No.31824 of 2004, by its order dated 17.6.2005, had ordered for constitution of special investigation team to inquire into the allegations made in Crime No.96/2003 in respect of the offences under Sections 419, 468, 471 and 420 of Indian Penal Code. The grievance of the petitioners in W.P.(C).No.24565 of 2006 was that the Special Investigating Team so constituted by this Court while disposing of W.P.(C).No.31824 of 2004 may not be in a position to conduct a successful investigation and, therefore, had requested the Court to handover the investigation to the Central Bureau of Investigation. 3. The learned Single Judge after taking into consideration the various factors pleaded in the writ petition and also taking into consideration that the investigation requires to be made not only in the country but also outside the country, has thought it fit to direct the Special Investigating Team to handover the investigation to the Central Bureau of Investigation of the offences alleged in Crime No.96/2003 pending before Kanjirappally Police Station. The reasoning of W.A.No.2690 of 2007 - 2 - the learned Single Judge in this regard, is at Para 4 and 5, is as under: “According to the petitioners, there was no breakthrough in the investigation. While so, a petition allegedly written by the first petitioner and attested by the Embassy of India at Riyad was sent to the 2nd respondent/Director General of Police informing that all the allegations are withdrawn against the accused and the Manager, Poovathilappu Branch of State Bank of Travancore and the complaint was sought to be treated as compromised, compounded and withdrawn. The power of attorney holder of the first petitioner was also instructed to withdraw O.S. No.215/2002 filed by the first petitioner. Copy of the above petition sent to the Director general of Police is produced as Ext.P15. The entire documents are forged, the seal and signature of the Attachee, Embassy of India, Riyad is also forged. On coming to know Ext.P15, the fist petitioner addressed the Embassy of India for the issuance of a cancellation letter, a copy of which is produced as Ext.P15 dated 2-3-2006. The petitioner has also sent letter to the second respondent/Director General of Police, a copy of which is produced as Ext.P17. Meanwhile the Bank Manager, State Bank of Travancore, Poovathilappu Branch has sent a letter to the first petitioner thanking him for withdrawing the proceedings, a copy of which is produced as Ext.P18. It is in the circumstances and in view of the forging of the seal and signature of the Attachee, Embassy of India, Riyad that the investigation is sought to be entrusted with the Central Bureau of Investigation. 5. The C.D. was produced as directed by this Court. The Director General of Police and the standing counsel for the C.B.I. were heard. Both the Director General of Police and the standing counsel for the C.B.I. have not opposed the petition. In the circumstances and on considering the case diary and in view of the fact that investigation will have to be conducted outside India as well, I find that it would be appropriate to entrust the matter with an agency which is having the necessary W.A.No.2690 of 2007 - 3 - infrastructure and facilities to conduct such an investigation. Hence, it is directed that the present investigating team would handover the entire case records with all materials collected so far to the C.B.I., who shall take necessary steps to conduct further investigation. Records shall be transmitted as expeditiously as possible. The writ petition is disposed of accordingly.”. 4. After disposal of the writ petition, the appellants before us and who are accused in Crime No.96/2003, had filed Review Petition No.903 of 2007 inter alia requesting the Court to review the order passed in W.P.(C).No.24565 of 2006 dated 6.12.2006. The learned Single Judge has rejected the review petition, primarily on the ground that the Central Bureau of Investigation, to whom the investigation had been handed over, is about to file the final report. The Court also had reserved liberty to the review petitioners, if they so desire, to question the veracity of the investigation and the final report that may be filed by the Central Bureau of Investigation by resorting to the appropriate proceedings under the provisions of the Code of Criminal Procedure. 5. Aggrieved by these two orders, the appellants have presented this Writ Appeal. 6. While admitting this Writ Appeal, we had not granted any interim order to the appellants. It is, therefore, the Central Bureau of Investigation, after conducting the investigation as directed by this Court while disposing of W.P.(C).No.24565 of 2006, has already filed its final report before the Chief Judicial Magistrate, Ernakulam on 31.1.2008. 7. The learned counsel appearing for the appellants, firstly, would contend that in a lis between the two private parties the learned Single Judge ought not to have directed the investigation on a complaint filed by one of the W.A.No.2690 of 2007 - 4 - parties to be investigated by the Central Bureau of Investigation in exercise of his powers under Article 226 of the Constitution. Secondly, it is contended that the petitioners in the writ petition by misrepresentation and by misleading the Court, have obtained the impugned order and, therefore, the Writ Appeal requires to be allowed and the impugned order passed by the learned Single Judge requires to be set aside. 8. Having heard the learned counsel appearing for the appellants, we are not impressed by the submissions made by the learned counsel. 9. Admittedly a crime is registered by the police authorities on a complaint filed by a citizen of the State. Since the investigation had not been conducted properly by the police authorities, the 1st petitioner in W.P.(C). No.24565 of 2006 had approached this Court in W.P.(C).No.31824 of 2004 inter alia requesting this Court to entrust the investigation to a special investigation team. This Court by its order dated 17.6.2005 had ordered to investigate the offences alleged in Crime No.96/2003 by a Special Investigation Team. 10. The writ petitioners-de facto complainants were not satisfied with the progress made by the Special Investigation Team in the investigation of the offences alleged in Crime No.96/2003. Therefore, they had made a request to the Court to direct the Special Investigation Team to handover the further investigation to the Central Bureau of Investigation. 11. The Court, after considering the seriousness of the allegations made in the complaint (Crime No.96/2003), has thought it fit to entrust the matter for investigation by the Central Bureau of Investigation. This is done by this Court in exercise of its powers under Article 226 of the Constitution. Time and again the W.A.No.2690 of 2007 - 5 - Courts have observed that the powers of this Court under Article 226 of the Constitution is wide enough even to entertain a request made by a private citizen to order a C.B.I. investigation. Therefore, we cannot find fault with the orders passed by the learned Single Judge, who had directed the Special Investigation Team to handover the investigation to the Central Bureau of Investigation taking into consideration the seriousness of the offences alleged in Crime No.96/2003. Therefore, the first contention canvassed by the learned counsel has no merit whatsoever. 12. The learned counsel appearing for the appellants would submit that by misrepresentation and by misleading the Court, the writ petitioners have obtained appropriate orders. 13. After the disposal of the writ petition, the appellants have filed a review petition before this Court. The learned Single Judge has taken notice of all the contentions canvassed by the learned counsel appearing for the appellants with regard to misrepresentation and misleading of the Court said to have been made by the writ petitioners while obtaining the order passed in the writ petition. After rejecting all those contentions, the learned Single Judge has come to the conclusion that if for any reason the appellants are aggrieved by the report of the Central Bureau of Investigation, they may question the same before an appropriate forum as provided under the provisions of the Code of Criminal Procedure. 14. During the pendency of this appeal, the Central Bureau of Investigation has submitted its final report before the Chief Judicial Magistrate on 31.1.2008. In our opinion, if for any reason the appellants are aggrieved by the said report, they are at liberty to question the same before the appropriate forum W.A.No.2690 of 2007 - 6 - in appropriate proceedings. Since the orders passed by the learned Single Judge has been implemented, at this stage it may not be proper for this Court to annul the said order. 15. In view of the above discussion, we reject the Writ Appeal. However, taking into consideration the facts and circumstances of the case, we refrain from ordering payment of costs. 16. In view of the orders passed in the Writ Appeal, the reliefs sought in I.A.Nos.90 of 2008 and 280 of 2008 need not be considered by this Court. Accordingly, the said applications are closed. Ordered accordingly. H.L.Dattu Chief Justice K.T.Sankaran Judge vku/DK