IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 24280 of 2007(M) -------------------------- PETITIONER: ------------------ SASIKUMAR K., S/O. KRISHNAPILLAI, 'VISHNU NIVAS', KUNDARAMTHERI, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY SMT.K.R.RIJA RESPONDENTS: --------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, HOME DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, KERALA, POLICE HQ, THIRUVANANTHAPURAM. 3. THE SUB INSPECTOR OF POLICE, NEYYATTINKARA POLICE STATION. 4. ARAVINDASHAN, 'ARAVINDAM', ONAMCODE, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. 5. NANDAKUMAR @ PAPPI, 'KRISHNAMANDIRAM', ONAMCODE, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. 6. PADMAKUMAR @ PAPPAN, KRISHNAMANDIRAM, ONAMCODE, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. 7. PRABHA, ONAMCODE, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. 8. VINOD, ONAMCODE, VENPAKKAL, ATHIYANOOR VILLAGE, THIRUVANANTHAPURAM. WP(C).No. 24280 of 2007(M) :2: 9. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 10. THE DEPUTY SUPERINTENDENT OF POLICE, NEYYATTINKARA. R1 TO R3, R9 & R10 BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU. R4 TO R6 BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.S.SHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24280 of 2007(M) APPENDIX PETITIONER'S EXHIBITS: P1 : COPY OF THE FIR & FIS IN CRIME NO.623/2004. P2 : COPY OF THE LETTER DATED 20.10.2004. P3 : COPY OF THE LETTER BY 9TH RESPONDENT DATED 26.2.2005. P4 : COPY OF THE FINAL REPORT IN CRIME NO.623/2004. RESPONDENTS' EXHIBITS: N I L // TRUE COPY // P.A. TO JUDGE. app/- M.SASIDHARAN NAMBIAR, J. ================== W.P.(C) No. 24280 of 2007 ================== Dated this the 10th day of August, 2009. J U D G M E N T The defacto complainant in Crime No.623/2004 of Neyyattinkara Police Station now pending as C.C.No.1413/2004 on the file of Judicial First Class Magistrate - I, Neyyattinkara filed this writ petition for a writ of mandamus directing respondents 3 and 10 to reinvestigate Crime No.623/2004 and to conduct a proper investigation and also to appoint a competent and able officer to reinvestigate the case under Article 226 and 227 of Constitution of India. 2. Petitioner a military personnel was on leave and came to his native place from 16.8.2004 onwards. On 28.8.2004, at about 10.30 AM petitioner was manhandled by some persons. On recording his F.I. Statement Crime No. 623/2004 was registered for the offences under section 143,147, 148, 323, 452 and 324 read with 149 of Indian Penal Code against respondents 4 to 8. According to the W.P.(C) No. 24280 of 2007 2 petitioner, the case was not properly investigated and at his instance Ext.P2 letter was sent by his Commanding Officer to the Director General of Police for a direction to investigate the case properly and also to afford protection to the family of the petitioner. Petitioner contended that under Ext.P3 letter, District Collector, Thiruvananthapuram informed the Commanding Officer that the case registered by Neyyattinkara police was investigated and charge sheet was submitted to Judicial First Class Magistrate-I, Neyyattinkara against the accused. But the police without proper investigation removed respondents 7 and 8 from the array of the accused and laid the charge only against respondents 4 to 6 under Ext.P4 final report and that too only for the offences under sections 447, 323 and 324 read with section 34 of Indian Penal Code. It is contended that proper investigation was not conducted and hence it is necessary to direct a reinvestigation of the case. 3. The learned Government Pleader made available the Case Diary and submitted that the F.I. Statement was W.P.(C) No. 24280 of 2007 3 recorded on 28.8.2004 at 3.00 PM and on the very next day, witnesses were questioned and the statement of the petitioner was recorded under section 161 of Code of Criminal Procedure and then it was stated by the petitioner that respondents 7 and 8 were not parties to the incident and they were only standing on the side of the road and after proper investigation the final report was submitted. 4. The learned counsel appearing for the petitioner submitted that a complaint was filed before the Director General of Police dated 2.2.2005 alleging acceptance of bribe by the Sub Inspector, Assistant Sub Inspector and the Head Constable and hence some of the accused were omitted as well as some of the IPC offences. The learned Government Pleader on instructions submitted that based on the said complaint an enquiry was conducted and it was found to be without substance. 5. The learned counsel appearing for the petitioner argued that if petitioner has stated that respondents 7 and 8 were not involved in the incident on the very next day, he W.P.(C) No. 24280 of 2007 4 would not have approached the commanding officer to address the Director General of Police for the proper investigation of the case and would not have later sent a complaint alleging omission of some of the IPC offences as well as deleting two accused and in such circumstances a proper investigation is to be ordered. 6. Though petitioner sought a reinvestigation of the case, there cannot be a reinvestigation in law. At best it could only be a further investigation as provided under section 173(8) of Code of Criminal Procedure. But the question is whether on the facts, a further investigation is to be ordered. 7. Though learned counsel appearing for the petitioner vehemently argued that the statement purportedly recorded from him on 29.8.2004, whereunder petitioner allegedly disclosed that respondents 7 and 8 are not involved in this incident, was not given by him and it is not his statement recorded after the F.I. Statement. An Investigating Officer cannot obtain a signed statement from W.P.(C) No. 24280 of 2007 5 the petitioner, as the statement under section 161 cannot be signed by the petitioner. Through for the reason that the statement recorded under section 161 of Code of Criminal Procedure does not contain the signature of the petitioner, for that reason it cannot be said that the said statement was not in fact given by the petitioner. Though learned counsel submitted that it is not possible for the petitioner to give such a statement on the very next day, if in the F.I. statement petitioner has mistakenly given the names of some others who are not involved, there is nothing wrong in giving a further statement on the very next day clarifying the true position. For the reason that, the further statement was recorded on the very next day, it cannot be said that the investigation was not proper. The question whether that statement was given by the petitioner or not cannot be decided in this petition. 8. The Case Diary made available does not warrant an order for further investigation. If the grievance of the petitioner is that he did not give such a statement and the W.P.(C) No. 24280 of 2007 6 offence was committed by respondents 7 and 8 also and the offences committed are not only the offences shown in Ext.P4 final report but all the offences stated in Annexure FIR, remedy of the petitioner is to file a private complaint before the concerned magistrate. From the copy of the petition send by the petitioner to the Director General of Police on 2.2.2005, it is clear that petitioner was well aware of the fact of submitting the charge sheet deleting some of the offences and some of the accused. Still even this writ petition was filed after two years. In such circumstances, I find no reason to order a further investigation. The writ petition is dismissed with liberty to the petitioner to file a private complaint, if he so advised. M.SASIDHARAN NAMBIAR JUDGE app/-