IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 33000 of 2008(C) -------------------------- CRIME NO. 237/07 OF VAIKOM POLICE STATION CP.24/2008 of J.M.F.C.,VAIKOM .................... PETITIONER(S): --------------- VIJAYAN, NIKARTHIL HOUSE, NANADOM KARA, VADAKKEMURI VILLAGE, KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETRY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. DISTRICT SUPERINTENDENT OF POLICE KOTTAYAM. 4. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 33000 of 2008 C - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2008 JUDGMENT The petitioner is the father of a deceased person. About his death Crime No. 237 of 2007 of Vaikom police station was registered. According to the petitioner, the incident was an off- shoot of a dispute regarding the construction of a pathway. Cws. 1 and 2 cited by the prosecution are the alleged eye witnesses. CW1 has already committed suicide. The police after investigation has submitted a charge sheet. CW2 is placed under great mental strain and pressure. CW1 had stated to the police that the parents of the deceased were eye witnesses to the occurrence. A proper investigation has not been conducted. All the accused person are active workmen of CPM. Because of the political loyalty of all the accused, a proper investigation has not been conducted. The witnesses cited by the prosecution as eye witnesses are close associates of the accused persons and it is clear that they are not going to support the prosecution. The W.P.C.No. 33000 of 2008 2 real witnesses remain to be examined. Convenient persons are cited as eye witnesses so that it is certain at the trial there will not be any evidence whatsoever against the accused persons. 2. It is in these circumstances that the petitioner has come to this Court with a prayer that there may be a direction to conduct further investigation under Section 173(8) Cr.P.C. It is prayed that such further investigation may be entrusted to the C.B.I. in as much as the petitioner does not have faith in the local police. 3. After the decision in Sakiri Vasu v. State of U.P. (2008 (1) KLT 724)(SC), which has been followed by this Court in Vasanthi Devi v. S.I. of Police (2008 (1) KLT 945) a person aggrieved by the quality of the investigation must certainly invoke the jurisdiction of the learned Magistrate under Section 156(3) Cr.P.C. to complain about the inadequate investigation. Of course, the powers under Section 173(8) Cr.P.C. as explained in the decision in Shaji v. State of Kerala (2003 (2) KLT 929) are also available with the Magistrate to direct further investigation. If the Magistrate is satisfied, either suo moto or W.P.C.No. 33000 of 2008 3 by intervention by any of the parties, such further investigating can be ordered. 4. In these circumstances it is definitely for the petitioner to move the learned Magistrate first and apprise the learned Magistrate of all the relevant circumstances. He can request the learned Magistrate under Section 156(3) and/or 173(8) Cr.P.C. to direct appropriate further investigation. The learned Magistrate must consider such request and pass appropriate orders. I do not find any circumstance to justify the invocation of the jurisdiction under Article 226 of the Constitution or Section 482 Cr.P.C. at this stage to interfere with the investigation. 5. The petitioner's right to move the learned Magistrate to complain about the quality of investigation and seek further direction shall remain unfettered by the dismissal of this writ petition. Such application, if filed, will have to be considered by the learned Magistrate in the light of the decisions referred above and appropriate decision taken expeditiously. Needless to say, if such an application is W.P.C.No. 33000 of 2008 4 filed before the learned Magistrate, he shall not proceed to commit the case before the application is disposed of. 6. With the above observations this Writ Petition is dismissed. (R. BASANT) Judge tm