IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 Crl.Rev.Pet.No. 968 of 2009() ----------------------------- AGAINST ORDER IN CRL.M.P.3405/2008 IN SC.342/2007 DATED 10.2.2009 of II ADDL. SESSIONS JUDGE/SPL. JUDGE FOR (NDPS ACT CASES), THODUPUZHA .................... REVN. PETITIONER(S): RESPONDENTS -------------------------------- 1. VELMURUGAN, S/O. SARAVANAN, RESIDING AT MVP II/167 HOUSE, PATTIKKADU KARA, MARAYOOR VILLAGE. 2. SARAVANAN, S/O. SUBRAMANIAN, RESIDING AT MVP II/167 HOUSE, PATTIKKADU KARA, MARAYOOR VILLAGE. 3. KARUPPUSWAMY, S/O. UDAYAN, RESIDING AT MVP II/167 HOUSE, PATTIKKADU KARA, MARAYOOR VILLAGE. 4. JYOTHI, W/O. SARAVANAN, RESIDING AT MVP II/167 HOUSE, PATTIKADU KARA, MARAYOOR VILLAGE. BY ADV. MR.P.VIJAYA BHANU MR.P.M.RAFIQ RESPONDENT(S): PETITIONER ------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------ Crl.R.P.NO. 968 OF 2009 ---------------------------------------- Dated this the 16th day of June, 2009 ORDER This revision is in challenge of order dated 10.2.2009 in Criminal M.P.No.3405/2008 in S.C.No.342/2007 of court of learned III Additional Sessions Judge/Special Judge, NDPS Act cases, Thodupuzha ordering further investigation of the case on a petition moved by Public Prosecutor who was in charge of the conduct of the case. 2. Petitioners stood chargesheeted by Circle Inspector of Police, Munnar in Crime No.2/2005 of Marayoor police station for offences punishable under Section 341 and 302 read with Section 34 of Indian Penal Code. Charge is that petitioners, in furtherance of their common intention trespassed into the property of PW1, wrongfully restrained the deceased, his wife and caused her death beating with an iron rod on her head. As the prosecution case goes, she was taken to the primary health centre, Marayoor and then to Sahayagiri hospital, Marayoor. There, she was given some treatment and then taken to a Crl.R.P.No.968/2009 2 hospital at Udumalpetta. Ultimately, she was brought to the Medical College hospital, Coimbatore where she breathed her last. He breathed her last. Prosecution examined 18 witnesses including PWs 2 to 5, witnesses to the alleged incident. PWs 2 to 5 did not support the prosecution. On closure of the prosecution evidence, case was posted for questioning petitioners under Section 313 of the Code of Criminal Procedure (for short, “the Code”). At that stage the Public Prosecutor who was in charge of conduct of the case filed a petition seeking permission for further investigation under Section 173(8) of the Code. What the Public Prosecutor highlighted is that the statement of the deceased as to the incident was recorded by the police at Sahayagiri hospital on 10.1.2005 at about 10.45 a.m. but the officer who investigated the case did not look into that matter, allegedly due to political influence of the petitioners. Public Prosecutor informed the court that in the ends of justice it is necessary to further investigate into that matter and sought permission. Learned Additional Sessions Judge obtained report of the investigation officer, who by then had retired from service. He denied the allegations that upon the political influence he failed to Crl.R.P.No.968/2009 3 investigate into the alleged dying declaration of the deceased. Learned Additional Sessions Judge perused the records and was of opinion that in the ends of justice it is necessary to investigate into the mater highlighted by the Public Prosecutor and allowed the petition. Learned counsel for petitioners contends that after the prosecution evidence was closed, it was not within the power of Public Prosecutor to move any such petition under Section 173(8) of the Code. It is also submitted by learned counsel that no fresh materials are brought to the notice of the court to order further investigation. It is further contended by learned counsel that the order for further investigation, at this stage resulted in prejudice to the petitioners. 3. There cannot be any challenge to the power of court to order further investigation under Section 173(8) of the Code. As binding decisions say, that power can be exercised at any time before judgment is pronounced. It is the right of the investigation officer also to conduct further investigation notwithstanding that a final report has already been filed under Section 173 of the Code. Of course fresh materials should have come to his notice. For such further investigation, it is Crl.R.P.No.968/2009 4 not necessary to even get the permission of the court concerned, unlike in the case of re-investigation. In the matter of further investigation what is required is only that the investigation officer should inform the court where the case is pending as to the steps he is taking for further investigation. I do not also find any embargo on the right of the Public Prosecutor to bring to the notice of court the necessity for further investigation. That right could be exercised before judgment is pronounced. 4. I have gone through the copy of final report and the documents appended thereto and given to the petitioners. It contains a copy of wound certificate allegedly issued from Sahayagiri hospital. It states in coloumn 10 that the deceased was brought to that hospital by her neighbours to whom herself had told the history and alleged cause of the injury. It is further stated in that certificate that the deceased had informed to the police at the station at 10.45 a.m. It is into this aspect that Public Prosecutor requested for a direction to further investigate. 5. It is contended by learned counsel that the attempt of the prosecution is to fill up lacuna in the prosecution case. Crl.R.P.No.968/2009 5 'Lacuna' meant the inherent vedge in the prosecution case and not a slip to produce a document. That cannot be confused with the power of court to order further investigation. In this case, that deceased had allegedly informed the police at the station about the alleged incident is a matter which has come to the notice of the investigation officer and the court. That mater is required to be investigated. Then the question is whether petitioners are prejudiced. They cannot claim that they will be prejudiced if investigation is conducted into a relevant aspect which did not come to the notice of the officer who investigated the case whatever be the reason for that. An accused has no right to say that there shall not be an investigation into a relevant aspect. Of course, petitioners as the accused in the case will have to face trial on the additional report if any, filed by the investigation officer. That cannot be taken as a prejudice depriving the court of its power to direct further investigation. I do not find anything illegal, irregular or improper in the court below assuming further investigation in the circumstances of this case. Nor is there any jurisdictional error committed by the court below requiring interference by this court. Crl.R.P.No.968/2009 6 This revision petition therefore, is dismissed. Learned additional Sessions Judge shall issue necessary direction to the officer concerned to complete further investigation at the earliest and submit further report. THOMAS P. JOSEPH, JUDGE Acd Crl.R.P.No.968/2009 7