IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH JANUARY 2010 / 18TH POUSHA 1931 Crl.MC.No. 4086 of 2009() -------------------------------------- (C.C.NO.191 OF 2005 OF CHIEF JUDICIAL MAGISTRATE,KOLLAM .................... (CRIME NO.306/2003 OF KOLLAM WEST POLICE STATION) PETITIONER(S): COUNTER PETITIONER/ACCUSED: ---------------------------------------------------------------------------- K.P.RAMACHANDRAN NAIR, KORANDIPPALLIL VEEDU, OLAYIL CHERRY, KOLLAM WEST VILLAGE. BY ADVS. MR.P.VIJAYA BHANU, MR.M.REVIKRISHNAN. RESPONDENT(S): STATE:PETITIONERS/COMPLAINANT: ---------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUPERINTENDENT OF POLICE, KOLLAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO.4086 OF 2009 ------------------------------------------ Dated 8th January 2010 O R D E R Petitioner is the accused in C.C.191/2005 on the file of Chief Judicial Magistrate, Kollam taken cognizance for the offence under Sections 427 and 447 of Indian Penal Code on the allegation that petitioner illegally demolished the compound wall of K.S.E.B and annexed a portion to the property in the possession of K.S.E.B which is a Government purambok land in survey No.217/7. Superintendent of police, Kollam filed Annexure-B report before the learned Chief Judicial Magistrate based on Annexure-A petition filed by the petitioner for further investigation under Section 173(8) of Code Crmc 4086/09 2 of Criminal Procedure, based on two documents, a letter of District Survey Superintendent, Kollam to survey Deputy Director, Kollam and proceedings of District Survey Superintendent dated 3/11/2007. In Annexure-B report Superintendent of Police sought a direction of the court, whether any further investigation is to be conducted on the role of the accused, in view of Annexure-A petition filed by the petitioner. By Annexure-C order learned Magistrate dismissed the petition. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order contending that it is not for the court to decide whether a further investigation is to be conducted, as it is the prerogative of the investigating officer, as provided under Section 173(8) of Code of Criminal Procedure on Crmc 4086/09 3 getting any additional material, documentary or oral, to decide whether further investigation is to be conducted or not. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that Annexure-C order may not stand in the way of the investigating officer to exercise the statutory power provided under Section 173(8) of Code of Criminal Procedure. It is argued that learned Chief Judicial Magistrate was not justified in directing that no further investigation is to be conducted into the role of the accused. 4. Evidently Annexure-C order was passed by the Chief Judicial Magistrate in the light of the statement in Annexure-B that Crmc 4086/09 4 disputed land, which was allegedly trespassed by the petitioner is, Government purambok land even as per re-survey conducted by the District Superintendent, Kollam. What is stated in Annexure-B is only with regard to the question whether actual demolition of the wall was done by the petitioner or not. According to the prosecution the compound wall which originally existed, was demolished by the petitioner and annexed a portion of the Government purambok land in the possession of K.S.E.B by including within his property and a wall was constructed. In the light of the contentions, whether actual demolition was carried out by the petitioner personally was not very relevant. That could only be the reason why Chief Judicial Magistrate found in Annexure-C order that no further investigation Crmc 4086/09 5 into the role of the accused is necessary. True, under Section 173(8) of Code of Criminal Procedure, it is for the investigating officer on getting any additional evidence whether oral or documentary to decide whether further investigation is warranted or not. If investigating officer gets any additional material and finds that further investigation is warranted, Annexure-C order will not stand in the way. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.