IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 Crl.MC.No. 1884 of 2008(C) ------------------------------- CC.1716/2002 of ADDL. CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ACCUSED -------------------------------- 1. HARIDAS MENON, S/O E.T.NAIR, 10/166, PARUKUTTY NILAYAM, THEKKUMBHAGOM P.O. CHITTOOR, PALAKKAD DISTRICT. 2. KRISHNAMURTHY, H.NO.10/17, 12TH STREET, THEMKKUMBHAGOM P.O., CHITTOOR, PALAKKAD DISTRICT. 3. RAJA KRISHNAN, LEELA NIVAS, MARADU VILLAGE, MARADU, ERNAKULAM. BY ADV. SRI.M.JACOB MURICKAN SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): COMPLAINANT -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. VINOD KRISHNAN KUTTY, S/O KUTTY, KRISHNALAYAM, ANICODE, CHITTOOR, PALAKKAD DISTRICT. ADV. SRI.P.VIJAYA BHANU FOR R2 SRI.M.REVIKRISHNAN FOR R2 PUBLIC PROSECUTOR SRI. GIKKU JACOB FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = CRL.M.C. NO. 1884 OF 2008 = = = = = = = = = = = = = = = Dated this the 10th day of February, 2009. O R D E R This petition is filed with a prayer to direct the first respondent not to conduct any further investigation on the basis of Annexure A4 application and to direct the trial court to continue with the trial of the case. A perusal of the records would reveal that the defacto complainant moved an application before the Chief Judicial Magistrate Court, Ernakulam for further investigation and an objection was filed by the other side. Subsequently on 3.4.2008 the Investigating Officer filed a report before the Court to the effect that as he wants to collect other evidence and as the petition is filed in that direction the matter requires further investigation. The Chief Judicial Magistrate by his order dated 4.4.2008 permitted further investigation. It is against that decision the accused have come up with this Crl.M.C. petition. CRL.M.C. 1884 OF 2008 -:2:- 2. A perusal of the records would reveal that the accusation against the accused are of a very serious nature and it is submitted that relevant documents to be considered has not been considered by the Investigating agency at the time of investigation and therefore a request is made for further investigation. The learned counsel for the petitioners have cited decisions reported in Ram Lal Narang v. State AIR 1979 SC 1791), State of Kerala v. Sreedharan (1993 (2) KLT 490) and Shaji v. State of Kerala (2003 (2) KLT 929). In the decision referred to by the Apex Court in AIR 1979 SC 1791, particularly paragraph 21, it is laid down that there is power for the Magistrate to order further investigation. The Apex Court also held that, The final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. CRL.M.C. 1884 OF 2008 -:3:- The Apex Court also made it very clear that it is always desirable that a formal permission be sought from the Court for further investigation. In the decision reported in 1993 (2) KLT 490 this Court has stated that the power of further investigation has to be granted by the Magistrate but has cautioned that the Courts must verify the records to satisfy itself as to whether permission sought for is bona fide and it is based on sufficient materials. If the Court finds that there is reasonable prospect of police reaching a different conclusion in such further investigation, the Court may properly adjourn the trial till completion of such further investigation. In the decision reported in 2003 (2) KLT 929 a Division Bench of this Court in paragraph 20 clause 5 held that, “If the complainant files a petition saying that real culprits were not involved in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to a prima facie conclusion that proper investigation was not conducted, he is not helpless, the CRL.M.C. 1884 OF 2008 -:4:- Magistrate will be free to order further investigation to avoid failure of justice.” So the dictum laid down in the above said three decisions would clearly indicate that the police has the power to further investigation and when the Court permits such further investigation it must be to see whether there are reasons and grounds for further investigation and it should not be used as a method to postpone the case. 3. Now coming to the facts of this case it can be seen that the allegation is that the three accused has constituted a CFA agent in favour of Krishna Agency for the purpose of illegal enrichment by defrauding the petitioner's company and conducted the sale of various drug purchased and then it is alleged deceived M/s Alpha Omega Trade Services Pvt. Ltd. 4. Now the matter requires further probe in to regarding the transaction of Krishna Agency between the period January, 2000 to July 2000. It is true that Ext.A6 has not detailed the particulars but it has stated that the defacto complainant had produced more documents and on examination it is found that a further probe is necessary with respect to the transaction and therefore sought permission CRL.M.C. 1884 OF 2008 -:5:- for further investigation. All these materials were available with the trial court in the form of Exts.A4, A5 and A6 and with these materials and the materials already on record the Court applied its mind and ordered for a further investigation. It is true that the Chief Judicial Magistrate Court should have written an order at least particularly stating what prompted him to grant permission to do a further investigation. I think for that purpose the matter need not go back because the materials are available in the file itself which indicates the matters to be looked into are absolutely just and necessary for a proper dispensation of justice. Therefore from the dictum laid down in the decisions referred to above I find there is sufficient reason for further investigation. Therefore I do not find any merit in the contention of the learned counsel for the petitioner to stall the further investigation and hence the Crl.M.C is dismissed. M.N. KRISHNAN, JUDGE. ul/-