IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 21678 of 2008(E) -------------------------------------- PETITIONERS: -------------------- 1. SUJA, W/O SATHI L., URUVILAMCODE, PANNIYODE, NEDUMANGAD, THIRUVANANTHAPURAM. 2. SATHI. L., (MENTALLY CHALLENGED PERSON) URUVILAMCODE, PANNIYODE, NEDUMANGAD, THIRUVNANTHAPURAM, REP: BY WIFE SUJA, 1ST PETITIONER. BY ADV. SRI.C.SATHYARAJ. RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KATTAKADA, THIRUVANANTHAPURAM. 2. THE DEPUTY SUPERINTENDENT OF POLICE, NEDUMANGAD, THIRUVANANTHAPURAM. 3. ANITHA, W/O MOHANAN,ARUN NIVAS, PANNIYODE, PANNIYODE P.O., VEERANKAVU VILLAGE, THIRUVANANTHAPURAM. 4. MOHANAN, ARUN NIVAS, PANNIYODE, PANNIYODE P.O., VEERANKAVU VILLAGE, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.21678 of 2008 ---------------------------------------- Dated this the 18th day of July 2008 J U D G M E N T Against the second petitioner C.C.No.385/2007 has been registered before the J.F.C.M Kattakkada alleging that he has committed offences punishable inter alia under Sections 447, 427 and 506(ii) I.P.C. The third respondent is the de facto complainant. The second petitioner claims to be a mentally challenged person and he has preferred this petition through his wife, the first petitioner. The crux of the grievance raised is that no proper investigation has been conducted by the police. The petitioners pray that there may be a direction to the police to conduct further investigation under Section 173(8) Cr.P.C and submit a further report to the learned Magistrate. 2. I do not intend to express any opinion on the disputed facts in the case. But the learned counsel for the petitioner was requested to explain how and under what circumstances the petitioner has come directly to this court without and before moving the learned Magistrate to direct further investigation W.P.C.No.21678/08 2 under Section 173(8) Cr.P.C. The decision in Shaji vs. State of kerala 2003(2) KLT 929 by the Division Bench is authority for the proposition that the learned Magistrate can direct investigation under Section 173(8) Cr.P.C when moved for such relief by the de facto complainant, or the accused, or the investigating officer. The learned counsel for the petitioner submits that in the facts of a case where exceptional reasons exist and the fundamental rights of citizens are at stake the mere fact that alternative remedy is available is no reason to turn him away from the Constitutional Court exercising powers under Article 226 of the Constitution of India. I have no dispute with the proposition of law generally stated; but that is no excuse for the Constitutional court to assume jurisdiction in every case where equally efficacious alternative remedy exists in favour of a petitioner. In the facts and circumstances of this case, in the light of the dictum in Shaji (Supra) I have no hesitation to agree that it is for the petitioner to move the learned Magistrate for getting a further investigation conducted under Section 173(8) Cr.P.C. The petitioner must move the learned Magistrate seeking relief. If the petitioner is not satisfied with the action W.P.C.No.21678/08 3 taken by the learned Magistrate, needless to say the avenues of challenge will remain unfettered. 3. This petition is in these circumstances dismissed with the above observations. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.21678/08 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007