IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.MC.No. 450 of 2010(G) ------------------------- AGAINST THE ORDER DATED 11/11/2009 IN CMP 5042/2009 IN CC.274/2009 of JUDL. MAGISTRATE OF FIRST CLASS, ERATTUPETTA .................... PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------- GEORGE @ THANKACHAN, S/O.THOMAS, MEKKALATHU HOUSE, KOOTTAKALLU, POONJAR THEKEKARA. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): STATE & ACCUSED ------------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SAJI, S/O.THOMAS, PLATHOTTAM HOUSE, CHOLATHADAM BHAGAM, THEKKEKARA KARA, POONJAR THEKEKARA VILLAGE. ADV. SRI.RAJU JOSEPH FOR R2 SRI.GEORGE KUTTY MATHEW FOR R2 R1BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jkk THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.450 of 2010 -------------------------------------- Dated this the 14th day of March, 2011. ORDER Petitioner is the defacto complainant in Crime No.50 of 2009 of Erattupetta Police Station and C.C.No.274 of 2009 of the court of learned Judicial First Class Magistrate, Erattupetta for offences punishable under Sections 392 and 458 of the Indian Penal Code (for short, “the Code”). According to the petitioner, the second respondent/accused trespassed into his house on 12.02.2009 at about 3 a.m. and committed robbery of gold ornaments after threatening petitioner and his family members with explosives. Grievance of petitioner is that without conducting proper investigation and without even making any attempt to recover the gold ornaments and explosives (allegedly) used by the second respondent, the Sub Inspector has submitted a final report alleging offences punishable under Sections 392 and 458 of the Code while more serious offences are involved. Apprehension of petitioner is that without effecting recovery of ornaments (allegedly) robbed and explosives (allegedly) used if the prosecution goes for trial it would ended in acquittal. Petitioner filed Annexure-A3, application before learned Magistrate to direct further investigation by the Sub Inspector of Police, Erattupetta. But that request was turned down by Annexure-A4, order dated November 11, 2009. That order is under challenge. Crl.MC No.450/2010 2 2. I have heard the learned Public Prosecutor who appeared for respondent No.1. Respondent No.2 also has appeared through counsel. On the question whether further investigation is required or not, respondent No.2 has no 'right' to be heard. Still I heard the views of learned counsel for respondent No.2 also. Learned Public Prosecutor submitted that as per order of this Court respondent No.2 appeared before the Investigating Officer on 06.04.2009, he was questioned that day and with a remand report he was produced before the learned Magistrate. But in view of the order passed by this Court learned Magistrate released respondent No.2 on bail the same day. Learned Public Prosecutor submitted that apart from questioning respondent No.2 on 06.04.2009 he was not further questioned. Learned counsel for respondent No.2 submitted that respondent No.2 had undergone a bye-pass surgery on 26.04.1999 and that the allegations against him are false. 3. The stand of respondent No.2 is that he had an agreement with petitioner for slaughter tapping and sale of rubber trees belonging to the latter and there was some dispute regarding that which was settled at the Police Station as per which petitioner had to pay `.30,000/- to respondent No.2 and on account of vengeance, petitioner has falsely implicated respondent No.2. At this stage it is not necessary for me to go into the correctness of the said version. It is not disputed that respondent No.2 surrendered before the Investigating Officer on 06.04.2009 and the same day he was released on bail by learned Magistrate in view of the order of this Court. I have gone through the statement Crl.MC No.450/2010 3 of respondent No.2, said to be recorded by the Investigating Officer on 06.04.2009 where it is stated that he had not used any explosive at the relevant time and instead, he had only carried three stones wrapped in white paper. Respondent No.2 is also seen to have stated that the said stones wrapped in paper and ornaments (allegedly) taken from the house of petitioner were kept in a river. 4. I am not at the question whether the said statement of respondent No.2 is acceptable or not in evidence. Certainly it was necessary for the Investigating Officer to look into whether that statement of petitioner is correct or not, rather than was being satisfied with the statement given by respondent No.2. Truth of that statement ought to have been investigated. It would appear that no effort in that line was made. Instead, what the Investigating Officer would state is that custodial interrogation of respondent No.2 was not possible since respondent No.2 took an un-helping attitude. Even if respondent No.2 was released on bail, it was possible for the Investigating Officer to summon him by issuing appropriate notice under Section 160 of the Code of Criminal Procedure and question him further, if necessary. That does not appear to have been done in this case. In view of that, I am inclined to interfere in the matter. Resultantly this petition is allowed. Annexure-A4, order is set aside and Annexure-A3, application is allowed. Further investigation shall be conducted by an Officer senior in rank ( to the Officer who investigated the case) and having jurisdiction over the area where the incident occurred. Necessary orders Crl.MC No.450/2010 4 in that behalf shall be passed by the Superintendent of Police, Kottayam within a period of two weeks from the date of receipt of a copy of this order which shall be made available by the petitioner. I make it clear that I have not made any opinion as to correctness or otherwise of the case of petitioner or the plea of respondent No.2. THOMAS P.JOSEPH, Judge. cks