IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 OP(Crl.).No. 1755 of 2011(Q) ------------------------- CRIME NO. 403/2010 OF KALIYAR POLICE STATION ................. PETITIONER : ------------------- WILSON THOMAS @ WILLIAMS, NAMBIAPARAMBIL VEEDU, KALIYAR P.O., VANNAPPURAM, PIN-685607. BY ADV. SRI.JOSHI N.THOMAS RESPONDENT(S): ------------------------- 1. SUB INSPECTOR OF POLICE, KALIYAR POLICE STATION, KALIYAR, PIN-685607. 2. BABY @ DEVASIA, S/O.PAULOSE, KANIMALAYIL VEEDU, VANNAPPURAM-685607. 3. K.K.BABU, KUNNUMPURATH, LUZMI NIVAS, AMBALAPADY, VANNAPPURAM-685607. 4. SHAJI, AUTO DRIVER, S/O.NEELAKARAN, PARACKAL HOUSE, KALIYAR, VANNAPPURAM-685607. 5. CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LTD., "DARE HOUSE", FIRST FLOOR, 2 NSC BOSE ROAD, CHENNAI-606001, REP. BY ITS MANAGING DIRECTOR. 6. THE FINANCIER, CHOLAMANDALAM INVESTMENT & FINANCE CO. LTD., IST FLOOR, BETHSADA TOWERS, OPP: ST.MARTIN CHURCH, PALARIVATTOM, COCHIN-682025. ...2/- OP(Crl.).No. 1755 of 2011(Q) -2- 7. THE REGISTERING AUTHORITY, SUB REGIONAL TRANSPORT OFFICE, THODUPUZHA-685584. R1 & R7 BY PUBLIC PROSECUTOR SRI. K.J. MOHAMED ANZAR THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn THOMAS P. JOSEPH, J. -------------------------------------- O.P.(Crl.) No.1755 of 2011 -------------------------------------- Dated this the 7th day of June, 2011. JUDGMENT Petitioner is the defacto complainant in Crime No.403 of 2010 of Kaliyar Police Station for offences punishable under Sections 120B, 390, 463 and 464 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Petitioner preferred C.M.P.No.9032 of 2010 alleging that pursuant to a conspiracy between respondents 2 to 4, the vehicle belonging to him was forcibly removed from his possession. Learned Judicial First Cass Magistrate-I, Thodupuzha forwarded the complaint to the Police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). Petitioner filed C.M.P.No.9033 of 2010 under Section 93 of the Code for a direction to search out the stolen vehicle. That petition was dismissed by learned Magistrate holding that no interference at the stage of investigation is required. That order was challenged in this Court in Crl.M.C.No.345 of 2011. This Court vide order dated 04.02.2011 directed petitioner to approach learned Magistrate and file appropriate application. Petitioner filed Ext.P8, application (C.M.P.No.1243 of 2011) for further investigation. On that application learned Magistrate called for a report. In that report (Ext.P9) Investigating Officer stated that petitioner and respondents 2 and 3 were friends, on 15.04.2005 petitioner had availed a loan of Rupees two lakhs from Catholic Cyrian Bank, Vannappuram Branch on the security of property of the second respondent, the amount was shared by OP(Crl.) No.1755/2011 2 petitioner and respondents 2 and 3, the third respondent paid his share in the bank but the second respondent was served with a notice of attachment from the bank for realisation of the amount by sale of his property. Petitioner did not remit his share and could not get property of second respondent released from mortgage. Hence the jeep belonging to the petitioner was sold to the second respondent as per an agreement which was prepared by the fourth respondent in the presence of witnesses on 30.11.2010. The Investigating Officer also submitted that a final report in that line is being filed before learned Magistrate. On the strength of that report learned Magistrate dismissed Ext.P8, application by Ext.P11, order. That order is under challenge in this proceeding. 2. I called for an information from the learned Magistrate whether any final report has been filed in that court. The Registrar (Judicial) has reported that a final report dated 12.05.2011 is filed in Crime No.403 of 2010 of Kaliyar Police Station and that the learned Magistrate has further informed that he is issuing notice to the petitioner on the refer report the same day (03.06.2011). 3. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned counsel submitted that there was no proper investigation conducted by the Sub Inspector and that every attempt was being made to hush up the case by saving the culprits. In Ext.P11, order dated 17.05.2011 it is stated that the final report is being filed. But, it is revealed that the refer report OP(Crl.) No.1755/2011 3 was filed on 12.05.2011. It is submitted that though in the course of investigation the financier is said to have taken custody of vehicle, that was without any order or permission of the court and still, no action was taken. A further argument that learned counsel advanced is that notice on the refer report issued from the court is signed by the Junior Superintendent of that court while under Section 61 of the Code, every summons issued by a court under the Code shall be in writing, in duplicate, signed by the Presiding Officer of such court or by such other officer as the High Court may from time to time by rule direct and shall bear the seal of the court. According to the learned counsel it is not clear whether there is any direction issued by the High Court allowing the Junior Superintendent to sign summons on behalf of learned Magistrate. 4. It is true that in Ext.P11, order dated 17.05.2011 it is observed that a refer report is being filed. But, that does not mean that refer report was actually filed on 17.05.2011. The report of Registrar (Judicial) only show that refer report dated 12.05.2011 has been filed in the case. 5. It is seen from Ext.P12 produced by the petitioner that he has been directed to appear before the learned Magistrate on 24.06.2011 in case he disputes correctness of conclusion of the Police in the final report. In view of OP(Crl.) No.1755/2011 4 that notice it is open to the petitioner to appear before learned Judicial First Class Magistrate-I, Thodupuzha and take further action in the matter as provided under law. Resultantly without prejudice to the right of petitioner to take further action in the matter as provided under law this petition is closed. THOMAS P.JOSEPH, Judge. cks