IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Crl.MC.No. 286 of 2009() ------------------------ CRIME NO. 315/08 OF PALA POLICE STATION S.T.1486 OF 2008 OF KFCM, PALA PETITIONER(S): DEFACTO COMPLAINANT ---------------------------------- ANCY CYRIAC, AGED 60 YEARS, W/O.CYRIAC, THAZHATHEL HOUSE, BHARANAGANAM. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S): STATE & RESPONDENT --------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SUB INSPECTOR OF POLICE, PALA. BY PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 286 of 2009 - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of February, 2009 O R D E R The petitioner is the defacto complainant in S.T.1486 of 2008. Her application for further investigation under Section 173(8) Cr.P.C. was rejected by the learned Magistrate by the impugned order. She has hence come to this Court to set aside Annex.A4 order and to direct a further investigation to be conducted. 2. The alleged incident took place on 4.5.2008. The defacto complainant is the mother-in-law of the second accused. The first accused is the brother of the second accused and accused 3 and 4 are the uncles of accused 1 and 2. There was some strain in the relationship between the second accused and her husband. The second accused was employed abroad and had come to India on leave. It is alleged that accused 1 to 4 trespassed into the house of the defacto complainant and indulged in wanton acts of violence and intimidation. The Crl.M.C.No. 286 of 2009 2 complaint was filed on 16.5.2008 before the Magistrate alleging offences punishable under Sections 323, 341, 452 and 506(i) I.P.C. That complaint was referred to the police under Section 156(3) Cr.P.C. Investigation was conducted and final report was filed. In the course of investigation the second accused/daughter-in-law of the petitioner was deleted from the array of accused. Though in the complaint allegations were raised of the offences under Sections 452 and 506(i) I.P.C., in the final report allegations were raised only under Sections 341, 323 and 294(b) r/w. 34 I.P.C. Admittedly the victim had not gone to the hospital. There is also nothing to show that any prompt complaint was filed prior to 16.5.08, the date of the private complaint. 3. Aggrieved by the investigation conducted, the petitioner had filed an application under Section 173(8) Cr.P.C.. Her grievances are three fold. First of all she contends that the statements of the witnesses have been recorded falsely by the Investigating Officer to make it appear that the second accused has not committed any overt act and that her husband, the son of the petitioner was present at the scene of the crime. On these two crucial aspects the statements of witnesses Crl.M.C.No. 286 of 2009 3 have been tampered with and deliberately manipulated to incorporate assertions totally contradictory to truth. The second grievance raised is that offences under Sections 452 and 506(i) I.P.C. have not been raised against the accused persons in the final report submitted. The third contention is that the second accused has been unjustifiably removed from the array of accused. 4. The learned Magistrate considered the application under Section 173(8) Cr.P.C. and proceeded to dismiss the same. Inter alia, it is observed in the impugned order that it is not for the defacto complainant to raise objections against improper or incorrect recording of the case diary statements of witnesses. It is held that it is for such witnesses to come forward and raise grievance. I am afraid this part of the reasoning may not be acceptable. The defacto complainant certainly has the right to raise the objection before the learned Magistrate that a proper investigation has not been conducted and statements of witnesses have not been properly recorded. The dismissal on that ground does not appear to be totally justified. Crl.M.C.No. 286 of 2009 4 5. However, I take note of the fact that I am called upon to invoke the extra ordinary inherent jurisdiction. The mantra to open the lock of Section 482 of the Criminal Procedure Code is the interests of justice. The crucial question to be considered is whether invocation of the extra ordinary inherent jurisdiction under Section 482 Cr.P.C. is necessary in the interests of justice. I take note of the fact that the dispute is one between spouses essentially, though the mother-in-law has come up as the defacto complainant. No serious injury is seen suffered or even alleged to be suffered. Investigation by the police reveals that the accused persons had reached the house of the husband of the second accused (as originally arrayed) for the purpose of a discussion for settlement of the matrimonial disputes. 6. After having considered all the relevant circumstances, I am not persuaded to invoke the extra ordinary inherent jurisdiction. If the petitioner is aggrieved by the final report submitted, the petitioner can certainly file a private complaint and seek to substantiate the allegations by adducing evidence. The Magistrate in such a case will certainly conduct the necessary enquiry and take appropriate decision. Crl.M.C.No. 286 of 2009 5 In the alternative, as observed by the learned Magistrate, powers under Section 319 cr.P.C. are available with the learned Magistrate to array any more persons as accused if the evidence in the course of the trial warrants such arraying of any additional accused. At any rate, I am not satisfied that the powers under Section 482 Cr.P.C. can, need or should be invoked in the facts and circumstances of this case. 7. This Crl.M.C. is dismissed with the above observations. (R. BASANT) Judge tm