IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 Crl.MC.No. 496 of 2008() ------------------------ CRIME NO.11/2007 OF ALAKODE POLICE STATION, KANNUR DISTRICT PETITIONER: ACCUSED: -------------------- DEVASSIA @ APPACHI, S/O. ULAHANNAN, AGED 66 YEARS, NADUTHOTTIYIL HOUSE, THENMALA, VELLAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI RESPONDENTS: COMPLAINANT: ------------------------------------------------- 1. DEPUTY SUPERINTENDENT OF POLICE, TALIPARAMBA, KANNUR DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No.496 of 2008 = = = = = = = = = = = = = = Dated this the 5th day of February, 2008 ORDER In this petition filed under Section 482 Cr.P.C, the petitioner seeks to quash Annexure A1-FIR and Annexure A4 order re-opening the investigation. 2. Crime No.11/2007 of Alakode Police Station in Kannur district was registered against the petitioner for offences punishable under Section 376 IPC and Sections 3(1),(xi),(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. The de facto complainant is one Usha, who alleged that, while she was working in the nursery belonging to the accused, the accused had ravished her several times resulting in her becoming pregnant and giving birth to a child on 12.12.06 and since she was a member of the Scheduled Caste, the accused has committed the aforesaid offences. 3. After investigation, the Police submitted Annexure A3 refer report to the effect that the sexual intercourse which the complainant had with the accused was with her consent and since she was aged 25 years at the time of the alleged Crl.M.C.No.496 of 2008 2 occurrence, the sexual intercourse would not amount to the offence of rape as alleged. Accepting the refer report, the learned Magistrate dropped the proceedings in R.C.No.187/2007 on 27.6.07. Subsequently the Deputy Superintendent of of Police, Thaliparamba filed Annexure A4 petition for further investigation alleging that the victim who is a Scheduled Caste belongs to a poor family and was cheated by the accused through allurements and threats and on coming to know that she had lodged a complaint, the accused had influenced her and her family members and dissuaded her from changing her version by promising to maintain her and also by employing criminal intimidation. On 21.8.07, the learned Magistrate re-opened the investigation. 4. The learned counsel for the petitioner- accused would submit that the order re-opening the investigation is illegal and even if it amounts to a further investigation falling under Section 173(8) Cr.P.C, the victim in her subsequent statement under Sec.164 Cr.P.C has stated that she was in love with the accused- Devassia and she had bodily relationship with him resulting in her giving birth to a child, that since she was an unwed woman Crl.M.C.No.496 of 2008 3 she was finding it difficulty to reveal the father of the child and hence she had lodged complaints against the father of the child, that he is a married person having wife and children and she is not interesting in conducting any case against him and she has no grievance against him. It is contended that in the light of such a statement given by her to the Magistrate, it will be an abuse of the process to continue the investigation further. It is true that there is no provision to reopen the investigation, as though there can be a re-investigation. But the order passed by the Magistrate on 21.8.07 can only be treated as a formal permission to conduct further investigation under Sec. 173(8) Cr.P.C. Power to conduct further investigation is the prerogative of the Police and the Police need only seek formal permission of the court to conduct further investigation. Hence the order passed on 21.8.07 can only be treated as one granting permission to the Dy.S.P., Thaliparamba to conduct further investigation. No doubt, in the further statement given by the 1st informant to the Magistrate she has stated that she had illicitl relationship with Devassia with whom she was in love and she begot the child in that relationship. But she has also stated that Crl.M.C.No.496 of 2008 4 he is the father of her child. It is too early to observe that in the light of Annexure A5 further statement given by her to the Magistrate, the further investigation should be quashed. After collecting the additional materials, if the officer in charge of the investigation comes to the conclusion that there is no material sufficient to place the accused on trial, the officer in charge of the investigation can definitely give a supplementary final report under Sec.169 read with Sec.173(2) Cr.P.C. But this court cannot prematurely interfere with the process of further investigation. Accordingly, leaving the Investigating Officer to proceed with the further investigation in accordance with law, this Crl.M.C is disposed of. V. RAMKUMAR, JUDGE sj