IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 Crl.MC.No. 2703 of 2009() ------------------------- CC.193/2006 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... PETITIONER(S): ACCUSED: ----------------------------------------- T.P.NANDAKUMAR, CHIEF EDITOR, CRIME FORTNIGHTLY, PUTHIYARA ROAD, KOZHIKODE. BY ADV. MR.D.ANIL KUMAR RESPONDENT(S): STATE: -------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE, REPRESENTED BY THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, SIG-I, MUTTADA, THIRUVANANTHAPURAM. (CRIME NO.256/CR/SI/02). 3. SOBHANA GEORGE, D/O.ISSAC GEORGE, RESIDING AT HOUSE NO.13, THURUVIKKAL VILLAGE, AAKKULAM, THIRUVANANTHAPURAM DISTRICT. 4. CHANDRAMOHAN, AGED 36 YEARS, S/O.SUBRAMANYAN, SAROJAM HOUSE, OPPOSITE TO AYIROOPPARA SCHOOL, AYIROORPPARA VILLAGE, THIRUVANANTHAPURAM. 5. JAYACHANDRAN, S/O.RAJAPPAN NAIR, AGED 32 YEARS, KADAKAMPALLY HOUSING COLONY NO.13, T.C.41/1195, MANACAUD VILLAGE. Kss ..2/- ....2..... CRMC.NO.2703/2009 6. ANIL P.SREERANGAM, S/O.PADMAKARAN, AGED 37 YEARS, SREERANGAM VEEDU, NEDUVARAMKODEKARA, CHERIYANADU EAST VILLAGE, CHENGANOOR TALUK. 7. T.T.PRAVEEN, S/O.THOMSON NADAR, AGED 25 YEARS. MANNARAKONATHU VEEDU, PERUNKADAVILA, NEYYATTINKARA VILLAGE, THIRUVANANTHAPURAM. 8. V.O.ANILKUMAR, AGED 29 YEARS, S/O.RAMAKRISHNAN, OTHAYOTHU VEEDU, VARAKKARA, NETTOOR, NEAR EDATHILAMPALAM, MANNARKKADU DESOM, THALASSERY VILLAGE. 9. SUKUMARAN, S/O.NARAYANAN, FLAT NO.19, PADMA NAGAR, FORT, THIRUVANANTHAPURAM. (FROM VELUMBI AMMANCOVIL, STREET C-7, CHENNAI). 10. THE CENTRAL BUREAU OF INVESTIGATION, REP.BY SUPERINTENDENT OF POLICE, KATHRUKADAVU, KOCHI. R1 & R2 BY PUBLIC PROSECUTOR MR. C.K.SURESH R10 BY ADV. MR. M.V.S.NAMPOOTHIRI, SC, CBI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2703 of 2009 -------------------------- ORDER Based on the final report submitted after investigation under Section 173(2) of Code of Criminal Procedure, Chief Judicial Magistrate,Thiruvananthapuram took cognizance of the offences under Sections 120B, 466, 469, 471, 109 and 201 read with Section 34 of Indian Penal Code. When the case was pending trial, C.M.P.No.940/2008 was filed by the Special Prosecutor, under Section 321 of Code of Criminal Procedure, to withdraw the prosecution. Permission was granted by the Chief Judicial Magistrate to withdraw the prosecution. Petitioner, who was not permitted to be heard by the Chief Judicial Magistrate, while considering the application for withdrawal of prosecution, challenged that order in Crl.R.P.No.1048/2008. As per order dated 21.5.2008, this Court set aside the order passed by the Chief Judicial Magistrate to withdraw from prosecution and remitted C.M.P.No.940/2008 for fresh disposal in accordance with law. Petitioner also filed Crl.M.C.No. CRMC 2703/09 2 1067/2008 under Section 482 of Code of Criminal Procedure for entrusting the investigation to the Central Bureau of Investigation. As per order dated 29.5.2008, the said Crl.M.C. was disposed observing that it is open to the Chief Judicial Magistrate to order further investigation under Section 173(8) of Code of Criminal Procedure, if he feels that further investigation in the case is necessary. After C.M.P. No.940/2008 was remitted to Chief Judicial Magistrate's Court, the Special Prosecutor, who filed C.M.P.No. 940/2008, relinquished her appointment as Special Public Prosecutor. Thereafter, the Deputy Director of Prosecutions, who took charge of the prosecution, filed C.M.P.No.3304/2008, under Section 321 of Code of Criminal Procedure, for withdrawal of the prosecution, on the same grounds, which were earlier taken by the Special Prosecutor in C.M.P.No.940/2008. Chief Judicial Magistrate, as per order dated 12.11.2008, dismissed the petitions, filed under Section 321 of Code of Criminal Procedure by the Special Prosecutor and Deputy Director of Prosecutions and directed Deputy Superintendent of Police, CBCID to conduct further CRMC 2703/09 3 investigation under Section 173(8) of Code of Criminal Procedure and to file a final report expeditiously. It was made clear that it would be open to the State Government to entrust further investigation to any superior police officer, if they so decide. Government did not entrust the investigation to any other officer. 2. While further investigation was progressing, Chief Judicial Magistrate, who passed the order dated 12.11.2008, was transferred and another Chief Judicial Magistrate took charge. The Chief Judicial Magistrate then issued a memo, dissatisfied with the progress of the investigation, to file the report by 8.7.2009. Thereafter, he passed an order on 10.7.2009, purportedly in C.M.P.No.940/2008, which was dismissed earlier by his predecessor on 12.11.2008, observing that further investigation is being protracted and as per order of this Court in Crl.M.C.No.1067/2008, Chief Judicial Magistrate has to reconsider the petition for withdrawal of prosecution, posted C.M.P.No.940/2008 for fresh consideration to 20.8.2009 under Annexure-XI order. The third party, who filed Crl.R.P.No.1048/2008 and Crl.M.C.No.1067/2008 earlier, filed this petition CRMC 2703/09 4 under Section 482 of Code of Criminal Procedure to quash Annexure-XI order. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. As Annexure-XI order passed is per se illegal and as no final decision is taken under that order and the petition, which was dismissed earlier, was posted for reconsideration under the order and no prejudice will be caused by setting the records straight, I find it not at all necessary to issue notice to other respondents, who are the accused before the Chief Judicial Magistrate. 5. When Chief Judicial Magistrate, as per Annexure-X order dated 12.11.2008, dismissed C.M.P.No. 940/2008 filed by the Special Prosecutor and C.M.P.No. 3304/2008 filed by the Deputy Director of Prosecutions, who took charge of the prosecution after the Special Prosecutor relinquished the charge, the successor Chief Judicial Magistrate has no jurisdiction whatsoever either to review Annexure-X order or to reopen the petition. Annexure-IX order in Crl.M.C.No.1067/2008 only provides that after hearing all the parties, if CRMC 2703/09 5 Chief Judicial Magistrate feels that further investigation is warranted, it is open to him to order further investigation. While hearing C.M.P.No. 940/2008 and C.M.P.No.3304/2008, Chief Judicial Magistrate had applied his mind and decided that the case warrants a proper investigation and therefore, directed further investigation under Section 173(8) of Code of Criminal Procedure. That order was not challenged either by the accused or by the Prosecutor or by the third party. It has become final. In such circumstances, the successor Chief Judicial Magistrate has no jurisdiction to review that order or reconsider that order. 6. Under Annexure-XI order, the Chief Judicial Magistrate has done what he could not have done. The relevant portion of the order reads: “That being so, the court feels that it is high time that the court stopped relying on investigating agency to further investigate the crime and indeed focused its attention in complying with directions in judgment of the Hon'ble High Court in Crl.M.C. 1067/08 dated 29.05.2008 that, CMP 940/07 filed by the prosecution for withdrawal of the case be reconsidered and disposed of afresh in accordance with law; so the case is posted for CRMC 2703/09 6 fresh disposal of CMP 940/07 filed by the prosecution praying for withdrawal of the case. Call on 20.08.2009.” When the Chief Judicial Magistrate has no power to review his own order, he is not empowered to review Annexure-X order passed by his predecessor or to reconsider the petition, which was dismissed by his predecessor earlier or even reconsider the petition, which is not subsisting after its dismissal on 12.11.2008. Hence, Annexure-XI order is per se illegal. It can only be quashed. 7. Chief Judicial Magistrate is, definitely, empowered under Section 156(3) of Code of Criminal Procedure to give necessary direction with regard to the further Investigation ordered under Section 173(8) of the Code, especially in the light of the decision of the Apex Court in Sakiri Vasu v. State of U.P. (2008(1) KLT 724). 8. Annexure-XI order is quashed. Chief Judicial Magistrate, Thiruvananthapuram is directed to proceed with the case in accordance with law. In view of the further investigation order under Section 173(8) of CRMC 2703/09 7 Code of Criminal Procedure, Chief Judicial Magistrate has to wait for the further report to be filed on the further investigation and proceed with the case only thereafter. It is also made clear that Chief Judicial Magistrate is empowered to give necessary directions to expedite the further Investigation. The prayer for handing over the investigation to the Central Bureau of Investigation is not to be considered in this petition. Petition is disposed. 18th August, 2009 (M.Sasidharan Nambiar, Judge) tkv