IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 34127 of 2010(M) ------------------------------------------ (CRIME NO.83/2002 OF MATTANCHERRY POLICE STATION) PETITIONER(S): ------------------------ SHEELA THOMAS, AGED 53 YEARS, W/O.THOMAS, ALUMPARAMBU HOUSE, PERUMPADAPPU PO, KOCHI. BY ADVS. SRI.A.X.VARGHESE, SRI.A.V.JOJO. RESPONDENT(S): ----------------------------- 1. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM 695 001. 2. THE CITY POLICE COMMISSIONER, ERNAKULAM 682 031. 3. THE ASSISTANT POLICE COMMISSIONER, MATTANCHERY, 682 002. 4. THE SUB INSPECTOR OF POLICE, MATTANACHERY POLICE STATION, 682 002. 5. DR. VENKITACHALAM, GOUTHAM HOSPITAL MATTANCHERY 682 002. 6. DR.AJAYAKUMAR, GOUTHAM HOSPITAL, MATTANCHERY 682 002. R1 TO R4 BY GOVERNMENT PLEADER SRI. K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.34127 of 2010 --------------------------------------- Dated this 20th day of January, 2011 JUDGMENT Petitioner's son, Samson Joseph died allegedly due to the negligence of respondent Nos.5 and 6, medical officers. Mattanchery Police registered Crime No.83 of 2002 and started investigation. Police submitted a report to the learned Judicial First Class Magistrate-II, Kochi. Thereon petitioner filed application under Sec.173(8) of the Code of Criminal Procedure for further investigation. That application was allowed by Ext.P5, order dated November 7, 2006. According to the petitioner, respondent No.3 has not completed further investigation pursuant to the said order and hence he has approached this court under Article 227 of the Constitution seeking to issue a writ of mandamus or any other writ, order or direction directing respondent No.1 to entrust the investigation in Crime No.83 of 2002 of Mattanchery Police Station to respondent No.2 with perpetual monitoring of respondent No.1. 2. Pursuant to the direction of this court, respondent No.3, Assistant Commissioner of Police, Mattanchery has filed a statement referring to the further investigation conducted in the W.P(C).No.34127 of 2010 -: 2 :- matter. It is stated that investigation revealed that there was no negligence on the part of respondent Nos.5 and 6. Thereon, the then Assistant Commissioner of Police, Crime Detachment, Kochi filed report before the learned Magistrate on 30.05.2007 (stating that there was no negligence on the part of respondent Nos.5 and 6). It is submitted that investigation was conducted in a fair and proper manner and that the investigating agency has not acted in any arbitrary manner as alleged by the petitioner. 3. I have heard learned counsel for petitioner and learned Public Prosecutor. Learned counsel submitted that no notice of the refer report was given to the petitioner and hence petitioner could not initiate further proceedings in the court concerned. Learned Public Prosecutor after getting instruction has stated that no notice was given to the petitioner by the officer concerned while submitting the final report in court. 4. In view of the above, I obtained information from learned Judicial First Class Magistrate-II, Kochi through the Registrar (Judicial). It is reported that on a perusal of records, no such final report is seen filed in the said court on 30.05.2007. It is also reported that in the meantime petitioner had filed C.M.P.No.516 of 2010 on 15.02.2010 in the said court for a direction to monitor further investigation. The Assistant Public W.P(C).No.34127 of 2010 -: 3 :- Prosecutor sought for report on the status of further investigation. Thereon the Sub Inspector, Mattanchery on 22.02.2010 submitted a copy of report dated 30.05.2007 (after further investigation) said to have been filed in the said court. Crl.M.P.No.516 of 2010 seeking direction to monitor further investigation was dismissed on 13.04.2010 for there was no representation. It is also reported by the learned Magistrate that the copy of final report dated 30.05.2007 received from the investigating officer on 22.02.2010 will be acted upon, notice will be issued to the petitioner and further steps will be taken in the matter in accordance with law. 5. It is clear from the submission of learned Public Prosecutor as well as the information received from the court below that no action has been taken on the final report dated 30.05.2007 and, no notice thereon has been given to the petitioner. Going by the decisions of the apex court when a refer report is filed the de facto complainant is entitled to get notice of such refer report before orders are passed on such report by the Magistrate concerned. Learned Magistrate has informed that treating the copy of report dated 30.05.2007 submitted by the Sub Inspector, Mattanchery on 22.02.2010 as the refer report itself, notice will be issued to the petitioner. In view of that, it is W.P(C).No.34127 of 2010 -: 4 :- open to the petitioner to approach the learned Magistrate on receipt of such notice and take appropriate steps as provided under law. With the above observation this original petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-