IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 WP(C).No. 36857 of 2007(K) -------------------------- PETITIONER: ------------ K.P.JYOTHISH, S/O. BHASKARAN, AGED 44 YEARS, RESIDING AT GEETHA, KANNUR AMSOM, THALIKKAVU DESOM, KANNUR DISTRICT. BY ADV. SRI.P.M.ZIRAJ RESPONDENTS: ------------- 1. K.T.JOSEPH, S/O. THOMAS, AGED 54 YEARS, KUZHIKATTA HOUSE, POOLAKKUTTY P.O., KANNUR DIST., NOW RESIDING AT 27/2653 A, YUVAJANA SAMAJAM ROAD, KADAVANTHRA, KOCHI-682 020, (NEAR SYRIAN CHURCH), FINANCE DIRECTOR, INDO-SCOTTISH BRAND DISTILLERIES, KARUVELIPPADI, KOCHI. 2. RANI JOSEPH, W/O. K.T.JOSEPH, KUZHIKATTA HOUSE, POOLAKKUTTY P.O., KANNUR DIST., NOW RESIDING AT 27/2653 A, YUVAJANA SAMAJAM ROAD, KADAVANTHRA, KOCHI-682 020 (NEAR SYRIAN CHURCH). 3. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT. 4. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 5. THE SUPERINTENDENT OF POLICE, HEAD QUARTER CELL (PHQ), THIRUVANANTHAPURAM. 6. THE SUB INSPECTOR OF POLICE, THOPPUMPADY POLICE STATION. BY ADV. SRI.BECHU KURIAN THOMAS DIRECTOR GENERAL OF PROSECUTIONS SRI.P.G.THAMPI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/03/2008, ALONG WITH WPC NO. 38031 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.Nos.36857 & 38031 of 2007 ---------------------------------------- Dated this the 6th day of March 2008 J U D G M E N T These petitions under Article 226 of the Constitution of India are filed by the petitioner, who is the de facto complainant in crime No.306/07 of Thoppumpady police station registered alleging offences punishable inter alia under Sections 420 and 468 I.P.C. That crime, in turn, was registered by the police on the basis of a private complaint filed by the de facto complainant before the learned Magistrate and referred to the police under Section 156(3) Cr.P.C. Investigation was taken up by the local police. The local police, it is stated by the petitioner, had taken steps in the right direction; but on account of the intervention by the influential accused, the investigation has now been transferred to a special team headed by the fifth respondent, that is the Superintendent of Police, Head Quarter Cell (PHQ), Thiruvananthapuram. It is the case of the petitioner that no proper investigation is being conducted by such special team. The petitioner has no grievance against the entrustment of the investigation to the fifth respondent; but the petitioner laments that the fifth respondent has not taken any proper steps to the W.P.C.Nos.36857 & 38031 of 2007 2 conduct of the investigation. The petitioner now apprehends that the handing over of the investigation to the fifth respondent was only a clever ploy of the first respondent to effectively frustrate and stultify the investigation. In these circumstances, it is prayed in W.P.C.No.36857/2007 that appropriate directions may be issued. The case diary may be called for and the court may satisfy itself about the improper, inefficient and inadequate quality of the investigation. Thereafter further directions may be issued, it is prayed. 2. W.P.C.No.38031/2007 is filed by the common petitioner with a prayer to entrust the investigation to the sixth respondent, The Superintendent of Police, Crime Branch C.B. (CID), Ernakulam. Inasmuch as the special team headed by the fifth respondent in W.P.C.No.36857/07 is not conducting a proper and meaningful investigation, it is prayed that a direction may be issued to the sixth respondent in W.P.C.No.38031/07 to take over the investigation. The petitioner has a further grievance that the first respondent's wife arrayed in both petitions as the second respondent is also culpably responsible for the indiscretions complained of by the petitioner in respect of which the crime has been registered. The allegations relate to W.P.C.Nos.36857 & 38031 of 2007 3 the transfer of certain shares, the common second respondent is found to be the beneficiary in such fraudulent transfer of shares. 2. The learned Director General of Prosecutions, on behalf of the State submits that proper investigation is being conducted by the fifth respondent in W.P.C.No.36857/07. He has come to the conclusion that the allegations are false and are not justified at all. The learned Director General of Prosecutions submits that a final report shall promptly be filed before the learned Magistrate concerned conveying to the learned Magistrate, the result of the investigation and the conclusions drawn by the investigating officer. 3. To put it in a nutshell, the grievance is about the inadequate and insufficient conduct of the investigation. In the light of the decision in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309] it is for the petitioner to approach the learned Magistrate and seek appropriate directions under Section 156(3) Cr.P.C. The said decision is authority for the proposition that the reservoir of powers under Section 156(3) Cr.P.C is available with the learned Magistrate to issue appropriate directions to ensure the conduct of proper and efficient investigation. The learned Magistrate can monitor and supervise the investigation, it is W.P.C.Nos.36857 & 38031 of 2007 4 clearly held. It is said in the said decision that in an appropriate case where proper investigation is not conducted, the learned Magistrate can interfere with the investigation also. In these circumstances, it must be held that these petitions by the petitioner are premature and the petitioner must have approached the learned Magistrate before rushing to this court with such petitions under Article 226 of the Constitution. The decision in Sakiri Vasu supra is authority for the proposition that such petitions, at the instance of the petitioners, who do not avail for themselves the efficacious alternative remedy under Section 156(3) Cr.P.C should not be entertained, nay the High Court must discourage such approach being made by such persons disappointed with the investigation. 4. Of course, the mere existence of an alternative remedy is in law not by itself a sufficient reason to refuse to entertain an application under Article 226 of the Constitution of India; but it is equally trite that when there is existence of an efficacious alternative remedy, satisfactory reasons must be shown to exist to justify the invocation of the jurisdiction under Article 226 of the Constitution of India. I am unable to find any such exceptional reasons in this case. It is for the petitioner to W.P.C.Nos.36857 & 38031 of 2007 5 approach the learned Magistrate and seek appropriate directions under Section 156(3) Cr.P.C. Before the final report is filed, appropriate directions can be sought under Section 156(3) Cr.P.C. After the final report is filed and if the report is against the petitioner, certainly the petitioner shall have the right under law to appear before the learned Magistrate and raise all his objections against the final report. The petitioner is, in law, entitled for notice, if any such final report turning down his case were filed by the investigating officer before the learned Magistrate. 5. In the result, these petitions are dismissed; but making it clear that the dismissal of these petitions will not in any way fetter the rights of the petitioner to approach the learned Magistrate and seek appropriate directions for a proper investigation or at a later stage to appear before the learned Magistrate and raise his objections against the final report, if any filed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.Nos.36857 & 38031 of 2007 6 W.P.C.Nos.36857 & 38031 of 2007 7 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007