IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 1ST FEBRUARY 2011 / 12TH MAGHA 1932 WP(C).No. 37165 of 2010(U) -------------------------- CC.628/2010 of J.M.F.C.-I,ATTINGAL .................... (CRIME NO.251/2010 OF POTHENCODE POLICE STATION) PETITIONER(S): ------------------------ PREMA LATHA, AGED 39, D/O.KRISHNAMMA, THERUVILA, KUNNIN PURATHU VEEDU, MELEVILA WARD, AYIROOPARA VILLAGE, PUTHENCODE, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENT(S): -------------------------- 1. MADHUSOODHANAN NAIR,AGED 43 YEARS, S/O.KRISHNA PILLAI, MYPARAMBU VEEDU, AYIROOPARA VILLAGE, POTHENCODE WARD, THIRUVANANTHAPURAM - 695 584. 2. SASIDHARAN NAIR, S/O.KUTTAN PILLAI,AGED 50, SHAJU BHAVAN, AYIROOPARA VILLAGE, TOWN WARD, PLAMOODU,THIRUVANANTHAPURAM - 695 037. 3. SURENDRAN NAIR, AGED 47, S/O.SUKUMARA PILLAI,S.R.BHAVAN, MADATHILKULANGARA MELEVILA WARD, AYIROOPARA, VILLAGE, POTHENCODE,THIRUVANANTHAPURAM - 695 584. 4. MANOHARAN, AGED 40, S/O.RAJAPPAN, THIPPALIKONATHU VEEDU, THIPPALIKKOANAM, AYIROOPARA VILLAGE,POTHENCODE, THIRUVANANTHAPURAM - 695 584. Kss ..2/- ..2.... WPC.NO.37165/2010 U 5. ASOKAN, AGED 36, S/O.BHARAGAVAN PILLAI, MELE VILA WARD, MADATHINKULANGARA VEEDU, AYIROOPARA VILLAGE,POTHENCODE,THIRUVANANTHAPURAM. 6. SUB INSPECTOR OF POLICE, POTHENCODE POLICE STATION,THIRUVANANTHAPURAM - 695 584. 7. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM - 695 014. 8. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R6 TO R8 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ------------------------------- W.P.(C).No.37165 of 2010 ------------------------------- Dated this the 1st day of February, 2011. J U D G M E N T Petitioner is the defacto complainant in Crime No.251 of 2010 of Pothencode Police Station and CW1 in C.C.No.628 of 2010 of the court of learned Judicial First Class Magistrate-1, Attingal. Accused in that case are alleged to have committed offences punishable under section 143, 147, 148, 323, 354 and 326 r/w s.149 of the Indian Penal Code (for short 'the code'). The case is that in connection with unloading of building materials on 6.5.2010 at about 3.30 p.m., accused formed themselves into unlawful assembly, committed rioting armed with deadly weapons and voluntarily caused hurt/grievous hurt to Cws.1 to 3 and outraged modesty of CW1. Accused were arrested and released on bail. First accused filed a private complaint against petitioner and two others which was forwarded to the police for investigation under section 156(3) of the Code of Criminal Procedure Code (for short Cr.P.C.) and the police registered 2 W.P.(C).No.37165 of 2010 Crime No.327 of 2010 against petitioner and others for offence punishable under sections 323, 324 r/w s.34 of the Code. Learned Public Prosecutor submitted that a final report has been submitted in that case and the case is taken on file as C.C.No.682 of 2010 of the court of learned Judicial First Class Magistrate-1, Attingal. 2. Grievance of petitioner in this proceedings is that some of the eye witnesses to the incident were not questioned or cited as witnesses by the Investigating/Charging Officer. Therefore petitioner seeks a direction for further investigation in Crime No.251 of 2010. Learned Counsel submitted that questioning of eye witnesses was purposefully omitted by the Investigating/Charging Officer. 3. Assuming that any of the eye witnesses to the alleged incident was omitted by the Investigating Officer for whatever reason it be, it is not as if learned Magistrate before whom the final report is submitted is helpless. Section 173(8) of Cr.P.C. empowers learned Magistrate to order further investigation into 3 W.P.(C).No.37165 of 2010 the matter. It is not possible for this Court to direct the Investigating Officer as to which of the witnesses he should question. That matter is within the realm of investigation. But, if the investigation is found to be deficient in any manner, it is within the power of learned Magistrate to direct further investigation as stated above. There is no reason why petitioner should not invoke the power of learned Magistrate and instead, rush to this Court to invoke the power under section 482 of Cr.P.C. Having regard to the circumstances and the complaint aired by petitioner, I make it clear that it is open to the petitioner to approach learned Judicial First Class Magistrate-1, Attingal to request further investigation under section 173(8) of Cr.P.C. and if any such application is preferred, learned Magistrate shall dispose of that application as provided under law. With the above observation, this petition is closed. THOMAS P.JOSEPH, Judge ami/