IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 21832 of 2006(Y) ------------------------------------ CC.272/2004 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA ............................................... PETITIONER(S): ---------------------- AJESH KUMAR, AGED 26 YEARS, S/O. BHASKARAN NAIR, AJESH BHAVAN, MALAYALAPUZHA THAZHAM P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HOME KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. D.Y.S.P., C.B. C.I.D., KOLLAM. 4. D.Y.S.P., PATHANAMTHITTA. 5. S.I. OF POLICE, PATHANAMTHITTA. GOVT.PLEADER SRI.S.U.NAZAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.21832 OF 2006 ------------------------------------------ Dated 9th September 2009 JUDGMENT Petitioner is the accused in C.P.34/2006 on the file of Judicial First Class Magistrate-I, Pathanamthitta taken cognizance for the offence under Sections 498 A, 304(B) and 306 of Indian Penal Code on Ext.P3 final report. This petition is filed under Article 226 of Constitution of India for a writ of mandamus to conduct a further investigation after quashing Ext.P2 order passed by Chief Judicial Magistrate, Pathanamthitta on 18/1/2005 permitting re-investigation of the case under Section 173(8) of Code of Criminal Procedure. Petitioner would contend that the case was originally registered under Section 174 of Code of Criminal Procedure and thereafter case was investigated for the offence under Section 498 A of Indian Penal Code and final report dated 30/8/2004 was submitted alleging that petitioner committed an offence under Section 498 A which was taken cognizance as C.C.272/2004. Thereafter, as per WPC 21832/06 2 order dated 6/1/2005, case was transferred to C.B.C.I.D for investigation and later permission was sought for from Chief Judicial Magistrate for re- investigation which was granted as per Ext.P2 order. It is contended that learned Magistrate could not have directed a re-investigation under Section 173(8) and at best, only a further investigation is possible and therefore, Ext.P2 order is illegal and is to be quashed. 2. It is contended that after conducting a re-investigation Ext.P3 final report was filed and that too after originally filing a report dated 10/2/2005 to the effect that offence under Section 306 of Indian Penal code was committed and on 23/4/2005 alleging that offence under Section 304(B) was also committed and finally as per final report dated 10/7/2006 it is alleged that petitioner committed offence under Sections 498 A, 304(B) and 306 of Indian Penal Code. It is contended that as there is no power for re-investigation and Ext.P3 report submitted after re-investigation is to be quashed as not sustainable. It is also contended that Ext.P3 report is filed under haste, as is clear from the conduct of WPC 21832/06 3 investigation and as per the records, close relatives of the petitioner including mother had given statements against the petitioner which can never be true and those statements were manipulated and concocted and in such circumstances, an independent further investigation is essential. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. Learned counsel pointed out that Ext.P2 order shows that permission was granted for re-investigation and not for further investigation and under Section 173(8) of Code of Criminal Procedure no re-investigation can be ordered or conducted and therefore, Ext.P2 order and further proceedings initiated thereunder is illegal. Learned counsel relied on the decision of the Apex court in Rama Chaudhary v. State of Bihar (2009 (6) SCC 346) and argued that there is an ocean of difference between re-investigation and further investigation and by ordering re-investigation learned Magistrate is not entitled to wipe out the earlier investigation and at best, only a further investigation could be conducted. It is also argued that as investigation conducted WPC 21832/06 4 subsequent to Ext.P2 is not a further investigation and in the light of the final report later submitted, a proper independent investigation is warranted. 5. Learned Public Prosecutor submitted that though learned Magistrate has used the word re- investigation by mistake, what is provided under Section 173(8) is only further investigation and what is permitted under Section 173(8) could also be further investigation and for the mistake in using the word re-investigation, Ext.P2 need not be quashed and there is no circumstance warranting a further independent investigation as sought for. 6. Section 173(8) of Code of Criminal Procedure enables the investigating officer to investigate the case further. Re-investigation is not contemplated under the Code. Section 173(8) enables the investigating officer, subsequent to the filing of final report under sub section 2 of Section 173, to investigate the case further. Though sub section 8 does not provide for obtaining previous permission of the Magistrate, as held in various decisions of the Apex court, when the Magistrate has already seized of the matter, before conducting a further investigation, WPC 21832/06 5 a formal permission is to be sought by the investigating officer. What was granted under Ext.P2 is only a permission for further investigation under Section 173(8), though the word wrongly used was re-investigation. Therefore, for that mistake, Ext.P2 cannot be quashed. It is clear from Ext.P3 report that what was conducted by the investigating officer is not re-investigation but only further investigation. Therefore, on that ground neither Ext.P2 nor Ext.P3 are liable to be quashed. 7. Though learned counsel vehemently argued that further investigation conducted was not proper and statements of the close relatives of the petitioner including the mother were recorded incorrectly and those statements were not made by the respective witnesses, I cannot agree with the submission that on that allegation a further investigation is warranted. If, the case of the petitioner is true, at the time of examination the said witnesses will not support the version seen in the statements recorded under Section 161 of Code of Criminal Procedure, in which case petitioner need not have any apprehension. In any case, as the previous WPC 21832/06 6 statements recorded under Section 161 are available, petitioner is definitely entitled to use them to confront to the witness in case witnesses are giving a version different from the statements already recorded. In such circumstances, on the ground that statements which are recorded by the investigating officer subsequent to Ext.P2 order are not correct no further investigation is not warranted. I find no reason to order further investigation. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.