IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 2130 of 2008(C) ------------------------- CRIME NO.121/07 OF ARYANAD EXCISE RANGE. PETITIONER: ------------ MAHESH P.S., AGED 29, S/O. SASIDHARAN PILLAI, USHA BHAVAN, MUDHUPURAM, VINOBHANIKETAN, KOTTAKAIKAM MURI, ARYANAD VILLAGE, NEDUMANGAD TALUK. BY ADV. SRI.PRABHU VIJAYAKUMAR RESPONDENTS: ------------- 1. THE EXCISE INSPECTOR, ARYANAD EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. GIKKU JACOB. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- W.P.(c)No. 2130 OF 20080-C ------------------------------------------------- Dated this the 21st day of February, 2008 ORDER This petition under Art.226 of the Constitution is filed by the accused who faces indictment in a prosecution under the Kerala Abkari Act. The crux of the allegations against him is that he, along with another, was found transporting illicit liquor when the detecting Excise official intercepted his vehicle. Both the persons who were travelling in the motor- cycle allegedly took to their heels. The vehicle admittedly belongs to the petitioner and he is the registered owner of the vehicle. Both the persons could not be apprehended. But it is seen that the detecting official had asserted that the petitioner was one of those who run away. 2. How did he ascertain the same? It is the case of the detecting official that he was able to see both the persons run W.P.(c)No. 2130 OF 20080-C -: 2 :- away. From the pocket of the petitioner some documents including a photocopy of the driving licence fell. That was seized. It contained the photograph of the petitioner. The detecting official from such identification came to realise that the petitioner was the one who run away. Surprisingly, the petitioner has not been arrested yet. Final report has not been filed. Investigation is in progress. It is at this stage that the petitioner has come to this Court with a prayer that powers under Art.226 of the Constitution may be invoked to direct the conduct of an appropriate investigation in the matter. 3. I shall carefully avoid any expression of opinion on the sufficiency, adequacy or credibility of the materials collected so far by the Investigating Officer. The petitioner must certainly co-operate with the Investigator and place all the facts before the Investigating Officer. At any rate, a person like the petitioner who has a grievance about the quality of investigation cannot directly come before this Court and seek invocation of the constitutional jurisdiction under Art.226 of the Constitution. This has been made crystal clear in the decision in Sakiri Vasu v. State of U.P. (2008 AIR SCW 309). That decision is authority for the proposition that a person who has grievance about the quality of investigation cannot rush to this Court with W.P.(c)No. 2130 OF 20080-C -: 3 :- petitions under Sec.482 of the Cr.P.C. or under Art.226 of the Constitution. He must resort to the jurisdiction of the learned Magistrate under Sec.156(3) of the Cr.P.C. and request the learned Magistrate to issue appropriate directions under that Section. Having not done so and thus having not exhausted the alternative remedy which is available to the petitioner, the petitioner cannot be heard to contend before this Court that the powers under Art.226 of the Constitution can and ought to be invoked. 4. I may at the risk of repetition state that I do not intend to express any opinion on the sufficiency, adequacy or acceptability of the materials collected against the petitioner so far; but it will have to be emphatically answered that the petitioner is not entitled at this stage to approach this Court with a direction to invoke the constitutional jurisdiction under Art.226 of the Constitution. 5. This writ petition is accordingly dismissed. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge W.P.(c)No. 2130 OF 20080-C -: 4 :-