IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 WP(C).No. 6603 of 2011(A) ---------------------------------------- PETITIONER(S): ------------------------- THOMAS M.A., S/O.THOMAS AUGUSTY, AGED 37 YEARS, MANGALAPPALIYIL HOUSE, PANCHIKADU VILLAGE, KOLLADU KARA, SHAPPUMPADI BHAGAM, KOTTAYAM DISTRICT. BY ADVS. SRI.M.V.THAMBAN, SRI.R.REJI, SMT.THARA THAMBAN, SRI.B.BIPIN, SMT.REVATHY P.NAIR, SMT.DEEPA SREENIVASAN. RESPONDENT(S): ---------------------------------- 1. THE SUPERINTENDENT OF POLICE, KOTTAYAM - 686 001. 2. DEPUTY SUPERINTENDENT OF POLICE, KOTTAYAM - 686 001. 3. CIRCLE INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION - 686001. 4. THE SUB INSPECTOR OF POLICE, GANDHINAGAR POLICE STATION.KOTTAYAM DISTRICT - 686 008. 5. MAYAKUTTY JOHN, SONIYA BHAVAN, PERUMBAYIKADU (PO), KOTTAYAM - 686 028. 6. ROSE CHANDRAN @ MOLLYKUTTAN ROSE CHANDRA NIVAS, PERUMBAYIKADU (PO), KOTTAYAM - 686 028. 7. BIJU, PICHAKASSERY MALI, PERUMBAIKADU (PO), KOTTAYAM - 686 028. 8. RAJESH, RAJESH BHAVAN, (OTTAKANDATHIL), PERUMBAYIKADU (PO), KOTTAYAM. 9. ANIL @ KANNAN, PUTHENPURAKKAL, PERUMBAICADU (PO), KOTTAYAM.- 686 028. R1 TO R4 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). No.6603 of 2011 -------------------------------------- Dated this the 28th day of March, 2011. JUDGMENT Petitioner is the defacto complainant in Crime No.135 of 2011 of Gandhinagar Police Station, Kottayam. That case is registered against respondents 5 to 9/accused 1 to 5 for offences punishable under Sections 143, 147, 323, 451 and 427 read with Section 149 of the Indian Penal Code (for short, “the IPC”). According to the petitioner on 13.02.2011 at about 6.30 p.m. respondent No.5 trespassed into the house of petitioner followed by respondents 6 to 9, they voluntarily caused hurt to the defacto complainant and his wife, criminally intimidated them and committed mischief by damaging the motor cycle on which the defacto complainant made an attempt to escape from the scene. Grievance of petitioner is that investigation is not proceeding in the correct line and the Investigating Agency is under the influence of respondent No.5/accused No.1 who is a municipal councilor. Prayer in this petition is to handover investigation of Crime No.135 of 2011 to a superior Police Officer not below the rank of Deputy Superintendent of Police. I have heard learned counsel for petitioner and the learned Public Prosecutor. 2. Learned counsel submitted that inspite of Police mentioning in the FIR that respondent No.7/accused No.3 assaulting the defacto complainant and that accused trespassed into the house of petitioner, no offence under Section WP(C) No.6603/2011 2 452 of the Code is incorporated and instead, Section 451 of the Code is incorporated. According to the learned counsel investigation is not proceeding in the correct line. Learned Public Prosecutor submitted that dispute with neighbours arose on a boundary wall constructed by petitioner. Respondent No.6 came to the house of petitioner with respondent No.5 for mediation, the mediation talk failed and thereon respondents 7 onwards trespassed into the property of petitioner. Respondent No.7/accused No.3 assaulted petitioner and pulled down the motor cycle. It is submitted that petitioner and his wife went to the hospital. While so the boundary wall was demolished. It is submitted that all the accused have been arrested and the investigation is proceeding. 3. Learned counsel has pointed out that inspite of specific statements in the FIR no offence punishable under Section 452 of the IPC is incorporated. Assuming so, investigation is continuing and if offence punishable under Section 452 of the IPC is revealed, necessarily it is within the power of the Investigating Officer to submit a final report accordingly. It is also within the power of learned Magistrate concerned on the materials on record to decide whether any offence under Section 452 of the IPC is made out and charge has to be framed for that offence. 4. The Investigating Officer shall in the course of investigation look into the question whether offence punishable under Section 452 of the IPC is made out. I do not find reason to order investigation to be conducted by any other officer at this stage. WP(C) No.6603/2011 3 With the above observations this petition is disposed of. THOMAS P.JOSEPH, Judge. cks