IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 WP(C).No. 2479 of 2007(T) ------------------------- CC.432/2000 of J.M.F.C.-II,NEDUMANGAD .................... PETITIONER(S): --------------- SHAJUDHEEN @ SHAJI, S/O.MOITHEEN PICHA, T.C.NO.17/27-1, NAZAAB,JAGATHY,THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU RESPONDENT(S): --------------- 1. DEPUTY SUPERINTENDENT OF POLICE, C.B. C.I.D., PALGHAT. 2. ABOOBACKER @ AKBER, S/O. AHAMMED HAJI AYAMO HAJI, KOTTIL VEEDU, MANKARA, PALGHAT. 3. THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN. BY GOVERNMENT PLEADER M.K.PUSHPALATHA FOR R1&3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF COMPLAINT FILED BY PETITIONER BEFORE THE DY.INSPECTOR GENERAL OF POLICE(CRIMES), TRIVANDRUM. EXT.P2 TRUE COPY OF PETITION DATED 10.1.2001 FILED BY THE PETITIONERBEFORE THE JFCM COURT II, NEDUMANGAD EXT.P3 TRUE COPY OF COMMON ORDER DATED 6.4.2001 IN CMP NOS.309, 311 & 315/2001 OF THE JFCM COURT II, NEDUMANGAD EXT.P4 TRUE COPY OF ORDER DATED 11.12.2003 IN CRI.M.C.NO.3321/2001 OF THIS COURT EXT.P5 TRUE COPY OF NOTICE DATED 20.10.2004 SENT BY FIREST RESPONDENT TO THE PETITIONER EXT.P6 TRUE COPY OF REPLY DATED 25.10.2004 SENT BY PETITIONER TO THE FIRST RESPONDENT EXT.P7 TRUE COPY OF REPORT DATED 25.8.2005 FILED BY THE FIRST RESPONDENT BEFORE THE JFCM COURT II, NEDUMANGAD EXT.P8 TRUE COPY OF STATEMENT OF PETITIONER UNDER SECTION 161 EXT.P9 TRUE COPY OF PETITION DATED 1.9.2006 FILED BY PETITIONER BEFORE THE JFCM COURT II, NEDUMANGAD EXT.P10 TRUE COPY OF COMMON ORDER DATED 21.11.2006 IN CMP NOS.7637, 7626 & 7636 OF 2006 OF JFCM COURT II, NEDUMANGAD //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2479 of 2007 T -------------------------------------- Dated this the 27th day of November, 2008. JUDGMENT Heard counsel for petitioner and the Public Prosecutor. 2. Petitioner is the defacto complainant in C.C.No.432 of 2000 of the court of learned Judicial First Class Magistrate-II, Nedumangad. Case was taken on file on the final report filed by the first respondent for offence punishable under Section 420 of the Indian Penal Code against the second respondent. Grievance of the petitioner is that though one Dileep Kumar and Pradeep Kumar are also involved in the commission of the offence alleged in the complaint, investigating agency purposely deleted them from the array of accused. It is the further grievance of the petitioner that the offence under the Passport Act which is also involved, was not incorporated in the final report. Aggrieved, petitioner filed Ext.P2 application before the learned magistrate to direct further investigation under Section 173(8) of the Code of Criminal Procedure (for short, ‘the Code’). Learned magistrate thought that he has no power to order further investigation and dismissed the application as per Ext.P3. That order was set aside by a learned Single Judge of this Court as per Ext.P4, order dated 11.12.2003. Learned Judge held that the view taken by the learned magistrate that he has no jurisdiction to order further investigation WP(C) No.2479/2007 2 on a petition filed by the petitioner (defacto complainant) is unsustainable and hence, set aside that order. Learned magistrate was directed to issue appropriate direction to the investigating agency to complete investigation as expeditiously as possible. Pursuant to that order, directions were issued by the learned magistrate and based on that, Ext.P5, notice was given to the petitioner by the first respondent to appear before him. According to the petitioner, he sent Ext.P6 reply stating that he is unable to be present in the office of the first respondent for the reasons stated in Ext.P6. Petitioner is also said to have informed the first respondent that he has nothing to say further in the matter than what is stated in Ext.P6. According to the petitioner, notwithstanding Ext.P6, reply and that he did not even go to the office of the first respondent, a statement purporting to be that of his was manipulated by the first respondent based on which a further report was submitted by him before the learned magistrate. Aggrieved, petitioner filed Ext.P9, application before the learned magistrate again seeking further investigation under Section 173(8) of the Code. Learned magistrate disposed of that application as per Ext.P10, order dated 21.11.2006. Learned magistrate observed in that order that – “.........The petitioner has every right to adduce evidence on the above said points and in case other persons are also involved in the crime necessarily they could also be caught by WP(C) No.2479/2007 3 the court at the relevant point of time. In order to investigate on the above said aspects, there is no need to send the matter to the very same Investigating Officer. All the grievances of the petitioner will be considered by this court at the appropriate time and the petitioner has every right to adduce all the evidence available with him. As matters now stands, I do find that there is no need to send the matter again for further investigation to the very same Investigating Officer.” 3. It is contended by the learned counsel that the statement 'created' by the first respondent purporting to that of the petitioner will stand in the way of his giving evidence before the learned magistrate as regards the involvement of Dileep Kumar and Pradeep Kumar and the offence punishable under the Passport Act. But, learned magistrate has observed that the petitioner will have every right to adduce evidence on the points he has urged in Ext.P9. Learned magistrate has ample powers, if necessary to order further investigation under Section 173 (8) of the Code as pointed out in Ext.P4, order aS well as the authoritative pronouncements of the Hon’ble Supreme Court. It is also within the power of the learned magistrate, if circumstances warranted, to invoke Section 319 of the Code in the manner stated in that provision. There is no reason why in the facts and circumstances of this case, a direction has to be given by this WP(C) No.2479/2007 4 Court for further investigation as requested by the petitioner. I also bear in mind that this is a case where complaint was preferred as early as in the year 1996 and the matter cannot further be prolonged. In the circumstances, the prayer in this petition cannot be allowed. Writ Petition therefore, is dismissed with the above observation. I.A.No.4994 of 2007 will stand dismissed. THOMAS P.JOSEPH, JUDGE. cks