IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Crl.MC.No. 3423 of 2009() ------------------------- CC.1168/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, SASTHAMCOTTA .................... PETITIONER: DEFACTO COMPLAINANT ---------------------------------- ASUMA BEEVI, THUNDIL PUTHENVEETTIL, PALLISSERIKKAL MURI, SASTHAMCOTTA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENTS: STATE/ACCUSED ---------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, SASTHAMCOTTA POLICE STATION. 3. THANGALKUNJU, S/O.LATE ALIYAR KUNJU, KOOVALAKUTTI, VADAKKETHIL PUTHEN VEEDU, SOORANADU SOUTH.P.O, KOLLAM. 4. SALMATH BEEVI, W/O.THANGALKUNJU, KOOVALAKUTTI, VADAKKETHIL PUTHEN VEEDU, SOORANADU SOUTH.P.O, KOLLAM. 5. HUSSAIN, KOOVALAKUTTI, VADAKKETHIL PUTHEN VEEDU, SOORANADU SOUTH.P.O, KOLLAM. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR J. ----------------------------- CRL.M.C No.3423 of 2009 ------------------------------ Dated this the 9th day of December, 2009. O R D E R Petitioner is the defacto complainant in C.C.No.1168 of 2006 on the file of the Judicial First Class Magistrate Court, Sasthamcotta, taken cognizance for the offence under Section 493 of the Indian Penal Code on Annexure A4 final report. Annexure A1 FIR was prepared and Crime No.283 of 2006 was registered for the offence under Section 420, 376, 120(b), 323 and 294(b) of Indian Penal Code, on a private complaint filed by the petitioner before Judicial First Class Magistrate Court, Sasthamcotta and sent for investigation under Section 156(3) of the Code of Criminal Procedure. After completing the investigation, the final report was submitted and learned Magistrate has taken cognizance of the offences. The petition is filed under Section 482 of the Code of Criminal Procedure to direct the Magistrate to conduct a further investigation or alter charge on the basis of the allegation contained in the FIR and to proceed against the accused. The third respondent is the sole accused, though in Annexure A1 FIR, respondents 4 and 5 are also shown as the accused. The case of the petitioner is that the case CRL.M.C No.3423 of 2009 2 was not properly investigated and the final report was filed only to help the accused to escape from conviction and in the interest of justice a proper investigation is to be conducted. 2. The learned counsel appearing for the petitioner and the learned Public Prosecutor were heard. 3. It is the case of the petitioner in the complaint based on which FIR was registered that petitioner was deserted by her husband Kasimkunju and was living with her mentally disabled son by name Mahi. The third respondent is one of her relatives. The petitioner has been residing in a 43 cents plot in R.S.No.327 of Sasthamcotta village. While so, the third respondent approached the petitioner, making use of his relationship with the third respondent and got enrolled her in a chitty being conducted by him in the name of her son and later he became a permanent visitor to the house and induced petitioner to believe that he will marry her and would perform all the obligations of a husband and had sexual intercourse with her. It is contended that making the petitioner believe that he will marry her, she was persuaded to give her ornaments for the purpose of pledging and second respondent thereby obtained the gold ornaments and thereafter CRL.M.C No.3423 of 2009 3 misappropriated to his own benefit and also sold timber trees from the properties of the petitioner. It is further contended that in December 2004 in furtherance of the conspiracy, the accused together approached the petitioner and represented that there is no impediment for having a legal marriage between the petitioner and the third respondent and promising that third respondent would marry the petitioner and would maintain her as his wife, persuaded the petitioner to agree for sale of her property. Thereafter an agreement for sale was got executed and the advance amount of Rs.85,000/- received by the third respondent, was obtained by him and misappropriated. It is also contended that later promising that the marriage could be conducted immediately after registration of sale deed, persuaded the petitioner to execute a sale deed and deducting Rs.85,000/-, which was received earlier as advance amount, balance of Rs.3,29,000/- obtained was also misappropriated by the third respondent. It is contended that all these were done consequent to the criminal conspiracy. Later, third respondent attempted to make petitioner to have a relationship with another old man, which was resisted by the petitioner. Then he discarded her and when the petitioner went to the house of the CRL.M.C No.3423 of 2009 4 respondent she was attacked and also scold using obscene words and in such circumstances the offences were committed. 4. The learned counsel for the petitioner submitted that these aspects were not properly investigated by the police and a final report is filed alleging offence under Section 493 of IPC and that too on the allegation that the third respondent had sexual intercourse with the petitioner in a house when she has no case that she lived with the third respondent in that case and in such circumstances a proper investigation is to be conducted. 5. Learned Public Prosecutor submitted that statements of witnesses recorded under Section 161 of the Code of Criminal Procedure show that petitioner and second respondent were living together as husband and wife and in such circumstances a final report was submitted finding that third respondent committed the offence under Section 493 of the Indian Penal Code and in such circumstances there is no necessity for further investigation. 6. Under Annexure 4, the offence alleged against the third respondent is under Section 493 of the Indian Penal Code. Neither the learned Magistrate nor the investigating officer has taken note of the provisions provided under Section 498A of the Code of CRL.M.C No.3423 of 2009 5 Criminal Procedure, which mandates that cognizance for the offence committed, coming under Chapter IV of Indian Penal Code can only be on a constraint by the aggrieved person. If that be so on that basis along the final report for offence under Section 493 may not lie. 7. The submission of the learned counsel appearing for the petitioner is that there was no proper investigation. When it is the specific case of the petitioner that she was induced to believe that third respondent will marry her and thereafter persuaded her to execute agreement for sale and later registered the sale deed and third respondent misappropriated the amount for his own purposes but for in the inducement she would not have parted with the property, it cannot be said that these aspects were properly investigated. There should have a proper investigation all these aspects. There should be an investigation as to the circumstances, under which an agreement for sale was executed and who misappropriated the consideration received thereunder. In the interest of justice it is absolutely necessary that there should be a proper investigation in Crime No.283 of 2006 of Sasthamcotta Police Station, eventhough Annexure 4 final report has been filed CRL.M.C No.3423 of 2009 6 later. 8. The petition is disposed of directing the investigating officer to conduct a proper further investigation of crime No.283 of 200 of Sasthamcotta Police Station. The case shall be investigated by a superior officer, preferably the Circle Inspector of Police about all the relevant aspects as alleged in the complaint filed by the petitioner and a further report has to be submitted under Section 173(8) of Code of Criminal Procedure before the learned Magistrate. Sd/- M.SASIDHARAN NAMBIAR JUDGE //True Copy// PA to Judge ab CRL.M.C No.3423 of 2009 7