IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 21934 of 2006(J) -------------------------- CMP 510/06 IN CC.273/2004 of JUDL.MAG. OF FIRST CLASS, PAYYOLI .................... PETITIONERS: ------------ 1. PRASANTH, S/O. KARUNAN, VADAKKEMANNATH, THIKKODI. 2. DINESH BABU, S/O. BALAN, VADAKKEMANNATH, THIKKODI. 3. RAJAN, S/O. BALAN, THEKKEKADAPPURATH, THIKKODI. 4. SREELESH, S/O BHARGHAVAN, THEKKEKADAPPURATH HOUSE, THRIKKOTTOOR AMSOM, PALOOR DESOM. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. STATION HOUSE OFFICER, PAYYOLI POLICE STATION, PAYYOLI. BY GOVT. PLEADER SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXTS: EXT.P1 TRUE COPY OF JUDGMENT IN WPC 26288/05 DT. 27.3.2006. EXT.P2 TRUE COPY OF AFFIDAVIT OF THE SUB INSPECTOR OF POLICE. EXT.P3 TRUE COPY OF COUNTER FILED BY THE PETITIONER. EXT.P4 TRUE COPY OF ORDER DT. 7.6.2006. /TRUE COPY/ R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - W.P.C.No. 21934 of 2006 J - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of August, 2008 JUDGMENT The petitioners are four of the nine accused, who faced indictment in a prosecution for offences punishable, inter alia, under Section 326 r/w. 149 I.P.C. Investigation was complete. Final report was filed and the trial had commenced. Cws. 1 and 5 were examined as Pws. 1 and 6. At that stage the Prosecutor in charge of the case appears to have filed certain documents before the court and wanted permission for the conduct of further investigation. That petition was allowed and some of the accused persons came before this Court and another Bench of this Court, as per Ext.P1 judgment dt. 27.3.2006 in WPC 26288 of 2005, set aside the order and directed the learned Magistrate to consider that application, i.e. CMP 1120 of 2005, afresh and dispose of the same in accordance with law. 2. It is not clear as to what has happened to that petition, CMP 1120 of 2005. The learned counsel for the petitioners W.P.C.No. 21934 of 2006 2 submits that the said petition has not been disposed of yet. Be that as it may, the Station House Officer of the Payyoli Police Station filed an affidavit before the court to apprise the court of the need to conduct further investigation. He informed the court that a further investigation under Section 173(8) Cr.P.C. is being undertaken by him. On that report, objections were raised by the accused persons. Ext.P2 is the report of the S.H.O. And Ext.P3 is the counter statement filed by the accused. The learned Magistrate considered the prayer made by the S.H.O. in the light of the objections raised and came to the conclusion that the prayer for further investigation is justified. Accordingly it was directed that further report under Section 173(8) Cr.P.C. must be filed within a period of two months. 3. The petitioners claim to be aggrieved by the impugned order. What is the grievance? It is now trite that even after submission of the final report under Section 173(2) Cr.P.C. at any later stage the police can continue the investigation under Section 178(3) Cr.P.C. if requisite circumstances exist. The police are at liberty to conduct further investigation. It is now well settled by precedents that on such W.P.C.No. 21934 of 2006 3 occasions on the principle of comity of authorities the Investigating Officer must notify the court of such further investigation which has been undertaken, lest the court may proceed with the trial making further investigation redundant. The right/power of the Investigating Officer to conduct such further investigation cannot be doubted or questioned. It is not the requirement of the Code that prior permission of the court ought to be taken to facilitate conduct of such further investigation. The precedential requirement is only that the court must be apprised of such conduct of investigation. 4. In the instant case, in the course of the trial, it was revealed that Pws. 1 and 6 had suffered injuries and they were admitted in the hospital. There was an omission on the part of the Investigating Officer, who filed the final report to collect such materials. Initially the Prosecutor wanted to introduce those pieces of evidence, but later better counsel appears to have prevailed and the S.H.O. had followed the correct procedure of undertaking a further investigation after due intimation to the court. W.P.C.No. 21934 of 2006 4 5. The need of a further investigation in the facts and circumstances of the case cannot be doubted. Some of the injured witnesses had been admitted in the hospital, but evidence from the hospital had not been collected. The Investigating Officer is perfectly justified in wanting to conduct further investigation. The course adopted by the Investigating Officer cannot be faulted. 6. The learned counsel for the petitioners contends that not the officer who had investigated the crime, but the S.H.O. of the concerned police station on the date of filing of the report has sought leave to conduct further investigation. The mere fact that the Investigating Officer had been transferred and he has gone to another police station will not in any way preclude the right of the S.H.O. to seek further investigation under Section 173(8) Cr.P.C. That objection is not justified. 7. The counsel for the petitioners then submits that the petitioners are already committed to a defence and permitting the investigators to collect further evidence at this stage would cause great prejudice and hardship to them. I shall not at this stage embark on a discussion to ascertain whether the possible evidence which W.P.C.No. 21934 of 2006 5 may be collected in such further investigation under Section 173(8) Cr.P.C. would prejudice the interests of the accused persons as to justify their prayer that such evidence should not be admitted. It would depend upon the nature of evidence that is collected in the course of further investigation. I do not intend to express any opinion on the possible prejudice which may be caused against the petitioners if such evidence were admitted. The petitioners can raise their contentions before the learned Magistrate at the appropriate stage. 8. To sum up, I find absolutely no legal defect in the decision taken by the S.H.O. to conduct a further investigation and the acceptance of such request by the learned Magistrate by the impugned order. There are no circumstances justifying or warranting the invocation of the extra ordinary constitutional jurisdiction under Article 226/227. 9. This writ petition is accordingly dismissed. (R. BASANT) tm Judge W.P.C.No. 21934 of 2006 6