IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 Crl.MC.No. 4201 of 2005() ------------------------- AGAINST THE ORDER DATED 05/09/2005 IN CMP 5637/05 IN CC.57/2004 of JUDL.MAGISTRATE OF FIRST CLASS, KARUNAGAPPALLY .................... PETITIONER: ACCUSED: ----------------------- SOMARAJAN N., AGED 51 YEARS, S/O. LATE NEELAKANTAN, CHANDRAKANTAM, PARAKKODE P.O., ADOOR. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): STATE: --------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUPERINTENDENT OF POLICE, KOLLAM. 3. SUB INSPECTOR OF POLICE, CHAVARA, KOLLAM DISTRICT. 4. RAJEESH KUMAR, PARIMANAM MOOVIDATHIL THEKKETHIL VEETTIL, NEENDAKARA VILLAGE, KARUNAGAPPALLY TALUK. 5. SANTHOSH KUMAR, SANTHOSH BHAVAN, MANGATTU P.O., KILIKOLLUR, KOLLAM (A.I. BAYAN, P.O. BOX NO.57626, DUBAI, U.A.E). 6. SUDHOOR BABU, SHINI VIHAR, PLACHERI P.O., KALAYA NADU, PUNALUR, KOLLAM. PUBLIC PROSECUTOR SHRI C.M.NAZAR FOR R1 TO R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.4193/06 IN CRL.M.C.NO.4201/05 //DISMISSED// 12.2.09 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.4201 OF 2005 ----------------------------------------------------- DATED THIS THE 12TH DAY OF FEBRUARY , 2009 O R D E R The petitioner who is the sole accused in C.C.No.57/04 has filed this petition under Section 482 of Cr.P.C. with the prayer to quash Annexure-9, the order in C.M.P.No.5637/05 in C.C.No.57/04 dated 5.9.2005 passed by the J.F.c.M., Karunagappally and to allow Annexure-8, which is the petition filed by the accused under Section 173(8) of Cr.P.C. to order further investigation in the matter. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 3. It is submitted by the learned counsel for the petitioner that Crime No.403/03 is registered against him on the basis of the complaint filed by the de facto complainant, the 4th respondent herein, for the offence under sections 406 and 420 of IPC and copy of that complaint is produced as Annexure-2. Annexure-3 is the final report filed by the Investigating Officer after investigation of that crime. The learned Magistrate took CRL.M.C.No.4201/05 -2- cognizance of the case, which is pending against the petitioner as C.C.No.57/04. In that case, the petitioner herein, who is the sole accused, filed C.M.P.No.5637/05 with the prayer to give direction for further investigation of the case. That petition was dismissed by the learned Magistrate as per order dated 5.9.2005. According to the learned counsel for the petitioner, that order is liable to be quashed and the reasoning therein is perverse and is causing prejudice to the petitioner. 4. It is submitted by the learned Public Prosecutor that further investigation can be ordered under Section 173(8) of Cr.P.C. and is not opposing the prayer in this petition. 5. On a perusal of the impugned order, Annexure-9, it is revealed that the learned Magistrate has dismissed the petition for the reason that if further investigation is ordered and if 161 statement of the witnesses are again recorded, they will retract from their statements against the accused and the interrogation of any other witnesses would not provide any further information. That reasoning is not correct and if the same witnesses have retracted from their earlier statements, the same can be corroborated while examining them. The accused has got some grievance with regard to the investigation CRL.M.C.No.4201/05 -3- conducted by the Investigating Agencies and for that reason, the present petition has been filed. There is nothing wrong in filing such a petition by the accused, though the petitioner is an accused in that crime. In the light of the facts and circumstances of the present case, the prayer made in this petition is not opposed by the learned Public Prosecutor. Therefore, this petition is allowed and the impugned order Annexure-9 is quashed and the learned Magistrate is directed to order further investigation in Crime No.403/03 of Chavara Police Station, as provided under Section 173(8) of Cr.P.C. In the result, the Crl.M.C. is allowed. M.C.HARI RANI, JUDGE. dsn