IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Crl.MC.No. 532 of 2009() ------------------------ C.C.NO.271/07 OF J.F.C.M COURT-II, SULTAN BATHERY PETITIONER(S): --------------- JAUASREE, W/O.ASHOK KUMAR, AGED 34 YEARS, “GOKULAM”, KUDALLUR P.O PALAKKAD DISTRICT. BY ADV. SMT.DAISY A.PHILIPOSE RESPONDENT(S): --------------- 1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. FRANCIS, S/O.VARGHESES, PANJIKKALAYIL HOUSE, MULLANKOLLY PETTAPPALAM.P.O WAYANAD DISTRICT. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.532 of 2009 ---------------------------------------- Dated this the 4th day of February 2009 O R D E R The petitioner, a woman, faces indictment in a prosecution for the offence punishable under Section 420 read with 34 I.P.C. Altogether there are three accused persons. The petitioner is the 3rd accused. Her husband is the 2nd accused. The crux of the allegations against the accused persons is that accused 2 and 3 induced the de facto complainant to part with money on the promise that visas for employment abroad shall be made available by the 1st accused. The de facto complainant parted with money to the 1st accused; but visas were not provided. It is alleged that all the three accused, in furtherance of their common intention had fraudulently deceived the de facto complainant and induced them to part with money. 2. Cognizance has been taken on the basis of a final report submitted by the police after due investigation in a crime. That crime in turn has been registered on the basis of a private complaint filed by the de facto complainant before the learned Magistrate and referred to the police under Section 156(3) Cr.P.C. Crl.M.C.No.532/09 2 3. Cognizance has already been taken. According to the petitioner, she was not arrested at the crime stage or questioned by the police. The petitioner laments that a proper investigation has not been conducted. If one were conducted, it would have been very clear to the investigating officer that even on the allegations raised, no culpable liability can be inferred or assumed against the petitioner. According to the petitioner, the petitioner had nothing to do with the illegal conduct of the 1st accused. The de facto complainant was also fully aware of that. As security for the money which the de facto complainant had handed over to the 1st accused, signed cheques were handed over by the 1st accused to the 2nd accused along with receipts on stamp paper. The cheques were handed over by the 2nd accused to the de facto complainant when it was revealed that the 1st accused had not provided employment as promised. This aspect of the matter has not been investigated at all. If a proper investigation were conducted, the investigating officer could have satisfied himself that there was no complicity whatsoever on the part of accused 2 and 3. Merely because they have something to do with the transactions between the de facto Crl.M.C.No.532/09 3 complainant and the 1st accused, it is puerile to infer culpable liability against them. 4. Coercive processes have been issued against the petitioner by the learned Magistrate. The petitioner is unable to appear before the learned Magistrate personally. Her husband is now employed abroad. She has to proceed all the way to Sulthanbathery from her place of residence at Palakkad. In these circumstances, appropriate directions may be issued under Section 482 Cr.P.C, prays the learned counsel for the petitioner. The learned counsel for the petitioner places heavy reliance on Annexures 3 and 4 copies of agreements on stamp paper produced by the petitioner. 5. I have considered all the relevant inputs. The crux of the grievance of the petitioner it appears that a proper investigation has not been conducted and no investigation was directed into Annexures A3 and A4 which would convincingly establish the innocence of the petitioner and her husband. 6. If that be the grievance of the petitioner, it is now trite after the decision in Shaji v. State of Kerala [2003(2) KLT 929] that even an accused can move the learned Crl.M.C.No.532/09 4 Magistrate for a direction to the investigating officer to conduct a further investigation under Section 173(8) Cr.P.C. It is for the petitioner to make appropriate application before the learned Magistrate. If such an application is filed, needless to say, the learned Magistrate must consider the same and pass appropriate orders. 7. I find merit in the submission of the learned counsel for the petitioner that the coercive processes issued against the petitioner is causing great hardship and difficulties to her. At this juncture, appropriate directions can be issued to allay the grievance of the petitioner on this aspect also. 8. In the result, a) This Crl.M.C is allowed in part. b) It is directed that the coercive processes issued against the petitioner shall not be executed till 24/2/2009. c) On or before that date, the petitioner shall appear before the learned Magistrate through counsel and can file an application for the conduct of further investigation under Section 173(8) Cr.P.C. The learned Magistrate shall consider such application and pass appropriate orders. Crl.M.C.No.532/09 5 d) It is further directed that until that petition is disposed of (and if a further investigation is directed under Section 173(8) Cr.P.C until such further report is received) personal presence of the petitioner shall not be insisted by the learned Magistrate and the petitioner shall be permitted to appear through counsel if the counsel represents her in accordance with law. Hand over copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.532/09 6 Crl.M.C.No.532/09 7 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008