IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 26523 of 2010(Q) -------------------------- CC.68/1997 of J.M.F.C.-III,TRIVANDRUM .................... PETITIONER: -------------------- P.K.DAS, S/O.KRISHNAN, RAMA MANDIRAM, VATTAVILA, POUDIKONAM, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SAJU.S.A SMT.P.A.SHEEJA RESPONDENTS: ----------------------- 1. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, VAZHUTHACADU, THIRUVANANTHAPURAM-695522 2. PRABHAKARAN, KUNNINPURATH KONATHU VEEDU, CHEMPAZHANTHI-695587. 3. CIRCLE INSPECTOR OF POLICE, KAZHAKKOOTTAM POLICE STATION, KAZHAKKOOTTAM, THIRUVANANTHAPURAM-695582. PUBLIC PROSECUTOR : ADV. SRI. K.J. MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.26523 of 2010 --------------------------------------- Dated this 18th day of March, 2011 ORDER Petitioner is the de facto complainant in C.C.No.68 of 1997 of the Court of learned Judicial First Class Magistrate-III, Thiruvananthapuram for offence punishable under Secs.324 of the Indian Penal Code. The alleged incident occurred on 31.10.1995 at about 3p.m. Petitioner alleged that in connection with a dispute over construction of compound wall the second respondent voluntarily caused hurt to him with a stick. Police registered a case and submitted final report. Second respondent filed a petition for his discharge on account of delay in the submission of final report. That application was allowed and second respondent was discharged. That order was challenged in this Court in Crl.R.P.No.1350 of 2001 and this Court by order dated December 10, 2008 allowed the revision and remanded the case to the trial court for fresh disposal. In the meantime, petitioner filed an application for further investigation alleging deficiency in the investigation already conducted. That application was allowed (as the learned counsel submitted) and further investigation was ordered. But the report of further W.P(C).No.26523 of 2010 -: 2 :- investigation said to be filed by police was found missing from the case file. Thereon, petitioner filed C.M.P.No.2940 of 2009, again for further investigation. That petition was disposed of by learned Magistrate by Ext.P4, order dated May 4, 2010 observing that further investigation was already ordered and report of further investigation is said to be filed but on verification no such report is seen filed (in Court). Police was directed to file copy of report of further investigation but they reported that the CD file is missing. Learned Magistrate observed that without seeing report of further investigation it cannot be said whether there is any ground to order further investigation. Learned Magistrate in the circumstances directed the investigating officer (Circle Inspector, Kazhakkoottam) to trace out and produce the CD file. Learned counsel submitted that until now, the missing CD file has not been traced and produced in Court. I have heard learned Public Prosecutor also. 2. This Court called for a report from the learned Judicial First Class Magistrate-III, Thiruvananthapuram. Learned Magistrate in her report dated 18.12.2010 has stated that records were again perused but no report under Sec.173(8) of the Code of Criminal Procedure (for short, "the Code”) is seen W.P(C).No.26523 of 2010 -: 3 :- filed by the investigating officer. 3. That the investigating officer submitted that the CD file is missing cannot mean that petitioner is without remedy. I am told by the learned Public Prosecutor that the CD file is prepared in triplicate and that one copy will be sent to the Dy.S.P. concerned while another copy will be given to the Crime Records Bureau of the district. If the original CD file is missing, the investigating officer should have obtained the copy if any available with the Dy.S.P or the Crime Records Bureau and produced the same in Court. Such attempt does not appear to have been done. Assuming that the original or copies of the CD file are not available, then learned Magistrate has to consider whether further investigation has to be ordered afresh as prayed in C.M.P.No.2940 of 2009. Resultantly this petition is allowed by way of remand. Ext.P4, order on C.M.P.No.2940 of 2009 in C.C.No.68 of 1997 of the Court of learned Judicial First Class Magistrate-III, Thiruvananthapuram is set aside. C.M.P.No.2940 of 2209 is remitted to that Court for fresh consideration. Learned Magistrate shall direct the investigating officer to obtain copy of the CD file given to the Dy.S.P concerned or the Crime Records W.P(C).No.26523 of 2010 -: 4 :- Bureau and if the copy of the CD file also is not available, consider afresh the prayer in C.M.P.No.2940 of 2009 for further investigation and pass appropriate orders on that petition as provided under law. (THOMAS P JOSEPH, JUDGE) Sbna/-