IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Con.Case(C).No. 978 of 2011(S) ------------------------------ PETITIONER(S): --------------- 1. THOMAS, S/O.JOHN, AGED 54 YEARS PUTHUKUNNATHU HOUSE, RAMALLOOR BHAGOM KOTHAMANGALAM PO, KOTHAMANGALAM. 2. FREDDY,S/O. THOMAS AGED 24 YEARS PUTHUKUNNATHU HOUSE, RAMALLOOR BHAGOM KOTHAMANGALAM PO, KOTHAMANGALAM. 3. ALICE, W/O.THOMAS, AGED 51 PUTHUKUNNATHU HOUSE, RAMALLOOR BHAGOM KOTHAMANGALAM PO, KOTHAMANGALAM. BY ADV. SRI.T.J.MICHAEL BY ADV JOSE MATHEW RESPONDENT(S): --------------- K.M.SABU MATHEW, DY.S.P. OF POLICE, MOOVATTUPUZHA, NOW WORKING AS DY.S.P. OF POLICE,,SPECIAL BRANCH, MOOVATTUPUZHA BY DGP SRI ASIF ALI THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CONT.CASE 978/2011 APPENDIX(CONT.CASE 978/2011) ANNEXURE A1 - COPY OF FIR IN CRIME NO.399/2010 OF KOTHAMANGALAM POLICE STATION DATED 21.5.2010. ANNEXURE A2- COPY OF FI STATEMENT IN CRIME NO.399/2010 OF KOTHAMANGALAM POLICE STATION DTD. 22.5.2010. ANNEXURE A3- TYPED COPY OF ORDER IN CMP NO.2278/2010 OF JFMC, KOTHAMANGALAM DATED 24.7.2010. ANNEXURE A4- STAY ORDER IN CRL.MA NO.6612/2010 IN CRL.M.C.NO.4233/2010 DATED 15.11.2010. ANNEXURE A5- EXTENSION OF STAY ORDER DATED 20.12.2010. ANNEXURE A6- EXTENSION OF STAY ORDER DATED 21.1.2011. ANNEXURE A7- COPY OF FINAL REPORT IN CRIME NO.399/2010 OF KOTHAMANGALAM POLICE STATION DTD. 31.1.2011. lgk M.SASIDHARAN NAMBIAR, J ........................................... CONT.CASE 978 of 2011 ............................................ DATED THIS THE 3rd DAY OF NOVEMBER, 2011 JUDGMENT Petitioners are the petitioners in Crl.M.C.4233 of 2010. That Crl.M.C was filed challenging the order of the Magistrate directing further investigation under Section 173(8) of Code of Criminal Procedure. An order of stay of further proceedings pursuant to the order of the learned Magistrate directing further investigation was passed by this court after hearing the counsel appearing for the petitioner and the Prosecutor on 15.11.2010 by Annexure A4 order. It was thereafter extended from time to time under Ext.A5 and A6 orders. According to the petitioner, the order was being extended and finally on 8.8.2011, Crl.M.C. was dismissed recording the submission of the Prosecutor that final report was submitted before the Magistrate. The case of the petitioner is that as further investigation was conducted and final report was submitted, during the subsistence of the order of stay, respondent Dy.SP has committed civil contempt and therefore he has to be proceeded against. COC 978/2011 2 2. Respondent is personally present and is represented by the Director General of Prosecution. He filed a counter affidavit clarifying the circumstances under which further investigation was completed and final report was submitted before court. As per the affidavit, respondent was unaware of filing of the Crl.M.C or the order of stay passed by this court and as directed by the Magistrate, he has completed further investigation by questioning the official witnesses before 15.11.2010 and after collecting all material evidence, he prepared a final report on 31.1.2011 and before the final report was submitted in court, on 19.2.2011 he was transferred from Sub Divisional Office, Muvattupuzha and joined as Deputy Superintendent of Police, SBCID, Ernakulam Rural. According to the respondent, as orally directed by the learned Magistrate to the Duty Civil Police Officer to submit the final report before 4.8.2011, the successor DySP, who is unaware of the order of stay submitted the final report before the Magistrate on 25.7.2011 and neither the further investigation conducted nor the final report submitted was in disobedience to the order of stay passed by this court. Respondent submitted that the inadvertant omission without knowing the existence of the COC 978/2011 3 order of stay was highly regretted. He also tendered an unconditional apology for the inadvertant mistake. 3. Learned counsel appearing for petitioner and learned Director General of Prosecution were heard. Learned counsel appearing for the petitioner pointed out that respondent proceeded with further investigation, in violation of the order of stay passed by this court and also signed the final report during the subsistence of the order of stay and it is clear contempt of ccourt and therefore he is liable to be punished. 4. Learned Public Prosecutor made available a copy of the order sheet of the learned Magistrate in C.C.370 of 2010. It shows that on 24.7.2010, further investigation was ordered and the case was posted to 1.10.2010. On that day, awaiting further investigation it was adjourned to 24.4.2011. As there was no sitting on that day, it was adjourned to 2.8.2011. It is recorded on 2.8.2011 that further investigation report filed. Received order of High Court dated 2.6.2011 in Crl.M.C.4233 of 2010 staying the proceedings by two months. Case was adjourned to 2.9.2011. 5. Learned Director General of Prosecution submitted that the records of his office reveal that by mistake, the order of stay COC 978/2011 4 passed in Crl.M.C was not communicated or intimated to the concerned police station or the respondent and the action of the respondent in proceeding with further investigation was therefore not with the knowledge that there was an order of stay and hence there was no wilful disobedience. It was also submitted that in any case, in the light of the unconditional apology tendered, further proceedings be dropped. 6. In spite of Crl.M.C. filed before this court challenging the order of the learned Magistrate directing further investigation, this court did not consider the Crl.M.C on merits, in view of the submission of the final report on further investigation, during the pendency of the Crl.M.C. It cannot be disputed that petitioner thereby lost the opportunity to challenge the order of the learned Magistrate on merits. The final report is now before the learned Magistrate. It is submitted by the learned counsel appearing for the petitioner as well as the Director General of Prosecution that Magistrate is yet to consider the final report. As is clear from the order passed by this court in the Crl.M.C, the further investigation conducted and final report submitted before the court of J.F.C.M was when an order of stay of further COC 978/2011 5 proceedings, pursuant to the order passed by the learned Magistrate was subsisting. In such circumstances, petitioner is granted liberty to challenge the final report submitted under Section 173(8) of Criminal Procedure Code before the learned Magistrate. Learned Magistrate may consider the legality of the final report, in such circumstances. In the light of the counter affidavit filed which discloses that there was no wilful disobedience of the order of the court and also in the light of the tendering of unconditional apology by the respondent, further proceedings is dropped. M.SASIDHARAN NAMBIAR, JUDGE lgk