High Court Kerala High Court

Shaji Mathew vs Mathaichan Mathew on 13 March, 2008

Kerala High Court
Shaji Mathew vs Mathaichan Mathew on 13 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2690 of 2007()


1. SHAJI MATHEW,
                      ...  Petitioner
2. TOMY MATHEW,
3. BABU CHERIAN,
4. SABU MATHEW,

                        Vs



1. MATHAICHAN MATHEW, S/O. MATHEW,
                       ...       Respondent

2. ZAKARIA MATHEW,

3. SECRETARY,

4. DIRECTOR GENERAL OF POLICE,

5. N. RAMACHANDRAN,

6. CENTRAL BUREAU OF INVESTIGATION,

                For Petitioner  :SRI.SHAJI THOMAS PORKKATTIL

                For Respondent  :SRI.S.SREEKUMAR, SC FOR CBI

The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN

 Dated :13/03/2008

 O R D E R
                    H.L.Dattu,C.J. & K.T.Sankaran,J.
                     -------------------------------------
                             W.A.No.2690 of 2007
                        ----------------------------------------------

                     Dated, this the 13th day of March, 2008

                                      JUDGMENT

H.L.Dattu,C.J.

Accused persons in Crime No.96 of 2003 pending on Kanjirappally

Police Station have filed this Writ Appeal questioning the correctness or

otherwise of the orders passed by the learned Single Judge in W.P.(C).No.24565

of 2006 dated 6.12.2006 and the orders passed in R.P.No.903 of 2007 in W.P.

(C).No.24565 of 2006 dated 23.10.2007.

2. Mathaichan Mathew and another were the de facto

complainants in Crime No.96/2003 pending before the Kanjirappally Police

Station. This Court in W.P.(C).No.31824 of 2004, by its order dated 17.6.2005,

had ordered for constitution of special investigation team to inquire into the

allegations made in Crime No.96/2003 in respect of the offences under Sections

419, 468, 471 and 420 of Indian Penal Code. The grievance of the petitioners in

W.P.(C).No.24565 of 2006 was that the Special Investigating Team so

constituted by this Court while disposing of W.P.(C).No.31824 of 2004 may not

be in a position to conduct a successful investigation and, therefore, had

requested the Court to handover the investigation to the Central Bureau of

Investigation.

3. The learned Single Judge after taking into consideration the

various factors pleaded in the writ petition and also taking into consideration that

the investigation requires to be made not only in the country but also outside the

country, has thought it fit to direct the Special Investigating Team to handover the

investigation to the Central Bureau of Investigation of the offences alleged in

Crime No.96/2003 pending before Kanjirappally Police Station. The reasoning of

W.A.No.2690 of 2007 – 2 –

the learned Single Judge in this regard, is at Para 4 and 5, is as under:

“According to the petitioners, there was no breakthrough in

the investigation. While so, a petition allegedly written by the first

petitioner and attested by the Embassy of India at Riyad was sent

to the 2nd respondent/Director General of Police informing that all

the allegations are withdrawn against the accused and the

Manager, Poovathilappu Branch of State Bank of Travancore and

the complaint was sought to be treated as compromised,

compounded and withdrawn. The power of attorney holder of the

first petitioner was also instructed to withdraw O.S. No.215/2002

filed by the first petitioner. Copy of the above petition sent to the

Director general of Police is produced as Ext.P15. The entire

documents are forged, the seal and signature of the Attachee,

Embassy of India, Riyad is also forged. On coming to know

Ext.P15, the fist petitioner addressed the Embassy of India for the

issuance of a cancellation letter, a copy of which is produced as

Ext.P15 dated 2-3-2006. The petitioner has also sent letter to the

second respondent/Director General of Police, a copy of which is

produced as Ext.P17. Meanwhile the Bank Manager, State Bank of

Travancore, Poovathilappu Branch has sent a letter to the first

petitioner thanking him for withdrawing the proceedings, a copy of

which is produced as Ext.P18. It is in the circumstances and in

view of the forging of the seal and signature of the Attachee,

Embassy of India, Riyad that the investigation is sought to be

entrusted with the Central Bureau of Investigation.

5. The C.D. was produced as directed by this Court. The

Director General of Police and the standing counsel for the C.B.I.

were heard. Both the Director General of Police and the standing

counsel for the C.B.I. have not opposed the petition.

In the circumstances and on considering the case diary and

in view of the fact that investigation will have to be conducted

outside India as well, I find that it would be appropriate to entrust

the matter with an agency which is having the necessary

W.A.No.2690 of 2007 – 3 –

infrastructure and facilities to conduct such an investigation.

Hence, it is directed that the present investigating team would

handover the entire case records with all materials collected so far

to the C.B.I., who shall take necessary steps to conduct further

investigation. Records shall be transmitted as expeditiously as

possible. The writ petition is disposed of accordingly.”.

4. After disposal of the writ petition, the appellants before us and

who are accused in Crime No.96/2003, had filed Review Petition No.903 of 2007

inter alia requesting the Court to review the order passed in W.P.(C).No.24565

of 2006 dated 6.12.2006. The learned Single Judge has rejected the review

petition, primarily on the ground that the Central Bureau of Investigation, to whom

the investigation had been handed over, is about to file the final report. The Court

also had reserved liberty to the review petitioners, if they so desire, to question

the veracity of the investigation and the final report that may be filed by the

Central Bureau of Investigation by resorting to the appropriate proceedings under

the provisions of the Code of Criminal Procedure.

5. Aggrieved by these two orders, the appellants have presented

this Writ Appeal.

6. While admitting this Writ Appeal, we had not granted any

interim order to the appellants. It is, therefore, the Central Bureau of

Investigation, after conducting the investigation as directed by this Court while

disposing of W.P.(C).No.24565 of 2006, has already filed its final report before

the Chief Judicial Magistrate, Ernakulam on 31.1.2008.

7. The learned counsel appearing for the appellants, firstly, would

contend that in a lis between the two private parties the learned Single Judge

ought not to have directed the investigation on a complaint filed by one of the

W.A.No.2690 of 2007 – 4 –

parties to be investigated by the Central Bureau of Investigation in exercise of his

powers under Article 226 of the Constitution. Secondly, it is contended that the

petitioners in the writ petition by misrepresentation and by misleading the Court,

have obtained the impugned order and, therefore, the Writ Appeal requires to be

allowed and the impugned order passed by the learned Single Judge requires to

be set aside.

8. Having heard the learned counsel appearing for the

appellants, we are not impressed by the submissions made by the learned

counsel.

9. Admittedly a crime is registered by the police authorities on a

complaint filed by a citizen of the State. Since the investigation had not been

conducted properly by the police authorities, the 1st petitioner in W.P.(C).

No.24565 of 2006 had approached this Court in W.P.(C).No.31824 of 2004 inter

alia requesting this Court to entrust the investigation to a special investigation

team. This Court by its order dated 17.6.2005 had ordered to investigate the

offences alleged in Crime No.96/2003 by a Special Investigation Team.

10. The writ petitioners-de facto complainants were not satisfied

with the progress made by the Special Investigation Team in the investigation of

the offences alleged in Crime No.96/2003. Therefore, they had made a request

to the Court to direct the Special Investigation Team to handover the further

investigation to the Central Bureau of Investigation.

11. The Court, after considering the seriousness of the allegations

made in the complaint (Crime No.96/2003), has thought it fit to entrust the matter

for investigation by the Central Bureau of Investigation. This is done by this Court

in exercise of its powers under Article 226 of the Constitution. Time and again the

W.A.No.2690 of 2007 – 5 –

Courts have observed that the powers of this Court under Article 226 of the

Constitution is wide enough even to entertain a request made by a private citizen

to order a C.B.I. investigation. Therefore, we cannot find fault with the orders

passed by the learned Single Judge, who had directed the Special Investigation

Team to handover the investigation to the Central Bureau of Investigation taking

into consideration the seriousness of the offences alleged in Crime No.96/2003.

Therefore, the first contention canvassed by the learned counsel has no merit

whatsoever.

12. The learned counsel appearing for the appellants would submit

that by misrepresentation and by misleading the Court, the writ petitioners have

obtained appropriate orders.

13. After the disposal of the writ petition, the appellants have filed

a review petition before this Court. The learned Single Judge has taken notice of

all the contentions canvassed by the learned counsel appearing for the

appellants with regard to misrepresentation and misleading of the Court said to

have been made by the writ petitioners while obtaining the order passed in the

writ petition. After rejecting all those contentions, the learned Single Judge has

come to the conclusion that if for any reason the appellants are aggrieved by the

report of the Central Bureau of Investigation, they may question the same before

an appropriate forum as provided under the provisions of the Code of Criminal

Procedure.

14. During the pendency of this appeal, the Central Bureau of

Investigation has submitted its final report before the Chief Judicial Magistrate on

31.1.2008. In our opinion, if for any reason the appellants are aggrieved by the

said report, they are at liberty to question the same before the appropriate forum

W.A.No.2690 of 2007 – 6 –

in appropriate proceedings. Since the orders passed by the learned Single Judge

has been implemented, at this stage it may not be proper for this Court to annul

the said order.

15. In view of the above discussion, we reject the Writ Appeal.

However, taking into consideration the facts and circumstances of the case, we

refrain from ordering payment of costs.

16. In view of the orders passed in the Writ Appeal, the reliefs

sought in I.A.Nos.90 of 2008 and 280 of 2008 need not be considered by this

Court. Accordingly, the said applications are closed.

Ordered accordingly.

H.L.Dattu
Chief Justice

K.T.Sankaran
Judge
vku/DK