High Court Kerala High Court

Ajesh Kumar vs State Of Kerala on 9 September, 2009

Kerala High Court
Ajesh Kumar vs State Of Kerala on 9 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 21832 of 2006(Y)


1. AJESH KUMAR, AGED 26 YEARS,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. DIRECTOR GENERAL OF POLICE,

3. D.Y.S.P., C.B. C.I.D., KOLLAM.

4. D.Y.S.P., PATHANAMTHITTA.

5. S.I. OF POLICE, PATHANAMTHITTA.

                For Petitioner  :SRI.V.PHILIP MATHEW

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :09/09/2009

 O R D E R
              M.SASIDHARAN NAMBIAR,J.

              ------------------------------------------
                W.P.C.NO.21832 OF 2006
              ------------------------------------------

              Dated     9th September             2009


                          JUDGMENT

Petitioner is the accused in C.P.34/2006 on

the file of Judicial First Class Magistrate-I,

Pathanamthitta taken cognizance for the offence under

Sections 498 A, 304(B) and 306 of Indian Penal Code on

Ext.P3 final report. This petition is filed under

Article 226 of Constitution of India for a writ of

mandamus to conduct a further investigation after

quashing Ext.P2 order passed by Chief Judicial

Magistrate, Pathanamthitta on 18/1/2005 permitting

re-investigation of the case under Section 173(8) of

Code of Criminal Procedure. Petitioner would contend

that the case was originally registered under

Section 174 of Code of Criminal Procedure and

thereafter case was investigated for the offence under

Section 498 A of Indian Penal Code and final report

dated 30/8/2004 was submitted alleging that petitioner

committed an offence under Section 498 A which was

taken cognizance as C.C.272/2004. Thereafter, as per

WPC 21832/06
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order dated 6/1/2005, case was transferred to

C.B.C.I.D for investigation and later permission was

sought for from Chief Judicial Magistrate for re-

investigation which was granted as per Ext.P2 order.

It is contended that learned Magistrate could not

have directed a re-investigation under Section 173(8)

and at best, only a further investigation is possible

and therefore, Ext.P2 order is illegal and is to be

quashed.

2. It is contended that after conducting a

re-investigation Ext.P3 final report was filed and

that too after originally filing a report dated

10/2/2005 to the effect that offence under Section 306

of Indian Penal code was committed and on 23/4/2005

alleging that offence under Section 304(B) was also

committed and finally as per final report dated

10/7/2006 it is alleged that petitioner committed

offence under Sections 498 A, 304(B) and 306 of Indian

Penal Code. It is contended that as there is no power

for re-investigation and Ext.P3 report submitted after

re-investigation is to be quashed as not sustainable.

It is also contended that Ext.P3 report is filed

under haste, as is clear from the conduct of

WPC 21832/06
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investigation and as per the records, close relatives

of the petitioner including mother had given

statements against the petitioner which can never be

true and those statements were manipulated and

concocted and in such circumstances, an independent

further investigation is essential.

3. Learned counsel appearing for petitioner

and learned Public Prosecutor were heard.

4. Learned counsel pointed out that Ext.P2

order shows that permission was granted for

re-investigation and not for further investigation

and under Section 173(8) of Code of Criminal Procedure

no re-investigation can be ordered or conducted and

therefore, Ext.P2 order and further proceedings

initiated thereunder is illegal. Learned counsel

relied on the decision of the Apex court in Rama

Chaudhary v. State of Bihar (2009 (6) SCC 346) and

argued that there is an ocean of difference between

re-investigation and further investigation and by

ordering re-investigation learned Magistrate is not

entitled to wipe out the earlier investigation and at

best, only a further investigation could be conducted.

It is also argued that as investigation conducted

WPC 21832/06
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subsequent to Ext.P2 is not a further investigation

and in the light of the final report later submitted,

a proper independent investigation is warranted.

5. Learned Public Prosecutor submitted that

though learned Magistrate has used the word re-

investigation by mistake, what is provided under

Section 173(8) is only further investigation and what

is permitted under Section 173(8) could also be

further investigation and for the mistake in using

the word re-investigation, Ext.P2 need not be quashed

and there is no circumstance warranting a further

independent investigation as sought for.

6. Section 173(8) of Code of Criminal

Procedure enables the investigating officer to

investigate the case further. Re-investigation is not

contemplated under the Code. Section 173(8) enables

the investigating officer, subsequent to the filing of

final report under sub section 2 of Section 173, to

investigate the case further. Though sub section 8

does not provide for obtaining previous permission of

the Magistrate, as held in various decisions of the

Apex court, when the Magistrate has already seized of

the matter, before conducting a further investigation,

WPC 21832/06
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a formal permission is to be sought by the

investigating officer. What was granted under Ext.P2

is only a permission for further investigation under

Section 173(8), though the word wrongly used was

re-investigation. Therefore, for that mistake, Ext.P2

cannot be quashed. It is clear from Ext.P3 report that

what was conducted by the investigating officer is

not re-investigation but only further investigation.

Therefore, on that ground neither Ext.P2 nor Ext.P3

are liable to be quashed.

7. Though learned counsel vehemently argued

that further investigation conducted was not proper

and statements of the close relatives of the

petitioner including the mother were recorded

incorrectly and those statements were not made by the

respective witnesses, I cannot agree with the

submission that on that allegation a further

investigation is warranted. If, the case of the

petitioner is true, at the time of examination the

said witnesses will not support the version seen in

the statements recorded under Section 161 of Code of

Criminal Procedure, in which case petitioner need not

have any apprehension. In any case, as the previous

WPC 21832/06
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statements recorded under Section 161 are available,

petitioner is definitely entitled to use them to

confront to the witness in case witnesses are giving

a version different from the statements already

recorded. In such circumstances, on the ground that

statements which are recorded by the investigating

officer subsequent to Ext.P2 order are not correct

no further investigation is not warranted. I find no

reason to order further investigation.

Petition is dismissed.

M.SASIDHARAN NAMBIAR,
JUDGE.

uj.