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