IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 2183 of 2007(I)
1. B.K.CHANDUNNI, BHAGAVATHI KALATHIL
... Petitioner
Vs
1. ANIL BABU, S/O.NARAYANAN (LATE),
... Respondent
2. SUNIL RAJ, S/O.NARAYANAN (LATE),
3. SURESH, S/O.NARAYANAN (LATE),
4. S.I. OF POLICE, KALIKAVU POLICE STATION.
5. C.I. OF POLICE,
6. STATE REP. BY CHIEF SECRETARY,
For Petitioner :SRI.K.SHIBILI NAHA
For Respondent :SRI.BABU S. NAIR
The Hon'ble MR. Justice R.BASANT
Dated :14/03/2007
O R D E R
R. BASANT, J.
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W.P.C.No. 2183 of 2007 I
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Dated this the 14th day of March, 2007
JUDGMENT
On 11.8.2005 at about 9 a.m. an incident took place in an item
of property, regarding which two crimes in the nature of case and
counter case have been registered by the Kalikavu police as Crime
Nos. 125 and 126 of 2005. The petitioner is the defacto
complainant/informant in Crime No.125 of 2005. In both the crimes,
after investigation, separate final reports have been filed and
cognizance have been taken by the learned Magistrate. Petitioner is
the defacto complainant in C.C.No. 223 of 2006, where respondents 1
to 3 are the accused. The petitioner went before the learned Magistrate
and filed an application for further investigation under Section 173(8)
Cr.P.C. The petitioner raised the grievance in that petition that a proper
investigation has not been conducted by the Investigator. He pointed
out that one Rajan had suffered an injury. He had been examined by a
doctor. A wound certificate had been issued. But the police have not
adverted to this aspect at all in the investigation.
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2. He raised a further grievance that though the dispute about
possession of the property is the core or crux of the dispute, the police
had not applied their mind at all to the question of disputed possession.
He further pointed out that there were litigations between the parties
and decisions have been rendered by two courts accepting the version
of the petitioner. Those documents, though sent to the police under
registered post apprehending that the police may not properly advert to
those documents, did not evoke any meaningful response from the
police. They have not applied their mind to the disputed possession.
In these circumstances it is prayed that powers under Section 173(8)
Cr.P.C. may be invoked to direct further investigation.
3. There is no dispute that powers under Section 173(8) Cr.P.C.
can be directed to be invoked by the Court suo moto or at the instance
of the investigator or at the instance of the accused or at the instance of
the defacto complainant. That question has now been concluded that
the requisite satisfaction can be induced in the mind of the court by any
one placing the relevant documents and circumstances. I shall carefully
avoid any opinion on merits about the acceptability of the rival
contentions. Suffice it to say that I am of the opinion that an alert
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investigator must certainly have considered the question whether any
other person had also suffered injuries in the course of the incident and
such person was examined by a doctor. The investigator in this case
has obviously not adverted to that aspect. A dispute regarding
possession is the substratum of the dispute and as rightly pointed out
by the learned counsel for the petitioner alert application of mind does
not appear to have been made to this aspect also.
4. The learned counsel for the respondents submits that civil
dispute has not attained finality and the matter is pending before this
Court as a Second Appeal. There is a stay also, it is brought out.
5. Be that as it may, that cannot absolve the police of the
responsibility to advert to the relevant facts and place relevant materials
before the learned Magistrate. In this view of the matter, I am satisfied
that there is merit in the submission of the learned counsel for the
petitioner that a proper investigation has not been conducted and that
the learned Magistrate had incorrectly refused to invoke the jurisdiction
under Section 173(8) Cr.P.C.
6. This Writ petition is hence allowed. The petition filed by
the petitioner for further investigation under Section 173(8) Cr.P.C.
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shall stand allowed. The Investigating Officer shall expeditiously
conduct further investigation and advert to the relevant aspects referred
above and submit an appropriate further report under Section 173(8)
Cr.P.C. The investigator shall conduct further investigation into both
the crimes.
7. Hand over copy of the judgment to the learned counsel for the
petitioner.
(R. BASANT)
Judge
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