D.Kurian vs State Of Kerala on 19 February, 2008

Kerala High Court
D.Kurian vs State Of Kerala on 19 February, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 3298 of 2008(P)


1. D.KURIAN, AGED 52 YEARS,
                      ...  Petitioner
2. BINI THOMAS, W/O.LATE THOMAS,
3. LIMI THOMAS (MINOR) AGED 15 YEARS,

                        Vs



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

2. DIRECTOR GENERAL OF POLICE,

3. SUPERINTENDENT OF POLICE,

4. CIRCLE INSPECTOR OF POLICE,

5. P.K.CHANDRAN NAIR, S/O.KOCHUKUTTAN

6. SAJEEV KUMAR.K.C., S/O.P.K.CHANDRAN

7. NATIONAL INSURANCE COMPANY LIMITED,

                For Petitioner  :SRI.T.M.RAMAN KARTHA

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :19/02/2008

 O R D E R
                               R.BASANT, J.

                            ----------------------

                          W.P.C.No.3298 of 2008

                        ----------------------------------------

               Dated this the 19th day of February 2008


                             J U D G M E N T

The first petitioner is an injured in a road traffic accident.

He was allegedly travelling in an autorickshaw which was driven

by the predecessor in the interests of petitioners 2 and 3. The

first petitioner as well as the said autorickshaw driver suffered

injuries in the accident. The predecessor in interest of

petitioners 2 and 3 succumbed to his injuries. Allegations were

raised that the accident occurred on account of the rashness and

negligence of the driver of another vehicle. Crime was

registered. Investigation was conducted and final report was

filed by the investigating officer alleging that the sixth

respondent, allegedly the driver of the other vehicle, was guilty

of rashness and negligence. On the final report filed by the

police, the learned Magistrate took cognizance and

C.C.No.863/03 was registered before the Judicial First Class

Magistrate Court, Pala.

2. While C.C.No.863/03 was pending, the seventh

respondent, National Insurance Company appears to have filed a

complaint before the superior officials of the police alleging that

the sixth respondent has unjustifiably been brought on the array

W.P.C.No.3298/08 2

of accused solely with the intention of making the seventh

respondent insurer of the said vehicle to be liable to compensate

the petitioners. Further investigation under Section 173(8)

Cr.P.C has been conducted subsequently and a further report

has been filed by the investigator. The learned counsel for the

petitioner submits that no decision has been taken by the

learned Magistrate so far and the matter is pending before the

learned Magistrate.

3. According to the petitioner, the further investigation

conducted is totally unjustified. No proper further investigation

under Section 173(8) Cr.P.C has been conducted. In these

circumstances, it is prayed that the said further report may be

set aside and appropriate directions may be issued to the learned

Magistrate to proceed with the trial in C.C.No.863/03.

4. Petitioners are aggrieved by the further investigation

conducted under Section 173(8) Cr.P.C. Admittedly, the further

report is pending before the learned Magistrate and no decision

has been taken by the learned Magistrate in the matter so far.

The learned counsel for the petitioner was requested to explain

how in the light of the decision in Sakri Vasu v. State of U.P &

Others [2008 AIR SCW 309] this petition under Article 226 of the

Constitution maintainable before this court.

W.P.C.No.3298/08 3

5. The learned counsel for the petitioner only submits

that the extraordinary circumstances available in this case must

prompt this court to invoke the powers under Article 226 of the

Constitution.

6. I am unable to agree. It is for the petitioners to

appear before the learned Magistrate and raise appropriate

objections against the final report submitted by the police under

Section 173(8) Cr.P.C. It is for the learned Magistrate to

consider such report in the light of such objection as may be

raised by the petitioners and issue appropriate directions in the

matter. I need not embark on any further discussions or suggest

the nature of orders that can be passed by the learned

Magistrate. Suffice it to say that the learned Magistrate must

consider the report under Section 173(8) Cr.P.C along with the

objections, if any, raised by the petitioners and pass appropriate

directions to ensure a proper investigation as indicated in the

decision in Sakri Vasu Supra.

7. With the above observations, this writ petition is

dismissed.






                                                        (R.BASANT, JUDGE)

jsr    // True Copy//          PA to Judge


W.P.C.No.3298/08    4


W.P.C.No.3298/08    5


       R.BASANT, J.





         CRL.M.CNo.





            ORDER





21ST DAY OF MAY2007


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