IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 496 of 2008()
1. DEVASSIA @ APPACHI, S/O. ULAHANNAN,
... Petitioner
Vs
1. DEPUTY SUPERINTENDENT OF POLICE,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.V.A.SATHEESH
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/02/2008
O R D E R
V. RAMKUMAR, J.
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Crl.M.C.No.496 of 2008
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Dated this the 5th day of February, 2008
ORDER
In this petition filed under Section 482 Cr.P.C, the
petitioner seeks to quash Annexure A1-FIR and Annexure A4
order re-opening the investigation.
2. Crime No.11/2007 of Alakode Police Station in Kannur
district was registered against the petitioner for offences
punishable under Section 376 IPC and Sections 3(1),(xi),(xii) of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities)
Act 1989. The de facto complainant is one Usha, who alleged
that, while she was working in the nursery belonging to the
accused, the accused had ravished her several times resulting in
her becoming pregnant and giving birth to a child on 12.12.06
and since she was a member of the Scheduled Caste, the accused
has committed the aforesaid offences.
3. After investigation, the Police submitted Annexure A3
refer report to the effect that the sexual intercourse which the
complainant had with the accused was with her consent and
since she was aged 25 years at the time of the alleged
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2
occurrence, the sexual intercourse would not amount to the
offence of rape as alleged. Accepting the refer report, the
learned Magistrate dropped the proceedings in R.C.No.187/2007
on 27.6.07. Subsequently the Deputy Superintendent of of
Police, Thaliparamba filed Annexure A4 petition for further
investigation alleging that the victim who is a Scheduled Caste
belongs to a poor family and was cheated by the accused through
allurements and threats and on coming to know that she had
lodged a complaint, the accused had influenced her and her
family members and dissuaded her from changing her version by
promising to maintain her and also by employing criminal
intimidation. On 21.8.07, the learned Magistrate re-opened the
investigation.
4. The learned counsel for the petitioner- accused would
submit that the order re-opening the investigation is illegal and
even if it amounts to a further investigation falling under Section
173(8) Cr.P.C, the victim in her subsequent statement under
Sec.164 Cr.P.C has stated that she was in love with the accused-
Devassia and she had bodily relationship with him resulting in
her giving birth to a child, that since she was an unwed woman
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3
she was finding it difficulty to reveal the father of the child and
hence she had lodged complaints against the father of the child,
that he is a married person having wife and children and she is
not interesting in conducting any case against him and she has
no grievance against him. It is contended that in the light of
such a statement given by her to the Magistrate, it will be an
abuse of the process to continue the investigation further. It is
true that there is no provision to reopen the investigation, as
though there can be a re-investigation. But the order passed by
the Magistrate on 21.8.07 can only be treated as a formal
permission to conduct further investigation under Sec. 173(8)
Cr.P.C. Power to conduct further investigation is the prerogative
of the Police and the Police need only seek formal permission of
the court to conduct further investigation. Hence the order
passed on 21.8.07 can only be treated as one granting
permission to the Dy.S.P., Thaliparamba to conduct further
investigation. No doubt, in the further statement given by the
1st informant to the Magistrate she has stated that she had illicitl
relationship with Devassia with whom she was in love and she
begot the child in that relationship. But she has also stated that
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4
he is the father of her child.
It is too early to observe that in the light of Annexure A5
further statement given by her to the Magistrate, the further
investigation should be quashed. After collecting the additional
materials, if the officer in charge of the investigation comes to
the conclusion that there is no material sufficient to place the
accused on trial, the officer in charge of the investigation can
definitely give a supplementary final report under Sec.169 read
with Sec.173(2) Cr.P.C. But this court cannot prematurely
interfere with the process of further investigation. Accordingly,
leaving the Investigating Officer to proceed with the further
investigation in accordance with law, this Crl.M.C is disposed of.
V. RAMKUMAR, JUDGE
sj
