Devassia @ Appachi vs Deputy Superintendent Of Police on 5 February, 2008

Kerala High Court
Devassia @ Appachi vs Deputy Superintendent Of Police on 5 February, 2008




Crl MC No. 496 of 2008()

                      ...  Petitioner


                       ...       Respondent


                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


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

Crl.M.C.No.496 of 2008


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


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

Crl.M.C.No.496 of 2008


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

Crl.M.C.No.496 of 2008


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.



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