IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2690 of 2007()
1. SHAJI MATHEW,
... Petitioner
2. TOMY MATHEW,
3. BABU CHERIAN,
4. SABU MATHEW,
Vs
1. MATHAICHAN MATHEW, S/O. MATHEW,
... Respondent
2. ZAKARIA MATHEW,
3. SECRETARY,
4. DIRECTOR GENERAL OF POLICE,
5. N. RAMACHANDRAN,
6. CENTRAL BUREAU OF INVESTIGATION,
For Petitioner :SRI.SHAJI THOMAS PORKKATTIL
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :13/03/2008
O R D E R
H.L.Dattu,C.J. & K.T.Sankaran,J.
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W.A.No.2690 of 2007
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Dated, this the 13th day of March, 2008
JUDGMENT
H.L.Dattu,C.J.
Accused persons in Crime No.96 of 2003 pending on Kanjirappally
Police Station have filed this Writ Appeal questioning the correctness or
otherwise of the orders passed by the learned Single Judge in W.P.(C).No.24565
of 2006 dated 6.12.2006 and the orders passed in R.P.No.903 of 2007 in W.P.
(C).No.24565 of 2006 dated 23.10.2007.
2. Mathaichan Mathew and another were the de facto
complainants in Crime No.96/2003 pending before the Kanjirappally Police
Station. This Court in W.P.(C).No.31824 of 2004, by its order dated 17.6.2005,
had ordered for constitution of special investigation team to inquire into the
allegations made in Crime No.96/2003 in respect of the offences under Sections
419, 468, 471 and 420 of Indian Penal Code. The grievance of the petitioners in
W.P.(C).No.24565 of 2006 was that the Special Investigating Team so
constituted by this Court while disposing of W.P.(C).No.31824 of 2004 may not
be in a position to conduct a successful investigation and, therefore, had
requested the Court to handover the investigation to the Central Bureau of
Investigation.
3. The learned Single Judge after taking into consideration the
various factors pleaded in the writ petition and also taking into consideration that
the investigation requires to be made not only in the country but also outside the
country, has thought it fit to direct the Special Investigating Team to handover the
investigation to the Central Bureau of Investigation of the offences alleged in
Crime No.96/2003 pending before Kanjirappally Police Station. The reasoning of
W.A.No.2690 of 2007 – 2 –
the learned Single Judge in this regard, is at Para 4 and 5, is as under:
“According to the petitioners, there was no breakthrough in
the investigation. While so, a petition allegedly written by the first
petitioner and attested by the Embassy of India at Riyad was sent
to the 2nd respondent/Director General of Police informing that all
the allegations are withdrawn against the accused and the
Manager, Poovathilappu Branch of State Bank of Travancore and
the complaint was sought to be treated as compromised,
compounded and withdrawn. The power of attorney holder of the
first petitioner was also instructed to withdraw O.S. No.215/2002
filed by the first petitioner. Copy of the above petition sent to the
Director general of Police is produced as Ext.P15. The entire
documents are forged, the seal and signature of the Attachee,
Embassy of India, Riyad is also forged. On coming to know
Ext.P15, the fist petitioner addressed the Embassy of India for the
issuance of a cancellation letter, a copy of which is produced as
Ext.P15 dated 2-3-2006. The petitioner has also sent letter to the
second respondent/Director General of Police, a copy of which is
produced as Ext.P17. Meanwhile the Bank Manager, State Bank of
Travancore, Poovathilappu Branch has sent a letter to the first
petitioner thanking him for withdrawing the proceedings, a copy of
which is produced as Ext.P18. It is in the circumstances and in
view of the forging of the seal and signature of the Attachee,
Embassy of India, Riyad that the investigation is sought to be
entrusted with the Central Bureau of Investigation.
5. The C.D. was produced as directed by this Court. The
Director General of Police and the standing counsel for the C.B.I.
were heard. Both the Director General of Police and the standing
counsel for the C.B.I. have not opposed the petition.
In the circumstances and on considering the case diary and
in view of the fact that investigation will have to be conducted
outside India as well, I find that it would be appropriate to entrust
the matter with an agency which is having the necessary
W.A.No.2690 of 2007 – 3 –
infrastructure and facilities to conduct such an investigation.
Hence, it is directed that the present investigating team would
handover the entire case records with all materials collected so far
to the C.B.I., who shall take necessary steps to conduct further
investigation. Records shall be transmitted as expeditiously as
possible. The writ petition is disposed of accordingly.”.
4. After disposal of the writ petition, the appellants before us and
who are accused in Crime No.96/2003, had filed Review Petition No.903 of 2007
inter alia requesting the Court to review the order passed in W.P.(C).No.24565
of 2006 dated 6.12.2006. The learned Single Judge has rejected the review
petition, primarily on the ground that the Central Bureau of Investigation, to whom
the investigation had been handed over, is about to file the final report. The Court
also had reserved liberty to the review petitioners, if they so desire, to question
the veracity of the investigation and the final report that may be filed by the
Central Bureau of Investigation by resorting to the appropriate proceedings under
the provisions of the Code of Criminal Procedure.
5. Aggrieved by these two orders, the appellants have presented
this Writ Appeal.
6. While admitting this Writ Appeal, we had not granted any
interim order to the appellants. It is, therefore, the Central Bureau of
Investigation, after conducting the investigation as directed by this Court while
disposing of W.P.(C).No.24565 of 2006, has already filed its final report before
the Chief Judicial Magistrate, Ernakulam on 31.1.2008.
7. The learned counsel appearing for the appellants, firstly, would
contend that in a lis between the two private parties the learned Single Judge
ought not to have directed the investigation on a complaint filed by one of the
W.A.No.2690 of 2007 – 4 –
parties to be investigated by the Central Bureau of Investigation in exercise of his
powers under Article 226 of the Constitution. Secondly, it is contended that the
petitioners in the writ petition by misrepresentation and by misleading the Court,
have obtained the impugned order and, therefore, the Writ Appeal requires to be
allowed and the impugned order passed by the learned Single Judge requires to
be set aside.
8. Having heard the learned counsel appearing for the
appellants, we are not impressed by the submissions made by the learned
counsel.
9. Admittedly a crime is registered by the police authorities on a
complaint filed by a citizen of the State. Since the investigation had not been
conducted properly by the police authorities, the 1st petitioner in W.P.(C).
No.24565 of 2006 had approached this Court in W.P.(C).No.31824 of 2004 inter
alia requesting this Court to entrust the investigation to a special investigation
team. This Court by its order dated 17.6.2005 had ordered to investigate the
offences alleged in Crime No.96/2003 by a Special Investigation Team.
10. The writ petitioners-de facto complainants were not satisfied
with the progress made by the Special Investigation Team in the investigation of
the offences alleged in Crime No.96/2003. Therefore, they had made a request
to the Court to direct the Special Investigation Team to handover the further
investigation to the Central Bureau of Investigation.
11. The Court, after considering the seriousness of the allegations
made in the complaint (Crime No.96/2003), has thought it fit to entrust the matter
for investigation by the Central Bureau of Investigation. This is done by this Court
in exercise of its powers under Article 226 of the Constitution. Time and again the
W.A.No.2690 of 2007 – 5 –
Courts have observed that the powers of this Court under Article 226 of the
Constitution is wide enough even to entertain a request made by a private citizen
to order a C.B.I. investigation. Therefore, we cannot find fault with the orders
passed by the learned Single Judge, who had directed the Special Investigation
Team to handover the investigation to the Central Bureau of Investigation taking
into consideration the seriousness of the offences alleged in Crime No.96/2003.
Therefore, the first contention canvassed by the learned counsel has no merit
whatsoever.
12. The learned counsel appearing for the appellants would submit
that by misrepresentation and by misleading the Court, the writ petitioners have
obtained appropriate orders.
13. After the disposal of the writ petition, the appellants have filed
a review petition before this Court. The learned Single Judge has taken notice of
all the contentions canvassed by the learned counsel appearing for the
appellants with regard to misrepresentation and misleading of the Court said to
have been made by the writ petitioners while obtaining the order passed in the
writ petition. After rejecting all those contentions, the learned Single Judge has
come to the conclusion that if for any reason the appellants are aggrieved by the
report of the Central Bureau of Investigation, they may question the same before
an appropriate forum as provided under the provisions of the Code of Criminal
Procedure.
14. During the pendency of this appeal, the Central Bureau of
Investigation has submitted its final report before the Chief Judicial Magistrate on
31.1.2008. In our opinion, if for any reason the appellants are aggrieved by the
said report, they are at liberty to question the same before the appropriate forum
W.A.No.2690 of 2007 – 6 –
in appropriate proceedings. Since the orders passed by the learned Single Judge
has been implemented, at this stage it may not be proper for this Court to annul
the said order.
15. In view of the above discussion, we reject the Writ Appeal.
However, taking into consideration the facts and circumstances of the case, we
refrain from ordering payment of costs.
16. In view of the orders passed in the Writ Appeal, the reliefs
sought in I.A.Nos.90 of 2008 and 280 of 2008 need not be considered by this
Court. Accordingly, the said applications are closed.
Ordered accordingly.
H.L.Dattu
Chief Justice
K.T.Sankaran
Judge
vku/DK