2011(2) Crimes 603 (Ker.)
KERALA HIGH COURT
V.K. Mohanan, J.
Sindhu Gopalakrishnan —Petitioner
versus
Sebastian Attokkaran —Respondent
Criminal R.P. No. 2939 of 2010
Decided on 6.12.2010

IMPORTANT POINTS
1. If the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free to order further investigation to avoid failure of justice.
2. An order, dismissing a petition filed under S. 173 (8) of the Cr.P.C. for further investigation, is not an interlocutory order attracting the bar under S. 397 (2) of the Cr.P.C.

Headnote:Criminal Procedure Code, 1973—Section 397(2)—Bar of revisional jurisdiction against order of interlocutory nature—Cognizance of offences under Sections 463, 464, 465, 467, 468, 470, 471 and 474 IPC was taken by Court—Application by de fecto complainant for further investigation in terms of Section 173(8) Cr.P.C.—Magistrate dismissed said application—Revision—Whether order impugned was interlocutory and revision was not maintainable? No whether de facto complainant had no authority or right to seek an order for further investigation? No.

       Held: On examination of the facts and circumstances involved in the present case, which led to the impugned order it can be seen that though the order passed by the learned Magistrate is not final in nature or determining the right of the parties, the outcome of the order is likely to affect the right of the parties at the stage of final adjudication. As observed by Justice Desai, in V.C. Shukla’s case, the present order arose out of a step taken by the de facto complainant towards the effective final adjudication of the matter pending before the Trial Court and for assisting the parties in the prosecution for their case in the pending proceedings. I am of the view that on a dismissal or allowing of petition filed under Section 173(8) of Cr.P.C., either by the investigating agency or at the instance of private complainant, the same cannot be characterized neither as a final order nor as an interlocutory order, but the same has vital consequence, at the stage of final adjudication of the main proceedings pending before the court connected with the inquiry or trial commenced. So, according to me, the order impugned in this revision petition is an order passed during the course of proceedings, but not final in the sense, determining the right or liabilities of the parties and the same is not an interlocutory order, but the order can be categorized as the one falling in between the final order and interlocutory order and the outcome of such order is likely to affect the interest of the parties in the trial and therefore, such order is amenable to the revisional jurisdiction of the High Court and the bar contained in Section 397(2) of the Cr. P.C. is not...attracted. No doubt, the proceedings which are the subject matter of the decisions reported in State represented by Inspector of Police & Ors. v. N.M.T. Joy Immaculate, (2004) 5 SCC 729; Rocky V.A. v. V.I. Vakkachan and Ors., 2009 (4) KHC 422; Yadav Agencies Pvt. Ltd. v. Philomina, 1985 KLT 560; and Vasu v. Unnikrishnan, 1983 KLT 310, are purely interlocutory in nature and hence, the bar contemplated under Section 397(2) of the Cr.P.C. is attracted and as such, the dictum laid down in those decisions is beyond any dispute and governs the field. In the light of the decisions reported in Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134; Dhamargjan v. State, 2002 (2) KLT 666; and Abdul Rasheed v. State of Kerala, 2009 (2) KLT SN 34 (C.No.40), according to me, the order impugned is revisable, Notwithstanding the bar contained in Section 397(2) of the Cr.P.C. because the test laid down in those decisions is squarely applicable in the present case also. (Para 18)

       If the contention of the learned Senior Counsel is admitted as such, the aggrieved party will be left with no efficacious remedy to redress the grievance, irrespective of the fact, whether the affected party is the accused or the investigating agency or the de facto complainant. If it is held that the bar contemplated under Section 397(2) is applicable against entertaining the revision petition from an order like the present one, then the affected party cannot approach the High Court even by invoking Section 482 of Cr.P.C., since the settled position of law would again stand in the way of such affected party in invoking the inherent power of High Court since Section 482 cannot be invoked to circumvent the statutory ban as that of Section 397(2) of Cr. P.C. The contention of the learned counsel that the affected party can file an appeal after the trial, seems to be a sound one since the fresh materials or evidence have to be collected and presented before conclusion of the trial, otherwise the justice will be again delayed. In effect, as indicated earlier, the affected party would be put in irreparable injury and hardship which will ultimately adversely affect the administration of criminal justice. Now-a-days, due to the changes in the society, the number of economic offences and crime connected therewith and also crimes related to extremism are being increased and such offenders or wrong doers are equipped with modem devices including sophisticated weapons and electronic equipments and both of them are powerful and capable to sabotage any investigation by using their money power as well as muscle power and hence doing the investigation, the necessary evidence or material need not necessarily come to the notice of the investigating agency. Under such circumstances; the contingency will arise under Section 173(8) of the Cr.P.C. and it is only just and proper to have a further investigation and if such course is denied, then the only remedy available to the affected party is to avail the revisional jurisdiction of the High Court and in such a situation, such remedy cannot be denied by classifying an order under Section 173(8) of the Cr.P.C. as an interlocutory order because such an approach and interpretation will adversely affect administration of criminal justice and such approach is against the demand of time. (Para 20)

       With respect to the contention raised by the learned Senior Counsel that the application for further investigation under Section 173(8) of the Cr.P.C. is not maintainable at the instance of private complainant, I am of the view that such a contention is not sustainable in the light of the decision rendered by a Division Bench of this Court in Shaji’s case. In the above dictum, in point No.4 of the conclusions, this Court has held that by taking cognizance of the offence, adjudicatory process of the Court starts and normally investigation stage ends except under Section 173(8). It was also held that therefore, ordinarily, after taking cognizance of the offence, Court shall not suo motu order further investigation unless circumstances warrant. Under point No.5 of the conclusions, the Division Bench has held that if the complainant files a petition saying that real culprits were not included in the final report or there is lacuna in the investigation which will cause failure of justice and if the Magistrate after considering the matter comes to the prima facie conclusion that proper investigation was not conducted, he is not helpless, the Magistrate will be free to order further investigation to avoid failure of justice.

       In the light of the above facts and circumstances and the discussions and in view of the legal position explained, according to me, an order, dismissing a petition filed under Section 173(8) of the Cr. P.C. for further investigation, is not an interlocutory order attracting the bar under Section 397(2) of the Cr. P.C. and hence, the challenge against such order, either at the instance of the investigating agency or at the instance of the de facto complainant or a private complainant as the case may be, by way of Revision Petition would lie to the High Court under Section 397(1) of Cr.P.C. and the order impugned is amenable to the revisional jurisdiction of the High Court. (Paras 21 and 22)

       Result: Revision admitted.