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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Hemalatha S. Nair W/o K.K. Kunhikrishnan – Petitioner
Versus
State of Kerala – Respondent
W.P. (C) No. 32166 of 2018
Decided On : 09-01-2024
Further Investigation - Criminal Procedure - IPC Sections 143, 147, 148, 451, 323, 324, 427 & 297 r/w Section 149 - The court discussed the provisions of Section 173(8) of the Code of Criminal Procedure and the power of the Magistrate to order further investigation. The judgment highlighted the change in the position of law with the pronouncement of the judgment by a three-Judge Bench of the Supreme Court in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another, (2019) 17 SCC 1, which emphasized the importance of fair and just investigation and the discretion of the Magistrate to order further investigation based on the facts of each case.
Fact of the Case:
The petitioner sought further investigation in a criminal case where the Police had registered FIR alleging offences punishable under Sections 143, 147, 148, 451, 323, 324, 427 & 297 r/w Section 149 of IPC. The petitioner alleged that the Investigating Officer deleted certain penal provisions and some of the accused from the party array at the influence of accused No. 1.
Finding of the Court:
The court found that the dismissal of the criminal revision petition had conclusively closed the scope of further investigation, and the petitioner's parallel proceeding was treated as an abuse of the process of law. The court also emphasized that the petitioner had an equally efficacious remedy to file a protest complaint before the jurisdictional Court.
Issues: The issues involved the petitioner's request for further investigation, the discretion of the Magistrate to order further investigation, and the finality of the order rejecting further investigation.
Ratio Decidendi: The court relied on the judgment in Vinubhai Haribhai Malaviya and Others vs. State of Gujarat and Another, (2019) 17 SCC 1, to emphasize the discretion of the Magistrate to order further investigation based on the facts of each case and the importance of fair and just investigation.
Final Decision: The writ petition lacked merits and was dismissed by the court.
JUDGMENT :
K. BABU, J.
1. In this writ petition filed under Article 226 of the Constitution of India, the defacto complainant in C.C. No. 1338 of 2011 on the file of the Judicial First Class Magistrate Court-II, Hosdurg, seeks further investigation in Crime No. 475/2011 of Nileswaram Police Station. The petitioner is injured in the crime. Based on the first information statement submitted by the petitioner, the Police registered FIR alleging offences punishable under Sections 143, 147, 148, 451, 323, 324, 427 & 297 r/w Section 149 of IPC. Eight persons were named in the first information statement. The petitioner stated that she could identify the other persons involved in the crime, though she could not name them. Respondent No. 5, the Sub Inspector of Police, Nileswaram, conducted an investigation and submitted the final report after deleting three accused (accused Nos. 6 to 8). The Investigating Officer deleted the penal sections 324, 427 and 297 of IPC in the final report.
2. The petitioner submitted Ext.P8 petition seeking further investigation before the Magistrate Court. The learned Magistrate rejected the petition. The petitioner challenged the order before this Court by filing Crl. R.P. No. 828/2014. This Court, as per order dated 15.10.2018, dismissed the revision petition.
3. The petitioner thereafter filed this writ petition praying for the following reliefs:
(ii) Issue a writ of mandamus, order or direction directing the 1st respondent to direct further investigation in Exhibit P1 Crime No. 475/2011 of Nileswaram Police Station and to entrust such further investigation to State Crime Branch (CID) wing of Kerala State Police. (ii)(a) Quash/Set aside Exhibit P9 order.
(iii) Issue such other writ, order or direction as this Hon’ble Court may deem fit and proper to grant in the circumstances of the case.”
4. Heard the learned counsel for the petitioner Sri. O.V. Maniprasad, Sri.Kaleeswaram Raj, the learned Counsel appearing for respondent Nos. 7 to 11 and the learned Public Prosecutor.
5. The learned counsel for the petitioner made the following submissions:
(2) The Investigating Officer has violated Ext.P4 circular No. 29/2011. As one of the accused was Police personnel, an officer of the rank of the Circle Inspector ought to have conducted the investigation.
(3) The trial Court ought to have ordered further investigation in the matter as the petitioner has the locus standi to apply for further investigation.
6. The learned counsel for respondent Nos. 7 to 11 made the following submissions:
(2) No circumstances have been made out warranting a further investigation into the matter.
(3) The petitioner has no right to say that a particular agency investigate the matter.
(4) Ext.P4 circular cannot override the provisions of the Code of Criminal Procedure.
(5) The petitioner had an equally efficacious remedy of filing a protest complaint.
(6) The petitioner cannot simultaneously file a criminal revision petition and a writ petition challenging the same proceedings.
(7) The long delay of 12 years would defeat the purpose of the prosecution.
7. The learned Public Prosecutor also supported the contentions of the learned counsel appearing for respondent Nos. 7 to 11.
8. The alleged incident happened on 12.7.2011. The father of the petitioner died on 11.7.2011 at the Medical College Hospital, Pariyaram. The petitioner is the only daughter. She has four brothers. The body of the deceased father was taken to the petitioner’s residence on 12.7.2011. The body was kept inside her house to facilitate the relatives and oth
The main legal point established in the judgment is the discretion of the Magistrate to order further investigation based on the facts of each case and the importance of fair and just investigation, ....
The main legal point established in the judgment is that further investigation is a statutory right of the police under Section 173(8) of Cr.P.C, and formal permission from the Court is required if t....
The accused has no right to seek further investigation after a charge sheet is filed, and discrepancies in evidence are to be resolved at trial.
Further investigation – Whether further investigation should or should not be ordered is within discretion of Magistrate who will exercise such discretion on facts of each case and in accordance with....
The court emphasized that further investigation must be justified by new evidence or deficiencies in the prior investigation, and the discretion to order it lies with the Magistrate based on case fac....
The investigation agency has the statutory right to conduct further investigation under Section 173(8) of the Code of Criminal Procedure without seeking permission from the Magistrate.
Further investigation – Police ought to follow procedure of seeking permission from Court to conduct “further investigation” and file supplementary chargesheet – Power to direct further investigation....
The accused do not possess the right to request further investigation under Section 173(8) of the Cr.P.C., as this power is reserved for the investigating agency and the court, ensuring that the inve....
The Magistrate cannot treat a case as a complaint after taking cognizance based on a charge-sheet; further investigation rights lie with the police.
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