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2009 DIGILAW 384 (KER)

Thomas v. Achamma Thomas

2009-05-22

KURIAN JOSEPH, S.R.BANNURMATH

body2009
Judgment :- S.R. Bannurmath, C.J. This appeal is filed by the appellant/accused challenging the order dated 10th January, 2008 passed by the learned Single Judge in W.P.(C) No.29856/2007. 2. The brief facts necessary for consideration are as follows: The Writ Petitioner is the wife of the appellant. With her mother she is stated to be a resident of Malampara in Thalapalam Village within the limits of Erattupetta Police Station. It appears, there are some domestic differences between the writ petitioner and her husband, the appellant herein since long and their married life has gone astray. In respect of an incident on 1.9.2007, it is stated that, as the writ petitioner was assaulted by her husband the accused, a criminal case in Crime No.321 of 2007 of Erattupetta Police Station is registered. Originally, the offences against the accused were under Ss. 450, 353, 354 and 395 I.P.C.. However, according to the writ petitioner, even though these offences were clearly found by the jurisdictional police to have been committed by the accused, because of the undue influence used by the accused, the police have not taken up any effective investigation and in fact, according to the petitioner, they have registered a case for the offences only under Ss.498-A, 354 and 427 read with 34 I.P.C. instead of under Ss.450, 353, 395 and 354 I.P.C. According to the petitioner, as the husband/accused is very influential, the police may not conduct an honest investigation and hence she approached this court in the Writ Petition with the following prayers. (i) to call for the records leading to Exhibit P-3 and issue a writ of mandamus or other appropriate writ, direction or order directing the respondent to entrust the investigation of Crime No.321/2007 of the Erattupetta Police Station to some other officers outside the Sub-Division or to officers of higher rank or to some other agency of the State Police; and (ii) to grant such other relief as this Honourable Court may deem fit in the circumstances of the case. 3. 3. After issuance of the notice and objections filed by the State Investigating Agency, the matter was finally heard and by the impugned order, learned Single Judge observed that from the statements it appears that offences under Ss.363, 367, 384, 385 and 392 I.P.C. though are made out, no attempt has been made by the investigating agency to include them in the final or additional report and as such, investigation has to be entrusted with another investigating agency, namely, Circle Inspector of Kottayam Sub Division. Accordingly, the Superintendent of Police, Kottayam was directed to entrust the investigation of the case for the offences under Ss.363, 367, 384, 385 and 392 I.P.C. to Circle Inspector of Police within the Kottayam Sub-Division, instead of the jurisdictional police, Circle Inspector of Police, Erattupetta. 4. Aggrieved by the same, the accused/husband has filed this Writ Appeal. It is contended on behalf of the appellant that as he is an accused in a crime registered by the jurisdictional police, without giving him opportunity, learned Single Judge was not justified in altering the offences as well as changing the investigating agency. It is contended that as the principles of ' audi alteram partem' is violated, in not making the accused a party and giving him opportunity to defend himself, the impugned judgment is liable to be set aside. 5. We have heard the counsel on both sides as well as the State Prosecutor. In our view, at the stage of filing of charge sheet/final report there is no provision or requirement of hearing the accused. Only the investigating agency, the complainant and the concerned jurisdictional Magistrate has anything to do with the matter at that stage. There is absolutely no provision or necessity for the accused to be heard at the stage of filing the final report. It is a well settled position that, if the accused intends to challenge the final report, it is open for him to seek appropriate remedy available under the Cr.P.C. 6. However, though the appellant/accused has no right at that stage of being heard, in view of the question involved about the propriety and procedure to be followed by the High Court especially while exercising inherent jurisdiction whether under S.482 Cr.P.C., or exercising jurisdiction underArt.226 of the Constitution of India, we have given our consideration on the challenge of the order of the learned Single Judge. The Apex Court in the case of Sakiri Vasu v. State of U.P. (2008 (1) KLT 724 (SC)), has laid down the guidelines, following the principles settled by the Apex Court in the cases of C. B. I. v. Rajesh Gandhi (1997 Crl.LJ.63), Mohd. Yousuf v. Snit. Afaq Jahan & Anr. (2006 (1) KLT 939 (SC) = JT 2006 (1) SC 10), Dilawar Singh v. State of Delhi (JT 2007 (10) SC 585), and State of Bihar v. A.C. Saldanna (AIR 1980 SC 326). Considering the catena of decisions and the procedure laid down under Criminal Procedure Code, it is clear that investigation is the prerogative of the investigating agency. No one can insist that the offence be investigated by a particular agency or in a particular manner. After filing the F.I.R., even without any order of the Magistrate, the investigating agency having jurisdiction over the local area has to proceed with the investigation as provided in this regard under S.157 Cr.P.C. After completion of the investigation, the investigating agency has to file the report which is normally called as `charge sheet'. At this stage, it is for the jurisdictional Magistrate to satisfy himself that the investigation proceeds in proper manner and if, according to him, any further investigation has to be done, under the provisions of S.190 Cr.P.C. he can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case. Hence, in our view, enough mechanism has been provided so far as the correctness or otherwise of the investigation is concerned. S 156(3) Cr.P.C. provides for a check by the Magistrate on the police performing its duties under Chap. Xllof Criminal Procedure Code and in cases where the Magistrate finds that the police has not done its duty of investigating the case satisfactorily, he can give direction to the police to do the investigation properly and can monitor the same. It is to be noted that the power of the Magistrate to order investigation under S.156(3) Cr.P.C. is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide S.173(8). The Magistrate has enough power and jurisdiction to order reopening of the investigation even after the police submits its final report, as laid down in the aforesaid decisions. The Magistrate has enough power and jurisdiction to order reopening of the investigation even after the police submits its final report, as laid down in the aforesaid decisions. In our view, S. 156 (3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done or is not being done by the police. Since the Criminal Procedure Code provides wide powers for the Magistrate to direct registration of F.I.R. and ensure proper investigation, the High Court should discourage the practice of filing Writ Petitions or filing petition under S.482 Cr.P.C., simply because the complainant has a grievance that his/her complaint is not properly investigated by the investigating agency. No doubt, it is true, filing of Writ Petition is not absolutely barred, but it is well settled, if there is alternative and efficacious remedy provided under the provisions of the concerned Act, normally the High Court should not interfere by exercising the extra ordinary jurisdiction underArt.226 of the Constitution of India. 7. Giving our anxious consideration to the entire fact scenario, we find that entertaining the Writ Petition of the complainant herein by the learned Single Judge was erroneous and contrary to the principles laid down in the aforementioned decisions of the Apex Court. It is open to the writ petitioner to approach the Magistrate under S.156 (3) Cr.P.C. Instead of rushing to the High Court by way of Writ Petition, she should have approached the jurisdictional Magistrate. Moreover, there is also further remedy available to the complainant by filing a criminal complaint as provided under S.200 Cr.P.C. In such cases, in our considered view, as the complainant has alternative and efficacious remedy, she should not be permitted to invoke either the inherent jurisdiction under S.482 Cr.P.C. or the extraordinary jurisdiction under Art. 226 of the Constitution of India. 8. It is to be noted, in the present case, practically the learned Single Judge has concluded that certain offences, which according to the investigating agency were not found out, are made out. The High Court underArt.226 of the Constitution of India, shall not make such observations at the stage of investigation. 8. It is to be noted, in the present case, practically the learned Single Judge has concluded that certain offences, which according to the investigating agency were not found out, are made out. The High Court underArt.226 of the Constitution of India, shall not make such observations at the stage of investigation. Therefore, the direction to include these offences by filing additional report is, in our view, erroneous. Similarly, it is well settled that, normally the High Court will not investigate as to the propriety of a particular investigating agency to conduct the investigation. As held in the case of Sakiri Vasu, (supra), no one can insist that an offence be investigated by a particular agency. An aggrieved person can only claim that the offence he alleges be investigated properly and as such, the change of investigating officer by the learned Single Judge is also erroneous and unsustainable. 9. For the reasons stated above, we allow the appeal, set aside the impugned judgment dated 10th January, 2008 passed by the learned Single Judge in W.P.(C) No.29856 of 2007 and dismiss the Writ Petition. However, the writ petitioner/ de facto complainant is at liberty to approach the jurisdictional Magistrate under S.156(3) Cr.P.C. or even institute a private complaint under S.200 Cr.P.C. at the appropriate stage to put forward her grievance of non inclusion of certain offences by the investigating agency. If such a request is made under S.156 (3) Cr.P.C. it is open to the Magistrate to apply his mind and if required, to order further investigation.