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2017 DIGILAW 769 (KER)

CHANDRAN @ KUNJALA v. STATE POLICE CHIEF

2017-04-21

MARY JOSEPH

body2017
JUDGMENT : The petitioner, the sole accused in Crime No.747/2009 of Kilimanoor Police Station, which is pending as SC No.551/2010 on the files of the Additional Court of Sessions-IV, Thiruvananthapuram (for short 'the court below'), has approached this Court seeking the following reliefs: "1. to issue a Writ of Mandamus, Order or direction to respondents 1 to 3 to order a further investigation in Crime 747/2009 of Kilimanoor Police Station by a superior police officer and to submit a supplementary final report in the said crime. 2. In the alternative, to issue a Writ of Mandamus, Order or direction to the respondents 1 to 3 to order a further investigation in Crime No.747/2009 of Kilimanoor Police Station by the 4th respondent and to submit a supplementary final report in the said crime. 3. To issue a writ of mandamus, order or direction to the 1st respondent to consider and pass orders on Exhibit P5 at the earliest" 2. The facts of the case in brief are to the following effect: One Beena Kumari was murdered on 26.12.2009 due to the injuries sustained by her on her head with a hard object. The First Information Statement was lodged by one Praveen, who is none other than the son-in-law of the deceased as well as the petitioner herein. The 4th respondent conducted investigation in the matter and a charge sheet was laid against the petitioner, as evidenced by Ext.P2. The case was taken on file by the court below as SC No.551/2010, which framed charge against the accused after hearing the defence and the prosecution. Summons was issued to the witnesses and the trial was scheduled to be conducted on 14.03.2017. The trial could not be pursued with on the scheduled date as the daughter of the petitioner has moved an application before this Court as W.P.(C) No.40505/2016. The application was withdrawn by her later on. A petition was moved by the daughter of the petitioner as Crl.M.P. No.34/2017 before the court below, seeking for a stay of the trial proceedings in the case. The court dismissed the petition vide order dated 05.01.2017. Thereafter, the trial was re-scheduled to be held on 13.02.2017. On 13.02.2017, CWs. 1 to 4 were present and CWs. 6, 7, 8, 13 and 14 were absent. Accordingly, the trial was adjourned to 14.03.2017. The court dismissed the petition vide order dated 05.01.2017. Thereafter, the trial was re-scheduled to be held on 13.02.2017. On 13.02.2017, CWs. 1 to 4 were present and CWs. 6, 7, 8, 13 and 14 were absent. Accordingly, the trial was adjourned to 14.03.2017. In the meantime, this writ petition was moved by the petitioner, who is none other than the accused, seeking to issue necessary directions to the respondents to conduct further investigation in the matter in view of the matters divulged by his daughter to him. 3. The specific allegation made in the writ petition was that the person, who had lodged the F.I.R. Statement, is none other than the son-in-law of the petitioner, and is not a reliable person. It is contended that the said person was in love affair with the petitioner's daughter and a marriage was registered after procuring concurrence of the petitioner and his wife. The petitioner's daughter was aged only 18 years at the relevant time and was not in a position to understand the real state of affairs existing then. The son-in-law of the petitioner was an autorikshaw driver and he used to harass the petitioner's daughter. Accordingly, differences of opinion patched up and thereupon, the petitioner invited both of them to his house. The son-in-law extracted Rs.5 lakhs from the petitioner. He used to make constant demands for money from the petitioner. The petitioner and his daughter resisted and the son-in-law was frequent in raising threat that the petitioner and his wife would be killed. On 25.12.2009 also, the son-in-law of the petitioner, along with his daughter had come to the residence of the petitioner to demand money. After a heated exchange of words, the son-in-law murdered his wife. 4. The grievance of the petitioner was that based on the F.I. Statement lodged by the son-in-law that he was implicated into the crime as accused and was charge sheeted. According to him, at a very later stage, his daughter revealed to him about the role played by his son-in-law in the murder of his wife. Detailed representations have been lodged by his daughter before various authorities concerned, who are arrayed in the petition as respondents 1 and 2, seeking for an order for further investigation in the crime, based on the information divulged by his daughter, and those are evidenced by Exts.P3 and P4 appended to the writ petition. Detailed representations have been lodged by his daughter before various authorities concerned, who are arrayed in the petition as respondents 1 and 2, seeking for an order for further investigation in the crime, based on the information divulged by his daughter, and those are evidenced by Exts.P3 and P4 appended to the writ petition. At the time of recording of the statement of the daughter of the petitioner by the police, she was under threat and influence of her husband, who is the son-in-law of the petitioner and accordingly, she could not state the truth to them. She preferred W.P.(C) No.40505/2016 before this Court seeking further investigation, but later on vide judgment dated 27.02.2017, it was withdrawn after obtaining permission to challenge the order passed by the court below refusing her request for a further investigation. Thereafter, Ext.P5 representation was made before the 1st respondent on 26.02.2017 and that is evidenced by Ext.P6 receipt. Representation was also made before the 2nd respondent as evidenced by Ext.P7 receipt and that was forwarded to the 3rd respondent. Similar representations have also been made before the 4th respondent, but did not act upon. Since the trial stood scheduled to be held on 17.03.2017, the writ petitioner has approached this court seeking for a direction to the 4th respondent to conduct further investigation based on the facts divulged by his daughter against Praveen, his son-in-law. 5. Sri. James Abraham, the learned counsel representing the petitioner has advanced arguments extensively based on the averments made in the writ petition. The arguments advanced by the counsel were that the daughter of the petitioner was aged only 18 years at the relevant time of the murder of her mother and she was not aware of the real state of affairs existing at that time. According to the counsel, the daughter of the petitioner has a case that while recording her statement, the entire aspects narrated by her was not recorded by the Police, who was investigating the matter. According to the counsel, the lady realised that the information given by her was omitted to be recorded by the investigating officer, only when she met the prosecutor in connection with the trial. It was then, the entire matter was disclosed to the petitioner and accordingly, this writ petition was moved seeking for the reliefs. According to the counsel, the lady realised that the information given by her was omitted to be recorded by the investigating officer, only when she met the prosecutor in connection with the trial. It was then, the entire matter was disclosed to the petitioner and accordingly, this writ petition was moved seeking for the reliefs. The learned counsel also sought for a stay of the trial in the case, scheduled to be conducted on 13.02.2017 and later on, adjourned to 14.03.2017. 6. Smt. Sheeba K.K., the learned Public Prosecutor entered appearance for all the respondents in the case. She has also filed a statement based on the information supplied by the respondents. It is contended by the learned Public Prosecutor, based on the statement that the crime in question was registered by the S.I. of Police, Kilimanoor Police Station, on the strength of the statement lodged by the son-in-law of the petitioner. It is further submitted that after a detailed investigation based on the said First Information Statement, that the petitioner was charge-sheeted by the Police. According to her, the case is now scheduled for trial by the court below. The accused was absconding at the beginning of the trial. Thereafter, a petition was filed seeking for orders for further investigation in the case and the prayer in the petition was disallowed. After a long gap, the petitioner had filed another application seeking further investigation. According to the learned Public Prosecutor, the petitioner by doing so, is only intended to delay the trial of the case and thus to drag the prosecution proceedings. In the words of the learned P.P., the trial of the case was deferred solely due to abstinence of the witnesses of the prosecution from attending the court. According to the learned Public Prosecutor, there is absolutely no merit in the averments of the writ petitioner that the daughter being only aged 18 years at the relevant time and under the control of her husband was incapable to divulge the truth involved in the transaction in which her mother was killed and the writ petition is filed only as a tactics to delay and defeat the prosecution case. 7. The daughter of the petitioner was admittedly aged 18 years. A girl cannot be said to be without understanding capability at her age of 18 years. 7. The daughter of the petitioner was admittedly aged 18 years. A girl cannot be said to be without understanding capability at her age of 18 years. The case of the writ petitioner was that the real state of affairs was unveiled to him by his daughter at a later stage and representations have been moved by her to various authorities. According to him, those representations turned futile exercises, due to inaction of the authorities on those and accordingly, he was constrained to move the writ petition. 8. The writ petition is filed on 03.03.2017 i.e., eight years after the conclusion of the investigation and laying of the final report charge-sheeting the writ petitioner. Therefore, the delay occurred in seeking the relief of further investigation after a considerably long delay itself is a factor liable to vitiate the proceedings. The delay is immaterial if a genuine ground is there to support the claim of the petitioner. The ground projected to base his claim for re- investigation being divulgence of truth by the daughter of the writ petitioner at a belated stage cannot be taken as a valid and justifiable one, since the daughter was already questioned and her statement was recorded by the Police and it formed a part of the records of the case. 9. It is disclosed from the rival contentions so advanced by the respective counsel that the crime was registered in the year 2009, implicating the petitioner as an accused and that applications moved seeking further investigation on various occasions before different forums by the daughter of the writ petitioner were considered and rejected on valid grounds. This writ petition seeking further investigation, being filed at the fag end when the trial was scheduled to be held cannot be entertained mainly on the reason stated by the petitioner that, he was informed of the real state of affairs behind the murder of his wife by his daughter at a later point of time. 10. The scope for further investigation is dealt with under sub-section (8) of Section 173 Cr.P.C. and is extracted hereunder for the purpose of reference. 10. The scope for further investigation is dealt with under sub-section (8) of Section 173 Cr.P.C. and is extracted hereunder for the purpose of reference. "Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 11. It is clear on a reading of the provision supra that an officer in charge of the Police Station is empowered to apply for further investigation after filing a final report under sub-section (2) of Section 173 Cr.P.C. only on obtaining further evidence and after forwarding the same by a further report in the form prescribed, before the Magistrate having jurisdiction in the matter. Therefore, the accused in a case, charge-sheeted against him has no authority under sub-section (8) of Section 173 of Cr.P.C. to apply seeking for further investigation. The writ petition being filed by the accused without authority, is not maintainable in law and deserves to be dismissed. Accordingly, the writ petition is dismissed as not maintainable. No order as to costs.