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2023 DIGILAW 750 (KER)

Raveendran Nair S/o Shiva Sankara Pillai v. Police Assistant Commissioner, Thiruvananthapuram

2023-09-27

DEVAN RAMACHANDRAN

body2023
JUDGMENT : DEVAN RAMACHANDRAN, J. 1. The petitioner calls into question the validity of Ext.P11 order issued by the Second Additional Sub Judge, Thiruvananthapuram, in O.S. No. 225/2019. 2. Sri. S. Sreekumar, learned Senior Counsel, instructed by Sri. R. Gopan - learned counsel for the petitioner, explains that the afore suit was filed by his client against the 2nd respondent herein, seeking declaration of title and possession over the plaint schedule property, on the strength of a ‘Will’ dated 15.02.2016, issued by a certain Sri. Jayamadhavan Nair and for a consequential decree of injunction, restraining the defendant/2nd respondent herein, from trespassing into it, or obstructing his peaceful enjoyment. 3. Sri. S. Sreekumar explained that, while so, the 2nd respondent herein approached the Police with a complaint that the ‘Will’ is a forged one and that an investigation has been launched based on it, by registering Crime No. 2201/2019, and charging his client under Sections 34, 406, 420, and 506, read with Section 120(b), of the Indian Penal Code (IPC), arraying him as the 1st accused therein. He says that it transpires that the Investigating Officer - the 1st respondent herein, obtained a certified copy of the ‘Will’ from the Trial Court and then moved I.A. No. 2786/2019, averring that the investigation reveals that said document is forged and therefore, sought that its original - which had been produced before the said Court - be sent for forensic evaluation. The learned Senior Counsel contended that, even though the application filed by the 1st respondent does not state under what provision the prayers therein have been impelled, the learned Sub Judge allowed it in a mechanical fashion, through Ext.P11 order and that his client has been, therefore, constrained to approach this Court, through this Original Petition. He then added that his client has, in fact, also moved an application for sending the “Will” in question for forensic examination; and asserted that the learned Trial Judge, therefore, ought not to have considered or allowed the application filed by the Investigating Officer, in the manner as has been recorded in Ext.P11. 4. He then added that his client has, in fact, also moved an application for sending the “Will” in question for forensic examination; and asserted that the learned Trial Judge, therefore, ought not to have considered or allowed the application filed by the Investigating Officer, in the manner as has been recorded in Ext.P11. 4. In response, Smt. Rekha C. Nair - learned Government Pleader, submitted that law has now been well settled that, if, in the course of investigation, it is found that a document in possession of a Court is required to be sent for forensic examination, or to be subjected to any other legally sanctioned assessment, the Investigation Officer can certainly approach the said Court for such reliefs. She pointed out that this power is traced to Section 91 of the Code of Criminal Procedure, or to Order XIII Rule 13 of the Code of Civil Procedure and that it is in such manner that I.A. No. 2786/2019 had been filed by the 1st respondent - Investigating Officer. She thus argued that Ext.P11 is irreproachable. 5. Sri. B. Raman Pillai, learned Senior Counsel, instructed by Sri. Thomas Sabu - learned counsel for the respondents, in refutation of the assertions of the petitioner, argued that, since his client had already filed a complaint before the Station House Officer, Karamana, based on which Crime No. 2201/2019 had been registered, it was well within the powers of the 1st respondent to have filed I.A. No. 2786/2019, seeking that the ‘Will’ in question be sent for forensic examination; and asserted that, this will not, in any manner, prejudice the petitioner/plaintiff. He predicated that the impugned order issued by the learned Sub Judge, namely Ext.P11, does not trammel upon any of the remedies of the petitioner in the suit; and that it has been done only in furtherance of the objective of ensuring that the investigation into the afore said Crime is able to be conducted and concluded properly, particularly when the original document is in the custody of the Trial Court. 6. I have evaluated and considered the afore rival submissions very intently. 7. As the afore narrative would show, this is a case in which the 2nd respondent herein filed a criminal complaint against the petitioner, based on which, the afore said Crime has been registered against the latter under various provisions of IPC, as mentioned above. 6. I have evaluated and considered the afore rival submissions very intently. 7. As the afore narrative would show, this is a case in which the 2nd respondent herein filed a criminal complaint against the petitioner, based on which, the afore said Crime has been registered against the latter under various provisions of IPC, as mentioned above. It discloses from the averments contained in Ext.P6 application filed by the Investigating Officer that, a certified copy of the ‘Will’ in question had been obtained by him earlier from the court; and that his investigation revealed that it is, prima-facie, a forged one. It is on such basis, that the said Officer moved an application seeking that the learned Sub Court send the “Will” for forensic analysis. This has been allowed by the learned Judge, adverting to various binding precedents; and holding that, when an Investigating Officer makes such a request, it is bound to be acceded to because, it will aid investigation with respect to the document. 8. When I examine Ext.P11, it is rendered luculent that the learned Sub Judge had issued it without adverting to any particular provision of law. In fact, Ext.P6 Application - namely I.A. No. 2786/2019 - also does not state any provision at all; but seeks that Trial Court send the disputed ‘Will’ for forensic examination. 9. It must be borne in mind that the Investigating Officer is not a party to this suit; and obviously, therefore, he could have sought any relief only as per the provisions of the applicable law, either under Section 91 of the Cr.P.C. or under Order XIII, Rule 8 of the CPC, to have the document retained without being returned to the petitioner; or invoking the inherent power of the Civil Court under Section 151 of the CPC. However, there is no mention, either in the application filed by the Investigating Officer, or in the impugned order, under what statutory mandate the ‘Will’ has been ordered to be sent to the Forensic Laboratory. The Trial Court also does not explain how such a prayer was found to be maintainable or tenable, particularly when the afore mentioned provisions would only enable the Investigating Officer of the Crime to obtain custody of the document, if an application had been made seeking that it be not returned to the petitioner herein, namely, the plaintiff in the suit. 10. 10. When the impugned order remains so amorphous, without any provision of law being adverted to, I am certain that it cannot be granted imprimatur by this Court. 11. I am, therefore, of the firm view that the application of the 1st respondent will have to be reconsidered by the learned Sub Judge, Thiruvananthapuram, in its proper persepective, after hearing both sides and within the conspectus of the powers and liberties available to an Investigating Officer, going by various binding precedents that cover the field. 12. In the afore circumstances, this Original Petition is allowed and Ext.P11 is set aside; with a consequential direction to the learned Sub Judge, Thiruvananthapuram, to reconsider the matter in terms of my above observations, after hearing both sides again; thus culminating in an appropriate order and necessary action thereon, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. 13. I am persuaded to the afore course also taking into account the submissions of Sri. S. Srekumar - learned Senior Counsel, that his client has already moved an application before the Trial Court for forensic evaluation of the ‘Will’ in question and this will certainly be kept in mind by the learned Judge, while the exercise, as ordered above, is completed. 14. This Original Petition is thus ordered.