Assainkutty Haji vs Koyamon

K. Ramakrishnan, J.—This is an application filed by the petitioners for proper investigation in the matter of Crime No. 185/2014 of Kunnamangalam police station and issuing necessary direction in this regard under Article 226 of Constitution of India.

It is alleged in the petition that, first petitioner herein is the injured and de facto complainant in Crime No. 185/2014 of Kunnamangalam police station and petitioners 2 and 3 are the other injured. On 21.02.2014, at 9 p.m., respondents 1 to 4 and identifiable persons trespassed into the house of the first petitioner, armed with deadly weapons and inflicted injuries on them, and thereby all of them have committed the offence punishable under section 143, 144, 147, 452, 506(ii) and 294(b) r/w. section 149 of Indian penal Code, on the basis of the statement given by the first petitioner Crime No. 185/2014 was registered alleging commission of the above said offences. Earlier, investigation was conducted by another Sub Inspector, attached to the Kunnamangalam police station. Respondents 5 and 6 are influential persons both financially and politically. Due to their influence, thereafter, investigation was taken over by seventh respondent, and he conducted investigation in an imperfect manner, with a view to help the accused and deleted section 452 of Indian Penal Code. In fact the allegations are sufficient to even attract section 354A and 308 of Indian Penal Code as well. The investigation was not properly conducted. So the petitioners have no other remedy except to approach this court seeking the following relief:-

(i) "to pass an order directing the 8th respondent to take over the investigation into crime No. 185/2014 of the Kunnmangalam Police Station and further.

(ii) to pass an order directing the 8th respondent to conduct the investigation into crime No. 185/2014 of the Kunnamangalam Police Station in a free and fair manner and to conclude the same as expeditiously as possible".

Seventh respondent filed a statement which reads as follows:-

The above writ petition is filed praying for the issuance of a writ of mandamus directing the 8th respondent to take over the investigation into Crime No. 185/2014 of the Kunnamangalam Police Station and further to direct the 8th respondent to conduct the investigation into above Crime in a free and fair manner and to conclude the same as expeditiously as possible, etc.

It is humbly submitted that the prayer of the petitioner is unsustainable as he has no legal right to insist that the investigation of crime is to be conducted by a particular officer or agency of his choice.

It is respectfully submitted that Crime No. 185/2014 of Kunnamangalam Police Station was registered on the strength of the statement given by the petitioner herein on 22.02.2014 while he was undergoing treatment at KIMS Hospital, Koduvaly u/s. 143, 144, 147, 452, 506(ii), 294(b) r/w 149 IPC. The brief of the case is that respondents 1 to 4 herein along with four others have trespassed in to the residential building of the de facto complainant on 21.02.2014 at 9 am armed with deadly weapons, attempted to cause stab injury to him by waving a knife against de facto complainant but the attempt could not be successful since he wriggled out from the same. It is also alleged that on hearing the hue and cry of the de facto complainant, the 2nd petitioner Safiya who was coming rushing from inside the house was also attacked by the accused persons. They caught hold of the neck of Smt. Safiya and threatened her with dire consequences. It is further alleged that the accused persons also attempted to attack the 3rd petitioner also and abused using filthy languages.

It is submitted that the Investigation of the above crime was conducted by the S.I. of Police. He visited the place of incident. As per the statement the incident had taken place at the residential building known as "Vazhipokkil House", Pathimangalam, Kunnamangalam. The Investigating Officer has recorded statement of the de facto complainant as well as petitioners 2 and 3 herein. The de facto complainant Mr. Assain Kutty Haji has given statement in the same line as what he has stated in the F.I. statement. But the 2nd petitioner Smt. Safiya has given a statement to the effect that she was not attacked by the assailant as stated in the complaint instead she sustained injury in the incident while the accused persons forcefully attempted to open the sit-out gate of the house. As per her statement, the 3rd petitioner Nasreena who was staying in the near by house also came to their residence hearing the hue and cry of Smt. Safiya. This statement is contradictory to the statement of the de facto complainant in the complaint. The investigating officer has recorded the statement of one Koyassan, S/o. Moideen, Puthalath House, on 28.02.2014. As per his statement he was staying in a house situated opposite to the house of the de facto complainant. According to him on 21.02.2014 at about 9 am while he was standing in the courtyard of his house it was seen that a group of persons proceeding to the house of Assain Kutty Haji and talking to him from the sit out of the house. After about 10 minutes Smt. Safiya, the daughter of Assain Kutty Haji came in an autorickshaw bearing No. KL-57C 8979 and alighted in the courtyard and shouted at the accused and there was an altercation. According to him on hearing the noises from the house Nasreena also came to the spot. The neighbors namely Manappatt Khader and Abdul Samad were also watching the incident from the nearby road. According to the said witnesses the accused persons namely Imbava and Koyamon were standing in the courtyard but they were not having any weapons with them as alleged in the complaint. The said witness also has given statement to the fact that he has not seen any altercation with the de facto complainant or his daughter Safiya. The investigating officer recorded the statement of one Mr. Khader, Manappatt House, who is the neighbor of the de facto complainant. According to him also no altercation as stated in the complaint has taken place. He has stated that Smt. Safiya has come to the house in an Autorickshaw and she shouted at some of the persons standing in the courtyard requiring them to leave the place and questioned their act of visiting the house demanding money back when her father was not there in the house. According to this witness Sri. Imbava and Koyamon threatened Mr. Assain Kutty Haji while leaving the house. According to the above named witness, the accused persons were not in possession of any weapon or made any altercation with the de facto complainant or with any of the inmates of the house. To corroborate the statement of the above witnesses the investigating officer has recorded the statement of Sri. Ummer N.C., S/o. Kunhammed Melachaliyil House, Kunnamangalam, the Autorickshaw bearing No. KL 57 C 8979. According to him Smt. Safiya boarded his Autorickshaw from her house near Padanilam and she was taken to Assain Kutty Haji''s residence at Pathimangalam. When they reached the residence he has seen Imbava, Koyamon, Siddique and Mansoor at the place of occurrence. Except Imbava and Koyamon others were inside the house. On seeing the accused person Smt. Safiya shouted at the accused person demanding them to leave the place. On hearing the noises other neighbors also gathered. Smt. Safiya paid him Rs. 20/- towards auto charges. When he was returning back, some of the accused persons were still standing therein but he has not seen any weapon. The investigating officer also examined one P.A. Ayoob Khan, S/o. Pakkeer Muhammed, Palachalil House, Kalpetta who according to the petitioner had witnessed the incident. As per the statement of the said witness there was some verbal altercation between the ladies and the accused persons from the courtyard of the Assain Kutty Haji''s residence. He had also stated that he did not see any weapon with the accused persons.

It is humbly submitted that the investigating officer has collected Accident Register cum Wound Certificates of the de facto complainant and Smt. Safiya. Smt. Safiya had preferred a complaint before the Commissioner of Police, Kozhikode alleging that the present investigating officer is not conducting the investigation properly and that the investigating officer is acting as per the directions of respondents 5 and 6 in the writ petition. It is alleged by her that she was beaten up by Imbava, Siddique and Mansoor. But the investigating officer could not collect any evidence either oral or documentary to corroborate the version of Smt. Safiya. As per the wound certificate, the de facto complainant and Smt. Safiya have no serious injuries on their body.

It is humbly submitted that the investigating officer has questioned and examined the de facto complainant Assain Kutty Haji, daughter Safiya and Nasreena the daughter-in-law of Assain Kutty Haji. The investigating officer has also examined and recorded the statement of eye witnesses including two neighbors, autorickshaw driver etc; the investigation has revealed that there were some civil dispute pertaining to an Automobile workshop namely "Friends Motor Works" at Nadakkavu and the litigation with respect to the Work shop culminated in eviction of the lessee from the leased out premises.

It is submitted that the investigation revealed the fact that the accused persons had trespassed into the residential building of the de facto complainant and had a verbal altercation with the de facto complainant. The investigation has not revealed an offence U/s. 452 of IPC. However the act of the accused persons amounts to offence U/s. 448 of IPC. Accordingly the investigating officer has filed a report before the Hon''ble JFCM Kunnamangalam, for deleting the offence of 452 IPC and for incorporating criminal offence of section 448 IPC in the charge sheet. The investigating officer has arrested the accused person namely 1. Jafar @ Imbava, S/o. Koyassan Haji, 2. Ashraf, S/o. Muhammed Ali, Siddique. K.C., S/o. Koyapperi, Mansoor. K.C., S/o. Koyapperi. The arrested persons were identified by the de facto complainant and his daughter Smt. Safiya from the police station on 08-03-2014. They were released on bail with solvent sureties from the police station on 08-03-2014. On enquiry it is disclosed that the 2nd accused Koya Mon, S/o. Ahammed is absconding. The investigating officer has questioned and examined all the available witnesses which revealed that offences U/s. 143, 144, 447, 448, 506(i), 294(b) r/w 149 IPC alone were committed by the accused. The investigating officer could not collect any evidence for incorporating an offence punishable U/s. 452 IPC against the accused persons. Therefore the said section was deleted and section 448 IPC was incorporated and charge sheet was filed against the above named accused persons before the Hon''ble JFCM Court, Kunnamangalam. The Hon''ble JFCM Court, Kunnamangalam has accepted the charge sheet filed in Crime No. 185/2014 U/s. 143, 144, 447, 448, 506(i), 294(b) r/w 149 IPC and numbered the case as C.C. 409/2014 which is pending.

It is respectfully submitted that the Investigating Officer has conducted just, fair, proper and impartial investigation into the above crime and the allegation contrary to the same are false and hence denied. Since the investigation has already been completed and the charge sheet has been filed before the Hon''ble Judicial First Class Magistrate Court, Kunnamangalam as early as on 22.03.2014, the prayer of the petitioner cannot be allowed. If the petitioner has any grievance against the final report, he is at liberty to approach the Hon''ble JFCM Court, Kunnamangalam raising his objections.

It is humbly submitted that the above writ petition is devoid of any merit and the petitioner is not entitled to get any of the reliefs claimed. Hence the above writ petition may kindly be dismissed.

All the facts stated above are true and correct.

Heard the counsel for the petitioner and the learned Public prosecutor.

The counsel for the petitioners submitted that, investigation was not properly conducted and since final report has already been filed, he may be given the liberty to file proper complaint if any before the appropriate court.

The application was opposed by the learned Public Prosecutor.

It is an admitted fact that, on the basis of the statement given by the first petitioner, Annexure-A crime was registered as crime No. 185/2014, of Kunnamangalam police station alleging offences under section 143, 144, 447, 452, 506(ii) and 294(b) r/w section 149 of Indian Penal Code. According to the petitioner, the investigation was not properly conducted. Even the grave offence were deleted and minor offences have been incorporated. It is seen from the statement filed by the investigating officer that on the basis of the materials collected and offence under section 452 has not been attracted but only offence under section 447, 448 of Indian Penal Code along with other offences have been committed. Accordingly, section 452 of Indian penal Code was deleted and final report was filed alleging offences under section 143, 144, 447, 448, 506(i), 294(b) r/w section 149 of Indian Penal Code before the Judicial First Class Magistrate Court, Kunnamangalam, and the case was taken on file as CC. 409/2014, before that court. If the petitioner is aggrieved by the action of the police, in not properly incorporating the necessary offences and implicating the real person then, the remedy of the petitioners to file a proper complaint before the Judicial First Class Magistrate Court, Kunnamangalam stating all these facts and adduce further evidence and the learned Magistrate can on the basis of evidence pass appropriate orders on that complaint as the police has already conducted investigation and submitted a final report in the matter.

With the above liberty and observations, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately.