Backar Haji vs State of Kerala

K. Ramakrishnan, J.—This is an application filed by the petitioner who is the defacto complainant (wrongly shown as accused in the cause title) in CC.No.120/2007 (Crime No. 78/2004 of Pavaratty police station) challenging the order of the learned Magistrate in Crl.M.P.No.13163/2008 under section 482 of Code of Criminal Procedure.

It is alleged in the petition that the petitioner is the defacto complainant in CC.No.120/2007 pending before the judicial First Class Magistrate Court, Chavakkad. Petitioner originally filed a private complaint before the Judicial First Class Magistrate Court, Chavakkad against the respondents 2 to 4 alleging offences under section 406, 420, 447 and r/w 34 of Indian Penal Code. The complaint was forwarded to the police for investigation under section 156(3) of Code of Criminal Procedure by the learned Magistrate and on receipt of the same, Crime No. 78/2004 of Pavaratty police station was registered and after investigation, they originally filed a refer report. But the learned Magistrate returned the same as per Annexure-C order and thereafter, they conducted further investigation and then submitted Annexure-B final report and the learned Magistrate had taken cognizance of the case as CC.No.120/2007 and that is pending before that court. Later, when the petitioner made enquiries, he came to understand that the document by which they wanted to assign the property does not confer any right on the executants and suppressing this fact, they have entered into agreement with the petitioner to lease the property and he wanted further investigation for the purpose of getting this document seized and produced before court and for that purpose he filed Crl.M.P.No.13163/2008 under section 173(8) of Code of Criminal Procedure for further investigation and that was dismissed by the learned Magistrate by Annexure-H impugned order which is under challenged.

Notice was ordered to respondents 2 to 4 on admission. Respondents 2 and 4 appeared through counsel. Notice of third respondent returned "door locked" and addressee left. Since it is in the admission stage, and respondents 2 and 4 who are accused numbers 1 and 3 in the lower court appeared and the party respondents are brothers, and the interest of the third respondent can be protected by respondents 2 and 4, who are accused as 1 and 3 in the lower court, this court feels that there is no need to hear the third respondent on admission as the hearing of respondents 2 and 4 on this common issue will be sufficient, though, the counsel for the respondents 2 and 4 submitted that they are not in good terms with the third respondent. So further notice to third respondent is dispensed with.

Heard the counsel for the petition, counsel for the respondents 2 and 4 and the learned Public Prosecutor.

The counsel for the petitioner submitted that being a defacto complainant, he cannot produce the documents by himself, and he can only do the same through the learned Assistant Public Prosecutor of the court and the new evidence can be let in a criminal case only by virtue of collecting evidence under section 173(8) of code of criminal procedure for that purpose further investigation is required.

On the other hand, the counsel for the respondents 2 and 4 submitted that the right of the defacto complainant further evidence if any required has been protected in the order itself and so for that purpose, further investigation is not necessary and that will prolong the case as even now, nearly ten years have lapsed after registration of the crime.

The learned Public Prosecutor also submitted that there is no necessity for further investigation for that purpose.

It is an admitted fact that on the basis of a private complaint filed by the petitioner, who is the defacto complainant before the Judicial First Class Magistrate Court, Chavakkad, alleging offences under section 406, 420, 447 and r/w 34 of Indian Penal Code against the respondents 2 to 4, which was forwarded to the police for investigation under section 156(3) of the Code of Criminal Procedure. The Pavaratty police had registered crime No. 78/2004 of that police station and after investigation, earlier they filed refer report stating that it is of a civil nature. Thereafter the defacto complainant filed Crl.M.P.No.11387/2005 as an objection to the refer report, then as per Annexure-C order the learned Magistrate returned the refer report for further investigation and it is thereafter, that further investigation was conducted and Annexure- D final report was filed and the case was taken on file as CC.No.120/2007 by the learned Magistrate and the accused for appearing for that case. The petitioner filed Crl.M.P.No.13163/2008 seeking for further investigation on the ground that certain documents relied on by the accused for the purpose of granting the lease do not confer any right on them to execute the document and that document was not seized by the police and that document came into the possession of the petitioner only later and for the purpose of collecting this additional evidence further investigation is required. But while dismissing the application, the learned Magistrate has observed as follows:-

"The defacto complainant can produce all the relevant document at any time before the court for substantiating his contention for which further investigation is not necessary". So that implies the right of the petitioner has been protected to adduce evidence before the court on these aspects invoking the power under section 311 of Code of Criminal Procedure.

If the petitioner applies for reception of additional documents through the Assistant Public Prosecutor, it is for the court to consider as to whether that has to be accepted or not, considering the principles laid on under section 311 of Code of Criminal Procedure at that time and pass appropriate orders. Accordingly, this court also feels that for that purpose further investigation is not required under section 173(8) of Code of Criminal Procedure and the right of the petitioner has been rightly protected by the impugned order itself. So this court does not find any illegality in the order passed by the court below, dismissing the application, reserving the right of the petitioner, to produce those documents and consideration of those documents by that court in accordance with law.

With the above directions and observations, this Criminal Miscellaneous case is disposed of.