Thomas, V.C. vs Achamma Thomas and Another

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.

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 Sections 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 Sections 498A, 354 and 427 read with 34 I.P.C. instead of under Sections 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.

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 Sections 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 Sections 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.

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 die 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.

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 Code of Criminal Procedure.

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 u/s 482 Code of Criminal Procedure, or exercising jurisdiction under Article 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 (S.C.) 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. L.J. 63, Mohd. Yousuf v. Smt. Afaq Jahan and Anr. J.T. 2006 (1) S.C. 10, Dilawar Singh v. State of Delhi J.T. 2007 (10) S.C. 85 and State of Bihar and Another Vs. J.A.C. Saldanha and Others, . Considering the catena of decisions and the procedure laid down under Code of Criminal Procedure, 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 u/s 157 Code of Criminal Procedure. 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 Section 190 Code of Criminal Procedure 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. Section 156(3) Code of Criminal Procedure provides for a check by the Magistrate on the police performing its duties under Chapter XII of Code of Criminal Procedure 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 u/s 156(3) Code of Criminal Procedure 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 Section 173(8). The Magistrate has enough power and jurisdiction to order re-opening of the investigation even after the police submits its final report, as laid down in the aforesaid decisions. In our view, Section 156(3) Code of Criminal Procedure 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 Code of Criminal Procedure 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 u/s 482 Code of Criminal Procedure 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 extraordinary jurisdiction under Article 226 of the Constitution of India.

Giving our anxious consideration to the entire fact scenario, we find that the 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 u/s 156(3) Code of Criminal Procedure. 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 u/s 200 Code of Criminal Procedure In such cases, in our considered view, as the complainant has alternative and efficacious remedy, she should not be permitted to invoke cither the inherent jurisdiction u/s 482 Code of Criminal Procedure or the extraordinary jurisdiction under Article 226 of the Constitution of India.

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 under Article 226 of the Constitution of lndia, 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, enoneous. Simil arly, it is well-settled that, nonnally 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.

For the reasons stated above, we allow the appeal, set aside the impugned judgment dated 1Oth 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 u/s 156(3) Code of Criminal Procedure or even institute a private complaint u/s 200 Code of Criminal Procedure 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 u/s 156(3) Code of Criminal Procedure it is open to the Magistrate to apply his mind and if required, to order further investigation.