LONAPPAN NAMBADAN Vs. DEPUTY SUPERINTENDENT OF POLICE
LAWS(KER)-2003-3-93
HIGH COURT OF KERALA
Decided on March 28,2003

LONAPPAN NAMBADAN Appellant
VERSUS
DEPUTY SUPERINTENDENT OF POLICE Respondents

JUDGEMENT

- (1.) This petition is filed under Art.226 of the Constitution of India to direct the 1st respondent to conduct further investigation in Ext. P3 case and to cure the defects and omissions occurred in filing Ext. P4 charge sheet. The petitioner herein had lodged a complaint before the Governor of Kerala regarding the construction work of Chimney Dam project in Thrissur District. It was alleged that respondents 3 to 10 are guilty of the offence punishable under S.13(2) read with S.13(1)(c) and (d) of the Prevention of Corruption Act and also under S.408, S.465, S.471 and S.120B of the Indian Penal Code. Since no action was taken on the said complaint, the petitioner filed O.P. No. 18763/95 before this Court praying for a high level enquiry in the matter and on the submission of the Government that the Government have directed an enquiry through Vigilance Department, the Original Petition was closed. The 1st respondent registered Crime No.11/97 against respondents 3 to 14 alleging the commission of the offences punishable under S.13(2) read with S.13(1)(d) of the P.C. Act and S.409, 477(a) and 120B of the Indian Penal Code. After the investigation, the 1st respondent laid the charge before the lower court. According to the petitioner, the investigation conducted by the 1st respondent was highly improper and unfair. It is alleged that the witnesses were not properly questioned during investigation and the questioning was confined to the allegation of misappropriation of cement. According to the petitioner, further investigation in the case is necessary to bring out the whole truth. Hence it is prayed that a direction may be given to the 1st respondent to conduct further investigation under S.173(8) of the Code of Criminal Procedure. In this case, admittedly on the basis of Ext. P4 final report filed by the investigating agency the lower court has taken cognizance of the offences against respondents 3 to 10. The learned counsel for the petitioner relied on the decision reported in Sri. B.S.S. v. Vishwandadha Maharaj v. State of A.P. ( AIR 1999 SC 2332 ) in support of his contention that even after taking cognizance of the offences, the court can order further investigation under S.173(8) of the Cr.P.C.
(2.) No doubt, it is settled position that even after taking cognizance of the offence, the police can conduct further investigation under S.173(8) of the Cr.P.C. and in such a situation, the court can also direct the police to conduct further investigation. The Supreme Court in Sri. B.S.S.V.V. Vishwandadha Maharaj v. State of A.P. (AIR 1999 SC 2332) observed as follows: 10. Power of the police to conduct further investigation, after laying final report is recognized under S.173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.), ( AIR 1979 SC 1791 ). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. 11. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in S.173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the Magistrate with such an obligation.
(3.) In this connection it is also relevant to note the decision of the Supreme Court in Union Public Service Commission v. S. Papaiah (1997 SCC (Crl.) 1112). In that case the informant (Union Public Service Commission) alleged that some of the vital points raised in its complaint had not been touched at all by the investigating agency during the investigation and therefore a re - investigation should be conducted in the case. The short comings necessitating reinvestigation pointed out to the investigating agency by the informant were not brought to the notice of the Magistrate while submitting the final report. The Supreme Court held that the acceptance of the final report and closure of the case by the Magistrate cannot be sustained. According to the Supreme Court, the Magistrate could have ordered further investigation in the case. In this case also it is alleged that the investigation had not been carried out properly and some of the important allegations raised by the petitioner had not been touched by the investigating officer during the investigation. But there are no reliable materials available on record to show that the investigation had not been carried out properly. According to the petitioner, the witnesses were not questioned by the investigating officer with reference to the allegations of misappropriation and also the allocation of huge amount for the additional work. If there are defects in the investigation as alleged by the petitioner, the petitioner is at liberty to approach the lower court since the matter is pending trial before the court below. In the absence of reliable materials on record, it is not just and proper for this Court to give a direction for further investigation under S.173(8) of the Cr.P.C. If the petitioner is not satisfied with the investigation he is at liberty to move the court below for appropriate reliefs. In the result, without prejudice to the right of the petitioner to approach the lower court, this petition is dismissed.;


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