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Aravindakshan and anr. Vs. State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1985CriLJ1389
AppellantAravindakshan and anr.
RespondentState of Kerala and anr.
Cases ReferredH. S. Bains v. State
Excerpt:
.....hands of the court are fettered in this respect after cognizance is taken. 25. there is a clear-cut and well demarcated sphere of activity in the field of crime detection a crime punishment. there is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the magistrate. xx xx xx 26. this view of the judicial committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary......in this respect are three fold. (1) especially after taking cognizance of the offence on a police report, the magistrate is not competent to order further investigation by the police. (2) the court is having the power to proceed under section 319 of the criminal p.c. in such cases and therefore the court cannot order further investigation seeking shelter under the provisions of section 173(8), and (3), such a direction regarding further investigation after taking cognizance is not available because other remedies like the filing of a fresh complaint or requesting the magistrate to call for a report under section 156(3) were available to the second respondent.12. in my opinion, the second and third contentions mentioned above do riot arise at all at present. further if the.....
Judgment:
ORDER

S. Padmanabhan, J.

1. This is a petition invoking the inherent jurisdiction of this Court under Section 482 of the Criminal P.C. The prayer is to quash Ext. P2 order passed on Ext. PI petition and all further proceedings in C.C. 46 of 1983 pending before the Judicial Magistrate of the First Class, Irinjalakuda. There is also a prayer that the petitioners may be dropped from the array of accused in the case. There are two petitioners.

2. The short question for consideration is whether Ext. 2 order was passed by the Magistrate without authority and as such an abuse of process of court which resulted in miscarriage of justice requiring interference at the hands of this Court by invoking the inherent power.

3. The short facts are : - Second respondent, Ramadevan, is the de facto complainant which was pending before the Judicial Magistrate of the First Class, Kodungallur as C.C. 102 of 1982. Subsequently that case was transferred to the file of the Judicial Magistrate of the First Class, Irinjalakuda and renumbered as C.C. 46 of 1983. Originally, when the case was pending before the Judicial Magistrate of the First Class, Kodungallur there were three accused namely, Babu, Jagadeesan and Gopalakrishnan. The offences for which that case was charge-sheeted were Sections 419 and 420 read with Section 34 of the Penal Code. Irrelated to an agreement of sale alleged to have been executed by the second respondent regarding 70 cents of land belonging to him in favour of the first petitioner, Aravindakshan on 15-12-1980. Rs. 22.000/- is alleged to have been received under agreement as advance.

4. Second respondent received a notice from the first petitioner on the basis of the agreement. When the notice was received, the second respondent filed a petition before the Superintendent of Police against the first petitioner and the abovesaid accused persons. That was forwarded to the Sub-Inspector of Police, Kodungallur. The Sub-Inspector registered crime No. 225 of 1981 of the Kodungallur Police Station for the abovesaid offences and investigated the case. Investigation revealed that the first petitioner has no hand in the crime. It was also revealed by investigation that the alleged agreement was forged at the instance of the three accused by impersonation. During investigation of that case, the present first petitioner was questioned. He took the stand that the agreement was not executed by the second respondent in his favour and that it was a forgery and impersonation at the instance of the accused. Therefore instead of implicating him as an accused he was made charge witness No. 2. The case was charge-sheeted only against the abovesaid three accused.

5. After the charge-sheet was filed and the Magistrate took cognizance of the offence, the first petitioner changed his attitude. He issued lawyer notice to the second respondent on the basis of the agreement as, if it was executed in his favour by the second respondent himself. Impleading the second respondent and Jagadeesan, one of the accused in the Criminal case, as defendants, he filed O.S. 215 of 1982 before the Subordinate Judge, Irinjalakuda for return of the advance amount received under the agreement. Therefore the second respondent filed Ext. PI petition before the Magistrate requesting that further investigation may be made regarding the complexity of the first petitioner and others as a whole. He also alleged commission of other offences requiring further investigation. By Ext P2 order dated 23-11-1982, the Magistrate allowed the prayer and ordered further investigation by the Circle Inspector of Police. As a result of further investigation, Babu (first accused) was deleted from the array of the accused and a further report was filed before court regarding the commission of offences punishable under Sections 419, 465, 467, 468, 471, 511 and 420 read with Section 34 of the Penal Code, The original accused 2 and 3 excluding Babu were arrayed as accused 1 and 2 and petitioners 1 and 2 were arrayed as accused 3 and 4. Over above filing O.S. 215 of 1982, the first petitioner also filed a criminal complaint as C.C. 1 of 1983 against the second respondent and Jagadeesan for offences punishable under Section 420 read with Section 34 of the Penal Code. The present petition has been filed under this background.

6. Before entering into a discussion on the merits of the controversy, I may say that by his actions the first petitioner made himself ineligible for the extraordinary and discretionary remedy of invoking the inherent jurisdiction of this Court There are certain reliefs which parties may not be entitled to claim from a Court of law as a matter of right.; For example, there are certain reliefs which could be claimed on the basis of the Specific Relief Act including injunction. In such cases, apart from the merits of the claims, the Court will look into the question whether the party who has approached the Court for such discretionary remedies have come with clean hands. He who sees equity must do equity. Those who are seeking equitable and discretionary reliefs will have to approach the Court with clean hands. A fraudulent attitude on the part of the petitioner or his unclean hands' by themselves disentitle him to such reliefs even though he may be supported by legal backgrounds. That is the case with exercise of inherent jurisdiction also. Invoking of inherent jurisdiction is definitely an 'extraordinary remedy. While exercising that discretion, the Courts will have to act with due discretion which has to be exercised judicially. Such jurisdiction is expected to be exercised only sparingly and only in sure cases of gross injustice for the remedial of which there is no other specific provision of law. The main purpose Of invoking the inherent jurisdiction of the High Court under the Criminal P.C. is to prevent abuse of process of Court or to secure ends of justice otherwise in cases where no specific provision is available. A person who is seeking such a jurisdiction has undoubtedly to approach the Court with clean hands and with equitable backgrounds. He has to come to Court with an open mind for the purpose of making him eligible for such a relief. The High Court may not be justified in invoking the inherent power in favour of a person who is known to have approached the Court with a mala fide and fraudulent background.

7. When the second respondent denied execution of the agreement and filed a petition before the Superintendent of Police implicating the first petitioner also with an allegation that the agreement is a forgery, and when that matter was being investigated by the police, the first petitioner took the stand that he was defrauded by the other accused who played fraud on him by impersonation and forgery. He co-operated with the investigating agency by giving case diary statements to the effect that the document is actually a forgery and it was not executed by the second respondent in his favour. By taking that stand he was able to avoid the contingency of himself being implicated as an accused. He was only included as a charge-witness whose evidence was material for proof of the accusations. In fact he was charge-witness No. 2.

8. When the charge was laid before Court and the Magistrate took cognizance of the offence, the first petitioner felt that his object was achieved and his interest became safe. Therefore immediately he changed the plate and issued notice to the second respondent assuming that the agreement was executed by the second respondent himself in his favour. So also he filed a civil suit on the basis of the agreement. Further he has filed a criminal complaint also. I have mentioned these acts. earlier. The subsequent stand taken by hint was just contrary to the stand he adopted during the investigation of the case which was registered at the instance of the second respondent. That is why I said that the first petitioner has not approached the Court with clean hands, but with a fraudulent and mala fide motive. He was not able to inspire confidence in me and I feel that even without going further into the merits of the contentions urged before me the petition deserves dismissal on this ground itself.

9. Any how I shall consider the contentions on the merits for the sake of completeness and finality. Ext. P2 order was passed by the Magistrate under the provisions of Section 173(8) of the Criminal P.C. as amended. That provision was not there earlier and it is an inclusion by the amendment. Section 173(8) reads thus:

Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2).

10. There cannot be any dispute regarding the further investigational powers of the police on the basis of Section 173(8). Even after a final report is laid before court under Section 173(2) of the Criminal P.C., and even after the Court has taken cognizance of the offence, the investigating agency is entitled to investigate the matter further and submit further report in court under the authority of Section 173(8). Such a report will have to be considered by the Court just like the report under Section 173(2).

11. The contentions raised before me by the petitioners in this respect are three fold. (1) Especially after taking cognizance of the offence on a police report, the Magistrate is not competent to order further investigation by the police. (2) The court is having the power to proceed under Section 319 of the Criminal P.C. in such cases and therefore the Court cannot order further investigation seeking shelter under the provisions of Section 173(8), and (3), such a direction regarding further investigation after taking cognizance is not available because other remedies like the filing of a fresh complaint or requesting the Magistrate to call for a report under Section 156(3) were available to the second respondent.

12. In my opinion, the second and third contentions mentioned above do riot arise at all at present. Further if the Magistrate is competent to direct further investigation under the provisions of Section 173(8), those contentions are only of academic importance. Section 319(1) of the Criminal P.C. reads thus:

Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

The stage for proceeding under Section 319 of the Criminal P.C. has not arisen. Even if such a stage has arisen, I do not feel that it will in any way stand in the way of the court in ordering further investigation by the police.

13. The decision reported in Ram Lal Narang v. State (Delhi Administration) : 1979CriLJ1346 was rendered on the basis of the provisions of the Criminal P.C. as it stood before the amendment, at a time when the specific provision embodied in Section 173(8) was not there. At that time there was no provision empowering the investigating agency to have a further investigation after filing of the final report and taking cognizance of the offence by the Magistrate. In that decision it was held:

It is their duty to investigate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some...extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Criminal P.C. in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive Use or abuse of the power of the police to make further investigation.

In view of the above said decision the contention of the petitioners loose much of its force. The main contention of the petitioners was that the provisions of Section 173(8) could be invoked only by the investigating agency and not by the court. In support of this contention, the counsel relied on certain portions of the abovesaid judgment itself, which reads:

Notwithstanding that Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Criminal P.C. (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither Section 173 nor Section 190 leads to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permit repeated investigations on discovery of fresh facts.

But I do not think that the abovesaid observations will in any way help the petitioners. The Supreme Court was only dealing with the investigational powers of the police even when there was no express provision for further investigation as embodied in the amended Code. Another portion of the same judgment itself will negative the contention put forward by the counsel for the petitioners. It was further held in that decision:

We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light.

(Underlining supplied)

It therefore follows that the powers of court in the matter of granting permission for further investigation or ordering further investigation are there. There is no merit in the contention to the contrary.

14. It is true that there is provision in Section 156(3) empowering .the Magistrate competent to take cognizance under Section 190 to order investigation as provided in Section 156(1) of the Criminal P.C. That does not indicate that the jurisdiction of the court in ordering further investigation after taking cognizance is barred by that provision. On the other hand, Section 156(3) only shows that the power to direct investigation is there always with the Court. The argument advanced by the counsel for the petitioners that even after the court has taken cognizance of the offence, it is having the power to order investigation under Section 156(3) only cuts at the root of the contention put forward by him. That amounts to an admission that the power to direct further investigation is there even after the Magistrate takes cognizance of the offence. The fact that the complainant may be entitled to file another complaint on the new facts is no ground to come to the conclusion that authority for directing further investigation is absent after the offence is taken cognizance of. I fail to understand how the hands of the court are fettered in this respect after cognizance is taken. In this connection Section 319 of the Code also becomes relevant. Under that provision, the Court is having the undoubted authority to proceed against persons who are not arrayed as/accused

15. Counsel for the petitioners also relied on the decision in State of Bihar v. A.C. Saldanna : 1980CriLJ98 . Paras 25 and 26 of that judgment are the portions relied on:

25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection a crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duly to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court to take cognisance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate.

XX XX XX

26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

I do not think that the extracted portions of the judgment will in any way support the contention of the petitioners. At the same time it could be said that the Court has expressed the opinion that the power of the police to investigate into cognizable offences is not ordinarily to _be interfered with by the judiciary. There is nothing in that judgment to indicate that the power of the court to order investigation is not in existence. It has also to be understood that Section 173(8) of the Criminal P.C. or any other provision therein does not prohibit the right of the Magistrate to order investigation.

16. Another decision relied on by the counsel for the petitioners is H. S. Bains v. State (U.T. Chandigarh) : 1980CriLJ1308 . I have gone through that decision and there is nothing in it which is helpful to the stand taken by the petitioners. Therefore the power of the Court to order further investigation even after taking cognizance of the offence is always there and Section 173(8) need not be understood as empowering the police alone and prohibiting the Magistrate.

17. On the basis of Ext. P2 order, further investigation was conducted and a further report was filed in court implicating the petitioners. Ext. P.2 order was within the competence of the Magistrate. Ext. P2 and the further investigation based on the same do not in any way involve any abuse of process of court to be remedied under Section 482 of the Criminal P.C. In fact the circumstances definitely indicate that such a direction was absolutely essential in the interests of justice. It has not resulted in any miscarriage of justice.

18. The present petition is definitely an abuse of process of court and the petitioners have approached this Court with fraudulent and mala fide motive. The object of this petition is only to avoid facing trial or suffering conviction at any cost and to delay the criminal proceedings to the maximum possible. The petition fails and it is hereby dismissed.


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