CRL.MC No. 1652 of 2008 · Kerala High Court

R.BASANT, J.----------------------Crl.M.C.No.1652 of 2008----------------------------------------Dated this the 18th day of August 2008

O R D E RThe petitioner is the fourth accused and he facesindictment in a prosecution for offences punishable inter aliaunder Sections 471 and 420 I.P.C. Cognizance was taken on thebasis of a final report submitted by the police. The learnedcounsel for the petitioner submits that even though cognizancewas taken as early as in 2004 as can be seen from the numberassigned to the case as 532/04, the petitioner had receivedsummons only very late and he has entered appearance recently. Charges have not been framed by the learned Magistrate so far, submits the learned counsel for the petitioner. 2. According to the petitioner, he does not deserve tostand the trauma of such a criminal prosecution. According tothe petitioner, no proper investigation has been conducted. If aproper further investigation is conducted, it shall be clear to thecourt that it is not necessary to inflict on the petitioners thetrauma of facing such an undeserved prosecution.

In thesecircumstances, the petitioner has come to this court with thisapplication under Section 482 Cr.P.C to invoke the extraordinaryinherent jurisdiction to direct a further investigation to beconducted by the investigating officer . Crl.M.C.No.1652/0823.Has the petitioner approached the learned Magistratewith such a request? If so, what is the outcome of such anapproach? If the petitioner has not approached the learnedMagistrate, why has he not approached the learned Magistrateand why has he chosen to come to this court with this petitionunder Section 482 Cr.P.C notwithstanding the dictum in Shaji v.State of Kerala [2003(2) KLT 929]. It is now trite that such arequest can be entertained by the learned Magistrate even whenthat emanates from the petitioner/accused. I am of the opinionthat in this case the learned Magistrate has the option to issuedirections to the police to conduct a further investigation under Section 173(8) Cr.P.C. It is submitted at the Bar that chargeshave not been framed by the learned Magistrate so far.

Thepetitioner can move the learned Magistrate for issue ofdirections under Section 173(8) Cr.P.C. The learned Magistratecan hear the learned counsel for the accused as well as thelearned Public Prosecutor on the question of framing charge andat that stage the learned Magistrate can consider the prayer toconduct a further investigation also. At the stage of framingcharges the learned Magistrate will have occasion to consider allthe relevant facts. At that stage, the petitioner can request the Crl.M.C.No.1652/083learned Magistrate to direct a further investigation to beconducted under Section 173(8) Cr.P.C and if the learnedMagistrate feels that such further investigation deserves to beconducted, appropriate directions can be issued by the learnedMagistrate. I am not persuaded to agree that any suchdirections for further investigation can or need be issued by thiscourt invoking the extraordinary inherent jurisdiction under Section 482 Cr.P.C or the extraordinary constitutionaljurisdiction under Article 226 of the Constitution of India.

4. In the result, this Crl.M.C is dismissed. I may hastento repeat that the dismissal of this Crl.M.C shall not fetter therights of the petitioner to move the learned Magistrate fordirecting further investigation to be conducted under Section173(8) Cr.P.C and if such a request is made, the learnedMagistrate shall consider the same on merits and passappropriate orders expeditiously. Hand over copy of this order to the learned counsel for thepetitioner. (R.BASANT, JUDGE)jsr Crl.M.C.No.1652/084 Crl.M.C.No.1652/085 R.BASANT, J.CRL.M.C.No. of 2008ORDER 09/07/2008