ORDER
K.K. Denesan, J.
1. Revision petitioner is the sole accused in C.C. 2/2001 on the file of the court of Judicial Magistrate of the First Class III, Trivandrum. Commission of offence punishableunder Section 354 of the Indian Penal Code is alleged against the petitioner. Date of occurrence is 21.12.1999. FIR was registered on 20.2.2000 as Crime No. 47/2000 of Museum Police Station and subsequently renumbered as Crime No. 46/CR/2000 by the Crime Branch CID, Investigation, Trivandrum.
2. On 25.2.2000 accused filed a Writ Petition under Article 226 of the Constitutionbefore this Court as OP. No. 6210/00 in which the State of Kerala was respondentNo. 1 and the Director General of Police was respondent No. 2. Respondents 3 to 5were the Section H.O., Museum Police Station, the de facto complainant and the husbandof the de facto complainant respectively. The main prayer in the above O.P. was toquash Crime No. 47/2000 of the Museum Police Station.
3. A Division Bench of this Court disposed of the O.P. by judgment dated 83.2000. Paragraph 2 of the above judgment reads as follows:
'It is brought to our notice that the investigation is being presently done by the Additional Director General of Police, Crimes and able investigators including one Deputy Inspector General of Police are there to assist him. It is stated that though at some stages there were some variations, that has now been taken care of and the investigation shall be done by the Additional Director General of Police himself, assisted by a team as aforesaid. Learned counsel for the petitioner submitted that the accused feels that certain materials need to be looked into by the investigating agency for the purpose of finding out whether any offence has been really committed as alleged. It is not in dispute that the purpose of investigation is not only to find out materials to make accusations of commission of offence and if in fact there is no material, the investigating agency can fairly report that no offence is made out. That being the position, if the accused furnishes list of materials, which need to be looked into by the investigating officer and/or a list of persons, who need to be examined for the purpose of investigation, the investigating officer would do well to take note of that and take action as is provided in law. Learned Advocate General has no objection if such a course is adopted. So far as the continuance of the Commission is concerned, it is for the Commission to decide whether continuance would be desirable in view of any circumstance which may come to its notice.
The Original Petition is accordingly closed.'
4. After completing the investigation, final report was filed before the court of the Judicial First Class Magistrate III, Trivandrum. The court took it on file as C.C. No. 2/2001. The substance of the accusation shows that on the date of occurrence, i.e. 21.12.1999, the accused was a member of the Kerala Legislative Assembly and was holding the post of Minister for Transport, Devaswom and Forest in the Council of Ministers of Kerala State, The de facto complainant (W1) victim is a 43 year old woman. She is married and is the mother of a school-going daughter. She is a member of the Indian Administrative Service, Kerala Cadre and was working as the Secretary, Transport Department under the accused on the date of occurrence. She was told by her C.A., W6, on 16.12.1999 about some critical comments on her performance made by the personal staff of the accused, She wanted to verify it from the accused himself. She had also some files for discussion. So she went to the Chamber of the accused Minister on 21.12.99 at 13.30 hours with the file No. 7045/D2/9S-Tran relating to Comprehensive Traffic and Transportation Study for Thiruvaranthapuram Urban Area for discussion and approval of the accused Minister. The accused came to the scene chamber by 13.40 hrs'. Both the accused and the W1 were alone in the room. The accused found this to be a good and convenient opportunity to demonstrate his lust which was growing in his mind. He therefore quickly signed the file brought by W1 in a hurried manner, without any discussion and when she broached the subject of the remarks made by members of his personal staff, he brushed it aside by telling her not to bother. Then, knowing it fully well, that her modesty would thereby be outraged, the accused suddenly caught hold of both the hands of W1 using criminal force and lifted them towards his face. W1 pulled her hands away andreacted by saying that she was not the type of person who would yield to his desire and started to leave the room. Immediately, the accused with enhanced passion and lust, charged towards the nervous and scared W1 and grappled her and forcibly tried to kiss her and to wrestle her down. As a result, she sustained injuries on her lips and right index finger. She managed to escape from the clutches of the accused and left the scene of occurrence. Thus the accused outraged the modesty of W1.
5. Accused entered appearance through counsel before the court below. Copies of the prosecution records were served on the accused. Thereupon the counsel for the accused filed C.M.P. No. 4183/01 before the trial court to stop the proceedings and discharge the accused under Section 258 Cr.P.C. Hence the plea of the accused was not recorded. Prosecution filed objection against C.M.P. No. 4183/01. After hearing both sides learned Magistrate passed order dated 31.10.2001 dismissing the C.M.P. When the case was thereafter posted for recording the plea of the accused, he has filed this revision petition challenging the correctness of the order passed by the learned Magistrate dismissing the C.M.P.
6. I have heard Shri. T.V. Prabhakaran, learned counsel for the petitioner and Shri. P.V. Madhavan Nambiar, Director General of Prosecution.
7. According to the revision petitioner the judgment in O.P. No. 6210/2000 contains certain mandatory directions which the investigating officer was bound to obey; but he has laid the charge against the accused in violation of those directions. In support of the above submission it was contended on behalf of the revision petitioner that the investigating officer did not include natural witnesses who could give a true account of what had actually happened and did not look into documents and materials relevant for the purpose of ascertaining the truth of the allegations. It was alleged that the list of witnesses filed along with the charge sheet consists only of interested and partisan witnesses. To demonstrate the above allegation, he was referred to the list of prosecution witnesses which contains 27 persons. According to the revision petitioner the main witnesses as per that list are the de facto complainant, her husband, father, brother and mother and the other witnesses are certain IAS Officers and subordinates working under the de facto complainant. It is pointed out that witnesses such as Personal Assistant to the Minister, Private Secretary to the Minister, Gunman etc. who are expected to be persons present at the place of occurrence as per rules/office procedure do not find a place in the list of witnesses furnished by the prosecution, inspire of the fact that the details of such witnesses including the visitors who were present near the place of occurrence were furnished by the accused when he was interrogated by the investigating officer.
8. On the other hand it was submitted on behalf of the prosecution that the investigating officer has given due attention to all relevant materials brought to hisnotice at the instance of the accused also and interrogated persons whose statements were claimed to be relevant in the opinion of the accused. According to the prosecution, persons whose statements were found untrue or irrelevant or unreliable or misleading need not be and cannot be included in the list of prosecution witnesses. Similarly irrelevant materials need not form part of the prosecution documents.
9. Before proceeding further it would be relevant to know what the learned Magistrate has stated in his order with regard to the alleged omission on the part of the investigating officer to question certain witnesses and to reduce their statements into writing:-
'I perused the C.D. and other documents produced by the prosecution and the same will show that the learned prosecutor is justified in her submissions. It could be easily gathered, on scanning the records that the direction has been complied with. It is evident that the Additional D.G.P., Crimes took over the investigation on 15.3.2000 after the order in O.P. No. 6210/2000. It is also seen from the records that there are mainly two sets of witnesses examined by the investigating officer. The first set consists of those who work with the petitioner while he was Minister and also those who belong to his party. They have given statement in favour of him. The second set are the members of the family of the defacto complainant members of her personal staff and Transport Department, when she was the Secretary of Transport Department and her colleagues. They have given statements in support of she case. It is also revealed from the case diary that the investigating officer has scrutinised file Nos. 7055 and 20530 during the investigation. The above facts will show that there is no violation on the part of the investigating officer to honour the direction of the Hon'ble High Court. So the point is found accordingly.'
10. Two questions arise for consideration:
(i) Whether there is merit in the contention that the investigating officer failed to act as per the directions in the judgment and
(ii) Whether such omissions or violations, if any, in the investigation, would invite an order in terms of Section 258 of the Code of Criminal Procedure.
11. In the light of the submissions made by the counsel on both sides it will be useful to advert once again to what the Division Bench of this Court said regarding the role of the investigating officer, because the revision petitioner has built up his contentions based on that judgment. The Division Bench, after stating the well accepted broad proposition of law governing the investigation of criminal cases, viz., that the purpose of investigation is not only to find out materials to make accusation of commission of offence and if, in fact, there is no material, the investigating agency can fairly report that no offence is made out, also said:
'That being the position, if the accused furnishes list of materials, which need to be looked into by the investigating officer and/or a list of persons, who need to be examined for the purpose of investigation, the investigating officer would do well to take note of that and take action as is provided in law.'
12. Regarding the first part of the above directions, prosecution produced the case diary before the learned Magistrate who, on a perusal of the records was prima facie satisfied that the investigating officer has looked into the materials and examined the witnesses as requested by the accused and has taken note of the said materials as also the statements of witnesses. The second part of the direction is that the investigating officer shall take action as is provided in law. Does it mean that he should include all those materials in the list of documents and all those persons in the list of prosecution witnesses, produced along with the charge sheet? I do not think that the law requires the prosecution to do so. It needs no special mention that the purpose of investigation is to get all relevant materials regarding the alleged commission of offence so as to find out the truth of the allegations. The investigating officer has to exercise the power vested in him in that behalf in accordance with law. Based on the evidence collected, it is for him to decide keeping in mind the provisions of the Code of Criminal Procedure, the Evidence Act, the Penal Code and in certain cases other penal statutes also, if the offences alleged attract the provisions of such statutes, what should be the nature of the final report. No provision of law is brought to my notice, which insists that the list of documents and that of witnesses accompanying the final report submitted by the prosecution before court shall include those documents which, in the opinion of the accused, are relevant and those witnesses whom the accused claimed are competent to give the true version of the occurrence. In that respect, it cannot be said, at this stage of the proceedings, that the investigating officer has failed to take action as provided in law or as directed by the Division Bench in the judgment. I am of the view that the grievance of the revision petitioner that certain materials as also the names of certain witnesses do not find a place in the list of documents and witnesses produced by the prosecution and therefore there is non-compliance with the directions in the judgment of this Court, is a grievance which is outside the scope of that judgment as also the law on the subject.
13. Learned counsel for the petitioner contended that the witnesses included in the list filed along with the charge sheet are partisan and interested and hence the court shall not proceed further on he basis of the above final report. According to him, the above action of the prosecution is a violation of the direction contained in the judgment. I must say that this kind of objection raised at the pre-trail stage is liable to be rejected as one not capable of being entertained having regard to the scheme of the law on the subject. As rightly said by the learned Magistrate it would be highly improper on the part of the court, which has to try the case, to say in advance that a particular witness is interested or partisan or unworthy of credence on a mere perusal of the prosecution records filed under Section 173(2) of the Criminal Procedure Code.
14. Counsel for the petitioner argued, placing emphasis on the question of delay in registering the case, that the court below failed to deal with that issue properly. I am not able to agree. Delay in lodging the FIR, which is not shown to be hit by anylaw of limitation, cannot be a ground for throwing over board the prosecution case at the threshold and cannot form the foundation for filing a petition under Section 258 of the Cr.P.C. Delay may be inconsequential or fatal to the prosecution case. It may also be capable of being reasonably and satisfactorily explained. But that aspect being one falling within the realm of appreciation of evidence need be considered only after the evidence is closed.
15. The language of Section 258 Cr.P.C. is very wide and can cover any set of circumstances in which a Magistrate thinks that the proceedings in a summons case instituted otherwise than upon complaint, ought not to be continued. But the trend of judicial decisions on the scope of Section 258 of the present Code as also of the analogous provision, viz., Section 249 of the old code would suggest that it is an enabling section and is one to be applied in very special circumstances. This Court has said so in Radhamany Amma v. Kunju Pillai (1980 KLT 393). Same view has been taken in Balakrishna Panicker v. Thevan (1987 (1) KLT 628) wherein it was held that Section 258 Cr.P.C. is intended to be applied only in very special and compelling circumstances which make it difficult or impossible for the Magistrate to proceed in the usual way by taking evidence as provided in Section 254 of the Code. Needless to say that the power under Section 258 Cr.P.C. shall be exercised reasonably and judiciously. It should not be forgotten that the normal rule is that both parties do get the opportunity to adduce evidence and the court gives its verdict on the guilt or innocence of the accused based on the evidence in the case. The court may invoke Section 258 Cr.P.C. in a case where the allegations against the accused, even accepting them as true, do not constitute offence or on being satisfied that there exists serious defects in the prosecution case which go to the root of the matter, thereby rendering further proceedings rather impossible or futile. The power to stop the proceedings at any stage has to be sparingly used and that too in exceptional or unusual circumstances. No such exceptional or unusual circumstances exist in this case.
16. The order passed by the learned Magistrate does not call for interference in revision. Criminal Revision Petition is accordingly dismissed.