Yeshodharan Vs. State of Kerala - Court Judgment

Excerpt:
criminal - investigation - sections 366, 379 and 302 of indian penal code - petitioner accused under sections 366, 379 and 302 - petitioner contended under guise of further investigation there was fresh investigation done by different agency which was illegal - on basis of additional material prosecution concluded that four out of five accused not involved in case - it alone was not sufficient to hold what was actually conducted was fresh investigation - held, investigation report not be quashed. - land acquisition act, 1894 [c.a. no. 1/1894 section 54; [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] appeal court fee payable held, court fee is liable to be paid on an ad varolem basis on compensation amount claimed in appeal. - 5. heard the learned counsel for the petitioner as well as the respondents. it is a well-settled position of law that even after taking cognisance of the offence, further investigation of the crime can be conducted after obtaining formal permission from the court. after being satisfied that this is a fit case in which further investigation has to be conducted, directed the investigating agency to conduct the further investigation after getting permission from the sessions court.orderk. padmanabhan nair, j.1. this is a petition filed under section 482 of the code of criminal procedure. the petitioner is the accused in crime no. 46/cr/97 of the c.b.c.i.d., crime branch, kollam, registered under sections 366, 379 and 302 of the indian penal code. it is averred that the 4th respondent after conducting the investigation filed a final report before the judicial magistrate of first class, herippad, who, in turn committed the case to the court of sessions, mavelikkara and the same is pending before the additional sessions court-ii as s.c. no. 100 of 1996. the prayer in this crl. m.c. is to quash that sessions case.2. a case was registered on 27th june 1995 at 1.00 p.m. as crime no. 103 of 1995 under the caption 'man missing' on a statement given by one chellappan pillai that his daughter geetha kumari, aged 27 years was missing from his house since 25th june 1995. the local police conducted investigation and came to the conclusion that geetha kumari was abducted by her husband alongwith the petitioners, biju, madhusudhanan pillai and one muralidharan from the premises of mannarassala temple, harippad. on 1st july 1995, the dead body of geetha kumari was found floating in kayamkulam lake. the investigation of the case was taken over by the third respondent. according to the local police, geetha kumari was abducted by accused 1 to 5 and committed rape on her person, she became unconscious and so they took her to kayamkulam lake and killed her by forcibly dipping her body under water till she died. it was also alleged that they committed theft of gold ornaments worn by* the deceased and destroyed the underskirt worn by the accused so as to disappear material evidence. all the five accused were absconding and when the investigation was in progress, the same was taken over by the deputy superintendent of police, narcotic cell as per orders of the superintendent of police, alleppey. the remaining part of the investigation was conducted by the deputy superintendent of police, who filed a final report to the effect that all the five accused committed the offence. the judicial magistrate of first class, harippad, look cognisance of the offence and numbered it as c.p. no. 9 of 1996. subsequently the case was committed to court of sessions, mavelikkara and renumbered as s.c. 100 of 1996.3. subsequently a petition was filed before the superintendent of police, alleppey alleging that innocent persons were falsely implicated in crime no. 103 of 1995 of thrikkunnapuzha police station. it was prayed that a fresh investigation by another investigating agency may be conducted. the superintendent of police forwarded the petition along with his report to the second respondent, who passed an order transferring the case to c.b.c.i.d., crime branch, kollam and to continue the investigation after getting permission from the court. the circle inspector of police filed a petition under section 178(3) of the code of criminal procedure, before the sessions court, seeking permission to conduct a reinvestigation for collecting further evidence. the same was allowed. the c.b.c.i.d., crime branch, kollam took over the investigation on 18th february, 1997 and registered a case as crime no. 46/cr/97 of c.b.c.i.d., kollam under sections 366, 379 and 302 of indian penal code and conducted the investigation upto 1st may 1997. the fourth respondent took over the investigation and conducted the same with the help of a team of crime branch officials and the 4th respondent came to a conclusion that the earlier investigation conducted by the local police is not correct. the fourth respondent deleted accused 1, 3, 4 and 5 and made the petitioner the sole accused. after completing the investigation, the fifth respondent filed a final report on 19th april 1997 under section 173(8) of the code of criminal procedure under sections 366, 379 and 302 of the indian penal code. the learned magistrate took cognisance of the offence and committed the case to the court of sessions, mavelikkara, and the same is pending as s.c. no. 100 of 1996.4. it is averred that under the guise of further investigation, a reinvestigation of the case was conducted and the same is void, illegal, unsustainable and liable to be quashed. permission was accorded by the learned sessions judge to conduct further investigation and the same can be conducted by the investigating agency which originally investigated the case. it was contended that the second respondent has no authority to direct the c.b.c.i.d. a different investigating agency to conduct a further investigation of the case. it is also averred that submitting a fresh report wiping out earlier investigation is not legal. it is averred that in a criminal case in which the final report has been filed, no fresh investigation is possible and what is permissible is only a further investigation.5. heard the learned counsel for the petitioner as well as the respondents. perused the case diary also. the main objection raised by the learned counsel for the petitioner is that under the guise of a further investigation, what was actually done in this case was a fresh investigation, and that too by a different agency and hence the same is illegal and void. the learned counsel appearing for the petitioner has relied on the decisions reported in k. chandrasekhar v. state of kerala, (1998) 5 s.c.c.223, vijayakumar v. kamarudhin, 1999 (1) klt 184 and c.b.i. v. m.thomas, 2001 (1) k.l.j. 928 = i.l.r. 2001 (2) kerala 547.6. the case was originally registered under the caption 'man missing' which was investigated by the local police. subsequently, the local police found that it was a case of rape and murder. according to the local police, five persons including the husband of the deceased and the present petitioner were involved in the commission of the offence. the case was registered as crime no. 103 of 1995 under sections 364, 376, 302, 379 and 201 read with section 34 of the indian penal code. it is a well-settled position of law that even after taking cognisance of the offence, further investigation of the crime can be conducted after obtaining formal permission from the court. in this case, part of the investigation was conducted by the local police. subsequently, the same was entrusted with a high officer who filed the final report. after the filing of the final report, certain materials were placed before the superintendent of police, who, in turn forwarded the same to the director general of police. the d.g.p. after being satisfied that this is a fit case in which further investigation has to be conducted, directed the investigating agency to conduct the further investigation after getting permission from the sessions court. accordingly a petition was filed before the sessions court and permission was granted. i have gone through the case diary. it is not possible to accept the contention put forward by the petitioner that what is actually conducted is a fresh investigation. it is true that in view of the additional materials collected, the prosecution came to the conclusion that four of the five accused are not involved in the case. but that alone is not sufficient to hold that what is actually conducted is a fresh investigation.7. the learned counsel for the petitioner relied on the decision reported in c.b.i. v. m.thomas, 2001 (1) k.l.j. 928 = i.l.r. 2001 (2) kerala 547, and argued that the magistrate can order further investigation only by the agency originally investigated the case. in chandrasekharan's case (supra) the apex court held that further investigation by a different agency is illegal. in vijayakumar v. kamarudhin, 1999 (1) klt 184, a learned single judge of this court has held that when the local police conducted investigation, further investigation of the case cannot be conducted by the c.b.c.i.d. in state of kerala v. chacko, 2000 (3) klt (sn) 41 p.34 a division bench of this court has held:'the crime branch of the state police cannot be treated as a separate agency. it is part and parcel of the police establishment of the state coming under the direct supervision of the director general of police. the personnel of the local police and crime branch are inter-transferable. the crime branch is constituted as a specialised wing of the police establishment for the purpose of investigating serious and outrageous crimes.'in view of the principle laid down in chacko's case there is absolutely no merit in the contention raised by the petitioner that a fresh investigation was conducted by a different agency.8. in ram lal narang v. state (delhi admn.), air 1979 sc 1719, the supreme court has held that notwithstanding the fact that the magistrate has taken cognizance upon a police report, the right of the police to further investigation is not exhausted. in sri bhagwan samardha sreepada vallabha venkata vishwanadha maharaj v. state of andhra pradesh, 1999 (2) klj 272, the apex court has found that it is open to the police to conduct further investigation after getting a formal sanction from the court. it is not necessary to hear the accused before granting such permission. in this case, such an order was passed with notice to the petitioner. so there is absolutely no merit in the contention that a fresh investigation was conducted by a different agency, i do not find any reason to quash the final report and the criminal miscellaneous case is only to be dismissed.in the result, the crl. m. c. is dismissed.crl. m. p. no. 7107 of 2002 shall stand dismissed.

Judgment:
ORDER

K. Padmanabhan Nair, J.

1. This is a petition filed under Section 482 of the Code of Criminal Procedure. The petitioner is the accused in Crime No. 46/CR/97 of the C.B.C.I.D., Crime Branch, Kollam, registered under Sections 366, 379 and 302 of the Indian Penal Code. It is averred that the 4th respondent after conducting the investigation filed a final report before the Judicial Magistrate of First Class, Herippad, who, in turn committed the case to the court of sessions, Mavelikkara and the same is pending before the additional Sessions Court-II as S.C. No. 100 of 1996. The prayer in this Crl. M.C. is to quash that sessions case.

2. A case was registered on 27th June 1995 at 1.00 p.m. as Crime No. 103 of 1995 under the caption 'man missing' on a statement given by one Chellappan Pillai that his daughter Geetha Kumari, aged 27 years was missing from his house since 25th June 1995. The local police conducted investigation and came to the conclusion that Geetha Kumari was abducted by her husband alongwith the petitioners, Biju, Madhusudhanan Pillai and one Muralidharan from the premises of Mannarassala Temple, Harippad. On 1st July 1995, the dead body of Geetha Kumari was found floating in Kayamkulam Lake. The investigation of the case was taken over by the third respondent. According to the local police, Geetha Kumari was abducted by accused 1 to 5 and committed rape on her person, she became unconscious and so they took her to Kayamkulam Lake and killed her by forcibly dipping her body under water till she died. It was also alleged that they committed theft of gold ornaments worn by* the deceased and destroyed the underskirt worn by the accused so as to disappear material evidence. All the five accused were absconding and when the investigation was in progress, the same was taken over by the Deputy Superintendent of Police, Narcotic Cell as per orders of the Superintendent of Police, Alleppey. The remaining part of the investigation was conducted by the Deputy Superintendent of Police, who filed a final report to the effect that all the five accused committed the offence. The Judicial Magistrate of First Class, Harippad, look cognisance of the offence and numbered it as C.P. No. 9 of 1996. Subsequently the case was committed to Court of Sessions, Mavelikkara and renumbered as S.C. 100 of 1996.

3. Subsequently a petition was filed before the Superintendent of Police, Alleppey alleging that innocent persons were falsely implicated in Crime No. 103 of 1995 of Thrikkunnapuzha Police Station. It was prayed that a fresh investigation by another investigating agency may be conducted. The Superintendent of Police forwarded the petition along with his report to the second respondent, who passed an order transferring the case to C.B.C.I.D., Crime Branch, Kollam and to continue the investigation after getting permission from the court. The Circle Inspector of Police filed a petition under Section 178(3) of the Code of Criminal Procedure, before the Sessions Court, seeking permission to conduct a reinvestigation for collecting further evidence. The same was allowed. The C.B.C.I.D., Crime Branch, Kollam took over the investigation on 18th February, 1997 and registered a case as Crime No. 46/CR/97 of C.B.C.I.D., Kollam under Sections 366, 379 and 302 of Indian Penal Code and conducted the investigation upto 1st May 1997. The fourth respondent took over the investigation and conducted the same with the help of a team of Crime Branch Officials and the 4th respondent came to a conclusion that the earlier investigation conducted by the local police is not correct. The fourth respondent deleted accused 1, 3, 4 and 5 and made the petitioner the sole accused. After completing the investigation, the fifth respondent filed a final report on 19th April 1997 under Section 173(8) of the Code of Criminal Procedure under Sections 366, 379 and 302 of the Indian Penal Code. The learned Magistrate took cognisance of the offence and committed the case to the Court of Sessions, Mavelikkara, and the same is pending as S.C. No. 100 of 1996.

4. It is averred that under the guise of further investigation, a reinvestigation of the case was conducted and the same is void, illegal, unsustainable and liable to be quashed. Permission was accorded by the learned Sessions Judge to conduct further investigation and the same can be conducted by the investigating agency which originally investigated the case. It was contended that the second respondent has no authority to direct the C.B.C.I.D. a different investigating agency to conduct a further investigation of the case. It is also averred that submitting a fresh report wiping out earlier investigation is not legal. It is averred that in a criminal case in which the final report has been filed, no fresh investigation is possible and what is permissible is only a further investigation.

5. Heard the learned Counsel for the petitioner as well as the respondents. Perused the case diary also. The main objection raised by the learned Counsel for the petitioner is that under the guise of a further investigation, what was actually done in this case was a fresh investigation, and that too by a different agency and hence the same is illegal and void. The learned Counsel appearing for the petitioner has relied on the decisions reported in K. Chandrasekhar v. State of Kerala, (1998) 5 S.C.C.223, Vijayakumar v. Kamarudhin, 1999 (1) KLT 184 and C.B.I. v. M.Thomas, 2001 (1) K.L.J. 928 = I.L.R. 2001 (2) Kerala 547.

6. The case was originally registered under the caption 'man missing' which was investigated by the local police. Subsequently, the local police found that it was a case of rape and murder. According to the local police, five persons including the husband of the deceased and the present petitioner were involved in the commission of the offence. The case was registered as Crime No. 103 of 1995 under Sections 364, 376, 302, 379 and 201 read with Section 34 of the Indian Penal Code. It is a well-settled position of law that even after taking cognisance of the offence, further investigation of the crime can be conducted after obtaining formal permission from the court. In this case, part of the investigation was conducted by the local police. Subsequently, the same was entrusted with a high officer who filed the final report. After the filing of the final report, certain materials were placed before the Superintendent of Police, who, in turn forwarded the same to the Director General of Police. The D.G.P. after being satisfied that this is a fit case in which further investigation has to be conducted, directed the investigating agency to conduct the further investigation after getting permission from the Sessions Court. Accordingly a petition was filed before the Sessions Court and permission was granted. I have gone through the case diary. It is not possible to accept the contention put forward by the petitioner that what is actually conducted is a fresh investigation. It is true that in view of the additional materials collected, the prosecution came to the conclusion that four of the five accused are not involved in the case. But that alone is not sufficient to hold that what is actually conducted is a fresh investigation.

7. The learned Counsel for the petitioner relied on the decision reported in C.B.I. v. M.Thomas, 2001 (1) K.L.J. 928 = I.L.R. 2001 (2) Kerala 547, and argued that the Magistrate can order further investigation only by the agency originally investigated the case. In Chandrasekharan's case (supra) the apex court held that further investigation by a different agency is illegal. In Vijayakumar v. Kamarudhin, 1999 (1) KLT 184, a learned Single Judge of this court has held that when the local police conducted investigation, further investigation of the case cannot be conducted by the C.B.C.I.D. In State of Kerala v. Chacko, 2000 (3) KLT (SN) 41 P.34 a Division Bench of this court has held:

'The Crime Branch of the State Police cannot be treated as a separate agency. It is part and parcel of the police establishment of the State coming under the direct supervision of the Director General of Police. The personnel of the local police and Crime Branch are inter-transferable. The Crime Branch is constituted as a specialised wing of the police establishment for the purpose of investigating serious and outrageous crimes.'

In view of the principle laid down in Chacko's case there is absolutely no merit in the contention raised by the petitioner that a fresh investigation was conducted by a different agency.

8. In Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1719, the Supreme Court has held that notwithstanding the fact that the Magistrate has taken cognizance upon a police report, the right of the police to further investigation is not exhausted. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanadha Maharaj v. State of Andhra Pradesh, 1999 (2) KLJ 272, the Apex Court has found that it is open to the police to conduct further investigation after getting a formal sanction from the court. It is not necessary to hear the accused before granting such permission. In this case, such an order was passed with notice to the petitioner. So there is absolutely no merit in the contention that a fresh investigation was conducted by a different agency, I do not find any reason to quash the final report and the Criminal Miscellaneous Case is only to be dismissed.

In the result, the Crl. M. C. is dismissed.

Crl. M. P. No. 7107 of 2002 shall stand dismissed.