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Thayambath Narayani and Ors. Vs. State of Kerala and Ors. - (High Court of Kerala) (10 Aug 2020)

When investigation is faulty or is alleged to be unfair, Court has power to order further investigation suo motu

MANU/KE/2123/2020

Criminal

The Petitioners are accused charge sheeted for offences punishable under Sections 188, 447, 506(i) read with Section 34 of Indian Penal Code, 1860 (IPC). During the course of the trial of the case, the second Respondent who is the de facto complainant filed petition before the learned Magistrate seeking an order directing further investigation in the crime under Section 173(8) of Code of Criminal Procedure, 1973 (CrPC), contending that, the investigation conducted was defective and unfair.

The Petitioners took strong exception to the request and contended that, the de facto complainant has no locus standi to file a petition seeking further investigation and further there was no justifying reason also for making such a request. The learned Magistrate was of the view that interest of justice demanded further investigation into the matter and accordingly impugned was passed allowing petition. This order is challenged by Petitioner invoking the inherent power of this Court under Section 482 of CrPC.

While examining the legality of the impugned order, the very maintainability of the prosecution in respect of offence punishable under Section 188 of the IPC cannot be lost sight of. The Petitioners are accused of offence under Section 188 of IPC on the premise that, they violated the order of status quo, by committing trespass upon the disputed property. Even accepting the allegation to be true also, the prosecution under Section 188 IPC cannot lie in the light of the legal bar under Section 195 of the CrPC. This provision provides that, no court shall take cognizance of an offence punishable under Section 188 of IPC except on a complaint in writing made by the concerned court or the officer. Indisputably, no complaint has been lodged by the concerned court seeking initiation of prosecution under Section 188 of IPC. Therefore, if at all the allegation of trespass is proved also, prosecution under Section 188 of IPC is quite unsustainable under law.

It was held by the Honourable Apex Court in Vinubhai Haribhai Malaviya v. State of Gujarat that, in appropriate cases, where the investigation is faulty or is alleged to be unfair, the Court has power to order further investigation suo motu in exercise of power under Section 173(8) of the CrPC, despite there being no request made by the Investigating Officer. This power of the Court could be justifiably exercised, when a legitimate grievance is brought to the notice by a complainant in a criminal case.

The sustainability of charge under Section 447 of IPC, so far as the present case is concerned, largely depends on the question whether the status quo order in force was violated or not. The violation itself is a disputed question which is to be determined by the civil Court where the dispute is pending adjudication.

When the parties raise rival claims over possession of a land under dispute in a civil suit, a bona fide claim of right to possession is a good defence to an accused to a criminal charge under Section 447 of IPC. This aspect does not appear to have struck the mind of the lower Court, when it chose to order further investigation. Present is not a fit case where further investigation of the crime ought to have been ordered. The impugned order is therefore liable to be set aside. The impugned order of the learned Magistrate directing further investigation is quashed.

Tags : INVESTIGATION   LEGITIMATE GRIEVANCE   POWERS  

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