Ponnu Prabhaghar vs The State Of Kerala
2021 Latest Caselaw 12019 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

            THE HONOURABLE MR.JUSTICE V.G.ARUN

 FRIDAY, THE 16TH DAY OF APRIL 2021 / 26TH CHAITHRA, 1943

                WP(C).No.28870 OF 2020(G)


PETITIONER/S:

           PONNU PRABHAGHAR
           AGED 45 YEARS
           TC 27/3107, RYSA VEEDU, MIDS LANE, NEAR JUBILY
           HOSPITAL, THYCADU VILLAGE, PALAYAM,
           THIRUVANANTHAPURAM CITY, KERALA-695034.

           BY ADV. SMT.MINI.M.NAIR

RESPONDENT/S:

     1     THE STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
           COURT OF KERALA, ERNAKULAM-682031.

     2     THE STATE POLICE CHIEF,
           POLICE HEADQUARTERS, VAZHUTHAKKADU,
           THIRUVANANTHAPURAM-695010.

     3     THE ASSISTANT COMMISSIONER OF POLICE,
           C BRANCH, POLICE GROUND, CV RAMAN PILLAI RD.,
           THYCAUD, THIRUVANANTHAPURAM,KERALA.

     4     THE CENTRAL BUREAU OF INVESTIGATION,
           REPRESENTED BY THE SUPERINTENDENT OF POLICE,
           CBI, KATHRIKADAVU, KALOOR P.O., COCHIN-686668.

     5     THE PRINCIPAL,
           GOVERNMENT MEDICAL COLLEGE, ULLOOR,
           THIRUVANANTHAPURAM, KERALA-695011.

     6     DR. VENUGOPAL S. REDDIAR,
           4903 BROADMOOR ST APT 85, MISSION, KS 66202-
           1452, U.S.A., PHONE NO.(319)-341-5723, (586)
           757-6724, (810)757-6724, EMAIL ID
           [email protected]
           [email protected]
 W.P.(C)   No.28870 of 2020
                                 2




             R1-3, R5 BY SRI.SUMAN CHAKRAVARTHY, SENIOR
             GOVT.PLEADER

OTHER PRESENT:

             ASG P.VIJAYAKUMAR FOR CBI

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

ON   09-03-2021,   THE   COURT   ON   16-04-2021   DELIVERED   THE

FOLLOWING:
 W.P.(C)   No.28870 of 2020
                                      3



                               JUDGMENT

Dated this the 16th day of April, 2021

The petitioner had filed a complaint before

the Vanchiyoor Police Station. It was alleged

that the 6th respondent, who belongs to the forward

caste Hindu Reddiyar community, had secured

admission for MD General Medicine at Government

Medical College, Thiruvannathapuram, claiming to

be a person belonging to the Kondareddy community,

which is recognised as a Scheduled Tribe Community

in Tamil Nadu. The false claim was made on the

strength of forged community and nativity

certificates. The 6th respondent fraudulently

obtained National Overseas Scholarship for

students belonging to SC/ST category also. It was

alleged that the 6th respondent contracted a second

marriage while his first marriage was subsistence

and had thereby committed the offence under W.P.(C) No.28870 of 2020

Section 494 of IPC. The petitioner's complaint

resulted in Crime No.519 of 2019 being registered

at the Vanchiyoor Police Station for offences

under Sections 465, 468, 471, 494, 420 and 198 of

IPC. After investigation, the police filed Ext.P2

final report and the Judicial First Class

Magistrate-XI, Thiruvananthapuram took cognisance

of the offences mentioned above. The case is now

pending as C.C.No.831 of 2020.

2. The writ petition is filed, aggrieved by

the lackadaisical manner on which the

investigation was conducted and final report

filed. It is alleged that no effort was taken by

the investigating officer to seize the relevant

documents and question the crucial witnesses with

respect to the fraud committed by the petitioner,

forgery of certificates and other documents, the

benefits received by the petitioner based on his W.P.(C) No.28870 of 2020

false claim etc. It is contended that the learned

Magistrate took cognisance of the offences without

application of mind, which is evident from the

court having taken cognisance of the offence under

Section 494 of IPC despite the specific bar under

Section 198 Cr.P.C, The petitioner therefore prays

for a de novo investigation of the crime by

constituting a special investigation team.

3. Learned Senior Government Pleader fairly

submits that a scrutiny of the case diary

indicates certain flaws in the investigation,

which may benefit the accused in his defence, but

such flaws would not entitle the petitioner to

demand de novo investigation. That, the remedy of

the petitioner is to approach the jurisdictional

court with an application seeking further

investigation.

4. Having heard the learned Counsel for the W.P.(C) No.28870 of 2020

petitioner and the learned Senior Government

Pleader, I find substance in the contention urged

by the petitioner, of there being flaws in the

investigation. It is settled law that there cannot

be a direction to conduct de novo investigation,

merely on the de facto complainant or the victim

pointing out certain flaws in the investigation.

As rightly contended by the learned Senior

Government Pleader, remedy of the petitioner is to

approach the jurisdictional Magistrate Court

seeking further investigation.

In the result, the writ petition is disposed

of, granting liberty to the petitioner to approach

the Judicial First Class Magistrate Court-XI,

Thiruvananthapuram seeking further investigation

in Crime No.519 of 2019 of Vanchiyoor Police

Station. If such request is made, the learned

Magistrate shall pass a reasoned order thereon, W.P.(C) No.28870 of 2020

keeping in mind the decision in Vinubhai Haribhai

Malaviya and others v. State of Gujara t [(2019) 17

SCC 1] wherein the Apex Court has held that mere

taking of cognisance does not fetter the

Magistrate from ordering further investigation in

exercise of the power under Section 156 (3) Cr.P.C

and that such power can be exercised either suo

motu or on application, on being convinced about

the need to do so.

Sd/-

V.G.ARUN JUDGE Scl/16.04.2021 W.P.(C) No.28870 of 2020

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE CERTIFIED COPY OF THE FIR DATED 6.3.2019.

EXHIBIT P2 THE CERTIFIED COPY OF THE FINAL REPORT IN CC NO.831/2020.