Kerala High Court

Bijo Issac vs State Of Kerala on 16 February, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                   &

             THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

     TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                           WA.No.336 OF 2021

   AGAINST THE JUDGMENT IN WP(C) 16203/2019(A) OF HIGH COURT OF
                              KERALA

APPELLANT/PETITIONER:

             BIJO ISSAC
             AGED 45 YEARS, S/O. ISSAC,
             THALAKKOTTUKARA HOUSE, EDAPPALLY PALLIPPRAM,
             THRIKKAKKARA, ERNAKULAM DISTRICT, PIN-682 024.

             BY ADVS.
             SRI.R.BINDU (SASTHAMANGALAM)
             SRI.PRASANTH M.P

RESPONDENTS/RESPONDENTS:

      1      STATE OF KERALA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT,
             HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM, PIN-695 001.

      2      THE DIRECTOR GENERAL OF POLICE,
             POLICE HEAD QUARTERS, VAZHAUTHACAUD,
             THIRUVANANTHAPURAM, PIN-695 001.

      3      THE DETECTIVE INSPECTOR,
             CRIME BRANCH, CID, ERNAKULAM, KOCHI-682 301.

      4      THE SUPERINTENDENT OF POLICE,
             CRIME BRANCH, ERNAKULAM, KOCHI-682 301.

      5      THE DIRECTOR,
             CENTRAL BUREAU OF INVESTIGATION,
             NEW DELHI, PIN-110 001.

             SRI. V.TEK CHAND, SR GP FOR R1 TO R4

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.336 of 2021
                                        2


                                  JUDGMENT

Dated this the 16th day of February, 2021

S.Manikumar, C.J.

Being aggrieved by the decision in W.P.(C)No.16203 of 2019 dated

13.01.2021, instant writ appeal is filed.

2. Short facts leading to the filing of the writ petition are that, the

petitioner is the defacto complainant in Crime No.3662 of 2017 of

Perumbavoor Police Station. The above crime was registered on the basis

of the complaint filed by the writ petitioner for the commission of

offences punishable under Sections 420 and 406 of the Indian Penal

Code. Though the petitioner has specifically alleged in the complaint that

apart from the persons named in the complaint, there are other accused

involved in the crime, no investigation was conducted by the

investigating agency against those persons.

3. Earlier, as per Exhibit P2 judgment in W.P.(C)No.36856 of 2018,

this Court directed the Detective Inspector, Crime Branch, 3 rd respondent

herein, to take over the investigation and to complete the same as

expeditiously as possible. Since there was no effective action on the part

of the 3rd respondent, even after Exhibit P2 judgment, the petitioner

submitted Exhibit P4 representation to the Secretary to the Government,

Home Department and the Director General of Police, respondents 1 and W.A.No.336 of 2021

2 respectively, narrating the sequence of events and requested them, to

hand over the investigation to the Central Bureau of Investigation (CBI),

5th respondent, but then no action has been taken so far. Hence the writ

petition was filed seeking for the following relief:

"i) Issue a writ of mandamus or any other appropriate writ, direction or order, directing the respondents 1 and 2 to hand over the investigation of Crime No.3662/2017 of Perumbavoor Police Station to the 5th respondent and to conduct the investigation within a time frame to be fixed by this Honourable Court."

4. Short judgment made in W.P.(C)No.16203 of 2019 dated

13.01.2021, impugned in this writ appeal, is extracted:

"The writ petitioner seeks CBI investigation in connection with a transaction - sale of immovable property, agreement to re-transfer it, issuance of a cheque by a middleman and its dishonour. It is perfectly a civil matter, for which a civil suit was also initiated. There is no reason for directing CBI investigation in the matter. The present investigating agency shall expedite the investigation as far as possible.

Writ petition is disposed of accordingly."

5. Material on record discloses that on the registration of Crime

No.3662 of 2017, on the file of the Perumbavoor Police Station, under

Sections 420 and 406 of the Indian Penal Code, the Station House Officer W.A.No.336 of 2021

has taken up the investigation. Subsequently, vide judgment in W.P.

(C)No.36856 of 2018, investigation has been entrusted with the Crime

Branch, CID.

6. Material on record discloses that the Detective Inspector-III,

Crime Branch, CID, Ernakulam has submitted statements before this

court, dated 4.7.2019, 18.11.2019, 19.12.2019, 10.6.2020, 14.9.2020

and lastly on 4.12.2020, explaining the details of investigation, conducted

by the Police.

7. Statements disclose that accused in Crime No.3662 of 2017 on

the file of the Perumbavoor Police Station, was also involved in other

offences in various Police Stations.

8. Investigating Officer has found that a civil case, O.S.No.19 of

2015 has been filed by the writ petitioner before the Sub Court,

Perumbavoor against the accused persons, and that the suit is still

pending.

9. The Investigating Officer has also found that the petitioner has

also filed a complaint in C.C.No.585 of 2015 against one of the accused

Subhash under the provisions of the Negotiable Instruments Act and that

the same is pending before the Sub Court, Ernakulam.

10. There is yet another case filed against the petitioner by one of

the accused Chellappan as O.S.No.18 of 2015 on the file of the Sub W.A.No.336 of 2021

Court, Perumbavoor. All cases are stated to be pending.

11. Detective Inspector-III, Crime Branch, Ernakulam, in his

affidavit dated 14.9.2020, has stated that due to severe attack of corona

virus and lock down, he could not complete the investigation in a time

bound manner. He has further stated that handwriting examination of the

accused is inevitable and that it can be conducted only by the Forensic

Science Lab, Tripunithura. Thus, for the abovesaid reasons, the Detective

Inspector has sought for time.

12. Apart from the grounds raised, Mr.R.Bindu Sasthamangalam,

learned counsel for the appellant has submitted that in Crime No.3662 of

2017 on the file of Perumbavoor Police Station, Police is not taking any

steps to issue summons under Section 41A of the Code of Criminal

Procedure to summon the accused. Thus, with a malafide intention and

citing civil cases pending between the parties as reasons, investigation is

prolonged.

13. He further submitted that the observation of the learned single

Judge in the impugned judgment that, "It is perfectly a civil matter, for

which a civil suit was also initiated", would adversely affect the case of

the appellant and that taking note of the abovesaid observation, there is

every likelihood of the Investigating Officer, Detective Inspector-III, in

closing down the investigation, by filing a final report. W.A.No.336 of 2021

14. We have heard learned counsel for the appellant and perused

the material on record.

15. Firstly, as rightly observed by the learned single Judge, we

have no reasons to reiterate that the matter is purely one relates to

transaction of sale of immovable property, agreement to re-transfer it,

transaction of money, etc.

16. Civil suits have been filed to enforce civil rights. However,

Police has registered Crime No.3662 of 2017 on the file of Perumbavoor

Police Station under Sections 406 and 420 of the Indian Penal Code.

Taking note of the complexity, writ court, vide judgment dated

27.11.2018 in W.P.(C)No.36856 of 2018 directed to transfer the

investigation to Crime Branch, CID.

17. Though the Detective Inspector, Crime Branch has filed various

statements, setting out the reasons for the delay in investigation, having

regard to the fact that the Crime was registered in the year 2017, and

subsequently, Crime Branch, Ernakulam has registered Crime

No.20/CB/EKM/R/19 under Sections 420, 406 and 419 IPC, we are of the

view that investigation cannot be prolonged, as it is seen from the

material on record that nearly four years from the date of registration of

the Crime by Perumbavoor Police Station and later on two years, after

the registration of Crime by the Crime Branch, Ernakulam, have lapsed. W.A.No.336 of 2021

Police has to act as per the provisions of the Code of Criminal Procedure.

18. Section 41A of the Code of Criminal Procedure reads thus:

"41A. Notice of appearance before police officer.-- (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice."

19. Fact that there are two cases between the parties, would not

absolve the Crime Branch Police from investigating the crime registered,

and filing of final report, culminating into logical conclusion of the crime

registered.

W.A.No.336 of 2021

20. In such a view of the matter, we direct the Detective

Inspector, Crime Branch, Ernakulam, respondent No.3 herein, to

complete the investigation, within three months from today and file a

final report to the court of competent criminal jurisdiction.

While declining the relief prayed for to entrust the matter to the

CBI, writ appeal is disposed of as indicated above.

Pending interlocutory applications, if any, shall stand closed.