Kerala High Court
Vellappally Natesan vs State Of Kerala on 11 April, 2023
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 11TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945
WP(CRL.) NO. 98 OF 2022
PETITIONER/S:
SURENDRA BABU
AGED 75 YEARS
S/O A.PARAMU, CHAITHANYA , N.T.V NAGAR, HOUSE NO 9,
KADAPPAKADA P.O.,KOLLAM ,PIN-691 008
BY ADV D.ANIL KUMAR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY, HOME DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 ADDITIONAL DIRECTOR GENERAL OF POLICE,
CRIME BRANCH HEADQUARTERS, THIRUVANANTHAPURAM ,
PIN-695 036.
3 VELLAPPALLY NATESAN,
S/O KESHAVAN, VELLAPPALLIL HOUSE, KANICHUKULANGARA
P.O.CHERTHALA, ALAPPUZHA DISTRICT, PIN-688 582
BY ADVS.
FOR R1 & R2 BY SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
R3 BY SHRI.P.VIJAYA BHANU (SR.ADVOCATE)
ADV. A.N.RAJAN BABU
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
04.04.2023 ALONG WITH WP(Crl.)426/2021, THE COURT ON 11.04.2023
DELIVERED THE FOLLOWING:
WP(Crl) Nos. 98/22 & 426/21 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 11TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945
WP(CRL.) NO. 426 OF 2021
PETITIONER/ACCUSED:
VELLAPPALLY NATESAN
AGED 84 YEARS
S/O LATE KESAVAN, VELLAPPALLIL HOUSE, KANICHUKULANGARA
P.O, CHERTHALA, ALAPPUZHA, SECRETARY OF SREE NARAYANA
TRUST, KOLLAM.
BY ADVS.
SHRI.P.VIJAYA BHANU, SR.ADVOCATE
ADV. A.N.RAJAN BABU
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.
2 ADDITIONAL DIRECTOR GENERAL OF POLICE,
CRIME BRANCH POLICE HEAD QUARTERS, VAZHUTHAKAD,
THIRUVANANTHAPURAM-695001.
3 SUPERINTENDENT OF POLICE
(SHAJI SUGUNAN) SPECIAL CELL, VIGILANCE AND ANTI-
CORRUPTION BUREAU, THEKKUMOOD, THIRUVANANTHAPURAM-
695001.
4 P.SURENDRA BABU,
S/O.PARAMU, 'CHAITHANYA', KADAPPAKADA,KOLLAM, PIN-
691008.
5 DEEPAK.S,AGED 52 YEARS
S/O.SURESH BABU, GEETHA SADANAM, KAITHA SOUTH,
KANNAMANGALAM, MAVELIKKARA, PIN-690106.
BY ADVS.
R1,R2 & R3 BY SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
R4 BY ADV.D.ANIL KUMAR
R5 BY ADV. M.G.KARTHIKEYAN
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
04.04.2023, ALONG WITH WP(Crl.).98/2022, THE COURT ON 11.04.2023
WP(Crl) Nos. 98/22 & 426/21 3
DELIVERED THE FOLLOWING:
WP(Crl) Nos. 98/22 & 426/21 4
JUDGMENT
The issues involved in these writ petitions are
in relation to the investigation in Crime No 727/2004
of Kollam East Police Station, which is renumbered as
Crime No.119/CB/KLM & PTA/2018 of Crime Branch. The
petitioner in WP(Crl)No.98/2022 is the defacto
complainant, and the petitioner in WP(Crl)No. 426 of
2021 is the accused in the said crime. The offences
alleged are under sections 420, 406, 408 and 403 of
the Indian Penal Code (IPC). For convenience, the
parties are referred to in this writ petition as the
defacto complainant and the accused.
2. The crime mentioned above was registered
based on a private complaint submitted by the defacto
complainant before the Chief Judicial Magistrate
Court, Kollam, on 27.09.2004 alleging offences
punishable under sections 403, 406, 408 and 420 of
IPC. The learned Magistrate referred the same to the
Kollam East Police Station for investigation under
section 156(3) of the Code of Criminal Procedure
(Cr.PC) and accordingly, the aforesaid crime was
registered. Initially, after completing the
investigation, a refer report was submitted by the
police, which was objected to by the defacto
complainant. The learned Magistrate accepted the
objections, and a further investigation was ordered.
After conducting further investigation, the police
filed a supplementary final report stating that the
offences were undetected, and this was also objected
to by the defacto complainant. Therefore, a further
investigation was conducted. Meanwhile, the defacto
complainant approached this court by filing WP(C)No.
36361/2016, contending that no proper investigation
was being conducted and hence the transfer of
investigation to any other agency was sought. The
said writ petition was allowed by directing the Crime
Branch to constitute a Special Investigation Team and
conduct the investigation. Accordingly, a team was
formed, the crime was renumbered as above, and an
investigation was conducted. Upon completion thereof,
a final report implicating the accused was submitted,
upon which cognizance was taken by the Chief Judicial
Magistrate, Kollam, as C.C. No 50/2020, which is now
pending trial.
3. The prosecution case is as follows; The
defacto complainant is a member of the Board of
Trustees of Sree Narayana Trust, Kollam(SN Trust).
The accused has been the Secretary of the Trust since
1995. It is a Public Trust, running various
establishments throughout the State, including
various educational institutions. One of its most
prominent educational institutions is Sree Narayana
College, Kollam. As the year 1997-1998 was the Golden
Jubilee year of the said College, the trust decided
to celebrate the same. For the said purpose, a
committee was formed, and the accused, the Secretary
of the SN Trust, was selected as the Convener of the
said committee. A bank account was opened in the
Extension Counter of South Indian Bank in SN College,
Kollam bearing No 3307, in the name of the accused,
showing him as the convener of the Golden Jubilee
Celebration Committee. Huge amounts were collected
from various sources, such as donations, coupons etc.
It is alleged that, in the said account, a total
amount of Rs.65,58,107/- was collected, and as on
15.03.1999, the amounts in the said account, along
with interest, was Rs.67,24,669/-. Besides the same,
an All India Exhibition was conducted as part of the
celebrations in the College, for which an exhibition
committee (sub-committee) was formed wherein CW6,
Prof. Sathyan, was the convener. It was alleged that
the accused misappropriated a substantial portion of
the said amounts by diverting funds to other channels
without any authorisation. The basic allegations are
in respect of three transactions, which are as
follows;
(i) On 16/12/1997, the accused withdrew by cash
an amount of Rs.25,00,000/- by presenting cheque No.
522408 without any authorisation of the committee.
The same was later deposited as a Fixed Deposit in
the Dhanalakkshmi bank, Cherthala, only on 16.06.1998
after adding some amount under the guise of interest.
Subsequently, it was diverted on 9.07.1999. The same
was deposited in the accounts of the SN Trust, a
separate organisation having nothing to do with the
Celebration Committee and thereby misappropriating
the said amount.
(ii) An amount of Rs 10,00,000/- was withdrawn
from the account on 10.09.1998, and after keeping the
same, it was deposited in the account of SN Trust on
15.01.2000, i.e after one year and four months.
(iii) By the conduct of the All India Exhibition,
the exhibition committee generated an amount of Rs.
35,44,437/- from various sources, out of which an
amount of Rs 15,26,777/- was the expenditure incurred
for the conduct of the exhibition. The balance amount
was Rs.20,17,660/-. In the meeting of the committee
held on 13.07.1999, said amount was handed over to
the accused by way of a cheque as per the decision of
the committee to utilize the same to construct a
Golden Jubilee Library Complex, as the accused
informed that the amount of Rs.35,00,000/- available
in the account of the Golden Jubilee Celebration
Committee was not sufficient for the said purpose.
4. It was also alleged that, in the first
meeting of the Committee itself, it was decided that
the income generated from the celebrations shall be
utilized for the construction of a Golden Jubilee
Library Complex in the compound of SN Colege, Kollam.
However, without utilizing the same for the said
purpose, the accused deceived the members of the
Golden Jubilee Celebration Committee.
5. Now, the matter is pending trial. WP(Crl) No.
426/2021 was filed by the accused, explaining the
above mentioned transactions and contending that the
same were not misappropriations, warranting any
criminal prosecution. It is also pointed out that the
statement of CW7, the accountant having the knowledge
of the transactions, was incorrectly recorded during
the investigation and a complaint was submitted by
him in this regard before the 2nd respondent. The
accused submitted two representations (Ext P14 and
P14(a)) before the Additional Director General of
Police, Crime Branch (2nd respondent in the said writ
petition) highlighting the said aspects. He seeks a
direction to the 2nd respondent to consider the same
before the disposal of the CC No.50/2020 on the files
of the Chief Judicial Magistrate, Kollam and before
framing the charge thereon. Similarly, the accused is
also seeking a direction to respondents 2 and 3 to
ascertain whether the exhibition committee held a
bank account in South Indian Bank, Kollam or any
other bank to issue a cheque to the petitioner for
Rs.20,17,166/- and whether the petitioner encashed
the cheque said to be issued by Prof. G. Sathyan,
(CW6) and failed to account the same. The prayers
sought in the said writ petition were opposed by the
prosecution as well as the defacto complainant, who
is the 4th respondent in the said writ petition.
6. The facts which led to the filing of WP(Crl)
98/2022 by the defacto complainant are as follows;
Subsequent to the filing of the final report, one
B.Radhakrishna Pillai, Deputy Superintendent of
Police (Rtd), who was the former member of the
Special Investigation Team which conducted the
investigation, issued Ext.P6 letter to the
Superintendent of the Police, who was the Chief
Investigation of Officer, pointing out that, CW6
Prof, G.Sathyan had made a revelation in an article
prepared by him and published in souvenir named
"Yoganadam" which was published in commemoration of
the 25th anniversary of the tenure of the office of
the accused as the General Secretary of the SNDP
Yogam and SN Trust. It was pointed out that, in the
said article, it was stated that the accused
organised the Golden Jubilee Celebrations in a
commendable manner and made a profit of Rs.
20,00,000/- to the Yogam by conducting the All India
Exhibition. Exhibit P7 in WP(Crl)No.98/2022 is a
copy of the said publication. According to the said
Radhakrishna Pillai, the said revelation is contrary
to his statement in the final report, and it is a new
fact as well. Therefore, he requested a further
investigation by invoking section 173(8) of the
Cr.P.C.
7. Acting upon the said communication, the Chief
Investigation Officer submitted Ext.P8 communication
before the 2nd respondent in the said writ petition,
recommending further investigation in the matter.
Based on the same, the 2nd respondent, as per Ext P9,
without any discussion as to the grounds of the
decision, granted permission to take steps for
further investigation after reporting the matter to
the court. Accordingly, the prosecution submitted an
application before the Chief Judicial Magistrate,
Kollam, seeking formal permission for further
investigation. The formal permission was granted on
01.01.2022, as evidenced by Ext P10 in WP(Crl)No
98/2022. The said order, the decision taken to
conduct further investigation and all further
proceedings pursuant to it are under challenge in the
said writ petition at the instance of the defacto
complainant.
8. In response to the contentions raised in
WP(CrL) No. 98/2022, the accused and the prosecution
filed a counter affidavit and a statement
respectively, opposing the prayers and justifying the
decision to conduct further investigation.
9. Thus, the crucial points to be considered are
(1) whether the further investigation now being
conducted is legally sustainable or not, and
(2) whether the directions sought by the accused in
WP(C)No.426/2021, i.e. to direct the Additional Director
General of Police to consider the aspects highlighted in
Exts. P14 and P14(a) and to conduct a further probe to
find out whether the Exhibition Committee maintained a
bank account and whether CW6 handed over a cheque to the
accused or not are to be allowed.
10. Heard Sri D. Anilkumar, the Learned Counsel
for the defacto complainant (petitioner in
WP(Crl)98/2022 and 4th respondent in WP(C)No
426/2021), Learned Senior Counsel Sri.P.Vijayabhanu,
instructed by Adv.Sri. Rajan Babu, for the
accused(petitioner in WP(Crl)No.426/2021 and the 3rd
respondent in WP(Crl)No 98/2022) and Sri P.Narayanan,
Learned Additional Public prosecutor for the State.
11. As the further investigation is being
conducted, I deem it proper to consider the
sustainability of the same first. In this regard, it
is to be noted that the learned Additional Public
prosecutor submitted that a further investigation has
already been conducted, a draft supplementary final
report has been prepared, and the same has been
submitted before the 2nd respondent in WP(Crl)
No.98/2022 for approval. However, it is pointed out
that the 2nd respondent was not satisfied with the
report, so the investigation is being continued.
Moreover, as ordered by this court, the copy of the
said draft final report has been produced in a sealed
cover before this court. However, since the issue to
be considered is regarding the sustainability of the
decision to conduct further investigation, it was
felt that it is not proper to examine the draft final
report at this juncture and therefore, this court
never opened the same.
12. The power of the investigation officer under
section 173(8) of the Cr.P.C to conduct a further
investigation is very wide and it can be invoked at
any stage of the proceedings. The said provision
reads as follows:
"Nothing in this section shall be deemed to
preclude investigation in respect of an offence
after a report under sub-section (2) has been
forwarded to the Magistrate and, whereupon such
investigation,the officer in charge of the
police station obtains further evidence,oral or
documentary, he shall forward to the Magistrate
a further report or reports regarding such
evidence in the form prescribed; and the
provisions of sub-section (2) to (6)shall, as
far as may be, apply in relation to such report
or reports as they apply in relation to a report
forwarded under sub-section (2)."
13. The said provision starts with the words
"Nothing in this section shall be deemed to preclude further
investigation..............." and the said words in clear terms
convey that, the said power is very wide. The
position of law in this regard, confirming such wide
powers of the investigation officer for further
investigation, has been settled as per various
decisions of the Honourable Supreme Court including
Vinubhai Haribhai Malaviya & Ors v. State of Gujarat
and another [(2019)17 SCC 1], Minu Kumari and another
v.State of Bihar and Others [AIR 2006 SC 1937],
Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai
Patel and Others [(2017) 4 SCC 177] and Ram Lal
Narang v. State (Delhi Admn) [AIR 1979 SC 1791.
14. However, the principles laid down in the said
decisions cannot be interpreted to mean that the
investigation officer can conduct a further
investigation under any circumstances. In other
words, merely because the investigation officer is
clothed with the power to investigate the matter
further, such power cannot be invoked at his whims
and fancies. It must be supported by reasons
justifiable in law, and in cases where such powers
were improperly or maliciously or arbitrarily or with
malafide intentions exercised, nothing would preclude
this Court from interfering with such proceedings by
exercising the powers under Article 226 of the
Constitution of India. To be precise, this Court
cannot be a mute spectator and endorse the exercise
of such powers by the investigation agency when it
was shown that the said power was invoked arbitrarily
to give some undue advantage to one of the parties to
the prosecution, either the victim or accused, and
thus, an abuse of process of law. The exercise of
such power must be for protecting the interests of
the prosecution and must be to ensure justice for the
parties concerned.
15. In P.Gopalakrishnan @ Dileep v. State of
Kerala and others [2022 (2) KLT Online 1183], this
court examined the circumstances under which the
order of further investigation can be interfered with.
After referring to a large number decisions, including
Kurukshetra University & Anr. v. State of Haryana & Anr.[1977
KHC 711], State of Haryana & Ors. v. Ch.Bhajan Lal & Ors.
[1992 KHC 600], State of A.P v. Golconda Linga Swamy [2004
KHC 1342] M/s Neeharika Infrastructure Pvt Ltd v. State of
Maharashtra [2021(2) KLT OnLine 1039(SC), it was observed as
follows;
" 29. A careful reading of the above noted
judgment make it clear that the High Court should
be extremely cautious and slow to interfere with
the investigation and/or trial of criminal cases
and should not stall their investigation and/or
prosecution except when it is convinced beyond any
manner of doubt that FIR does not disclose
commission of any offence or that the allegations
contained in FIR do not constitute any cognizable
offence or that the prosecution is barred by law
or where a criminal proceeding is manifestly
attended with malafides or where the proceeding is
manifestly instituted with an ulterior motive for
wreaking vengeance or the High Court is convinced
that it is necessary to interfere to prevent abuse
of process of Court. The further investigation
under section 173(8) of Cr.P.C being the
continuation of the earlier investigation, the
same parameters which shall be applicable while
exercising the powers under Section 482 and/or
under Article 226 of the Constitution of India to
quash the FIR/registration can be made applicable
to quash further investigation as well."
16. I have carefully scrutinized the materials
placed before me, keeping the above principles in
mind. While considering the same, the sequence of
events which led to the decision to conduct a further
investigation is a crucial aspect to be taken note
of. In this case, the basis of the said decision was
Ext.P6 communication issued by the one Radhakrishna
Pillai, a retired DySP and a former member of the
investigation team. The interest of such a person in
getting the investigation reopened appears to be
highly suspicious at first instance. As a member of
the Special Investigation Team, he normally would not
be interested in the matters of the investigation
once the investigation is complete and the final
report is filed. Here, in this case, Ext.P6
communication is issued by him after he retired from
service, which is yet another crucial aspect (dubious
as well) to be taken note of.
17. Moreover, the reason which prompted him to
seek further investigation adds more fuel to the
controversy. According to him, CW6, Prof G.Sathyan,
the convener of the subcommittee formed for the
Exhibition, had published an article in one of the
publications of the SNDP Yogam, contrary to the stand
he had taken in the statement given to the police
during the investigation. As per the statement given
to the police, he stated that from the conduct of the
exhibition, the committee was having an amount of Rs.
20,17,660/- in their account after deducting the
expenses, and this was handed over to the accused for
the purpose of utilising it for constructing a
library complex in the compound of SN College,
Kollam. However, in the article published in the
Souvenir published (Yoganadam-Ext.P7), he stated
that, from the exhibition conducted, the accused made
a profit of Rs.20,00,000/- for the Yogam. The exact
words used by CW6 in the said article, which is on
page 174 of the Memorandum of WP(Crl)No.98/2022, read
as follows;
"ഇതിനോടനുബന്ധിച്ചു നടന്ന അഖിലേന്ത്യ പ്രദർശനം 20 ലക്ഷം രൂപയുടെ സാമ്പത്തിക
നേട്ടം യോഗത്തിനുണ്ടാക്കി"
18. Thus, the crucial question that arises for
consideration is whether such a statement makes out a
sufficient cause for invoking the powers of the
investigation officer under section 173(8) of the
Cr.P.C. After carefully examining the aforesaid
statement, coupled with the circumstances and source
from such a request happened to be placed, I find it
to be inadequate and it would not warrant a further
investigation, for the reasons hereinafter mentioned.
First of all, CW6 had already given a statement
before the investigation officer to the effect that
an amount of Rs.20,17,660/- has been entrusted to the
accused based on a decision taken by the exhibition
committee on 13.07.1999. In Ext.P7 article, he stated
that by conducting an exhibition, the accused made a
profit of Rs.20,00,000/- to Yogam (SNDP Yogam), a
different entity. The college where the Golden
Jubilee celebration was conducted is run by SN Trust,
which is a separate entity. Moreover, the specific
allegation of the prosecution is that the amount
collected by the accused from the Exhibition
Committee was by making the committee members believe
that the said amount would be utilised for the
construction of a library complex in the SN College,
Kollam, but, it was diverted for some other purposes
without the authorisation of the exhibition committee
members. Therefore, the allegation was mainly
regarding the misappropriation of the amount
generated by the exhibition committee as profit from
the conduct of the exhibition. Thus, the mere
statement of CW6 that the accused made a profit for
the Yogam from the conduct of the exhibition would
not have any significance as far as the prosecution
case is concerned. Further, the said statement cannot
be treated as a new fact, warranting further
investigation into the matter, because, the fact that
the conduct of the exhibition generated a profit of
about Rs.20 lakhs is already stated by him in the
statement before the investigation officer. Even if
it is treated as a discrepancy, at the most, it can
be a defence for the accused in the trial and not a
material for further investigation.
19. Even if it is assumed for argument sake that
the statement in Ext.P7 article is contrary to the
prosecution case, the question that would arise is
whether it can be treated as a valid ground for
invoking the powers under section 173(8) of the
Cr.P.C. In my view, the only irresistible conclusion
could be in the negative. As mentioned above, CW6 has
already given his statement before the police. If
further investigation is ordered whenever the witness
takes a stand contrary to the prosecution case
through a public statement or otherwise, it would
neither be practical to conduct further investigation
nor be in the best interest of the prosecution. The
veracity of the statement the victim gave to the
police can and ought to be examined only during his
examination in the trial. Order of further
investigation merely because of that reason could be
counter productive as this would pave the way for
creating opportunities for the accused to influence
the witnesses to persuade them to make contrary
statements, get the further investigation ordered,
thereby escape from the clutches of law, even without
facing the trial. Under no circumstances the powers
under section 173(8)of the Cr.P.C could be
interpreted to create such shortcuts to evade the
process of law.
20. There are certain other aspects which
fortify the said view. In this case, besides the
statement of CW6, there are several other witnesses
in whose presence the transaction of Rs.20,17,660/-
took place. It is pertinent to note that the said
amount was handed over to the accused in the meeting
of the exhibition committee held on 13.07.1999. Some
of the committee members were also made as the
witnesses in the final report. In Ext.P6
communication issued by the said Radhakrishan Pillai,
the former member of the Special Investigation Team,
also refers to such witnesses. Therefore, conducting
a further investigation on the said reason of a
contrary statement given by only a single witness
would undoubtedly complicate the matter further, and
under no circumstances can that be in the best
interest of the prosecution.
21. However, while making the above observations,
I am conscious of the fact that when referring to
"interest of prosecution', it can be the interest of
the accused also in certain circumstances. To be
precise, after filing the final report, when the
investigation officer comes across evidence that
would indicate the innocence of the person made as an
accused, and such materials suggest the culpability
of some other persons, it could be a good ground for
invoking the powers. This is because the interests of
prosecution would take within its sweep the necessity
of the prosecution of the real culprits and thereby
ensure that actual culprits are proceeded against and
punished. I have considered the materials before me
from that perspective also. As far as the allegation
of misappropriation of Rs.20,17,660/- entrusted
by the exhibition committee is concerned, the
explanation of the accused is that the said amount,
which is shown as the balance in the
account of the exhibition committee included Rs.
20,00,000/- received from the exhibition committee
and put in the fixed deposits on 11.01.1999 and
13.07.1999. To substantiate the same, the audited
balance sheet of the SN Trust for the year 1998-1999
was also relied on, in which the receipt of the said
amount is seen recorded. However, the specific case
of the prosecution is that the amount of Rs.
20,17,660/- was handed over to the accused by way of
cheque in its meeting held on 13.07.1999, which was
after the financial year 1998-1999. Several witnesses
have specifically given statements to that effect.
Moreover, the statements of the said witnesses,
including CWs 1 to 6, were after considering this
aspect as well, and they have categorically stated
that such entry in the audit statement may not be
correct. Thus, it is a matter to be considered in the
trial and certainly not a ground for further
investigation. Therefore, in this regard also, I do
not find any prima facie case warranting further
investigation in the matter.
22. In the statement filed by the Prosecution
before this court in response to the averments in
WP(Crl) No.98/2022, the explanation offered by them
to justify the decision for further investigation
included another aspect as well. According to the
prosecution, even though CW6 stated that the amount
was handed over to the accused on 13.07.1999 by way
of cheque, the said cheque was not recovered, and the
bank account details of the exhibition committee also
could not be collected. Therefore further
investigation is required. However, a reading of the
final report would indicate that this aspect was
investigated explicitly, and CW6 clearly stated that
he does not remember the bank details, as the said
statement was taken years after the said transaction.
Moreover, the other witnesses have also clearly
stated about the entrustment of the said amount.
Therefore, since an investigation is already
conducted in this regard, there is no meaning in
conducting further investigation into that aspect
again. In this regard, the contents of Ext.P6
submitted by the former member of SIT, the
communication based on which the further
investigation was ultimately ordered, are very much
relevant. The relevant portion of the said
observations on page 4 of Ext.P6 (page 122 of the
memorandum of WP(C)No.98/2022) is extracted
hereunder;
".............According to him the whereabouts of this
amount is not known to anybody thereafter. As
per his statement before you, there was a
separate account for the Exhibition Committee in
some bank and the above amount was given to the
accused by means of a cheque from that account.
He further stated that he did not remember in
which bank the above said account was being
operated. The above version of witness No. 6 was
also supported by the other relevant witnesses
who had been members of the Golden Jubilee
Celebration Committee. It may be noted that
though we had made all earnest efforts to find
out the account in the name of the Exhibition
Committee or any other account in the personal
name of witness No.6 wherefrom the above said
cheque was issued after depositing the above
amount, it was in vain. It was the lapse of a
long period of time which was cited by him to be
the reason why he could not remember the details
of the above mentioned bank account. This was
also supported by the other witnesses. Even
though we could not find out the said bank
account and the details of the alleged cheque,
we were not able to discard the oral evidence of
witness No. 6 as untrustworthy, as he and the
other relevant witnesses were steadfast in their
stand. When the other connected circumstances
were also taken into account, there was no
chance for you to take different view than going
by the deposition of the said witnesses. It was
mainly on the basis of the above evidence that
opinion was formulated to the effect that the
said amount was misappropriated by the accused.
The culpability was fixed on the accused by
considering the strong probabilities and other
attending circumstances based on the evidence of
witness No. 6 supported by other witnesses. The
IO had to proceed with the available evidence as
it were otherwise not unbelievable."
23. From the above, it is evident that a detailed
investigation into that aspect was already conducted;
therefore, further investigation is not warranted. It
is also relevant to note in this regard that, as per
Ext.P6, further investigation was recommended by the
said Radhakrishna Pillai, mainly because, according
to him, another conclusion was possible. From the
further orders passed by the authorities concerned
for further investigation and the averments in the
statement of the prosecution, it appears that the
said recommendation in Ext.P6 was accepted as such.
In my view, such a course of action was not proper.
The possibility of another conclusion from the
materials collected cannot be a reason for invoking
the powers under section 173(8) of the Cr.PC. The
investigation officer, after evaluation of the
materials collected, already formed an opinion as to
the culpability of the accused, and a final report
implicating him has been filed. Thereafter it is for
the court to decide on the further course of action
to be taken thereon. In this case, the competent
court has already taken cognizance of the offences.
Therefore the investigation officer cannot be treated
as a person competent to decide on the same (that too
after cognizance of the same has been taken by the
court) by conducting further investigation on the
ground that another conclusion was possible. Further,
the suggestion made by the said Radhakrishna Pillai
as above, is yet another aspect that indicates the
dubious manner in which the proposal for further
investigation was mooted.
24. Besides the reasons mentioned above, the
sequence of events, right from the inception of this
case, also compels this Court to take a stand against
further investigation. The defacto complainant has a
case that the accused in this case, is a person of
high influence and also holds a prominent position in
the management of an organisation having substantial
influence among the political parties in the State.
The crime was initially registered by the Kollam East
Police, based on the order passed by the Chief
Judicial Magistrate, Kollam, under section 156(3) of
the Cr.P.C on the private complaint submitted by the
defacto complainant. Initially, a refer report was
submitted by the police, which was objected to by the
defacto complaint. The learned Magistrate ordered
further investigation. The report filed thereafter
was to the effect that the offence was undetected.
Again further investigation was ordered based on the
objections of the defacto complainant. Later based on
the writ petition filed by the defacto complainant,
this court found that the investigation conducted by
the Kollam East Police was not proper and, therefore,
vide judgment produced as Ext P1 in WP(Crl)No.
98/2022, the Crime Branch was directed to conduct the
further investigation after constituting a special
team. The present final report was submitted
accordingly. Now, a request has been placed by a
former member of the investigation team, that too
after his retirement, for further investigation,
citing flimsy reasons. As the said person cannot
possibly be interested in further investigation, the
bonafides in making such a request is highly
suspicious. The authorities concerned took the
decision thereon in a very casual manner, without
much deliberations on it. When all these aspects are
taken into consideration, I find some force in the
contention put forward by the learned counsel for the
petitioner that there is a calculated attempt to
exonerate the accused, a very influential person,
without even a trial. This Court cannot be a party to
such mischievous attempts.
25. In support of his contention regarding the
arbitrary exercise of the authorities concerned, the
learned counsel for the defacto complainant places
reliance upon Smt. S.R.Venkataraman v. Union of India
and another [(1979)2 SCC 491], wherein after
referring to Lord Goddard C.J in Piling v. Abergele
Urban District, [(1950) 1 KB 636], observed that
"........where a duty to determine a question is conferred on
an authority which state their reasons for the decision,
"and the reasons which they state show that they have
taken into account matters which they ought not to have
taken into account, or that they have failed to take
matters into account which they ought to have taken into
account, the court to which an appeal lies can and ought
to adjudicate on the matter". In the said decision, a
reference was also made to the observations of
Lord Esher M.R. in The Queen on the Prosecution of
Richard Westbrook v. The Vestry of St.Pancras (1890)
24 QBD 371, 375, which reads as follows: "If people
who have to exercise a public duty by exercising their
discretion take into account matters which Courts
consider not to be proper for the guidance of their
discretion, then in the eye of the law they have not
exercised their discretion,"
26. When considering the facts and circumstances
of this case in the light of the above principles,
I am left with no other option than to pass an order
to interfere with the discretion exercised by the
investigation officer. The decision for further
investigation was taken based on matters which were
not at all relevant or sufficient for invoking the
said powers.
27. The next aspect to be considered is with
regard to the prayers sought by the accused in
WP(Crl)No.426/2021. One of the main prayers is to
direct the Additional Director General of Police,
Crime Branch, the 2nd respondent, to consider and
dispose of Exts.P14 and P14(a) representations.
I have carefully gone through the contentions of the
said representations. It contains the explanation for
the transactions which are the subject matter of the
offences alleged against him. It is also contended
that the statement of CW7 was not recorded properly,
and the said witness had already submitted a
complaint in this regard. He also seeks a further
probe into the bank account maintained by the
exhibition committee, the details of the cheque
allegedly handed over by CW6 to him on 13.07.1999.
After considering all the relevant aspects, I am of
the view that the said prayers cannot be considered.
The said prayers are of such a nature that it
interferes with the investigation conducted by the
police. It is a well settled position of law that,
as far as the matters relating to the investigation,
the accused has no right to be heard,
and he cannot insist that the investigation should be
conducted in a particular manner. In Sanjiv Rajendra
Bhatt v.The Union of India & Ors[(2016) 1 SCC 1], it was
observed that "The accused has no right with reference
to the manner of investigation or mode of prosecution."
The investigation is the prerogative of the
investigation officer, and the accused has no right
to interfere with the said powers. In this case, the
investigation officer arrived at the opinion as to
the commission of the offences by the accused after
recording statements of 55 witnesses and examining
several documentary evidence. The explanations
attempted to be offered by the accused in Ext. P14
and P14(a) representations, at the most, could be his
defence which he can raise during the trial. Under no
circumstances he can compel the investigation officer
to go through the said aspects, particularly when the
final report is submitted, unless the materials
relied on by the accused on its simple examination
undoubtedly establish that it was a case of false
accusation. In this case, I am unable not find that
materials placed by the accused in the said writ
petition are of that character. As far as the
contentions regarding the statement of CW7 are
concerned, the observations made in this judgment in
paragraphs above relating to the statement of CW6 are
applicable; therefore, the same cannot be treated as
a valid ground for a further probe. Thus, the prayer
sought by the accused, the petitioner in WP(C)
No.426/2021, cannot be entertained.
In such circumstances, the following orders are
passed:
A. WP(Crl)No.98/2022 is allowed. It is
declared that, the decision taken by the 2nd
respondent to conduct further investigation, as
evidenced by Ext.P9, is not legal and proper. In the
light of the aforesaid finding, Ext.P10 formal
permission granted by the Chief Judicial Magistrate,
Kollam, for further investigation is also set aside.
The Chief Judicial Magistrate, Kollam, is directed to
conduct the trial of the C.C. No 50/2020 based on the
final report produced as Ext.P4, as expeditiously as
possible.
B. WP(Crl) No.426/2021 is dismissed.
However, it is clarified that the observations
made in these writ petitions were only for the
purpose of determining the question as to the further
investigation into the matter. Under no circumstances
can the same be treated as observations on the
veracity/sustainability of the allegations against
the accused. The learned Magistrate shall be
empowered to consider all the contentions of the
accused, on merits, untrammeled by any of the
observations made in this common judgment.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
APPENDIX OF WP(CRL.) 426/2021
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE SCHEME OF S.N.TRUSTS.
Exhibit P2 TRUE COPY OF THE RELEVANT PAGE IN AUDIT
REPORT AND STATEMENT OF ACCOUNTS FOR THE YEAR
ENDED ON 31-3-1999.
Exhibit P3 TRUE COPY OF THE RELEVANT PAGE 88 IN THE
LEDGER OF S.N.TRUSTS 11/2/1999
Exhibit P4 TRUE COPY OF THE RELEVANT PAGE OF THE AUDIT
REPORT AND STATEMENT OF ACCOUNT UNDER HEAD
INVESTMENT AND SECURITIES AT PAGES 96 AND 97
OF THE LEDGER.
Exhibit P5 TRUE COPY OF THE COMPLAINT IN C.M.P.
NO.5916/2004 DATED 27-9-2004 FILED BY THE 4TH
RESPONDENT BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, KOLLAM.
Exhibit P6 TRUE COPY OF THE SWORN STATEMENT OF 4TH
RESPONDENT BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, KOLLAM IN
C.M.P.NO.5916/2004 DATED 27-9-2004.
Exhibit P7 TRUE COPY OF THE STATEMENT OF THE COMPLAINANT
DATED 20.01.2009 AND ITS TYPED COPY.
Exhibit P7(A) TRUE COPY OF THE STATEMENT OF THE COMPLAINANT
AND ITS TYPED COPY.
Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT
REPORT.
Exhibit P9 TRUE COPY OF THE RELEVANT PART OF FINAL
REPORT AND CHARGE SHEET WITH BRIEF FACTS OF
THE CASE.
Exhibit P10 TRUE COPY OF THE LETTER DATED 1-7-2020 TO THE
3RD RESPONDENT
Exhibit P11 TRUE COPY OF THE REPLY LETTER DATED 3-7-2020
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
Exhibit P12 TRUE COPY OF THE LETTER DATED 4.7.2020.
Exhibit P13 TRUE COPY OF THE STATEMENT OF SRI.DEEPAK
DATED 22-2-2007 AND ITS TYPED COPY.
Exhibit P14 TRUE COPY OF THE PETITION FILED BY ONE DEEPAK
BEFORE THE 2ND RESPONDENT DATED 11-8-2020.
Exhibit P14(A) TRUE COPY OF THE COMPLAINT SUBMITTED BY THE
PETITIONER TO THE 2ND RESPONDENT
Exhibit P15 TRUE COPY OF THE STATEMENT OF PROF.G.SATHYAN
RECORDED B INVESTIGATING OFFICER ON 28-2-2011
AND ITS TYPED COPY.
Exhibit P16 TRUE COPY OF THE STATEMENT OF PRASANNA KUMARI
THEN L.D.CLERK RECORDED EARLIER AND ITS TYPED
COPY.
Exhibit P17 TRUE COPY OF THE SUMMONS DATED 13/9/2021 IN
C.C.NO.50/2020 FROM THE CHIEF JUDICIAL
MAGISTRATE COURT, KOLLAM SENT TO THE
PETITIONER FOR HIS APPEARANCE ON 8-12-2021.
Exhibit P18 TRUE COPY OF THE CRL.M.P 2276/2021 DATED
13/12/2021 IN C.C 50/2020 BEFORE THE CHIEF
JUDICIAL MAGISTRATE COURT, KOLLAM
Exhibit P19 TRUE COPY OF THE CRLM.P. 2275/2021 IN C.C.
50/2020 BEFORE THE CHIEF JUDICIAL MAGISTRATE
COURT, KOLLAM DATED 13/12/2021
APPENDIX OF WP(CRL.) 98/2022
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE JUDGMENT IN WPC NO
36361/2016 DATED 27.3.2018
Exhibit P2 TRUE COPY OF THE JUDGMENT IN WPC NO
36233/2018 DATED 18.3.2019
Exhibit P3 TRUE COPY OF THE JUDGMENT IN OP(CRL) NO
223/2020 DATED 8.7.2020
Exhibit P4 TRUE COPY OF THE FINAL REPORT SUBMITTED BY
THE POLICE IN CC NO 50/2020 ON THE FILE OF
CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM
(CRIME NO 727/2004 OF KOLLAM EAST POLICE
STATION
Exhibit P5 TRUE COPY OF THE JUDGMENT IN OP (CRL) NO
367/2021 DATED 26.10.2021
Exhibit P6 TRUE COPY OF THE LETTER DATED 14.12.2021 SENT
BY MR. RADHAKRISHNAA PILLAI, A RETIRED DEPUTY
SUPERINTENDENT OF POLICE TO MR SHAJI SUGUNAN
SUPERINTENDENT OF POLICE HEAD OF SPECIAL
INVESTIGATION TEAM
Exhibit P7 TRUE COPY OF THE ENTIRE BOOKLET OF YOGANADAM
DATED 1.12.2021
Exhibit P8 TRUE COPY OF THE LETTER DATED 16.12.2021
WRITTEN B MR. SHAJI SUGUNAN TO ADDL D.G.P
(CRIMES )ALONG WITH TRUE TYPED LEGIBLE COPY
Exhibit P9 TRUE COPY OF THE LETTER DATED 30.12.2021 BY
ADDL D.G.P (CRIMES) TO SUPERINTENDENT OF
POLICE CRIME BRANCH KOLLAM AND PATHANAMTHITTA
Exhibit P10 TRUE COPY OF THE PROCEEDINGS NOTED BY CHIEF
JUDICIAL MAGISTRATE COURT, KOLLAM IN C.C.NO
50/2020 ON 1.1.2022
