K.S.Sivarajan vs State Of Kerala
2023 Latest Caselaw 11680 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  THURSDAY, THE 16TH DAY OF NOVEMBER 2023 / 25TH KARTHIKA,
                            1945
                  OP(CRL.) NO. 324 OF 2020
AGAINST THE ORDER IN CC 205/2016 OF JUDICIAL MAGISTRATE OF
               FIRST CLASS COURT, KAYAMKULAM
PETITIONER/PETITIONER:

         K.S.SIVARAJAN, AGED 69 YEARS, S/O. SIVADASAN,
         KANNITTAYIL VEEDU, GOVINDAMUTTOM MURI,
         PUTHUPPALLY VILLAGE, GOVINDAMUTTOM P..O.,
         KAYAMKULAM, ALAPPUZHA-690 527
         BY ADVS.
         P.B.SAHASRANAMAN
         SRI.T.S.HARIKUMAR


RESPONDENTS/RESPONDENT & ACCUSED:

    1    STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR
         OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM
         P.O., ALAPPUZHA-690 502, REPRESENTED BY THE
         PUBLIC PROSECUTOR, HIGH COURT OF KERALA ,
         ERNAKULAM-682 031
    2    HARILAL.S.ANAND, AGED 52 YEARS
         S/O. SHRADHANANDAN, KATTISSERIL, PUTHUPPALLY
         SOUTH, PUTHUPPALLY VILLAGE, NEAR SCS
         1900,PUTHUPPALLY P.O., ALAPPUZHA-690 527
    3    PADMAKUMAR, AGED 59 YEARS, S/O. PURUSHOTHAMAN,
         THACHANKATTIL, PERUMANTHAZHA MRI, CLAPPANA
         VILLAGE, CLAPPANA P.O., KOLLAM-690 525
    4    C.B.VIDHU, AGED 69 YEARS, S/O. BHARATHAN,
         POURNAMI, CHIRAKKADVAM MURI, KAYAMKULAM VILLAGE,
         KAYAMKULAM P.O., ALAPPUZHA-690 502
         BY ADV SRI.K.SHAJ
 O.P(Crl)324/2020                            2



OTHER PRESENT:

              SRI RENJITH TR,PP


       THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
16.11.2023,        THE   COURT   ON   THE       SAME   DAY   DELIVERED   THE
FOLLOWING:
 O.P(Crl)324/2020                            3




                   P. V. KUNHIKRISHNAN, J.
                -------------------------------------------
                     O.P(Crl) No.324 of 2020
                -------------------------------------------
            Dated this the 16th day of November, 2023

                                  JUDGMENT

The above said Original Petition (Crl) is filed with the following

prayers:

a) To call for the records leading to Ext.P4 and set aside the same;

b) Such other relief's which this Hon'ble Court deems fit and necessary in the circumstances of the case and the costs of this case.

2. The petitioner is the defacto complainant in Crime

No.1739/2013 of Kayamkulam Police Station. Ext.P2 is the final

report submitted in the above case and offences alleged are under

sections 294(b), 323, 506(ii) r/w 34 of the Indian Penal Code.

Aggrieved by the final report, the petitioner filed an application

before the learned Magistrate for further investigation as evident by

Ext.P3. The same is dismissed by the learned Magistrate as per

Ext.P4. Aggrieved by the same, this Original Petition is filed.

3. Heard counsel for the petitioner, the Public Prosecutor

and the counsel appearing for the respondents 2 and 3.

4. This Court perused Ext.P4. It will be better to extract the

relevant portion of Ext.P4.

'9. On perusal of the records, it can be found that the investigation officer had found that the allegation of criminal breach of trust and cheating made against 4 to 29 lack bonafideness, so those accused were omitted and related sections were also deleted.

10. For getting clarity the latest legal proposition on this point reported in 2019 Vol 5 KHC 352 (SC) in Vinnubhai, Haribhai, Malavya and other Vs. State of Gujarath and another was looked into. Supreme Court has held that local magistrates can even suo motu order further investigation depending on the facts of each case. However it was pointed out that the said power would be available to Magistrate at all stages of a criminal case, but before trail actually commences. In this case, trial actually commenced with the framing of charge so technically this Court cannot any longer entertain this petition. Complainant had miserably failed to mention the necessary details in the complaint also. It appears that after the loss of authority the petitioner has been vengefully filed the complaint arraying 29 accused without any basis. It appears to be a civil dispute.

11. So in the light of the above mentioned facts and circumstances, finding no merit the petition stands dismissed.'

5. I see no reason to interfere with the above order. But, the

petitioner can adduce evidence before the trial court at the

appropriate stage and if any additional offence is made out in the

evidence adduced by the petitioner, the Court can frame additional

charge as per the Criminal Procedure Code. Similarly, if any other

accused are involved and the petitioner adduced evidence to that

effect, the Court can add additional accused also invoking the powers

under section 319 Cr.P.C. In such circumstances, this Court need not

interfere with Ext.P4. But the petitioner can adduce evidence before

the Court in accordance with law and if there is any other offence is

made out or if any evidence is adduced to the effect that additional

accused are involved in the case, the court below will do the needful

in accordance with law.

With these observations, the Original Petition (Crl) is disposed of.

Sd/-

P. V. KUNHIKRISHNAN JUDGE Sbna/

APPENDIX OF OP(CRL.) 324/2020

PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE FIR IN CRIME NO.1739 OF 2013 OF THE KAYAMKULAM POLICE STATION DATED 19.08.2013 EXHIBIT P2 TRUE COPY OF THE FINAL REPORT IN CRIME NO.,1739 OF 2013 OF THE KAYAMKULAM POLICE STATION SUBMITTED BY THE INVESTIGATING OFFICER, DATED 23.01.2016 EXHIBIT P3 TRUE PHOTOSTAT COPY OF CMP NO.5084 OF 2016 IN CC NO.205 OF 2016 DATED NIL EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE ORDER IN CMP NO.5084 OF 2016 IN CC NO.205 OF 2016 OF THE JUDICIAL FIRST CLASS MAGISTRATE, KAYAMKULAM, DATED 12.12.2019