(1.) PETITIONER is the de facto complainant in Crime No.496 of 2010 of Kondotty Police Station registered for offences punishable under Secs.143, 147, 148, 341, 323, 324 and 506(i) r/w Sec.149 of the Indian Penal Code (for short, "the Code"). According to the petitioner on 17.11.2010 when he was travelling in a car five identifiable persons came against him in another car, blocked petitioner's car, assaulted him with iron rod and took away his valuable articles, money and the car. PETITIONER gave information to the Kondotty Police in that way, but the police registered a case only for offences above stated and without including the offence under Sec.395 of the Code. Thereon, petitioner filed a complaint to the Superintendent of Police, Malappuram about non inclusion of offence under Sec.395 of the Code. The police submitted Annexure-D, report before Court incorporating Sec.379 of the Code also among the section of offences in the FIR. Not satisfied with that, petitioner preferred yet another complaint to the superior police authorities. It is stated, the Inspector General of Police has directed the Dy.S.P, D.C.R.B to oversee the investigation but, nothing has transpired. According to the petitioner, none of the culprits are so far arrested, effectively questioned and no recovery is also made. Hence petitioner made Annexure-F, petition supported by Annexure-E, affidavit before learned Judicial First Class Magistrate, Malappuram for a direction for proper investigation in view of decision of the Supreme Court in Sakiri Babu Vs. State of U.P (2008(1) KLT 724). Learned Magistrate passed Annexure-G, order directing expeditious investigation. That order is under challenge to the extent that learned Magistrate did not direct proper investigation of the case. Learned counsel asserted the allegations made in the petition. I have heard learned Public Prosecutor also.
(2.) IN the light of the decision in Shariff Ahmed Vs. State (NCT of Delhi) (2009 (3) KLT SN 9 (C.No. 11) SC) the Court cannot issue a direction to the investigating team to delete or add any particular offence. Reason is that it is a matter within the realm of investigation. Of course it is open to the Magistrate to issue necessary directions in the matter of investigation under Sec.156(3) of the Code of Criminal Procedure in view of the decision relied by the learned counsel. Having regard to the complaint of petitioner and in the light of the statement given in the first information statement it is appropriate and particularly as the investigating officer has chosen to incorporate Sec.379 of the Code,that the grievance of petitioner as to the alleged offence under Sec.395 of the Code is looked into and the investigating agency reached appropriate conclusion based on the materials collected. The order under challenge is to be modified accordingly. Resultantly this petition is allowed to the extent that the investigating agency is directed to look into the complaint of petitioner as regards the allegation leading to the offence punishable under Sec.395 of the Penal Code as well. The investigating agency shall reach appropriate conclusion based on materials it collects in the investigation.