PREM VIJAYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the de facto complainant in a crime registered at Town North Police Station, Alappuzha. After investigation of the crime, Ex. P5 report indicting the accused persons named therein for offences punishable under Sections 420,406,409 and 419 read with Section 34 of the Indian Penal Code was laid before the Chief Judicial Magistrate Court, Alappuzha by the investigating agency. Petitioner has got serious exception to the report on the ground that some of the accused persons named in his complaint on which the crime was registered, have been left out and also that very many material pieces of evidence connected with the crime are not tendered before the court to sustain the indictment. The learned counsel for the petitioner would also submit that the gravity of the crime imputed in his complaint has been watered down omitting grave offences borne out by the allegations and also the materials gathered by the investigating agency. Petitioner has moved an application before higher Police authority for further investigation of the crime but that has not been considered, is the further grievance espoused for tiling this Writ Petition for issue of appropriate writ/direction or order for consideration of such representation. Petitioner has also sought for issue of direction for further investigation in the crime, in which report has already been filed before the Magistrate.

(2.) The learned counsel for the petitioner relying on Reeta Nag v. State of West Bengal & Ors.,2009 3 ACJ 415. particularly, paragraph 26 of that decision, submitted that once a report is. filed, the de facto complainant will not get opportunity to impeach such report before the Magistrate. 1 do not find any such observation in the abovereported decision. What has been considered in that case was whether there could be re-investigation of a crime after a report was. filed on completion of the investigation; and, it is held to be not permissible under law. So far as the right of a de facto complainant to raise objection to a final report filed by police, even in a case such report has been accepted by the Magistrate, there need not be any doubt. In Kishore Kumar Gyanchamlani v. G.D. Mehrotra & Anr, 2001 3 Crimes 205. a decision rendered by a bench of three Judges of the Supreme Court, it has been made clear that the de facto complainant can raise objection to final report, or file protest complaint after such report is accepted. Facts of the abovereported decision would indicate that there was controversy between the parties whether before accepting the final report by the Magistrate notice had been served on the complainant and he did not file objection. Complainant had contended that he had not received any notice from the court. When the case was listed before the two Judges bench of the Supreme Court, thinking that there is something divergence of views on the question whether a complaint could be entertained from the complainant after previous report had been accepted with notice to the complainant, the issue was referred to three Judges bench. On such reference, the three Judges bench of the Suprerne Court has held that it is not material whether the report of the police has been accepted with or without notice to the complainant for entertaining a complaint after accepting such final report. The Supreme Court has held in the above decision that the acceptance of the report will not oust the jurisdiction of the Magistrate to take cognizance of the offences alleged to have been committed by the accused on the basis of a complaint even if he had already accepted the final report filed by the police. The discussion on the above aspect by the Supreme Court in the decision reads thus:

(3.) When such be the position of law enunciated by the Supreme Court on the entitlement of the petitioner to file a complaint even after acceptance of the final report filed by the Police opining that no offence has been made out, there is no merit in the submission of the counsel that the petitioner/de facto complainant cannot impeach such final report nor seek direction for further investigation by orders of the Magistrate if he has sustainable grounds to do so. When that be so, if the petitioner has any further grievance over the final report, it is open to him to canvass his objections to such report before the Magistrate to seek appropriate directions including further investigation over the case, if so entitled to, or file a complaint. Reserving his right to do so, the Writ Petition is disposed of.