REJI MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS Criminal Miscellaneous Case is filed by the petitioner seeking reinvestigation of Crime No.852/2008 of Thamarassery Police station under Section 482 of the Code of Criminal Procedure.

(2.) IT is alleged in the petition that the petitioner is working as the driver in a national permit lorry operating from Kerala to Delhi. He will be off work from 12 to 15 days. On 20.12.2018 at about 9.45 p.m during night, while the petitioner was returning home after his trip from Delhi, accused 1 to 3, who were residing near to his house along with nine identifiable persons, formed themselves into an unlawful assembly, came fully drunk and abused him with obscene language and inflicted injuries on him and took away Rs.15,000/ - from him and thereby, according to the petitioner, all of them have committed the offences punishable under Sections 143, 147, 341, 324 and 307 read with Section 149 of the Indian Penal Code. He sustained severe injuries and he was taken to the hospital and while he was under treatment, some statement was obtained from him and a crime was registered as Crime No.852/2008 of Thamarassery Police station alleging offences under Sections 341, 324, 143, 147 read with Section 149 of the Indian Penal Code. After investigation, Annexure -G final report was filed only against accused 1 to 3 alleging offences under Sections 341 and 324 read with Section 34 of the Indian Penal Code and that was taken on file by the learned Magistrate as C.C.No.128/2009 and now pending before the Judicial First Class Magistrate Court -I, Thamarassery. The petitioner filed C.M.P.No.129/2011 for further investigation under Section 173(8) of the Code and that petition was allowed by the learned Magistrate by Annexure -I order. Prior to that, the petitioner filed Crl.M.C.No.4382/2010 for directing further investigation and since the application for further investigation was allowed by the court below, this Court by Annexure -J order dismissed the application as it becomes infructuous. According to the petitioner, even after conducting further investigation without making any change, they filed the same report. So the petitioner filed Annexure -O private complaint as C.M.P.No.3943/2014, which is pending before that court. There was a counter case also registered in respect of the same incident and that is pending as C.C.No.446/2009 before the same court. So the petitioner has no other remedy except to approach this Court seeking the following reliefs: i. to quash the ANN -G and ANN -N Final report/charge No.42/2009 dated 31.1.2009 of the Thamarassery police station, Tharamarssery filed and pending trial, before the Judicial First Class Magistrate Court -I, Thamarassery for offence under Sec.341, 324 read with Sec.34 of the Indian Penal Code. ii. to issue a direction to the 2nd respondent to conduct a re -investigation and to file a Final Report etc by the 2nd respondent or through his office under his direction and control, within a time fixed by this Hon'ble Court. iii. To quash all further proceedings in continuation of ANN -G and ANN -N Final Reports filed case C.C.No.128 of 2009 pending before the Judicial First Class Magistrate Court -I, Thamarassery, under Sec.341,324 read with Sec.34 of the Indian Penal Code. iv. to direct the 2nd respondent or any other appropriate authority, to conduct a proper Re - investigation and enquiry, taking into consideration of all the materials in the Crl. Complaint and basing on ANN -A and ANN -B filed before Judicial First Class Magistrate Court -I, Thamarassery. v. to issue an interim order staying the trial of C.C.128 of 2009 till the disposal of the above Crl.M.C. vi. To pass such other and further orders as may be prayed for or deem fit in the facts and circumstances of the case.

(3.) I have called for a report from the Judicial First Class Magistrate Court -I, Thamarassery regarding the present stage of the case and the learned Magistrate has sent a report which reads as follows: "In obedience to the Official Memorandum referred above, I am hereby submitting the following matters for the consideration of the Hon'ble High Court. 1. Incident in this case is alleged to have occurred at 9.45 p.m on 20.12.2008 in which 3 persons assaulted the victim with sticks and stones tied in a towel. Thamarassery police registered Cr.852/08 in this regard. 2. Final report was filed on 16.3.09 against 3 accused persons upon which cognizance was taken for the offences u/s 341,324 r/w 34 or IPC. Case was numbered as CC.128/09. 3. Charge was framed for the aforesaid offences on 26.11.09. CW1 filed a petition for further investigation, which was allowed and a fresh report was filed after further investigation.