B K CHANDUNNI Vs. ANIL BABU

JUDGEMENT

(1.) On 11.8.2005 at about 9 a.m. an incident took place in an item of property, regarding which two crimes in the nature of case and counter case have been registered by the Kalikavu police as Crime Nos. 125 and 126 of 2005. The petitioner is the defacto complainant/informant in Crime No.125 of 2005. In both the crimes, after investigation, separate final reports have been filed and cognizance have been taken by the learned Magistrate. Petitioner is the defacto complainant in C.C.No. 223 of 2006, where respondents 1 to 3 are the accused. The petitioner went before the learned Magistrate and filed an application for further investigation under Section 173(8) Cr.P.C. The petitioner raised the grievance in that petition that a proper investigation has not been conducted by the Investigator. He pointed out that one Rajan had suffered an injury. He had been examined by a doctor. A wound certificate had been issued. But the police have not adverted to this aspect at all in the investigation.

(2.) He raised a further grievance that though the dispute about possession of the property is the core or crux of the dispute, the police had not applied their mind at all to the question of disputed possession. He further pointed out that there were litigations between the parties and decisions have been rendered by two courts accepting the version of the petitioner. Those documents, though sent to the police under registered post apprehending that the police may not properly advert to those documents, did not evoke any meaningful response from the police. They have not applied their mind to the disputed possession. In these circumstances it is prayed that powers under Section 173(8) Cr.P.C. may be invoked to direct further investigation.

(3.) There is no dispute that powers under Section 173(8) Cr.P.C. can be directed to be invoked by the Court suo moto or at the instance of the investigator or at the instance of the accused or at the instance of the defacto complainant. That question has now been concluded that the requisite satisfaction can be induced in the mind of the court by any one placing the relevant documents and circumstances. I shall carefully avoid any opinion on merits about the acceptability of the rival contentions. Suffice it to say that I am of the opinion that an alert investigator must certainly have considered the question whether any other person had also suffered injuries in the course of the incident and such person was examined by a doctor. The investigator in this case has obviously not adverted to that aspect. A dispute regarding possession is the substratum of the dispute and as rightly pointed out by the learned counsel for the petitioner alert application of mind does not appear to have been made to this aspect also.