Kerala High Court
Nidhin Punnakkal vs The State Of Kerala on 16 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 16TH DAY OF JUNE 2021/ 26TH JYAISHTA, 1943
CRL.M.C.No.5477 OF 2020
C.M.P.No.2033/2020 IN CP 12/2020 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-II, KANNUR
CRIME No.54/2020 OF KANNUR CITY POLICE STATION
PETITIONER/ACCUSED No.2:
NIDHIN PUNNAKKAL,
AGED 27 YEARS,
S/O. DINEDRAN, PUNNAKKAL HOUSE, VARAM P.O., KANNUR
DISTRICT.
BY ADVS.
ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
SRI.R.MAHESH VARMA
SRI.PRAJIT RATNAKARAN
SHRI. RAJ CAROLIN V.
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
PUBLIC PROSECUTOR SMT.MAYA M.N.,
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.06.2021, THE COURT ON 16.6.2021 PASSED THE FOLLOWING:
Crl.M.C.No.5477 of 2020
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ORDER
The petitioner is the 2nd accused in C.P.No.12/20 pending before the Judicial First Class Magistrate Court-II, Kannur arising out of Crime No.54/2020 of Kannur City Police Station. The offences alleged against the accused are under Sections 302, 109 and 120B of the IPC.
2. The prosecution case is that the 2 nd accused used to contact the 1st accused through social medias, like facebook and whatsapp and come in touch with her which resulted in sexual relation and since the child being an obstruction to their illicit relation, the 2 nd accused conspired with the 1st accused on 16.2.2020 at Plaza Junction, Kannur and instigated the 1st accused to murder her child and pursuant to the alleged conspiracy, the 1 st accused murdered the child on 17.2.2020 in the early hours of the day.
3. After investigation the police filed final report against the 1st and 2nd accused before the committal court. Crl.M.C.No.5477 of 2020
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The 2nd accused filed a petition under Section 173(8) Cr.P.C. seeking further investigation as C.M.P.No.2033/2020 in C.P.No.12/2020 pertaining to Crime No.54/2020 of Kannur City Police Station. By order dated 06.11.2020 the learned Magistrate disallowed the application. Challenging the above said order the petitioner has filed this Crl.M.C.
4. The learned Magistrate dismissed the application mainly for the reason that the manner of investigation cannot be dictated by the accused and the accused cannot compel the investigation officer to conduct narco analysis or brain mapping test for the co-accused.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor for the respondent.
6. In Bhagwan Samardha Sreepada v. State of Andhra Pradesh & others [AIR 1999 SC 2332] the Apex Court held as follows:-
"Power of the police to conduct further Crl.M.C.No.5477 of 2020 ..4..
investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) (AIR 1979 SC 1791). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, we would not burden the magistrate with such an obligation."
7. The aforesaid dictum has been followed by a learned Single Judge of this Court in Ummer v. State of Crl.M.C.No.5477 of 2020 ..5..
Kerala [2010 (1) KLT 963].
8. The accused is presumed to be innocent unless and until the offence against him is proved beyond reasonable shadow of doubt. The failure to question important witnesses or collect requisite evidence during investigation can be taken as a defence during trial of the case. If no offence is made out, the accused is entitled to raise the plea of discharge in accordance with the scheme of the Cr.P.C. No request for further investigation has been filed on the side of the victim in this case. If the Investigating Officer or Public Prosecutor files an application seeking further investigation, there is no question of obtaining the permission of the court since further investigation is a matter within the realm of the police and the principles of comity require that the police should formally inform the court that further investigation is absolutely essential in the case. The very same position Crl.M.C.No.5477 of 2020 ..6..
is not applicable to an accused in a criminal case.
9. In Dharam Pal & others v. State of Haryana & another [2014 (3) SCC 306] a Constitution Bench of the Apex Court held that the committal Magistrate is not required to take cognizance of the offence triable by a court of session before committing the case to the court of session. An accused is not entitled to raise the plea of discharge alleging faulty investigation during the committal proceedings.
In view of the above, this Crl.M.C is dismissed, without prejudice to seek appropriate remedies legally available to the accused, if so advised, in accordance with law. Pending applications, if any, stand disposed of.
Sd/-
N.ANIL KUMAR, JUDGE skj Crl.M.C.No.5477 of 2020 ..7..
APPENDIX OF CRL.MC 5477/2020 PETITIONER'S ANNEXURES:-
ANNEXURE 1 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO.54/2020 OF KANNUR CITY POLICE STATION, KANNUR DISTRICT. ANNEXURE 2 TRUE COPY OF THE PETITION AS CMP 2033/2020 IN CP 12/2020 FILED BEFORE THE JFCM COURT-II, KANNUR.
ANNEXURE 3 TRUE COPY OF THE COUNTER STATEMENT IN CMP 2033/2020 IN CP 12/2020 BEFORE THE JFCM COURT-II, KANNUR.
ANNEXURE 4 TRUE COPY OF THE ORDER OF THE JFCM COURT-II, KANNUR DATED 06/11/2020 IN CMP 2033 IN CP 12/2020 (CRIME NO.54/2020 OF KANNUR CITY POLICE STATION).