Courts Have Power To Intervene In Cases Of Shabby, Mala Fide Investigation; No Absolute Right Of Accused To Seek Further Investigation: Kerala High Court

The Criminal Miscellaneous Case before the High Court was filed under Section 482 of the Code of Criminal Procedure by the petitioner accused challenging an order dismissing the application filed by him seeking further investigation under Section 173(8) of Cr.P.C. by the Trial Court.

The Single Bench of Justice A. Badharudeen asserted, “While analysing the question of law as to whether an accused has an absolute right to seek for further investigation, in fact, an accused has no absolute right to seek further investigation or to dictate terms for investigation or to say that the investigation shall go in a particular manner.”

Advocate S. Rajeev represented the Petitioner, while Public Prosecutor Jibu T.S. represented the Respondent.

Factual Background

The prosecution alleged commission of offences punishable under Sections 465, 468, 471 and 420 r/w 34 of the Indian Penal Code (IPC) by the first accused, on the allegation that the first accused forged two powers of attorney by putting false signatures and thumb impressions of the defacto complainant/first witness and a false solvency certificate, with the assistance of the second accused. The same were produced before the Excise department to cheat and defraud the defacto complainant at the time when the arrack shops coming under AS Group was auctioned during the year 1993-94.

It was also alleged that the first accused used the above forged documents as genuine and thereby committed the above offences. In this case, an FIR was registered, and eventually, the final report was filed. Dissatisfied by the mode of investigation and the insufficiency of investigation, the first accused/petitioner herein complained before the City Police Commissioner seeking further investigation.

Arguments

It was the case of the Petitioner that an accused or suspect can also knock the doors of the court seeking further investigation since it is the right of a suspect or an accused to have a just and fair investigation and fair trial as per the mandate contained in Articles 21 and 22 of the Constitution of India.

Reasoning

The Bench made a reference to the judgment of the Apex Court in Vinay Tyagi V. Irshad Ali (2013) and other decisions wherein it has been held that the fundamental principle of criminal jurisprudence is that a just and fair investigation and fair trial shall be carried out concerning an allegation levelled against a suspect or an accused, which is within the ambit of Articles 21 and 22 of the Constitution of India.

“When the investigation ex facie is unfair, tainted, mala fide, incomplete, shabby and meddled with smacks of foul play, the courts have power to intervene the investigation, thereby the constitutional courts can set aside such an investigation and direct fresh or de novo investigation or further investigation, as the case may be, to protect the fundamental right of the suspect or the accused and to ensure that there must be a fair investigation and consequential fair trial. Apart from that the courts other than constitutional courts dealing with the matter also can order further investigation under Section 173(8) of Cr.P.C. in an appropriate case within the sweep of the said power before start of trial”, the Bench observed.

Considering the allegation of overt acts at the instance of the first accused committed in the year 1993-94, the Bench noted that the crucial aspects which would make him an offender, were the production of two powers of attorney as well as a solvency certificate by the petitioner before the Excise Authority. It was further noticed that even though the occurrence is of the year 1993-94, no complaint was lodged till 2015, and the complaint was lodged after a long gap of 22 years. Therefore, an effective further investigation, as regards to the allegations raised by the accused was necessary, particularly taking note of the fact that even after filing the complaint, no steps were taken by the police authorities so far.

The Bench allowed the petition with a direction to the investigating officer in this case to consider the allegations and to carry out further investigation, particularly by collecting materials which would highlight who produced the powers of attorney and the solvency certificate before the Excise Authority with certainty. The Bench also stayed the trial of the case on the file of the Chief Judicial Magistrate Court.

Cause Title: George Cyriac v. State Of Kerala & Ors. (Neutral Citation: 2025:KER:18700)

Appearance:

Petitioner: Advocates S.Rajeev, V.Vinay, M.S.Aneer, Sarath K.P., Prerith Philip Joseph, Anilkumar C.R., K.S.Kiran Krishnan

Respondents: Advocates Mithun Baby John, N.U. Harikrishna, Priya P. K, Public Prosecutor Jibu T S

Click here to read/download Order