This criminal miscellaneous case is filed by the petitioner, who is the complainant in C.C. No.717/2011 pending before the Judicial First Class Magistrate Court-1, Thodupuzha, to quash Annexure-VII under Section 482 of the Code of Criminal Procedure (hereinafter called 'the Code'). 2. It is alleged in the petition that, petitioner is the complainant in C.C.717/2011 on the file of the Judicial First Class Magistrate Court-1, Thodupuzha, which was filed by him under Section 190 read with Section 200 of the Code of Criminal Procedure, alleging that accused Nos. 1 and 2 have impersonated him and created sale deed using general power of attorney executed by the petitioner in favour of the first accused, showing somebody as the executant of power of attorney and he had executed two sale deeds impersonating the original owner of the property, namely the complainant and put the thumb impression of somebody else as the thumb impression of the petitioner before the registering authority and got the documents executed. According to the petitioner, the accused persons have committed the offences punishable under Section 120(B), 403, 409, 420, 468 read with Section 34 of the Indian Penal Code. When it came to the knowledge of the petitioner, he filed a private complaint before the Judicial First Class Magistrate Court-1, Thodupuzha, and after conducting enquiry under Section 202 of the Code of Criminal Procedure, the learned magistrate had taken cognizance of the case as C.C.717/2011 and that is pending before that court. He had filed an application for search of the house of the accused persons, but the police officials have not conducted proper search. So he filed Crl.M.C.5259/2013 before this court for directing the magistrate to issue order to conduct general search and that was disposed of with a direction directing the petitioner to file a petition for that purpose and directing the magistrate to pass orders on the same. Accordingly, the petitioner filed C.M.P.10421/2013 and the learned magistrate had issued search warrant to conduct search to the first respondent and first respondent conducted search and submitted Annexure-IV search list, stating that no documents were available there. Aggrieved by the same, the petitioner had filed this petition, seeking the following reliefs:
i. Quash Annexure-VII search report and entrust the 2nd respondent or any other official with higher rank in the police department to conduct a general search to find out the documents as requested by the petitioner in Annexure-III and VI petitions.
ii. to grant such other reliefs this Hon'ble court deems fit.
3. Considering the nature of relief claimed in the petition, this court felt that the petition can be disposed of hearing the learned counsel for the petitioner and the learned Government Pleader appearing for respondents 1 and 2. The prayer in the petition was to entrust investigation to some other officer of higher rank than the first respondent.
4. It is an admitted fact that, the grievance of the petitioner is that he is not able to get the original sale deeds executed by him so as to compare the thumb impression in the power of attorney with the thumb impression put before the registrar, to prove that, it was not executed by the petitioner. In order to get the original of the sale deeds, he wanted to conduct general search of the possible places where the original sale deed, which the accused could have kept to seize the same. It may be mentioned here that there is no provision in the Criminal Procedure Code to grant such a relief. If the petitioner can point out a place or specify a probable place where the alleged article is kept, then court can issue a search warrant to a particular officer of the police station within whose jurisdiction, the search would have been conducted, authorizing him to conduct the search in that particular place in accordance with law. If a blank search warrant as sought for by the petitioner is given, there is a possibility of misuse of the same by the police. So such a procedure cannot be adopted as such, which is not provided or contemplated under the Criminal Procedure Code.
5. The prayer in the petition cannot be granted, because there is no question of investigation arises, when a case was taken on the basis of a private complaint. During the post cognizance stage, while conducting enquiry under Section 202 of the Code of Criminal Procedure, the magistrate can conduct an enquiry by examining witnesses by himself or direct the enquiry to be conducted by some other agency to get materials for form an opinion as to whether there is a prima-facie case made out for proceeding with the case or not. But, once the court has taken cognizance of the case and decided to issue process to the accused, then the question of conducting investigation by any other agency is not available and it is for the complainant to adduce evidence under Section 244 of the Code of Criminal Procedure, to satisfy the court that, there is prima-facie case to frame charge against the accused persons for the offence alleged. For that purpose, the petitioner can adduce evidence before that court. Even for that purpose, the petitioner can file documents and ask the document to be sent for expert opinion etc., and the court can consider and pass appropriate orders in the applications, if the court feels that, those evidence is required for the purpose of proper adjudication of the case.
So under the circumstances, the petitioner is not entitled to get the relief claimed in the petition, but that will not prevent him to move the magistrate court by filing petitions to receive documents and also send the document for expert opinion to prove his case and the magistrate considering those applications and pass appropriate orders in those application.
With the above direction and observation, this criminal miscellaneous case is disposed of.
Sd/-
K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss