This is an application filed by the petitioner who is a de facto complainant in Crime No.719/2011 of Angamaly Police Station for issuing direction to the second respondent under Article 227 of the Constitution of India. 2. It is alleged in the petition that petitioner is the de facto complainant in C.C No.451/2012 on the file of Judicial First Class Magistrate Court - II, Aluva. According to the petitioner, he was attempted to be murdered by a group of persons and he sustained severe injuries and he was admitted in MACJ Hospital, Mookanoor and thereafter shifted to Specialists Hospital, Ernakulam. While he was in hospital, on the basis of the statement given by him, Angamaly police had registered Ext.P2 First Information Report as Crime No.719/2011 of Angamaly Police Station against the fifth respondent and three identifiable persons alleging offences under Sections 324 and 326 r/w Section 34 of Indian Penal Code and after investigation Ext.P3 final report against respondents 2 to 9 alleging offences under Sections 324, 326, 427, 120(B) r/w Section 34 of Indian Penal Code alone. According to petitioner, offence under Section 307 of Indian Penal Code was also committed by the respondents but due to the influence of the accused persons, that offence was not incorporated. The learned Magistrate on the basis of Ext.P3 had taken cognizance of the case as C.C No.451/2012. This fact was brought to the notice of the petitioner only when he received summons in that case. So he has no other remedy except to approach this court seeking the following relief:
Direct the Judicial First Class Magistrate Court-II, Aluva to pass orders direction a further investigation in terms of Section 173(8) of Cr.P.C in respect of the incident covered by Ext.P2 F.I.R, so as to include the offence of Section 307 of Indian Penal Code within the sphere of investigation.
3. On the basis of the allegations in the petition a statement has been called for from the second respondent and second respondent filed a statement which reads as follows:
“It is submitted that, in connection with the O.P(Crl.) No.43/2014 before the Honourable High Court, on perusal of the case diary file of Angamaly Police Station Crime No.719/2011 u/s 324, 326 r/w 34 IPC, the case was registered at Angamaly Police Station on 12.05.2011 based on the statement given to then Station House Officer, S.I V.M.Kerson. The case was duly investigated and charge sheeted on 30.03.2012 before J.F.C.M Aluva u/s 324, 326, 427, 120(B) r/w 34 of IPC. It is revealed on perusal of the C.D file that ingredients of IPC Section 307 was never forth coming at any stage of the said criminal case either in the course of lodging of FIR or during the course of investigation and final report. It is humbly submitted that the criminal case is now under trial before the Honourable JFCM -II Aluva”.
4. Considering the nature of relief claimed and also allegations made in the petition as well as in the statement filed by the second respondent, this court felt that this can be disposed of at the admission stage itself after hearing the counsel for the petitioner and learned Public Prosecutor, dispensing notice to respondents 2 to 9.
5. Counsel for petitioner submitted that on going through the Wound Certificate, it will be seen that grave offence has been committed but due to the influence of the accused persons offence under Section 307 of Indian Penal Code has not been added and only offences of less grave nature had been added and final report has been filed.
6. Learned Public Prosecutor submitted that on the basis of the evidence collected, no offence under Section 307 had been committed and so final report has been filed showing the actual offences committed by the accused person.
7. It is an admitted fact that in an incident petitioner was attacked by several persons and he sustained grievous injuries and he was admitted in Specialists Hospital, Ernakulam which is evident from Ext.P1 Wound Certificate. It is also an admitted fact that while he was undergoing treatment, his statement was recorded by Angamaly police and Ext.P2 First Information Report was registered as Crime No.719/2011 of Angamaly Police Station under Section 324 and 326 r/w Section 34 of Indian Penal Code originally apart 5th respondent three other identifiable persons. It is also seen from the documents produced that during investigation, it was revealed that eight persons have involved in the crime and respondents 2 to 9 were implicated as accused and Section 120(B) and 427 of Indian Penal Code were also added and after investigation Ext.P3 final report was filed before the Judicial First Class Magistrate - II, Aluva and the learned Magistrate has taken cognizance of the case as C.C No.451/2012 against respondents 2 to 9 for the offences under Sections 324, 326, 427 and 120(B) r/w Section 34 of Indian Penal Code and it was pending before that court.
8. It may mentioned here that the petitioner has not filed any application before the concerned Magistrate Court either himself or through the Public Prosecutor seeking for any further investigation under section 173(8) of Cr.P.C. Further, once a final report has been filed before the court and the court has taken cognizance of the case on the basis of that final report, then, if the de facto complainant is dissatisfied with the offences included or non inclusion of other accused persons, then the remedy of the de facto complainant is to file a private complaint incorporating those provisions and also impleading those persons as accused not shown by the police in the final report under Section 190 r/w Section 200 of the Code of Criminal Procedure. Further, if the court, on the evidence, feels even in this case that grave offences have been committed, than the offences mentioned in the final report this court is at liberty to alter the charge as well. Since such options and remedies are available to the petitioner this court feels that this is not a fit case to invoke the power under Article 227 of Constitution of India and direct the police to incorporate an offence which is not incorporated in the final report as claimed in the petition. So the petitioner can approach the concerned court by filing a private complaint for redressal of his grievance. So petition is disposed with liberty to the petitioner to move the concerned Magistrate court seeking his redressal by filing a private complaint under Section 190 r/w Section 200 of Code of Criminal procedure.
Petition is disposed of with the above observations.
K.RAMAKRISHNAN, JUDGE vdv