K.A. Mohamed Shafi, J. 1. This application under Section 482 of the Crl. P.C. is filed by the 1st accused in C.C. 1052/97 on the file of the Judicial First Class Magistrate's Court. Kattakada to quash the charge-sheet and the entire proceedings initiated against him.
2. Originally a case was registered against the petitioner and others by the Kattakada Police alleging offences punishable under Sections 379 and 506(1) read with Section 34, I.P.C. in Crime No. 177/92 on the basis of a complaint filed by the 1st respondent there in before the Judicial Second Class Magistrate's Court, Kattakada in C.M.P. Nos. 4617/92 which was forwarded by the Magistrate for investigation and report to the police under Section 156(3) of the Cr. P.C. The Kattakada Police after investigation filed a refer report before the Magistrate's Court since the dispute involved in the case was of civil nature. The Judicial First Class Magistrate by order dated 12-1-1995 accepted the refer report after giving notice to the camplainant since no objection was raised by him. Subsequently on the basis of the complaint dated 6-3-1995 filed by the 1st respondent before the Chief Minister of Kerala and forwarded by the Chief Minister to the director General of Police for necessary action, and as directed the C.B.C.I.D. Special Squad registered the case by re-numbering C.B.C.I.D. Crime No. 81/CR/95. The Dy. S.P., C.B.C.I.D., Special Squad, Thiruvananthapuram conducted the investigation and filed a report, before the Judicial First Class Magistrate's Court, Kattakada. After completing the investigation he laid charge-sheet against the petitioner and other alleging offences punishable under Sections 341, 323 and 506(1) r/w Section 34 of I.P.C. and deleting the: offence punishable under Section 379, I.P.C. from the original F.I.R. Accordingly the Judicial/First Class Magistrate registered the case in C.C. 1052/97 against the petitioner and others.
3. According to the petitioner, he is an employee of Prakash Leasing Private Ltd. and working as Deputy General Manager (Recoveries). The company had given possession of a Mini Lorry bearing Nq-.JK,L-01-9306 on hire-purchase basis to the 1st respondent as per Annexure-1 agreement and since the 1st respondent committed default to pay the instalments due in spite of demands, the company through its' agent dispossessed the vehicle from the 1st respondent on 15-7-1992 and duly informed the police and the Regional Transport Officer. The Ist respondent filed complaint alleging theft before the Magistrate's Court Which was forwarded to the police for investigation and after investigation the police filed a refer report which was accepted by the Magistrate's Court. Subsequently a second investigation was conducted by a different agency illegally and filed charge-sheet against the petitioner and others altering the original offence alleged and alleging offences punishable under Sections 341, 323 and 506(1) r/w Section 34, I.P.C, in pursuance of which the Judicial First Class Magistrate's Court, Kattakada registered CO. 1052/97 against the petitioner and others and proceeding against them.
4. The counsel for the petitioner submitted that since the local police had already conducted the investigation and filed A refer report before the competent Court, only a further investigation by the same investigating agency with the permission of the Magistrate' is permissible under law and therefore, the registration of the fresh F.I.R. by the C.B.C.I.D., the investigation and the charge-sheet laid by the C.B.C.I.D. against the petitioner and others are-Void and illegal. He further submitted that the seizure of the vehicle by the financier in accordance with the terms of the agreement entered in to between the hirer and the financier will not constitute any criminal offence and the dispute being of civil nature, the remedy if at all available to the1st respondent is through the civil Court.:
5. The counsel for the 1st respondent submitted that in the guise of taking possession of the vehicle on the basis of the hire-purchase agreement, the petitioner and others have committed the offences punishable under Sections 323, 379 and 506(1) read with Section 34, of I.P.C. and though originally a refer report was filed by the police after investigation, on the basis of the further investigation by the higher police authorities, it was found that offences punishable under Sections 323 and 506(1) of the I.P.C. were committed and hence a fresh charge-sheet is filed deleting the offence punishable under Section 379 of I.P.C. According to him, there was no fresh investigation in this case and there was only further investigation as contemplated under Sections 158 and 173(8) Cr.P.C. He also argued that even though originally a refer report was filed under Section 173(2) of the Cr. P.C., the subsequent further investigation as directed by the Chief Minister and conducted by the higher police authorities as provided under Section 173(8) of the Cr.P.C. culminating in the filing of Annexure-14 report and Annexure-15 charge-sheet in this case are perfectly legal and valid which cannot be quashed under the provisions of Section 482 of the Cr.P.C.
6. In this case it is seen that though originally the S.I. of Police, Kattakada filed a refer report dated 24-6-1994 referring the case and the Judicial First Class Magistrate, Kattakada accepted the refer report after giving notice to the complainant-1st respondent as he did not file any objections, by order dated 12-1-1995, the 1st respondent did not file any protest complaint before the Magistrate's Court against the petitioner. But subsequently he filed a complaint before the Chief Minister on 6-3-1995, in pursuance of which the C.B.C.I.D. re-registered the case, conducted the investigation and laid charge-sheet against the petitioner and others. It is settled by the authoritative pronouncement of the Supreme Court in the decision in K. Chandrasekhar v. State of Kerala AIR 1998 SO 2001 : 1998 Cri LJ 2897 that further investigation can be conducted only by the investigating agency which originally investigated the cases under Section 173(8) of the Cr.P.C. Therefore, the State Government has no authority to direct a different investigating agency, the C.B.C.I.D. to further investigate the case in the place of the local police. Therefore, the very re-registration of the crime and further investigation by the C.B.C.I.D. in this case are illegal and unsustainable.
7. Even for further investigation as provided under Section 173(8) of the Cr. P.C. the police should obtain formal permission from the Court. Apart from the fact that the Dy. S.P., C.B.C.I.D., the investigating officer who conducted further investigation has filed a report bef6re the Judicial First Class Magistrate's Court, Kattakada stating that an F.I.R. is registered an investigation' is conducted in the case, the 2nd respondent has no contention that any permission is sought from the Court to conduct further investigation in the case. Though there is no statutory requirement for the police to obtain permission from the concerned Court to conduct further investigation in the case, the apex Court has held in the decision in Ram Lal Narang v. State AIR 1979 SC 1791 : 1979 Cri LJ 1346 that "in the interest of independence of magistracy and judiciary, in the interest of purity of administration of criminal justice, and in the interest of comity of various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light". In view of the authoritative pronouncements by the Supreme Court declaring the law on the point, it is necessary that the police should obtain formal permission from the court for the purpose of further investigation as envisaged under Section 173(8) of the Cr. P.C. Following the decision of the Supreme Court referred to above, a single Judge of this Court has held in the decision in State of Kerala v. Sreedharan 1993 (2) Ker LT 490 : 1994 Cri LJ NOC 433 that it is necessary that the police should obtain formal permission from the Court for conducting further investigation as envisaged in Section 173(8) of the Cr.P.C. Therefore, the further investigation conducted in this case under Section 173(8) of the Cr. P.C. is bad in law and illegal in so far as formal permission of the concerned Court is not obtained for conducting the further investigation as envisaged in Section 173(8) of the Cr.P.C.
8. It is also contended by the petitioner that since the financier has seized the vehicle and dispossessed the hirer for the failure of payment instalments due under the hire-purchase agreement in accordance with the stipulations made in the hire-purchase agreement, the dispute involved in this case is of civil nature and therefore, the seizure of the vehicle in this case does not amount to any offence punishable under the Indian Penal Code and as such the very complaint filed by the 1st respondent before the Magistrate's Court is not sustainable.
9. The fact that the vehicle involved in this case was covered by the hire-purchase agreement with the Prakash Leasing Ltd., Bangalore as evidenced by Annexure-I agreement is not in dispute. The provisions of Annexure-I agreement empower the financier to seize the vehicle if default is committed in payment of the hire-purchase instalments. According to the petitioner, as the instalments due under the hire-purchase agreement were not paid by the hirer in spite of repeated demands, by exercising the right conferred under Annexure-I agreement the financier has seized the vehicle. Therefore, according to the petitioner no offence punishable under the Indian Penal Code is attracted in this case, except a civil dispute between the parties. Even though allegation of theft punishable under Section 379 of the I.P.C. was made in the complaint, that allegation was found to be false in the original investigation as well as in the further investigation.
10. In the decision in Ashok Kumar v. Balaraman 1998 (1) Ker LT 155 a single Judge of this Court relying upon the decisions of the" Supreme Court in Sardar Trilik Singh v. Satya Deo Tripathi 1979 (4) SCC 396 : 1980 Cri LJ 822 and this Court in Bharudan Dugar v. S.I. of Police 1986 Ker LT 430, held that when a financier under a hire-purchase scheme seizes the vehicle on default in payment of instalments, no criminal prosecution can be launched by the buyer and launching of criminal prosecution against the financier tentamounts to abuse of process of the Court since the dispute is of civil nature and therefore the criminal proceedings are to be quashed. '
11. In this case also criminal proceedings are initiated, against the petitioner in respect of the seizure of the vehicle by the financier for default in payment of the instalments due under the hire-purchase agreement which dispute is essentially of civil nature. Hence the criminal proceedings launched against the petitioner is an abuse of process of the Court. On the ground also the prosecution against the petitioner is illegal and unsustainable.
In view of what is stated above, it is clear that the further investigation and the prosecution launched against the petitioner in this case are illegal and an abuse of process of the Court and, therefore, the entire proceedings are liable to be quashed by invoking the provisions of Section 482 of the. Cr.P.C. Hence the proceedings against the petitioner are quashed.