Ker HC | It is not proper for a HC to exercise its jurisdiction under Art. 227 of Constitution of India even before a petitioner had approached appropriate court below in that regard

Kerala High Court

Kerala High Court: R. Narayana Pisharadi J., dismissed the original petition filed under Article 227 of the Constitution where the petitioner prayed the Court to direct the Sessions Court to pass orders under Section 173(8) of CrPC to direct the investigating officer to conduct further investigation in the case of her son’s death, Sreejith. He had been missing since 26-07-2013. 

On the basis of the complaint filed by the petitioner, a case under Section 57 of the Kerala Police Act was registered. During the investigation, it was revealed that Sreejith had died on the very day he had gone missing after getting electrocuted by coming into contact with the live electric fence put up by Rajagopalan and Raghavan, the neighbours of Sreejith to prevent the entry of wild animals into their property. After they found the dead body of Sreejith, they buried the dead body without informing any person. The aforesaid two persons were arrested for the offences punishable under Sections 304 and 201 read with 34 IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case is pending in the Court of Session. Counsel for the petitioner, C.P. Udayabhanu and Navaneeth N. Nath contended that the murder not a case of mere culpable homicide not amounting to murder. 

The High Court referred to Vinubhai Haribhai Malaviya v. State of Gujarat, JT 2019 (10) SC 537, where the Supreme Court held that the Magistrate had the power to order further investigation under Section 173(8) CrPC at all stages of the case before the trial actually commences and whether further investigation should or should not be conducted is within the discretion of the learned Magistrate who could exercise such discretion on the facts of each case in accordance with law. In light of this decision, the Court held that the petitioner should have approached the appropriate court below and seek further investigation of the case. It was not proper for this Court to exercise its jurisdiction under Article 227 of the Constitution of India even before the petitioner had approached the appropriate court below in that regard.

They further stated that the High Court should discourage the practice of filing a writ petition or filing petition under Section 482 CrPC, simply because the complainant had a grievance that his/her complaint was not properly investigated by the investigating agency. They cited Thomas v. Achamma Thomas 2009 (2) KLT 931 which explained that filing of the writ petition is not absolutely barred, but it is well settled if there are an alternative and efficacious remedy provided under the provisions of the concerned Act, normally the

High Court should not interfere by exercising the extra-ordinary jurisdiction.

The Court stated that no other arguments were advanced before them as to which Court, whether it is the Magistrate’s Court or the Sessions Court, the petitioner should approach seeking further investigation. The Court dismissed the original petition is dismissed and made clear that the petitioner was at liberty to approach the appropriate court below seeking a further investigation of the case by the police under Section 173(8) CrPC. [Santha v. State of Kerala, 2019 SCC OnLine Ker 5405, decided on 17-12-2019]

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