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Judgment
Justice N.K. Balakrishnan
The de facto complainant, who was the Secretary of the Co-operative Society is the revision petitioner. A complaint was filed by him against eight persons alleging misappropriation of funds of the Society and also alleging forgery, falsification of accounts etc. That complaint filed before the Magistrate was forwarded to the police for investigation under Sec. 156(3) of Cr.P.C. Pursuant thereto, Crime No. 73/1989 was registered by Punalur Police. Investigation was conducted in that case. The final report under Sec.173(2) of Cr.P.C. was filed by the police only against the 4th person shown in the complaint. That means, charge sheet was laid against only one person. It is submitted by the Learned Counsel for the revision petitioner that a reservation clause was also there in that final report to the effect that after getting a detailed audit report from the Auditor concerned, separate charge sheet would be filed against other accused, if their complicity is also established. Learned Public Prosecutor submits that in the complaint (CMP No. 1905/1989) besides Sec.409 IPC, Secs.465, 468, 477A and other sections were also there. But the final report was filed only under Sec.409 IPC. Learned Public Prosecutor also submits that subsequent to the filing of the final report against one accused as mentioned above, a detailed audit report was obtained from the Deputy Registrar of Societies (Audit, Kollam) and pursuant thereto the then Sub Inspector of Police, Punalur without noticing the earlier registration of the crime and the filing of final report against one accused with a reservation clause, registered a fresh FIR as Crime No. 501/1996 under Secs.403, 405 and 201 r/w 34 IPC. It appears when the final report was filed earlier against one accused out of the eight persons mentioned in the complaint, the case was taken cognizance by J.F.C.M.-III, Punalur as C.C.No. 352/1990. That case was subsequently transferred by the CJM, Kollam to J.F.C.M.-II (Forest Offences), Punalur where the case was re-numbered as C.C.No. 269/1994.
In the meanwhile, the complainant again filed Crl.M.C.No. 3832/1997 before This Court. Another OP was filed as O.P.No. 26672/1999. The aforesaid OP was filed for a direction to the Secretary to Home, Government of Kerala to entrust the investigation in Crime No. 73/1989 to any other investigating agency and to complete the investigation as expeditiously as possible. A report was filed by the investigating officer in that case stating that the incident in question relates to the same matter in Crime Nos.73/1989 and 501/1996 and that all persons were inducted as accused in C.C.No. 269/1994. It was observed by This Court in O.P.No. 26672/1999 mentioned above that since all the accused were then made as accused in Crime No. 73/1989 no further relief is necessary and so, OP was disposed of accordingly. In Crl.M.C.No. 3832/1997 also, based on the same report filed by the police as referred to above and taking note of the fact that all the accused persons were made as accused in Crime No. 73/1989 holding that no further relief was necessary, Crl.M.C. mentioned above was also disposed of accordingly.
Learned Counsel for the petitioner submits that though Crime No. 501/1996 was registered, in fact that crime was not investigated and no final report under Sec.173(2) implicating other seven omitted accused was filed. There was only a protest complaint requesting to take cognizance against all eight accused including the 4th person in the original complaint. Since the submission made by the Government Pleader before This Court was that charge sheet was filed against all accused persons, the OP and Crl.M.C. happened to be disposed of as mentioned above. Since the OP and the Crl.M.C. were disposed of as stated above, the police officer filed a refer report in Crime No. 501/1996 without giving a positive report implicating or arraying all the 7 omitted accused. Thereafter another order was passed by the learned Magistrate (successor in office) on 28.1.2002 where it was noted that the earlier two cases were clubbed together by the then learned Magistrate under Sec.210 Cr.P.C. But another Magistrate, who succeeded found that clubbing of the two cases was improper and so, he split up the complaint case (the case arose out of the private complaint) as C.C.No. 313/1997 as per order dated 4.10.1997.
Learned Counsel for the accused/respondents submits that in the meanwhile, an application was filed by the accused persons in C.C.No. 313/1997 mentioned earlier for an order of discharge under Sec.245(1) Cr.P.C. That petition was allowed by the learned Magistrate. Since the other accused persons were discharged by the learned Magistrate as per order dated 4.10.1997, the successor Magistrate found that there was only one accused remaining and so, issuance of summons to all the accused was not correct. It was also observed by the learned Magistrate that it was wrongly submitted by the investigating officer before the High Court that all the accused were inducted in C.C.No. 269/1994. Thus, it would appear that confusions were created in the proceedings through out.
Now, what remains is that there is a police report filed under Sec.173(2) Cr.P.C. only against Rajan, who was shown as the 4th accused in the private complaint filed by the petitioner before the learned Magistrate and which was forwarded to the police under Sec.156(3) of Cr.P.C. Though a detailed audit report was received and a separate crime was registered as Crime No. 501/1996, the proceedings so taken by the police registering a different crime was not proper. Instead of doing that the investigating officer should have conducted a further investigation in Crime No. 73/1989. When there were materials to proceed against other accused persons and also in respect of other offences, which was not included in the final report against the 4th accused filed earlier that was something to be done by the investigating officer only after conducting further investigation in the matter. The submission made before This Court when the Crl.M.C. and OP were pending that a final report was already filed including all the other omitted accused was factually incorrect. The order of discharge passed by the learned Magistrate does not preclude the investigating officer or the court from proceeding further. Therefore, the investigating officer is at liberty to conduct further investigation in the matter to find whether the omitted seven accused persons also are to be arrayed and also as to the offences in respect of which materials are available. Learned Counsel for the respondents submits that out of the other seven persons mentioned above, two persons already expired. That also is a matter to be taken note of by the investigating officer. Learned Counsel submits that the crime was registered in the year 1989 pertaining to the alleged misappropriation that took place in 1986. It is further submitted that the main allegation was against the 2nd accused in the original complaint who is no more now. The total amount alleged to have been misappropriated was only Rs. 16,139/-; of course, that was in 1986. Nearly 23 years have elapsed. But there should be a proper culmination of the case.
Hence, this Crl.R.P. is disposed of directing the investigating officer to conduct further investigation and to file a report under Sec.173(8) of Cr.P.C. before the Magistrate where C.C.No. 269/1994 is pending. The further report in the matter should be filed within three months from today. The matter could have been settled if the parties had put their heads together since more than two decades elapsed by now. If the matter is otherwise settled, the investigating officer can take note of that aspect also. Till the report under Sec.173(8) Cr.P.C. is filed by the investigating officer, further proceedings in C.C.No. 269/1994 shall be kept in abeyance.