T.V. Anilkumar ORDER
T.V. Anilkumar, J.
1. The petitioners are accused Nos. 1 to 4 in Annexure-3 final report in C.C. No. 436/2010 on the file of JFCM-Payyannur, charge sheeted for offences punishable under Sections 188, 447, 506(i) read with Section 34 of IPC. During the course of the trial of the case, the second respondent who is the de facto complainant filed C.M.P. No. 3161/2012 before the learned Magistrate seeking an order directing further investigation in the crime under Section 173(8) of Cr.P.C., contending that the investigation conducted was defective and unfair.
2. The petitioners took strong exception to the request and contended that the de facto complainant has no locus standi to file a petition seeking further investigation and further there was no justifying reason also for making such a request. The learned Magistrate after considering the contentions of both sides was of the view that interest of justice demanded further investigation into the matter and accordingly impugned Annexure-6 order was passed on 22.8.2012 allowing C.M.P. 3161/2012. This order is challenged in this Crl.M.C. invoking the inherent power of this Court under Section 482 of Cr.P.C.
3. I heard the learned counsel for the petitioners, the learned counsel for additional respondents 3 to 5 who were impleaded as the legal heirs of the second respondent who died during the pendency of this proceeding and also the learned Public Prosecutor.
4. The contention of the learned counsel for the petitioners is that the de facto complainant has no locus standi to ask for further investigation though the court in justifiable circumstances may be empowered to exercise suo motu power in this regard. In this respect, he canvassed a decision reported in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel & ors. (MANU/SC/0104/2017 : AIR 2017 SC 774). On facts also, it is contended that ordering of further investigation was quite unnecessary inasmuch as the investigation was conducted in a fair and proper manner.
5. On the other hand, the learned counsel for the respondents 3 to 5 submitted that the persons who witnessed the incident of trespass and criminal intimidation were not cited as witnesses in Annexure-3 final report. Though persons who were eye witnesses to the incident were questioned, they were suppressed. In short, the submission is that Cws. 2 and 3 cited in the final report are actually eye witnesses to the occurrence but they were cited only to prove the scene mahazar. This contention found favour with the learned Magistrate and further investigation was accordingly ordered.
6. While examining the legality of the impugned order, the very maintainability of the prosecution in respect of offence punishable under Section 188 of the IPC cannot be lost sight of. The petitioners are accused of offence under Section 188 on the premise that they violated the order of status quo passed by the learned Munsiff, Payyannur, in O.S. No. 106/2008, by committing trespass upon the disputed property on 26.1.2009. Even accepting the allegation to be true also, the prosecution under Section 188 IPC cannot lie in the light of the legal bar under Secti........