Accused Has No Absolute Right To Seek Further Investigation But Courts Can Intervene If Probe Is Incomplete, Shabby Or Malafide: Kerala HC

Justice A. Badharudeen was considering an order of the Trial Court which dismissed an application seeking further investigation under Section 173 (8) of the CrPC.

Court said, “While analysing the question of law as to whether an accused has an absolute right to seek for further investigation, in fact, an accused has no absolute right to seek further investigation or to dictate terms for investigation or to say that the investigation shall go in a particular manner.”

The Court further relying upon Apex Court decision in Vinay Tyagi v Irshad Ali (2013), stated that fresh or further investigation can be ordered by setting aside the present investigation when the investigation was prima facie unfair, malafide, incomplete, shabby and is influenced by foul play.

Court further stated, “When the investigation ex facie is unfair, tainted, mala fide, incomplete, shabby and meddled with smacks of foul play, the courts have power to intervene the investigation, thereby the constitutional courts can set aside such an investigation and direct fresh or de novo investigation or further investigation, as the case may be, to protect the fundamental right of the suspect or the accused and to ensure that there must be a fair investigation and consequential fair trial.”

The allegation against the Petitioner is that he forged two powers of attorney by putting false signatures and thumb impressions and a false solvency certificate and produced it before the Excise Department as genuine documents in an auction to obtain licence for arrack shop.

Crime was registered under Sections 465 (punishment for forgery), 468 (forgery for purpose of cheating), 471 (using as genuine a forged document) and 420 (cheating and dishonestly inducing delivery) r/w Section 34 (acts done in furtherance of common intention) of the IPC.

It is to be noted that FIR was registered in the year 2015 for offences allegedly committed in 1993-94. Final Report was filed in 2018.

The Petitioner submitted that he was representing as the power of attorney holder of the de facto complainant and her husband to participate in the auction, and that the powers of attorneys were prepared by another person. It was submitted that the beneficiaries of the auction were also the de facto complainant, her husband and the person who prepared the power of attorneys. The Petitioner also submitted that crime was registered after so many years to avoid revenue recovery proceedings against the property for failing to pay fees under Abkari Act.

The Petitioner sought for further investigation arguing that it is fundamental right to have a just and fair investigation under Articles 21 and 22 of the Constitution. He further relied upon Vinay Tyagi (supra) seeking further investigation.

In the facts of the case, the Court noted that further investigation is necessary to prove who produced the forged documents. It noted that the case of the Petitioner is that he was authorized to represent through power of attorneys, whereas the allegation against him was that he lacked such authorization and had forged power of attorneys. The Court also noted that crime was registered after a delay of 22 years.

The Court further clarified that courts, other than constitutional courts can also order further investigation under Section 173 (8) of the CrPC in appropriate cases before the trial commences.

As such, the Court allowed the Petition and ordered for carrying further investigation.

Counsel for Petitioner: Advocates V Vinay, M S Aneer, Sarath K P, Prerith Philip Joseph, Anilkumar C R, K S Kiran Krishnan

Counsel for Respondents: Advocates Mithun Baby John, N.U.Harikrishna, Priya P K, Public Prosecutor Jibu T S

Case Title: George Cyriac v State of Kerala

Case No: CRL.MC NO. 7443 OF 2023

Citation: 2025 LiveLaw (Ker) 162

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