High Court of KeralaSingle Judge2018-05-22Crl.M.C. disposed of; relief under Sec.482 Cr.P...

CRL.M.C.No. 761 of 2013 CC 314/2011, J.M.F.C., Erattupetta

Case / Petition Number:CRL.M.C. No. 761 of 2013; CC 314/2011 (J.M.F.C., Erattupetta)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M.BABU
Judgment Date: 2018-05-22
Court Decision / Holding: The relief sought by the petitioners to quash the criminal prosecution against them is refused. Annex-D order not quashed. Annex-C supplementary report and related papers form part of the record and may be used at trial to the extent permissible. The Crl.M.C. is disposed of accordingly, with the understanding that the proceedings shall continue in accordance with law.
Final Disposition: Crl.M.C. disposed of; relief under Sec.482 Cr.P.C. refused; annex-D upheld; annex-C and related papers remain on record and may be used at trial.

Parties to the Case

Appellants / Petitioners

JOSEPH
K.J. BABY
K.P. REJI

Respondents

ANTONY JOSEPH
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• SRI.THOMAS J.ANAKKALLUNKAL
• SRI.M.REVIKRISHNAN

Counsels for Respondents

• SRI.S.RAJEEV
• SRI.K.K.DHEERENDRAKRISHNAN

Case Synopsis & Summary

Joseph, aged 82, his son K.J. Baby, and K.P. Reji (petitioners) challenge a criminal prosecution in CC 314/2011 (JMFC Erattupetta) for offences under sections 427 and 447 IPC read with 34. The magistrate took cognizance on the final report under Sec.173(2) Cr.P.C. following a complaint about the demolition of the first respondent’s compound wall on the night of 3 April 2011. A further investigation produced annex-C, a Sec.173(8) report recommending closure as undetected. The 1st respondent sought permission under Sec.302 Cr.P.C to conduct the prosecution, which the magistrate allowed via annex-D. The petitioners contend that a negative Sec.173(8) report cannot cancel cognizance or nullify the proceedings already launched on the original Sec.173(2) report, and that annex-C cannot supersede annex-A; they rely on Parameswaran Nair v. Surendran to challenge the magistrate’s options. The State counters, arguing that annex-D properly authorizes a private prosecution and that the case must proceed. The High Court held that cognizance on the original report remains intact despite the later 173(8) report, and that further investigation does not erase the initial investigation. Annex-C and related papers form part of the record and may be used at trial. The petition is dismissed; annex-D is not quashed, and the relief under Sec.482 Cr.P.C. is refused.

Provisions of Law Cited

Sec. 482 of Cr.P.C.Sec. 427 IPCSec. 447 IPCSec. 156(3) Cr.P.C.Sec. 173(2) Cr.P.C.Sec. 173(8) Cr.P.C.Sec. 302 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the proceedings must be quashed under Sec.482 Cr.P.C. because a subsequent Sec.173(8) report cannot erase cognizance taken on the original Sec.173(2) report and cannot substitute the annex-A final report. They argue that annex-C’s negative report does not terminate the prosecution; the magistrate’s order permitting a private individual to conduct the prosecution (Sec.302 Cr.P.C) is improper and should be quashed. They rely on State v. Gopakumar to emphasize that further investigation cannot wipe out the initial investigation, and on Parameswaran Nair v. Surendran to illustrate procedural options, which the court ultimately found inapplicable here. They seek quashing of annex-D and all further proceedings arising from annex-A final report.

Contentions of Respondents

The respondents contend that annex-D properly transfers the prosecution to the party best suited to conduct it and that cognizance on the original report remains valid; Annex-C is part of the record and can be used at trial; the private prosecution is permissible under Sec.302 Cr.P.C; the court should not quash the proceedings given the cognizable offences and the ongoing investigation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State v. Gopakumar	1988 (1) KLT 924	Positive	Cited to support that further investigation does not erase the initial investigation and that supplementary materials form part of the case record.
Vinay Tyagi v. Irshad Ali	(2013) 5 SCC 762	Positive	Cited for the proposition that cognizance on the original 173(2) report remains despite a 173(8) negative report and that proceedings should continue.
Parameswaran Nair v. Surendran	(2009 (1) KHC 801)	Distinguished	Not applied to the present facts; the court held it inapplicable to protest against a final report in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940 Crl.MC.No. 761 of 2013 CC 314/2011 of J.M.F.C.,ERATTUPETTA DATED 17-10-2012 ## PETITIONERS/ACCUSED - 1 JOSEPH, AGED 82 YEARS, S/O OUSEPH, - KANJIRATHINAL HOUSE, MELUKAVU VILLAGE, IRUMAPRAKARA - 2 K.J. BABY, AGED 53 YEARS, S/O.JOSEPH - KANJIRATHINAL HOUSE, MELUKAVU VILLAGE, IRUMAPRAKARA - 3 K.P. REJI, S/O.THANKAPPAN, KARUTHEDATHU HOUSE, MELUKAVU VILLAGE, THEKKUMBAGAM KARA. BY ADVS.SRI.THOMAS J.ANAKKALLUNKAL SRI.M.REVIKRISHNAN RESPONDENTS/DEFACTO COMPLAINANT AND STATE : 1. ANTONY JOSEPH PAIKKADEYIL HOUSE, IRUMAPRA KARA, KONIPPADU PO MELUKAVU VILLAGE - 686 103 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031 R1 BY ADV. SRI.S.RAJEEV R1 BY ADV. SRI.K.K.DHEERENDRAKRISHNAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.04.2018, THE COURT ON 22-05-2018 PASSED THE FOLLOWING: ## A.M.BABU, J. - - - - - - - - Crl.M.C.761 of 2013 - - - - - - - - - - - - Dated : 22[nd] May, 2018 - - - - - - - - - - - - - CR ## ORDER - 1.Relief is sought under Sec.482 of Cr.P.C. Petitioners are the accused persons in C.C.314/2011 on the file of the court of the judicial magistrate of the first class, Erattupetta. They allegedly committed offences punishable under Secs 427 and 447 of IPC read with IPC 34. They seek to quash the criminal prosecution against them. - 2.Facts are simple and go as under : The compound wall of the property of the 1[st] respondent was demolished on the night of 3.4.2011. He filed a complaint before the magistrate. It was alleged in it that the compound wall was demolished by petitioners 1 and 2 and two others who could be identified by sight. The learned magistrate forwarded the complaint to the local station house officer under Sec.156(3) of Cr.P.C. The station house officer was directed to hold an **Crl.M.C.761/13** 2 investigation. Thereupon an FIR was registered. Investigation was conducted. A report under Sec.173(2) of Cr.P.C was filed. A copy of it is annex-A. The petitioners moved a Crl.M.C before this court to get annex-A final report quashed. This court dismissed the said Crl.M.C holding that there were sufficient allegations in the final report, if proved, to sustain a conviction. Annex-F is a copy of the said order. Thereafter the 3[rd] petitioner submitted annex-B petition to the director general of police seeking further investigation. Further investigation was conducted. A report under Sec.173(8) of Cr.P.C was filed. Annex-C is a copy of the said report. The request therein was to close the case as undetected. The 1[st] respondent moved annex-E application seeking permission under Sec.302 of Cr.P.C for conducting the prosecution by himself. The said application was allowed by the learned magistrate as per annex-D order. This court is now called upon to quash annex-D order. It is **Crl.M.C.761/13** 3 also requested to quash all further proceedings arising from annex-A final report. - 3.Heard the learned counsel for the petitioners and the 1[st] respondent. 4.The learned magistrate took cognizance of offences under Secs 427 and 447 of IPC against the petitioners upon annex-A final report. The case was taken on file as C.C.314/2011. The attempt of the petitioners to get annex-A quashed failed. However, further investigation was conducted and annex-C report under Sec.173(8) of Cr.P.C was filed. It was a negative report requesting to close the case as undetected. A report under Sec.173(8) of Cr.P.C does not supersede the report under Sec.173(2) Cr.P.C. A further or supplementary report is not intended to erase the original report and its substitution by a new report. It is held so by this court in State v.Gopakumar (1988 (1) KLT 924) . The apex court holds that one of the **Crl.M.C.761/13** 4 significant features of further investigation is that it does not have the effect of wiping out directly or indirectly the initial investigation conducted by the investigating agency. The decision is Vinay Tyagi v. Irshad Ali ((2013) 5 SCC 762) . The cognizance taken on the original police report does not get cancelled by reason of the filing of the report under Sec.173(8) of Cr.P.C, whether negative or not. Therefore, when cognizance is taken upon the report under Sec.173(2) of Cr.P.C, the proceedings should go on and end in its logical conclusion according to law and procedure, despite the filing of a negative report under Sec.173(8) of Cr.P.C. The proceedings cannot be dropped or closed on receipt of a negative report under Sec.173(8). The petitioners are therefore not entitled to get the criminal prosecution against them quashed on the ground that a negative report was filed under Sec.173(8) of Cr.P.C. ## 5.Sec.302 of Cr.P.C permits any magistrate **Crl.M.C.761/13** 5 holding an inquiry or a trial to permit the prosecution to be conducted by any person other than a police officer below the rank of an inspector. The learned magistrate as per annex-D order permitted the 1[st] respondent to conduct the prosecution. He was the person aggrieved. His was the compound wall demolished. The conduct of the prosecution was given to the best and safest hand. Annex-D order is therefore not liable to be quashed. 6.The learned counsel for the petitioners relied on the decision of this court in Parameswaran Nair v. Surendran (2009 (1) KHC 801) . It states what are the options for a magistrate when a protest complaint is filed against a final report filed under Sec.173 (2) of Cr.P.C. The said decision has no application to the facts and circumstances of the present case. No protest complaint was filed by the 1[st] respondent against the supplementary report. No protest complaint could be filed by him against **Crl.M.C.761/13** 6 the negative report, and it was not necessary also. For, cognizance was already taken by the learned magistrate upon the original report and the case was numbered. The decision in Parameswaran Nair (supra) does not come to the rescue of the petitioners. 7.Annex-D order of the learned magistrate is not free from mistakes. The order states that the subsequent charge-sheet (annex-C) is rejected and the original charge-sheet (annex-A) is reopened. There was no question of re-opening annex-A report as the proceedings taken pursuant thereto was not, and could not be, closed. The rejection of annex-C report was also not correct. When a positive report under Sec.173(2) of Cr.P.C is followed by a negative report under Sec.173(8) Cr.P.C and cognizance has been taken upon the former report, the magistrate shall proceed with the case ignoring the latter report. But the supplementary report and the papers connected therewith shall form part of 7 ## **Crl.M.C.761/13** the record of the case and can be used at the trial. What I should do is to dispose of the Crl.M.C making this position clear. 8.I conclude. The relief sought by the petitioners to quash the criminal prosecution against them is refused. The request to quash annex-D order of the learned magistrate also stands refused. The Crl.M.C is disposed of making it clear that annex-C supplementary report and the papers connected therewith form part of the record of the case and therefore can be used at the trial to the extent permissible under law. ## **Sd/-** A.M.BABU Judge Mrcs/27.4. /True copy/ P.S.To Judge