Joy, Jose and Nicholas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935** **Crl.MC.No. 1753 of 2008 ( )** ## **-------------------------------------** ## **AGAINST THE ORDER IN CC 29/2006 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM** **---------** ## **PETITIONER(S)/ACCUSED NOS. 1 TO 3:** **---------------------------------------------------------** **1. JOY, AGED 48 YEARS,** - **S/O.ANTONY, EDUTHAN HOUSE, THALUR DESOM, THRISSUR TALUK, THRISSUR DISTRICT.** **2. JOSE, AGED 42, S/O.ANTONY, EDUTHAN HOUSE, THALUR DESOM, THRISSUR TALUK, THRISSUR DISTRICT.** **3. NICHOLAS, AGED 36, S/O.JAMES MATHEW, NEERAKAL HOUSE, KANJIRAPPILLY, KOTTAYAM DISTRICT.** **BY ADVS.SRI.C.A.CHACKO SRI.SEBY JOSEPH** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** **1. STATE OF KERALA** - **INSPECTOR OF POLICE, KOTTAYAM EAST POLICE, STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** ## *** ADDL.R2 IS IMPLEADED** **2. JAYAKUMAR, S/O.RAMACHANDRAN PILLA, ANANDANILAYAM, VANDALMEDU, IDUKKI DISTRICT, IS IMPLEADED AS ADDITIONAL SECOND RESPONDENT AS PER ORDER DTD.28/5/2008 IN CRL.MA.2818/2008 IN CRL.MC.1753/2008** **R1 BY ADV. PUBLIC PROSECUTOR SRI.PADMALAYAN R2 BY ADVS. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/10/2013 THE COURT ON 29-11-2013, PASSED THE FOLLOWING:** **PJ** **Crl.MC.No. 1753 of 2008 ( )** ## **-------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **----------------------------------------** **ANNEXURE I: COPY OF THE CHARGE SUBMITTED BY THE ADDL.SUB INSPECTOR OF POLICE IN CRIME 40/06 OF THE KOTTAYAM TOWN EAST POLICE STATION DATED 22/3/06 BEFORE THE CJM, KOTTAYAM.** **ANNEXURE II: COPY OF THE REFER REPORT SUBMITTED ON BEHALF OF THE CI OF POLICE, KOTTAYAM EAST POLICE STATION DATED 15/9/2007 IN CRIME 40/06** **ANNEXURE III: COPY OF THE ORDER PASSED BY THE CJ M, KOTTAYAM IN CRIME NO.40/06, AS PER EXTRACT OF THE ORDER SHEET DATED 26/3/08** ## **RESPONDENTS' ANNEXURE** **-----------------------------------------** **NIL.** **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## **K.RAMAKRISHNAN, JJ.** -------------------------------------------------------Criminal MC No.1753 of 2008 -------------------------------------------------------Dated this, the 29th day of November 2013 ## Order This is an application filed by accused Nos.1 to 3 in CC No.29/06 on the file of the Chief Judicial Magistrate, Kottayam, originated on the basis of Crime No.40/06 of Kottayam East Police Station to quash AnnexureIII order of the Chief Judicial Magistrate, Kottayam, refusing to take cognizance on the supplementary report filed in that case, under Section 173(8) of the Code of Criminal Procedure (For short, the Code), under Section 482 of the Code. 2. The case of the petitioners was that they are accused persons in Crime No.40/06 on the file of the Kottayam East Police Station, which was registered on the basis of a private complaint, filed by the additional second respondent (who was impleaded subsequently as per order in Criminal M.A.No.2818/08), alleging offences Crl.MC No.1753/08 2 punishable under Sections 341, 386, 447, 506(II) read with Section 34 of the Indian Penal Code before the Judicial First Class Magistrate Court-I, Kottayam, which was forwarded to the police for investigation by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure, where the Kottayam East Police registered a case as Crime No.40/06 under Sections 341, 386, 447, 506(II) read with Section 34 of the Indian Penal Code. After investigation, the investigating officer submitted final report produced as Annexure-I before the Chief Judicial Magistrate, Kottayam, where it was taken on file as CC No.29/06 under Sections 341, 386, 447, 506(II) read with Section 34 of the Indian Penal Code and summons was issued to the accused persons. Dissatisfied with the investigation conducted by the investigating officer and also considering the fact that the complaint itself was filed at the time when ST Nos.1523/06, 1634/06 and 1635/06 were pending before the Judicial First Class Magistrate Court-II, Thrissur, filed by the first petitioner against the present Crl.MC No.1753/08 3 second respondent and others, alleging offence under Section 138 of the Negotiable Instruments Act, he filed a petition before the District Superintendent of Police, Kottyaam for a further investigation in this case as the allegations in Annexure-I are false and the father of the second respondentRamachandran, who is one of the accused in the above cheque cases, is a major offender for financial irregularities to the tune of 5.5 crores while he was working as Manager in the Vandanmedu Cardomom Marketing Corporation and on that basis. Accordingly, a re-investigation was ordered and after getting permission from the court, the investigating officer conducted further investigation in the matter and submitted a refer report, stating that the findings in the earlier report in the above case which resulted in taking cognizance as CC No.29/06 are false and submitted that report before the Chief Judicial Magistrate Court as Annexure-II. The refer notice was issued to the second respondent and he objected to the same and after hearing the parties, the learned 4 Crl.MC No.1753/08 Magistrate has decided to proceed with the earlier report evidenced by Annexure-III extract of the order dated 26.03.2008 which is being challenged in this proceedings. 3. It is alleged in the petition that a comparative study of the earlier report and the subsequent report filed, has not been made by the learned Magistrate before passing the impugned order and the order rejecting the second report is unsustainable in law as there is no application of mind and no opinion has been formed by the learned Magistrate as required under law before deciding to proceed with the case on the basis of the earlier report and so, the order is liable to be set aside, is the contention raised by the petitioner in the above petition. The counsel for the petitioner also submitted that by virtue of the rejection of the second report, the accused will lose their right to use the evidence collected by the investigating officer during the further investigation at the time of trial, which is also unsustainable in law as even if the Magistrate intends to proceed with the case on the basis of Crl.MC No.1753/08 5 the earlier report, he will have to consider the evidence collected in the subsequent investigation also for arriving at a just decision in the case and there is no bar for the same as well. 4. The counsel for the second respondent submitted that there is proper application of mind by the learned Magistrate. There is no illegality committed by the learned Magistrate in passing the order. The fact that he decided to proceed with the case on the basis of the earlier report will go to show that there is application of mind and he had formed an opinion to proceed with the case on the basis of the earlier report. The order does not call for any interference. 5. The learned Public Prosecutor also submitted that the Magistrate has a discretion to proceed with the case even if a subsequent report has been filed under Section 173 (8) of the Code on the basis of the earlier final report filed. 6. It is an admitted fact that on the basis of the Crl.MC No.1753/08 6 issuance of the alleged cheques, the first petitioner herein had initiated proceedings against the second respondent, his father and brother under Section 138 of the Negotiable Instruments Act, which were pending as ST Nos.1523/06, 1634/06 and 1635/06 before the Judicial First Class Magistrate-II, Thrissur. The case of the second respondent was that those cheques were obtained by coercion and by threat after trespassing into their house and on the basis of those allegations, he filed a private complaint before the Judicial First Class Magistrate-II, Kottayam, which was forwarded to the police for investigation under Section 156(3) of the Code and after investigation, the Kottayam Town East Police in Crime No.40/06 submitted Annexure-I final report against the present petitioners. Dissatisfied with the investigation, they filed a petition before the District Superintendent of Police, Kottayam, for further investigation and thereafter, the Circle Inspector of Police conducted investigation after getting formal permission from the Crl.MC No.1753/08 7 concerned court under Section 173(8) of the Code and submitted Annexure-II report, stating that the findings in the earlier report are false and the matter has to be referred as a false case. A refer notice was also issued to the second respondent, who was the defacto complainant in this case and after considering the objection of the second respondent, the learned Magistrate passed Annexure-II order and decided to proceed with the case on the basis of the earlier report and rejected the second report. ## 7. Section 173 of the Code reads as follows : ## 173. **Report of police officer on completion of investigation** (1) Every investigation under this Chapter shall be completed without unnecessary delay. a [(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.] (2) (i) As soon as it is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating (a) the names of the parties; (b) the nature of the information; Crl.MC No.1753/08 8 (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. a [(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 3 76A, 376B, 376C or 376D of the Indian Penal Code.] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the Commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation. (4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report -(a) all documents or Crl.MC No.1753/08 9 relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for such request. (7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5). (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” 8. It is settled law that it is not necessary for the Magistrate automatically to accept the second final report filed after further investigation under Section 173(8) of the Crl.MC No.1753/08 10 Act. The court can form an opinion and then proceed with the case on the basis of the earlier report. 9. In the decision reported in **Dharmatma Singh v. Harminder Singh and others** (2011) 6 SCC 102), it has been held that where the police report forwarded to the Magistrate under Section 173(2) states that a person has committed an offence, but after further investigation, the further report under Section 173(8) states that the person has not committed any offence, it is for the Magistrate to form an opinion whether the facts set out in the two reports make out any offence committed by the person and if the Magistrate is satisfied that the case against the accused has to be proceeded with on the basis of the earlier report, then, the Magistrate is at liberty to proceed with the case on the basis of the earlier report. Further, in the decision reported in **Abhinandan Jha and others v. Dinesh Mishra** (AIR 1968 SC 117), it has been held that even if the police submitted a Crl.MC No.1753/08 11 charge sheet stating that there is no case made out for setting up a case for trial, the Magistrate can, on the basis of the evidence collected, if he feels that an offence has been made out, take cognizance, invoking the power under Section 190(1)(c) of the Code. The same view has been reiterated in the decision reported in **Rupan Deol Bajaj v. K.P.S.Gill** (1995 (2) KLT 830) and **R.P.Kapur v.State of Punjab** (AIR 1960 SC 866). The same view has been reiterated by the Supreme Court in the decision reported in **Vinay Tyagi v. Irshad Ali alias Deepak and others** (2013) 5 SCC 766). Further, in the decision reported in **Rama Chaudhary v. State of Bihar** (AIR 2009 SC 2308), it has been held that the order of issuing summons to witnesses based on the supplementary charge sheet, filed by the Investigating officer under Section 173(8) by the Magistrate, cannot be said to be illegal. The same view has been reiterated in the decision reported in **Central Bureau of Investigation v. Jitha Kumar** (2012(4) KLT 306). Crl.MC No.1753/08 12 10. A reading of the order passed by the learned Magistrate will go to show that he has applied his mind and on going through both the reports, came to the conclusion that it was a case where the accused have to be tried on the basis of the earlier report. So, it cannot be said that there is no application of mind or the Magistrate has not formed an opinion on the basis of the materials collected by the investigating officer by comparing both the reports as alleged by the counsel for the petitioner. There is no necessity to pass a detailed order by the Magistrate, in such circumstances. The Magistrate need only consider both the reports and form an opinion as to whether he will have to proceed with the case on the basis of the earlier report or drop the proceedings on the basis of the subsequent report. In this case, the Magistrate has decided to proceed with the case on the basis of the first report. So, there is no illegality committed by the court below in passing the impugned order. But, the Magistrate ought not to have rejected the second 13 Crl.MC No.1753/08 report as such, as that will cause prejudice to the accused in this case. He should have left open the consideration of the second report at the time of trial. So, the rejection of the second report by the Magistrate is not correct as the Magistrate should have left open the consideration of the second report at the instance of the accused if they wanted to make use of the evidence collected by the investigating officer in the subsequent report for substantiating their case at the time of trial. I feel that with the above observation, the petition can be disposed of. So, the petition is disposed of with liberty to the petitioners to rely on the evidence collected by the investigating officer in the supplementary report filed under Section 173(8) of the Code for substantiating their case at the time of trial in view of the discussions made on the basis of the dictum laid down in the decisions cited supra. The interim stay granted is vacated. The parties are directed to appear before the court below on 18.12.2013. Considering the fact that the case is of the year 2006, the Magistrate shall Crl.MC No.1753/08 14 take earnest efforts to dispose of the case as expeditiously as possible. The office is directed to communicate this order to the concerned court immediately. ## **K.RAMAKRISHNAN,JUDGE** sta Crl.MC No.1753/08 15