Joy @ Joy Antoparuam v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM # PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944 ## CRL.MC NO. 5558 OF 2021 [AGAINST THE PROCEEDINGS IN C.C.NO.677/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR ARISING OUT OF CRIME NO.46/2015 OF PERUMBAVOOR POLICE STATION, ERNAKULAM] ## PETITIONER/ACCUSED: JOY @ JOY ANTOPARUAM AGED 50 YEARS S/O.RAPHEL, POTTOLI HOUSE, NR. ANTOPURAM CHURCH, OKKAL KARA, CHELAMATTOM VILLAGE, PERUMBAVOOR, ERNAKULAM RURAL, KERALA 683 550 BY ADVS. SHERRY J. THOMAS JOEMON ANTONY ## RESPONDENT/STATE: STATE OF KERALA REP.BY SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, ERNAKULAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 31 THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 12.07.2022, THE COURT ON 12.08.2022 PASSED THE FOLLOWING: CRL.MC No.5558 /2021 2 ## O R D E R The petitioner is the sole accused in Crime No.46/2015 of Perumbavoor Police Station, which is now pending as C.C.No.677/2015 before the Judicial First Class Magistrate Court, Perumbavoor. The aforesaid crime was originally registered by Perumbavoor Police Station, alleging offences punishable under Sections 323 and 324 of the Indian Penal Code (IPC). Annexure-A1 is the F.I.R, and Annexure-A2 is the final report submitted by the Police after completing the investigation thereof. Subsequently, the petitioner submitted a complaint before the superior officers in the police department seeking further investigation. 2. Accordingly, a further investigation was ordered and later, Annexure-A3, which is a supplementary final report, was submitted before CRL.MC No.5558 /2021 3 the Judicial First Class Magistrate Court, Perumbavoor. On the basis of the same, the petitioner approached this Court by filing Crl.M.C.No.5996/2019 for quashing Annexure-2 final report. The aforesaid Crl.M.C. was disposed of by this Court as per judgment dated 27.9.2019, which is produced as Annexure-A4 in this Crl.MC. 3. As per Annexure-A4 order, this Court directed the petitioner to submit an application for dropping the prosecution under Section 258 of the Code of Criminal Procedure (Cr.PC) before the learned Magistrate. The aforesaid direction was issued by this Court to enable the Magistrate to consider Annexure-A2 final report and Annexure-A3 supplementary final report, which is a negative report, together and arrive at a conclusion as to whether further proceedings thereon have to be dropped or not. CRL.MC No.5558 /2021 4 4. In compliance with the directions in the Annexure-A4 order, the Annexure-A5 application was submitted by the petitioner, which culminated in Annexure-A6. As per the said order, the application submitted by the petitioner is dismissed, and the proceedings were allowed to be continued based on the Annexure-A2 final report. This Crl.M.C. is filed in such circumstances. 5. Heard Sri. Sherry J. Thomas, the learned counsel for the petitioner, Smt.Nima Jacob, the learned Public Prosecutor for the State. 6. The specific contention put forward by the learned counsel for the petitioner is that the order of dismissal of the application submitted by the petitioner is unsustainable, and the same is liable to be interfered with. According to the learned counsel, the learned Magistrate failed to exercise the jurisdiction CRL.MC No.5558 /2021 5 vested upon him by specifically taking note of the contents of Annexure-A3 supplementary final report. 7. After perusing the records and hearing the contentions from either side, I am of the view that the order passed by the learned Magistrate vide Annexure-A6 suffers from some discrepancies. The learned Magistrate arrived at the conclusion that merely because of the reason that a supplementary report has been filed under Section 173(8) of Cr.PC, the cognizance which has already been taken by the learned Magistrate based on the earlier final report submitted by the Police would not get cancelled. Reliance was also placed on the decision rendered by this Court in Joseph and Others v. Antony Joseph and Another [2018(3)KHC 23] . In the aforesaid decision, it was held that merely because of the filing of a negative report by the Police under CRL.MC No.5558 /2021 6 Section 173(8), the cognizance already taken by the learned Magistrate based on the earlier final report could not be discarded. However, the crucial question herein is whether the learned Magistrate has properly applied his mind to the contents of the initial final report, ie. Annexure-A2 and Annexure-A3 supplementary final report to arrive at a conclusion as to whether the proceedings have to be continued or not. It is a well settled position of law that, while taking such a decision, when there are two reports before a learned Magistrate, one implicating the accused for the offences alleged and the other one exonerating the accused from the liability, both the reports have to be taken into consideration conjointly and only after the same, a decision has to be taken as to whether the prosecution is to be continued or not. The position of law in this regard has been settled CRL.MC No.5558 /2021 7 by the Hon’ble Supreme Court in Vinay Tyagi v. Irshad Ali @ Deepak and Others [2013(5)SCC 762] . In paragraphs 31 and 32 of the said decision, the Hon’ble Supreme Court has observed as follows: “ _31. Having discussed the scope of power of the Magistrate under S.173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of S.173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options afore - noticed. Out of the stated options with the Court, the_ CRL.MC No.5558 /2021 8 _jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct ‘further investigation’ is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of S.173(3) to 173(6) would be applicable to such reports in terms of S.173(8) of the Code._ _32. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the Court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has_ CRL.MC No.5558 /2021 9 _committed the offence. If the answer is in the negative, on the basis of these reports, the Court shall discharge an accused in compliance with the_ ” _provisions of S.227 of the Code_ . 8. Thus, in the light of the principles laid down by the Hon’ble Supreme Court, it was essential for the learned Magistrate to take into consideration, the contents of both the aforesaid reports conjointly. When considering the finding arrived at by the learned Magistrate in Annexure-A6 order in that perspective, it can be seen that, even though it contains some observations concerning the contents of the supplementary report, it is evident from the records that a detailed appreciation is not seen made. One of the crucial observations made by the learned Magistrate is that in the refer charge, the victims who are CW1 and CW2 were not questioned again. However, in Annexure-A3, it is CRL.MC No.5558 /2021 10 specifically mentioned that the aforesaid witnesses were questioned again. Apart from the above, it is also observed that CW3 and CW4 in the original charge sheet were not questioned again. However, it is seen in Annexure-A6 order that even though the aforesaid persons were not questioned again, five other witnesses were questioned, and their statements were recorded. All of them have given statements against the conclusion in Annexure-A2 original final report. Therefore, it is evident that the impact of the Annexure-A3 supplementary report on the findings arrived in the Annexure-A2 final report is not seen specifically taken into consideration by the learned Magistrate. In my view, Annexure-A6 is liable to be set aside, and the matter has to be remanded back to the learned Magistrate for fresh consideration. CRL.MC No.5558 /2021 11 9. In such circumstances, the Annexure-A6 order is hereby set aside. The Judicial First Class Magistrate Court, Perumbavoor, is directed to re-consider C.M.P.No.3420/2019 submitted by the petitioner once again in the light of the principles laid down by the Hon’ble Supreme Court in Vinay Tyagi’ s case (supra) by specifically referring to the contents of Annexure-A2, and Annexure A3 reports filed by the Police. With the above observations, this Crl.M.C. is disposed of. Sd/ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.5558 /2021 12 ## APPENDIX OF CRL.MC 5558/2021 PETITIONER’S ANNEXURES: |Annexure A1|THE TRUE COPY OF THE FIR IN CRIME| |---|---| ||NO.46/2015 DATED 5.1.2015 OF PERUMBAVOOR| ||POLICE STATION, ERNAKULAM RURAL| |Annexure A2|THE FINAL REPORT IN CRIME NO.46/2015 IN CC| ||NO.677/2015 OF PERUMBAVOOR POLICE STATION,| ||ERNAKULAM RURAL| |Annexure A3|THE TRUE COPY OF THE FINAL REPORT IN CRIME| ||NO.46/2015 SUBMITTED BEFORE THE JUDICIAL| ||FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR| ||DATED 12.7.2017| |Annexure A4|TRUE COPY OF THE ORDER IN| ||CRL.M.C.NO.5996/2019 DATED 27.9.2019| |Annexure A5|THE TRUE COPY OF THE CMP NO.3420/2019 IN CC| ||NO.677/2015 DATED 8.11.2019 OF JUDICIAL| ||FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR| |Annexure A6|THE TRUE COPY OF THE ORDER IN CMP| ||NO.3420/2019 IN CC NO.677/2015 OF JUDICIAL| ||FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR.| |Annexure A7|THE TRUE COPY OF THE SCREEN SHOT OF| ||PROCEEDINGS IN CC NO.677/2015 OF JUDICIAL| ||FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR,| ||DATED 28.10.2021|