K.B. Babu v State of Kerala and others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 4[TH] DAY OF AUGUST 2022 / 13TH SRAVANA, 1944 CRL.MC NO. 5410 OF 2021 [FIR IN CRIME NO.443/2020 OF VALIYAMALA POLICE STATION, THIRUVANANTHAPURAM] ## PETITIONER: K.B.BABU AGED 56 YEARS S/O. N.KUNJURAMAN NAIR, SRUTHYLAYAM, CHELLAMCODE, NEDUMANGAD P.O., -695541. BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011) ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 JITHU, S/O VIJAYAKUMAR, AGED 28 YEARS, REETHU BHAVAN, MANIYANCODE, MALLAMBRAKONAM, KARIPOOR VILLAGE, VALIYAMALA, THIRUVANANTHAPURAM DISTRICT 3 VIJAYAKUMAR, S/O JOHNSON, AGED 63 YEARS, REETHU BHAVAN, MANIYANCODE, MALLAMBRAKONAM, KARIPOOR VILLAGE, VALIYAMALA, THIRUVANANTHAPURAM DISTRICT. (ADDITIONAL R2 AND R3 ARE IMPLEADED AS PER ORDER DATED 28/01/2022 IN CRL.MA 1/2022 IN CRL. MC 5410/2021). R2 AND R3 BY ADV LATHEESH SEBASTIAN ## OTHER PRESENT: R1 BY ADV VIPIN NARAYAN – SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC No.5410 of 2021 2 ## O R D E R The petitioner is the defacto complainant in Crime No.443/2020 of Valiyamala Police Station, Thiruvananthapuram, registered against the additional 2[nd] and 3[rd] respondents. The offences alleged against the accused are under Sections 353,332,308 r/w. Section 34 of the Indian Penal Code (IPC). 2. The facts that led to the filing of this Crl.M.C. are as follows: The petitioner was the Sub Inspector of Police, Valiyamala Police Station. On 12.05.2020, he got information that the accused were attacking their neighbours and accordingly, the petitioner, along with the police party, went there. Upon reaching there, respondents 2 and 3 attacked the petitioner and the other police officers, causing injuries. Annexure-A1 F.I.R. was registered in connection Crl.MC No.5410 of 2021 3 with the same and after completing the investigation, Valiamala Police submitted the final report, which is produced as Annexure-A2. 3. Subsequently, the petitioner received Annexure-A4 notice from the Judicial First Class Magistrate Court-I, Nedumangad, by which it was informed that the Police had referred the case and directing the petitioner to appear before the said Court in case he has any dispute about the correctness of the findings in the final report. On inquiry, it was known that, subsequent to the filing of Annexure-A2 final report, on the representation submitted by one of the accused, the District Police Chief ordered further investigation in the matter and thereupon a further investigation was conducted, which culminated in Annexure-A5. Annexure-A3 is the order passed by the District Police Chief. In Annexure-A5 supplementary final report, it was found that respondents 2 and 3 have not committed Crl.MC No.5410 of 2021 4 any offences as the further investigation revealed no materials substantiating the commission of the offences. Annexure-A4 notice was issued based on the same. This Crl.M.C. is submitted by the petitioner/defacto complainant in such circumstances, challenging Annexure-A3 order passed by the District Police Chief. Annexure-A4 is the notice issued to the petitioner and Annexure-A5 is the refer report submitted by the police. 4. Heard Sri. Ranju Mohan G., the learned counsel for the petitioner, Sri.Vipin Narayan, the learned Public Prosecutor for the State and Sri.Latheesh Sebastian, the learned counsel appearing for respondents 2 and 3. 5. The specific contention of the learned counsel for the petitioner is that there are no materials which justify the order of further investigation. It is submitted by him that Crl.MC No.5410 of 2021 5 Annexure-A3 order is passed based on the representation submitted by one of the accused, and the District Police Chief should not have entertained the same at his instance. It was also contended that Annexure-A4 notice is liable to be set aside, as the said notice was issued merely taking note of the contents of Annexure A5 supplementary final report and by ignoring the findings as well as the materials in Annexure-A2, the original final report. He places reliance upon the judgment of this Court in Joseph and Others v. Antony Joseph and Another [2018(3) KHC 23] to substantiate his contention that, even if the Police submit a negative report after further investigation, the cognizance which is taken on the basis of the final report has to be continued, and the trial has to be conducted based on the same. 6. On the other hand, the learned counsel appearing for the additional respondents would ## Crl.MC No.5410 of 2021 6 point out that the order passed by the District Police Chief in ordering further investigation does not suffer from any illegality as Section 173(8) of Cr.PC empowers the Police to conduct further investigation when new material is placed on record. According to him, it is pointed out that, even if it is assumed that the accused does not have any vested right in seeking further investigation, nothing precludes him from placing necessary materials before the Police to bring the attention of the police to the necessity of a further investigation in the matter. In this case, one of the accused brought the notice of the police to such materials and being convinced of the sustainability of the same, a further investigation was conducted, which ultimately led to the submission of Annexure-A5 refer report. It is further contended that, since the subsequent report is negative, the same has to be acted upon and, therefore, the course adopted by the learned Crl.MC No.5410 of 2021 7 Magistrate by issuing Annexure-A4 notice is not liable to be interfered with. 7. The learned Public Prosecutor would point out that, as per the decision rendered by the Hon’ble Supreme Court in Vinay Tyagi v. Irshad Ali @ Deepak and Others [(2013)5 SCC 762], merely because of the reason that, a negative report was submitted, subsequent to the original report which contains materials for attracting the offences, the finding on the original final report would not become invalid. It is contended that, the learned Magistrate should consider the contents/findings of both the reports together and decide whether cognizance is to be taken or the proceedings are to be dropped. The learned Public Prosecutor also brought the attention of this Court to a recent judgment rendered by the Hon’ble Supreme Court in Luckose Zachariah @ Zak Appellants Nedumchira Luke and Others v. Joseph Joseph and Others [2022 Live Crl.MC No.5410 of 2021 8 Law (SC) 230], wherein the observations made in Vinay Tyagi’ s case (supra) has been reiterated. 8. I have gone through the records and taken into consideration the arguments raised by all the parties. The 1[st] contention that the petitioner has raised is with regard to the sustainability of Annexure-A3 order passed by the District Police Chief. According to him, since the aforesaid order was passed based on a representation submitted by one of the accused, the same should not have been entertained. It is true that the accused does not have any vested right to ask for further investigation in the matter. However, as pointed out by the learned counsel for the 2[nd] and 3[rd] respondents, this would not preclude the accused from bringing to the notice of the Police as to the existence of any materials which would be relevant for the purpose of considering the complicity of the accused persons. If the police, on appreciating those materials, are convinced Crl.MC No.5410 of 2021 9 that the same is relevant and a felt that a further investigation is warranted based on the same, nothing precludes the Police from conducting a further investigation in the matter. Therefore, Annexure-A3 order cannot be found fault with, as apparently there were materials warranting further investigation in the matter and the finding in Annexure-A5 referring to the same probably fortifies the same. It is true that, the petitioner has a case that the aforesaid order was passed on account of the undue influence exerted by the accused persons, and one among the accused viz. the 3[rd] respondent was a retired Police Officer. However, in the absence of specific materials indicating such undue influence, the same cannot be taken into consideration and pass orders interfering with Annexure-A3. Therefore, I do not find any ground to interfere with AnnexureA3. Crl.MC No.5410 of 2021 10 9. The other contention of the petitioner relates to the issuance of Annexure-A4 notice. From the contents of Annexure-A4, it appears that the learned Magistrate has decided to accept the refer report and drop the proceedings. While applying the principles laid down by the Hon’ble Supreme Court in Vinay Tyagi’s case (supra), the aforesaid course adopted by the learned Magistrate was not correct. In Vinay Tyagi ’s case (supra), the manner in which the original final report and supplementary negative report submitted by the Police after further investigation are clearly mentioned. In paragraphs 31 and 32 of the said decision, it was 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_ Crl.MC No.5410 of 2021 11 _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 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_ Crl.MC No.5410 of 2021 12 _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 committed the offence. If the answer is in the negative, based on these reports, the Court shall discharge an accused in compliance with_ ” _the provisions of S.227 of the Code_ . From the said observations, it is evident that the Magistrate has to consider the contents of both the said reports conjointly and should apply his mind to determine whether the accused had committed the offences or not. It is clearly observed that merely because of the reason that, after further investigation, the police submitted a negative report, the findings in the original final report would not get effaced. It will have its value even after a negative report. Therefore, the Magistrate has to consider both those reports ## Crl.MC No.5410 of 2021 13 together and should arrive at a conclusion as to whether the cognizance has to be taken or not. In this case, no such exercise is seen done by the learned Magistrate so far. 10. In this regard, on this issue, the learned counsel for the petitioner places reliance upon Joseph’s case (supra). It is true that, in the said decision, after referring to Vinay Tyagi ’s case (supra), this Court observed that, when the cognizance is taken upon a report under Section 173(2) of Cr.PC, the proceedings should go on and end in a logical conclusion according to law and procedure, despite the filing of a negative report under Section 173(8) of Cr.PC. In Luckose Zachariah’s case (supra) the Hon’ble Supreme Court specifically considered the aforesaid aspect. In the said case, while exercising revisional jurisdiction, the Sessions Court set aside an order passed by the Judicial First Class Magistrate Court with a direction to continue the Crl.MC No.5410 of 2021 14 prosecution, discarding a negative supplementary report submitted by the Police under Section 173(8) Cr.PC, based on the final report submitted under Section 173(2) of Cr.PC. The learned Sessions Court passed the aforesaid order by relying on the principles laid down in Joseph’s case (supra). Even though the said order passed by the Sessions Court was challenged before this Court by filing a Crl.M.C, the same was also dismissed. The challenge was raised before the Hon’ble Supreme Court against those orders. In the judgment rendered by the Hon’ble Supreme Court, after explicitly referring to the observations made by this court in Joseph’s case (supra),it was observed that the order passed by the Sessions Court was not correct to the extent it directed the Magistrate to continue the prosecution ignoring the negative report submitted under Section 173(8) of Cr.PC. While reiterating the principles in Vinay Tyagi ’s case (supra), it was Crl.MC No.5410 of 2021 15 held in the said decision that the Magistrate is bound to consider both the reports together and take a decision applying his mind and the contentions raised by the learned counsel for the petitioner by placing reliance upon the decision in Joseph’s case (supra) cannot be entertained. 11. Thus, when all the relevant aspects are taken into consideration, I am of the view that, while taking a decision as to the further proceedings in the case, the learned Magistrate has to taken into consideration both the reports submitted by the police. As regards the challenge raised against Annexure-A5 final/refer report, I am of the view that the same cannot be considered at this stage as the contents of the same have to be examined by the jurisdictional court based on the material placed before it. In such circumstances, the Crl.M.C. is disposed of, directing the Judicial First Class Magistrate Court-1, Nedumangad, to take a decision Crl.MC No.5410 of 2021 16 as to whether cognizance is to be taken or not and proceed with the matter against the accused persons after examining the contents of Annexures A2 and A5 reports conjointly. It is made clear that, while taking a decision, an opportunity shall be granted to the petitioner/complainant to be heard, and it shall be open for him to submit an objection to Annexure A5 final report. To facilitate the same, it is ordered that the parties shall appear before the Judicial First Class Magistrate Court on 31.08.2022. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk Crl.MC No.5410 of 2021 17 ## APPENDIX OF CRL.MC 5410/2021 ## PETITIONER’S ANNEXURES: |Annexure A1|TRUE COPY OF THE FIR IN CRIME NO.443/2020 OF| |---|---| ||VALIYAMALA POLICE STATION.| |Annexure A2|TRUE COPY OF THE FINAL REPORT IN CRIME| ||NO.443/2020 OF VALIYAMALA POLICE STATION.| |Annexure A3|THE TRUE COPY OF THE PROCEEDINGS OF THE| ||DISTRICT POLICE CHIEF, DISTRICT POLICE| ||OFFICE, THIRUVANANTHAPURAM RURAL VIDE ORDER| ||NO.G10-2053/2021/T DATED 22.1.2021.| |Annexure A4|TRUE COPY OF THE NOTICE DATED 6.10.2021| ||ISSUED TO THE PETITIONER.| |Annexure A5|TRUE COPY OF THE REFER REPORT DATED| ||31.8.2021.|