High Court of KeralaSingle JudgeDismissed

Luckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph, The Sub Inspector of Police, Alappuzha North Police Station, and State of Kerala

Case / Petition Number:Crl.MC.No.2240 OF 2020(H)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. Somarajan
Judgment Date
2021-03-03
Court Decision / Holding
Crl.M.C. fails, dismissed.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • Luckose Zachariah @ Zak Nedumchira Luke
  • M.A.Emanuel
  • Moosa

Respondents

  • Joseph Joseph
  • The Sub Inspector of Police, Alappuzha North Police Station
  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • George Thomas (Mevada) Sr.

Counsels for Respondents

  • • Aravind Ghosh
  • • Ramesh Chand

Case Synopsis & Summary

This Kerala High Court criminal miscellaneous case arises from a challenge to an order passed by the District/Magistrate and subsequently by the Additional Sessions Judge II, Alappuzha. The petitioners/accused (Luckose Zachariah and co-accused) sought to quash the order directing further proceedings on a referred charge under sections 294B, 323, and 324 read with 34 IPC, based on the police investigation. The backdrop involves a final report under section 173(2) Cr.P.C. and a supplementary report under section 173(8) Cr.P.C. The District Police Commissioner transmitted a referred charge, following which a protest complaint (CMP 155/2018) was filed but dismissed for non-prosecution, with proceedings later dropped by the Magistrate in 2018. The Sessions Court, on revision, set aside the Magistrate’s dismissal and ordered the case to be taken on file. The petition under section 482 Cr.P.C. contends that no independent ground exists to proceed because the final report and the referred charge must be read together to assess whether there is a prima facie case. The court cites Vinay Tyagi v. Irshad Ali and holds that the final report and the supplementary report should be read conjointly; a protest complaint against a referred report is not permissible when one report is positive. The High Court ultimately dismisses the petition, upholding the view that there is no legal basis to exercise the extraordinary jurisdiction under 482 Cr.P.C.

Provisions of Law Cited

Section 294 B, 323, 324 r/w Section 34 IPCSection 173(2) Cr.P.C.Section 173(8) Cr.P.C.Section 482 Cr.P.C.

Legal Doctrines & Maxims

  • Final report under 173(2) Cr.P.C. and supplementary report under 173(8) Cr.P.C. must be read conjointly to ascertain grounds to presume the offence.
  • There is no independent life for a referred charge when the final report is positive; protest complaints/eschews if one report is positive.
  • The protest complaint would arise only where a referred charge is filed under 173(2) Cr.P.C.; otherwise it cannot undermine the positive final report.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition contends that the referred charge (negative report under Section 173(8) Cr.P.C.) has to be interpreted in the light of the final report under Section 173(2) Cr.P.C. and that protest complaints cannot stand independently when one report is positive. It relies on Vinay Tyagi to argue that the two reports must be read together and that there is no standalone basis for invoking 482 Cr.P.C. to quash the proceedings; once the final report indicates no offence or the referred charge cannot be sustained, the case cannot be continued in a revisionary chain. The absence of a standalone protest complaint means the grounds to presume do not exist beyond the reports read conjunctively.

Contentions of Respondents

The respondents argue for upholding the Sessions Judge’s direction to take the case on file and proceed under law, contending that the referred charge and the connected protest mechanism are valid within the statutory framework. They maintain that the combination of final and referred reports must be evaluated to determine grounds to presume guilt, and that the protest complaint’s prior dismissal does not negate the possibility of proceeding where the referred charge may reveal grounds to presume. They rely on the established legal framework and the Vinay Tyagi principle to support the court’s approach.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Vinay Tyagi v. Irshad Ali @ Deepak and others(2012 KHC 4747)PositiveCited as the settled law by the Kerala High Court; supports the proposition that the final report under 173(2) Cr.P.C. and the supplementary report under 173(8) Cr.P.C. must be read conjointly to assess grounds to presume offence.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**Crl.MC.No.2240 OF 2020(H) 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942** **Crl.MC.No.2240 OF 2020(H)** **AGAINST THE ORDER/JUDGMENT IN CRRP 14/2018 OF ADDITIONAL SESSIONS COURT - II, ALAPPUZHA** **AGAINST THE ORDER/JUDGMENT IN CC 2177/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA** **CRIME NO.205/2016 OF ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA** ## **PETITIONERS/RESPONDENTS/ACCUSED 2,3 & 1:** **1 LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE, AGED 67 YEARS, S/O.LATE ITTY ZACHARIAH, HOUSE NO.421A, ERAYILKADAVU, VIJAYAPURAM VILLAGE, KOTTAYAM DIST., PIN-686001, NOW RESIDING 6145, NORTH SHERIDAN ROAD, APARTMENT NO.14D,CHICAGO, ILLINOIS-60660 USA. (WRONGLY SHOWN AS LOOKOSE ZACHARIA, S/O.E.T.ZACHARIA, AGED 64 YEARS, NEDUMCHIRA VEEDU, OORAYILKADAVU, KOTTAYAM MUNICIPALITY). 2 M.A.EMMANUEL, AGED 72 YEARS S/O.ABRAHAM, MANNOORETTONNIL HOUSE, COLLECTORATE.P.O., KOTTAYAM, PIN-686002 WRONGLY SHOWN AS IMMANUEL @ MATHEW, S/O.ABRAHAM, MANNURATHINAL HOUSE, COLLECTORATE.P.O., KOTTAYAM DISTRICT, PIN-686002. 3 MOOSA, AGED 51 YEARS, S/O.HASSAN KOYA, PAINGAMADAM, MUNICIPAL OFFICE WARD, ALAPPUZHA, PIN-688011.** **BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.)** ## **RESPONDENTS/REVISION PETITIONER/ DE FACTO COMPLAINANT/COMPLAINANT:** **1 JOSEPH JOSEPH, AGED 61, T.A.JOSEPH, PALLIPPARAMBIL HOUSE, CHUNGAM WARD, IRUMBUPALAM.P.O., MULLACKAL VILLAGE, AMBALAPPUZHA** **Crl.MC.No.2240 OF 2020(H) 2** ||**TALUK, ALAPPUZHA, PIN-688011.**| |---|---| |**2**|**THE SUB INSPECTOR OF POLICE,**| ||**ALAPPUZHA NORTH POLICE STATION,**| ||**ALAPPUZHA, PIN-688001.**| |**3**|**STATE OF KERALA,**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM, PIN-682031.**| ||**R1 BY ADV. SRI.ARAVIND GHOSH**| ||**PUBLIC PROSECUTOR SRI.RAMESH CHAND**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2240 OF 2020(H) 3** ## **ORDER** After the submission of a final report alleging offence under Section 294 B, 323, 324 r/w Section 34 IPC as against accused No.1 to 3, at the instance of the 2[nd] accused, further investigation was conducted based on a petition submitted before the District Police Chief as per Order No. 43(A)-93406/2016/A dated 06/02/2017 by the Dy.S.P., Crime Branch and filed additional report, a referred charge for the said offence against the accused persons. Thereon, the learned Magistrate issued notice on the referred charge against which, a protest complaint in C.M.P.No.155/2015 was submitted. The said protest complaint was dismissed for non-prosecution and finally, dropped the proceedings by order dated 30/05/2018. It was challenged before the revisional court (Addl. ## **Crl.MC.No.2240 OF 2020(H) 4** Sessions Judge II, Alappuzha) and by the impugned order, the learned Sessions Judge set aside the order of the learned Magistrate dropping the further proceedings and directed to take the case on file and to proceed in accordance with law by its order dated 26/10/2019. To quash the abovesaid order, the accused No.1 to 3 came up under Section 482 Cr.P.C. 2. A report that can be filed under Section 173(8) Cr.P.C. has no separate entity apart from the final report submitted under Section 173(2) Cr.P.C. Both the reports have to be read conjointly so as to ascertain existence of grounds to presume that the accused has committed the offence. It cannot be read or appreciated independently, but its cumulative effect should be taken into account so as to determine whether there exists grounds to presume that the accused has committed the offence. The legal position is very much ## **Crl.MC.No.2240 OF 2020(H) 5** settled by the Apex Court in **Vinay Tyagi v. Irshad Ali @ Deepak and others (2012 KHC 4747).** **3.** There is no scope for filing a protest complaint against a referred report either under Section 173(2) or under Section 173(8) when one of the reports is a positive one and as such, the protest complaint filed and its dismissal for nonprosecution has no legal impact on the positive report already submitted. The submission of a supplementary report, a referred charge (a negative report) under Section 173(8) Cr.P.C. as against the earlier positive report under Section 173(2) Cr.P.C. has to be treated conjointly so as to ascertain the existence of grounds to presume that the accused has committed the offence. The scope of submission of a protest complaint would arise only when a referred charge was submitted under Section 173(2) Cr.P.C. and in the absence of a supplementary report or when both the reports, i.e. the final report under Section 173(2) Cr.P.C. and supplementary report under Section 173(8) Cr.P.C. are referred charges (negative reports). Hence **Crl.MC.No.2240 OF 2020(H) 6** there is no reason for invoking the power under Section 482 Cr.P.C.. Crl.M.C. fails, dismissed. **Sd/-** **P.SOMARAJAN** **JUDGE** msp **Crl.MC.No.2240 OF 2020(H) 7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE 1 TRUE PHOTOCOPY OF THE FIR WITH ANNEXURES DATED 3.2.2016.** **ANNEXURE 2 TRUE PHOTOCOPY OF THE MAHAZER DATED 3.2.2016.** **ANNEXURE 3 TRUE PHOTOCOPY OF THE LIST OF THE WEAPONS PREPARED WITH DETAILS ON 3.2.2016. ANNEXURE 4 TRUE PHOTOCOPY OF THE STATEMENT OF RAJESH KUMAR, ADVOCATE CLERK DATED 3.2.16.** - **ANNEXURE 5 TRUE PHOTOCOPY OF THE STATEMENT OF RAJEEV, S/O.HARIDAS, BEARING DATE 3.2.16.** - **ANNEXURE 6 TRUE PHOTOCOPY OF THE STATEMENT OF THE 1ST PETITIONER BEFORE THE ALAPPUZHA NORTH POLICE STATE 2.3.16.** - **ANNEXURE 7 TRUE PHOTOCOPY OF THE STATEMENT OF RAJESH KUMAR ADVOCATE CLERK RECORDED U/S 164 CR.PC ON 12.8.16.** - **ANNEXURE 8 TRUE PHOTOCOPY OF RESPONSE FROM THE SI OF POLICE ALAPPUZHA S. POLICE STATION TO RTI ACT QUERRY DATED 18.12.2019.** - **ANNEXURE 9 TRUE PHOTOCOPY OF THE RESPONSE BY SI OF POLICE ALAPPUZHA NORTH POLICE STATION DATED 18.12.2019.** - **ANNEXURE 10 TRUE PHOTOCOPY OF THE FINAL CHARGE SHEET FILED BY SI OF POLICE ALAPPUZHA NORTH POLICE STATION DATED 26.9.16.** - **ANNEXURE 11 TRUE PHOTOCOPY OF THE REPORT OF DY SP (DISTRICT ADMINISTRATION) DATED 21.2.2017.** - **ANNEXURE 12 TRUE PHOTOCOPY OF THE REPORT OF DY.S.P. DCRB DATED 31.7.2017.** - **ANNEXURE 13 TRUE PHOTOCOPY OF THE FINAL REPORT OF THEDY.SP CRIME BRANCH BEFORE THE JFM COURT, ALAPPUZHA DATED 6.12.2017.** **Crl.MC.No.2240 OF 2020(H) 8** |**ANNEXURE**|**14**|**TRUE PHOTOCOPY OF THE PROTEST COMPLAINT**| |---|---|---| |||**DATED NIL FILED BY THE 1ST RESPONDENT**| |||**UNDER SECTION 2000 CR.P.C..**| |**ANNEXURE**|**15**|**TRUE PHOTOCOPY OF THE ORDER PASSED BY**| |||**LD. MAGISTRATE IN CMP.155/2018 DATED**| |||**19.5.2018.**| |**ANNEXURE**|**16**|**TRUE PHOTOCOPY OF THE ORDER DATED**| |||**30.5.2018 PASSED BY THE LD.MAGISTRATE**| |||**DATED 30.5.2018.**| |**ANNEXURE**|**17**|**CERTIFIED COPY OF THE ORDER PASSED BY**| |||**THE LD. ADDITIONAL SESSIONS JUDGE II**| |||**ALAPPUZHA DATED 26.10.2019.**| |||**//TRUE COPY//**| |||**P.A. TO JUDGE**|