Prasad v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **THURSDAY, THE 06TH DAY OF AUGUST 2020 / 15TH SRAVANA, 1942** **Crl.MC.No.8769 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 166/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,VAIKOM** **CRIME NO.135/2013 OF Kaduthuruthi Police Station , Kottayam** ## **- PETITIONER/DE FACTO COMPLAINANT:** **PRASAD, AGED 48 YEARS, S/O. PRABHAKARAN, KUDILAZHIKATHU HOUSE, KALLARA SOUTH KARA, KALLARA VILLAGE, KOTTAYAM DISTRICT.** **BY ADV. SRI. T. R. HARIKUMAR** ## **RESPONDENTS/STATE & ACCUSED:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** - **2 ASOKAN, AGED 42 YEARS, S/O. KESAVAN, VADAKKE VEETTIL, KALLARA VILLAGE, KADUTHURUTHY, KOTTAYAM DISTRICT - 686 604.** - **3 SANTHOSH, AGED 44 YEARS, S/O. KESAVAN, VADAKKE VEETTIL, KALLARA VILLAGE, KADUTHURUTHY, KOTTAYAM DISTRICT - 686 604.** - **4 PREETHI, AGED 30 YEARS, W/O. ASOKAN, VADAKKE VEETTIL, KALLARA VILLAGE, KADUTHURUTHY, KOTTAYAM DISTRICT - 686 604.** **R2 - R4, SRI. RAJESH NAIR SRI. K. B. UDAYAKUMAR, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8769 OF 2016** **2** ## **ORDER** **Dated this the 6th day of August 2020** The petitioner is the de-facto complainant in Annexure-X final report dated 30.04.2016 in C.C.No.166/2013 submitted by Dy.S.P. of Police, Pala, charging the respondents 2 and 3 (A1 and A2) with commission of offences punishable under Sections 323 and 326 read with Section 34 IPC. The petitioner seeks to quash the final report invoking Section 482 of the Cr.P.C. on the ground that, the investigation of the crime No.141/2013 was unjust and unfair and unless the investigation is reopened and a further investigation in the matter ordered under Section 173(8) of the Cr.P.C it will put the petitioner to great hardship and injustice. 2. I heard the learned counsel for the petitioner, the learned counsel for respondents 2 to 4 (A1 to A3) and the learned Public Prosecutor. 3. On a former occasion, the same crime was investigated by Additional Sub Inspector of Police, Kaduthuruthi Police Station, which culminated in Annexure-V **Crl.MC.No.8769 OF 2016** **3** final report dated 25.04.2013 charging respondents 2 to 4 (A1 to A3) with commission of offences punishable under Sections 341, 323, 326 and 506(1) read with Section 34 of I.P.C. Being aggrieved by the final report, the petitioner moved the learned Magistrate through C.M.P.No.3248/2015 in C.C.No.166/2013 requiring an order directing further investigation of Crime No.141/2013. This petition was, however, dismissed by order dated 14.10.2015 which was challenged by the petitioner in Crl.M.C.No.7930/2015. This Court after hearing the parties in Crl.M.C.No.7930/2015 by Annexure-IX order dated 06.01.2016 directed the Dy.S.P. of Police, Pala, to conduct further investigation and submit final report. The final report so submitted is Annexure-X, which is now sought to be quashed in this proceeding for almost the same reason. 4. When Annexure-X report was submitted, 4[th] respondent arraigned in Annexure-X was dropped. Besides that, offences punishable under Sections 341 and 506(1) were also similarly dropped. 5. One of grounds taken in support of quashment of Annexure-X final report is that it is vitiated by illegality inasmuch as it failed to comply with the spirit of Annexure-IX **Crl.MC.No.8769 OF 2016** ## **4** order which was passed by this Court in Crl.M.C.No.7930/2015. It is also contended that there are no reasons which justify the dropping of 4[th] respondent as well as deletion of charges under Sections 341 and 506(1) of I.P.C. It is also contended that no effort was made by Dy.S.P. of Police, Pala, to recover iron rod used by the 2[nd] respondent for beating the petitioner. Further allegation is that the petitioner was pictured as the aggressor against true facts as if he was already keeping an instrument of weapon. The argument advanced by the learned counsel for the petitioner is that though there were enough materials to prove involvement of 4[th] respondent as well as commission of offences punishable under Sections 341 and 506(1), acting under the influence of the respondents 2 to 4, Annexure-X report was brought into existence suppressing true facts and acting to the prejudice of the petitioner. 6. On the other hand, the learned counsel for respondents 2 to 4 submitted that there were, in fact, no materials available to prove complicity of 4[th] respondent in the crime and further, there was no convincing evidence also to prove user of iron rod as a weapon of offence in the crime. In **Crl.MC.No.8769 OF 2016** **5** short, the argument appears to be that ordering of any further investigation under Section 173(8) will be a mere waste of time and would not be justified in the facts of this case. 7. Having heard both sides and perused the materials on record, I do not think that this is a case where ordering of further investigation in second spell could be justified. Only because an allegation of illegality is imputed as against the supplementary report prepared under Section 173(8) of the Cr.P.C, an order directing further investigation cannot be made as a matter of course. So far as the present case is concerned, there are Annexure-V and Annexure-X final reports respectively filed by A.S.I. of Police, Kaduthuruthi and Dy.S.P. of Police, Pala before the trial court. The Investigating officers in the respective cases have questioned the witnesses and drawn their own conclusions based on the materials collected by them. There appears to be some conflicts between these two reports. Nonetheless, it is wrong to think that the subsequent report has invalidated the former report. Under law, the supplementary report must be taken as supplementing the facts and forming part of the primary report itself. Both reports have to survive despite one conflicting the **Crl.MC.No.8769 OF 2016** **6** other. Delineating the precise position of law, the Honourable Supreme Court in _**Vinay Tyagi v. Irshad Ali @ Deepak and**_ _**Others**_ [2012 KHC 4747] held in paragraph 32 as follows : _“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, on the basis of these reports, the Court shall discharge as accused in compliance with the provisions of S.227 of the Code.”_ 8. That means, the former and additional reports must be taken together as sufficient and enabling materials which the learned Magistrate has to essentially fall back upon at the stage of hearing of parties as to framing of charge under Sections 239 and 240 of the Cr.P.C. The grievance of the learned counsel for the petitioner is that there are materials available on record indicating the complicity of the 4[th] respondent (3[rd] accused in C.C.No.166/2013) in this case. It is also submitted that the statements of witnesses would also establish that offences punishable under Sections 341 and 506(1) were also committed. I am not going into the merit of this contention at all, since, in my view, ultimately this is a matter which requires to be addressed by the learned **Crl.MC.No.8769 OF 2016** **7** Magistrate based on the two final reports and other materials available before him in the light of the legal position explained above. 9. The learned counsel for the respondents 2 to 4 submitted that the learned Magistrate has a legal obligation to hear his parties as well at the stage of preliminary hearing as to framing of charge. No doubt, under Sections 239 and 240 of the Cr.P.C., a learned Magistrate who proposes to formulate charge or discharge an accused is bound to hear the prosecution as well as the accused in the matter. For the foregoing reasons, I am of the opinion that the contention that Annexure-X final report is liable to be quashed cannot be accepted. Nor it is proper, for the reasons above, to order further investigation in this matter. In the result, Crl.M.C. is disposed of directing the learned Magistrate to look into Annexure-V and Annexure-X reports and also take into consideration the associated documents on record and proceed to enquire into the complicity of 3[rd] accused in Crime No.141/2013 and also the alleged commission of offences under Section 341 and Section 506(1) I.P.C, after hearing parties on either side. In case the learned **Crl.MC.No.8769 OF 2016** **8** Magistrate proceeds to frame charge against the accused in C.C. No.166/2013, he will proceed to try C.C.No.166/2013 along with the counter case, C.C.No.167/2013 simultaneously and dispose of both cases one after another in quick succession. Every endeavor shall be taken by the learned Magistrate to dispose of the matter as expeditiously as possible. All pending interlocutory applications are closed. ## **Sd/-** **T.V.ANILKUMAR JUDGE** SPR **Crl.MC.No.8769 OF 2016** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.141/2013 DATED 2002-2013 OF THE KADUTHURUTHY POLICE STATION.** - **ANNEXURE II A TRUE COPY OF THE STATEMENT GIVEN BY THE PETITIONER ON 20-03-2013 IN CRIME NO 141/2013.** - **ANNEXURE III A TRUE COPY OF THE MEDICAL CERTIFICATE DATED 19-02-2013, ISSUED TO THE PETITIONER FROM THE MEDICAL COLLEGE, KOTTAYAM.** - **ANNEXURE IV A TRUE COPY OF THE DISCHARGE CARD ISSUED FROM THE MEDICAL COLLEGE, KOTTAYAM DATED 19-02-2013.** - **ANNEXURE V A TRUE COPY OF THE FINAL REPORT IN CRIME NO.141/2013 DATED 25-04-2013 OF THE KADUTHURUTHY POLICE STATION.** - **ANNEXURE VI A TRUE COPY OF THE FIRST INFORMATION REPORT DATED 17-02-2013 IN CRIME NO. 135/2013 OF THE KADUTHURUTHY POLICE STATION.** - **ANNEXURE VII A TRUE COPY OF THE FINAL REPORT DATED 25-04-2013 IN CRIME NO.135/2013 OF THE KADUTHURUTHY POLICE STATION.** - **ANNEXURE VIII A TRUE COPY OF THE ORDER DATED 14-102015 IN CRL. M.P NO.3248/2015 IN CC 166/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, VAIKOM.** - **ANNEXURE IX A TRUE COPY OF THE JUDGMENT IN CRL M.C NO.7930 OF 2015 DATED 06-01-2016** - **ANNEXURE X A TRUE COPY OF THE CHARGE SHEET IN CRIME NO.141 OF 2013 DATED 30-04-2016, FILED BY THE DY.SP, PALA.** ## **RESPONDENT'S/S EXHIBITS: NIL.**