High Court of KeralaSingle Judge2016-08-10Petition allowed in part; Annexure A5 set aside...

RadhaKrishnan s/o Kunhikrishna Kurup v State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam; Anjali V (minor) through her mother Jeena

Case / Petition Number:Crl.MC.No.3783 of 2015

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K.P.Jyothindranath
Judgment Date: 2016-08-10
Court Decision / Holding: Annexure A5 (the 173(8) report) is set aside. The Judicial First Class Magistrate, Vadakara, is directed to transmit the report under Section 173(8) Cr.P.C. in Crime No. 567/2014 to the Sessions Court to consider along with the police report in CP No. 117/2014 while hearing on charge. The prosecutor is at liberty to produce before the court any additional statements of witnesses recorded during the further investigation to be considered along with the final report. The court held that both reports should be taken into account by the Sessions Court to avoid miscarriage of justice, following the principle in Vinay Tyagi v. Irshad Ali. The petition is allowed in part.
Final Disposition: Petition allowed in part; Annexure A5 set aside; 173(8) Cr.P.C. report to be transmitted to Sessions Court for consideration along with the main report; Prosecutor may produce additional statements from witnesses recorded during further investigation.

Parties to the Case

Appellants / Petitioners

RadhaKrishnan s/o Kunhikrishna Kurup

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Anjali V. (minor) through her mother Jeena

Legal Representation & Advocates

Counsels for Petitioners

• Adv. SMT.K.LASITHA

Counsels for Respondents

• Adv. Sri.MANSOOR.B.H.
• Adv. SMT.M.T.SHEEBA

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous petition under section 482 Cr.P.C. filed by RadhaKrishnan, the accused in Crime No. 567/2014 of Vadakara Police Station, challenging the proceedings in C.P. No. 117/2014 before the Judicial First Class Magistrate Court, Vadakara. The crux is whether a second investigation and a report under section 173(8) Cr.P.C. can coexist with the final report under section 173(2), and whether the court should act on one report and disregard the other. The Magistrate had accepted the final report (section 173(2)) and rejected the section 173(8) report, treating the case as per the former and committing it to the sessions court. The petitioner contends that the further investigation, ordered by the District Police Chief (dated 4/11/2014) and conducted by DCRB, Kozhikode Rural, produced a report under section 173(8) labeling the case as false, and that this should have prompted quashing or at least reconsideration of charges. The respondents argue that the second investigation was carried out with the court’s awareness and for extraneous reasons; they assert the two cases (CC 1389/2013 and CP 117/2014) are not connected. The High Court, citing Vinay Tyagi v. Irshad Ali, holds that both reports must be considered by the Sessions Court to avoid miscarriage of justice, and directs transmission of the section 173(8) report to the Sessions Court for concurrent consideration with the main report, while allowing the prosecutor to present additional witness statements from the further investigation.

Provisions of Law Cited

Section 482 of Cr.P.C.Sections 173(2) and 173(8) Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that the investigation was completed in a manner that culminated in a section 173(8) report declaring the case false. The Magistrate’s acceptance of the first final report under section 173(2) and rejection of the 173(8) report is said to be erroneous, as the two reports are contradictory and both should be considered to avoid miscarriage of justice. The further investigation was conducted under the District Police Chief’s order and the police report under section 173(8) was produced; the petitioner contends it should be placed before the Sessions Court along with the initial report so that a holistic, unbiased charge decision can be taken. Relying on Vinay Tyagi v. Irshad Ali, the petitioner argues that the Sessions Court must assess both reports and decide whether charge framing is proper, with room for additional witness statements to be produced. The plea is to quash CP 117/2014 in light of false-case allegations and to ensure proper examination of all materials before charge.

Contentions of Respondents

The respondents contend that the further investigation was conducted with the court’s knowledge and authorization and not in contravention. They argue that CC 1389/2013 has no direct bearing on CP 117/2014 and that the JFCM’s order cannot be quashed merely because a 173(8) report exists. They maintain that the two cases are distinct and that the police acts, including questioning and collection of witness statements, fall within the police’s prerogative. The respondents submit that the court is to consider the reports with care, but the sessions court is the proper forum for deciding whether the charge should be framed and whether either report should drive the outcome. They urge that the magistrate’s actions were proper and that the High Court should not interfere unless there is a clear legal error or miscarriage of justice.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Vinay Tyagi v. Irshad Ali and Others	[(2013) 5 SCC 762]	Positive	The Supreme Court directed the trial court to consider both the final report and the closure/173(8) report and to send the second report to the Sessions Court for concurrent consideration, which the Kerala High Court followed in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 10TH DAY OF AUGUST 2016/19TH SRAVANA, 1938** **Crl.MC.No. 3783 of 2015 ()** **---------------------------** **CP 117/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VADAKARA IN CRIME NO. 567/2014 OF VADAKARA POLICE STATION , KOZHIKODE** ## **PETITIONER/ACCUSED:** **---------------------** **RADHAKRISHNAN S/O.KUNHIKRISHNA KURUP, 42 YEARS RESIDING AT RAWHA QUARTERS, SIDHA SAMAJAM,.P.O., MEPPAYIL, VATAKARA, KOZHIKODE.** **BY ADV. SMT.K.LASITHA** **RESPONDENTS/COMPLAINANT:** **--------------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **ADDITIONAL RESPONDENT** **2. ANJALI V.( MINOR) D/O ANEESH KUMAR NANDANAM, CHOOTHARADAN VEEDU PARAMBA PATHIYARAKKARA POPST, VATAKARA CALICUT REP. BY HER MOTHER JEENA, W/O ANEESH KUMAR, NANDANAM, CHOOTHARADAN VEEDUPARAMBA PATHIYARAKKARA POST, VADAKARA** **ADDITIONAL R2 IMPLEADED VIDE ORDER DATED 4.9.2015 IN CRL.M.A.NO.6566/2015 IN CRL.M.C.NO.3783/2015.** **R2 BY ADV. SRI.MANSOOR.B.H. BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 3783 of 2015 () ---------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-----------------------** **ANNEXURE A1- TRUE COPY OF THE FIR IN CASE NO.C.P.117/14 BEFORE JFCM VATAKARA.** **ANNEXURE A2- A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER WHICH IS NUMBERED AS CC 1389/13 IN JFCM VATAKARA.** **ANNEXURE A3- A COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE ISSUED IN FAVOUR OF THE PETITIONER IN CASE NO.CC 1389/13 IN JFCM VATAKARA.** **ANNEXURE A4- A TRUE COPY OF THE FINAL REPORT OF S.I.OF POLICE VATAKARA IN C.P.117/2014.** **ANNEXURE A5- A CERTIFIED COPY OF THE PURPORT OF PROCEEDINGS OF THE MAGISTRATE VATAKARA IN C.P.117/2014.** **/TRUE COPY/** **PS TO JUDGE** **CR** ## **K.P.JYOTHINDRANATH, J.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.M.C.No.3783 OF 2015** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of August, 2016 ## **ORDER** This is an application filed under Section 482 of Cr.P.C. The prayer of the petitioner is to quash the proceeding in C.P.117/2014 on the file of the Judicial First Class Magistrate Court, Vadakara. The ground highlighted is that a further investigation was done by the police and a report under Section 173(8) of Cr.P.C. filed showing that case is a false case. But the Magistrate rejected the report by passing Annexure A5 order. The case of the petitioner is that as a counter blast to C.C.No.1389/2013 on the file of the same court, this false case is foisted. 3. It is the case of the second respondent herein that further investigation in the crime was conducted without informing the learned Magistrate that also on extraneous reasons. It is also pointed out that the further investigation was conducted on the basis of an Crl.M.C.No.3783/2015 2 order issued by the District Police Chief, Kozhikode vide order No.211/Camp/2014/DR dated 4/11/2014 and the same was entrusted to Sri.C.D.Sreenivasan, Dy.S.P. of Police, DCRB, Kozhikode. 4. It is also the case of the respondent that C.C.No.1389/2013 has no connection with C.P.No.117/2014 pending before the JFCM, Vadakara. Both cases are different and the same is not a counter case towards the latter case. The impugned order of the learned Magistrate did not warrants any interference by this court and the same was passed considering the materials on record including the wound certificate. 5. The points for consideration in this case are as follows : 1. When there are reports under Sections 173(2) and 173 (8) of Cr.P.C., which are contradictory in nature, what is the option available for the court. 2 Whether the court is entitled to accept one report and thereafter reject the second report. 3. If the further investigation was done without the prior permission of the court, what will be the Crl.M.C.No.3783/2015 3 effect of such a report. 6. Point Nos. 1 and 2 are interlinked. In paragraph 4 of the statement filed by the Sub Inspector of Police, Vadakara, it is stated that the further investigation was done by Sri.C.D.Sreenivasan, Deputy Superintendent of Police, District Crime Record Bureau, Kozhikode Rural. It is further stated that Sri.C.D.Sreenivasan, Deputy Superintendent of Police, District Crime Record Bureau, Kozhikode Rural took up the investigation and he filed a petition before the Judicial First Class Magistrate's Court, Vadakara for stopping the proceedings of the case and then he conducted investigation about the matter, questioned the witnesses and recorded their statements. It is also the case of the investigating officer that one Smt.Valsala was the sole eye witness to the incident and she stated that she was present at the place, but did not see the incident. 7. After considering the further investigation, the then S.I. of Police, Vadakara filed a report before the JFCM Court for treating the case as false and it is the case that the JFCM Court, Vadakara served the refer notice to the complainant for treating the case as false, but Crl.M.C.No.3783/2015 4 the complainant rejected the SHO's opinion and the court has accepted their objection and committed the case to sessions court. Now in this case, it can be seen that there is a final report as well as a report under 173 (8) of Cr.P.C. Surely, the court accepted the first report. There will be no question of dropping the case or treating the case as closed by the committal court. The powers of the committal court are limited in respect of the committal of a case. In **Vinay Tyagi v. Irshad Ali @ Deepak and Others [(2013) 5 SCC 762]** , in a similar situation, where there was a Delhi Police charge as well as a closure report filed by the CBI, the Apex Court directed the trial court to consider the entire record i.e. both reports filed by the investigating agencies. The only option available in this case is to send the second report to the sessions court for enabling the said court to consider the same along with the earlier report. Surely, in the impugned order, the Magistrate stated that no statement is seen produced. It can be seen that in the statement submitted by the S.I. of Police, it is clearly stated that witnesses were questioned during further investigation. Crl.M.C.No.3783/2015 5 Thus, at the time of hearing of charge, the first and second reports can be considered by the court of sessions and the court of sessions will be at liberty to take an independent decision as to whether charge has to be framed or not. To avoid miscarriage of justice, it is also made open for the prosecutor to produce before the court any additional statements of witnesses who are already cited as witnesses in the first final report by the police, which are recorded during the further investigation mentioned above. It is also open for the prosecutor to cite additional witnesses ( whose statements are recorded during further investigation), if any, by filing appropriate application before the court. The next point is regarding the permission of court for further investigation. In this case, police reported that it was informed to the court and sought a stay of proceedings. Further investigation is the prerogative of the Police, permission is only a formality or courtesy. Under such circumstances, no illegality committed by the Police in respect of further investigation. Thus, the impugned order of the Magistrate dated 25/03/2015 Crl.M.C.No.3783/2015 6 which is produced as Annexure A5 in this case is hereby set aside. The Judicial First Class Magistrate, Vatakara is hereby directed to transmit the report filed under Section 173(8) of Cr.P.C. in Crime No.567/2014 to the Sessions Court to consider along with the police report in C.P.No.117/2014 while hearing on charge. To avoid miscarriage of justice, prosecutor in charge of the case is at liberty to produce before the court the statements of witnesses, if any, recorded during the further investigation to consider along with the final report on which cognizance is taken by the court. sv. **K.P.JYOTHINDRANATH JUDGE**