Ravikrishnan and M. Rajendraprasad v. State of Kerala and The Station House Officer, Kanakakunnu Police Station, Alappuzha District, and Mr. Suresh

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` THURSDAY,THE20[TH]DAYOFJULY2023/29THASHADHA,1945 CRL.MCNO.993OF2021 ``` ``` CRIMENO.1582/2017OFKanakakunnuPoliceStation,Alappuzha INCC467/2018OFJUDICIALMAGISTRATEOFFIRSTCLASSI,HARIPAD PETITIONERS/ACCUSED1&2: ``` ``` 1RAVIKRISHNAN AGED65YEARS SONOFMADHAVAN,MADHAVAKRIPAYIL,MUTHUKULAMNORTHMURI, MUTHUKULAMVILLAGE,ALAPPUZHADISTRICT. 2M.RAJENDRAPRASAD, AGED52YEARS SONOFMADHAVAN,MADHAVAKRIPAYIL,MUTHUKULAMNORTHMURI, MUTHUKULAMVILLAGE,ALAPPUZHADISTRICT. BYADVS. K.RAMAKUMAR(SR.) SRI.T.RAMPRASADUNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINISANKAR SRI.T.H.ARAVIND ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM682031. 2THESTATIONHOUSEOFFICER, KANAKAKUNNUPOLICESTATION,ALAPPUZHADISTRICT690572. 3MR.SURESH, SONOFVASU,MARAKKASSERICHIRAYIL,,MUTHUKULAMNORTHMURI, MUTHUKULAMVILLAGE,KANAKAKUNNU,ALAPPUZHADISTRICT.690572. ``` ``` BYADVS. SRI.A.X.VARGHESE SRI.A.V.JOJO SRI.VIPINNARAYAN,SR.PP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 20.07.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.993OF2021 ``` ``` 2 ``` ## **`ORDER`** The petitioners herein are the accused in C.C No.467 of 2018 on the files of the Judicial First Class Magistrate I, Haripad. They have approached this Court challenging Annexure-E order dated 22.1.2021 by which the learned Magistrate had dismissed the petition seeking discharge filed by them under Section 239 of the Cr.P.C. 2. Records would reveal that Crime No.1582 of 2017 of the Kanakakunnu Police Station was registered against the petitioners herein at the instance of the party respondent on the allegation that on 26.12.2017 at about 6.45 p.m., the petitioners herein in furtherance of their common intention wrongfully restrained and attacked him with weapons causing injuries. While the party respondent was undergoing treatment at the Kayamkulam Government Hospital, he furnished the FI statement on 27.12.2017, and the law was set in motion. After investigation, a final report was laid before the jurisdictional Magistrate under Sections 323, 324, 341, 427, and 506(ii) r/w 34 of the IPC. The learned Magistrate took cognizance of the offense. 3. While so, permission was sought by the investigating officer for carrying out further investigation under Section 173(8) of the Cr.P.C. After conducting further investigation, a report was filed before the learned ``` CRL.MCNO.993OF2021 ``` ``` 3 ``` Magistrate on 15.2.2020 holding that the case has to be referred as ‘mistake of fact”. The learned Magistrate relying on the law laid down in [2018 (3) KLT 209] was of the view that cognizance taken on the original police report will not get effaced merely because the police have filed a negative report after carrying out further investigation. The learned Magistrate took the view that cognizance having been taken on the report under Section 173(2) of the Code, the proceedings are liable to be taken to its logical conclusion as per law and procedure. The learned Magistrate was also of the view that the records made available discloses materials to enable the learned Magistrate to go ahead with the original report. 4. Sri. K. Ramakumar, the learned senior counsel, submitted that the procedure followed by the learned Magistrate is illegal. It is submitted that the negative report filed by a senior police officer, after conducting further investigation, could not have been ignored by the learned Magistrate. It is further submitted that the learned Magistrate ought to have passed an order accepting or rejecting the report one way or the other before considering the petition for discharge filed by the accused. 5. The learned Public Prosecutor refuted the contentions advanced by the learned counsel. Relying on the law laid down in **Vinay Tyagi v Irshad Ali@ Deepak and others** [2012 (12) SCALE 343] it is submitted that the supplementary report filed by the police on further ``` CRL.MCNO.993OF2021 ``` ``` 4 ``` investigation ought to be read conjointly with the primary report to form an opinion either to discharge or charge the accused. It is submitted that the learned Magistrate has considered in detail the reports filed by the officer and has found that there are enough materials to proceed against the accused. 6. I have considered the submissions advanced and have gone through the entire records. 7. In the case on hand, after submission of the final report under Section 173(2), further investigation was carried out under Section 173(8) of the Code, and a negative report was submitted. The procedure to be followed in such a scenario has been dealt with by the Apex Court in ## **Vinay Tyagi** (supra) **41.** Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kinds 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 is required to file a report in terms of Section 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 aforenoticed. 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, ``` CRL.MCNO.993OF2021 ``` ``` 5 ``` 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 Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code. **42.** 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 an accused in compliance with the provisions of Section 227 of the Code. 8. Upon completion of the investigation, the police is required to file a report in terms of Section 173(2) of the Code. The said report is termed by the Apex Court as the primary report, as it is the very foundation of the case of the prosecution before the court. The power of the Magistrate to direct further investigation is a significant power that should be exercised sparingly, in exceptional cases, and to achieve the ends of justice. If further investigation is conducted under the orders of the court or by the police of its own accord, a supplementary report will be filed. This supplementary report will be treated as part of the primary report. Both the primary report and the supplementary report must be read together, and the cumulative effect of the reports and the documents ``` CRL.MCNO.993OF2021 ``` ``` 6 ``` annexed thereto will be considered by the court to determine whether there are grounds to presume that the accused has committed the offense. If the answer is in the negative, the accused will be discharged. The order passed by the learned Magistrate discloses that the learned Magistrate had considered both the reports and came to the conclusion that there are grounds to presume that the accused has committed the offense. 9. Now the question is that the learned Magistrate was justified in concluding that the materials collected by the prosecution by cumulatively considering the primary and supplementary report makes out a prima facie case against the accused. The Apex Court in **State of T.N. v. R. Soundirarasu,** [(2023) 6 SCC 768] has explained the principles by referring to all the case law. Paragraphs 61 of the judgment is instructive. **61.** Section 239 envisages a careful and objective consideration of the question whether the charge against the accused is groundless or whether there is ground for presuming that he has committed an offence. What Section 239 prescribes is not, therefore, an empty or routine formality. It is a valuable provision to the advantage of the accused, and its breach is not permissible under the law. But if the Judge, upon considering the record, including the examination, if any, and the hearing, is of the opinion that there is “ground for presuming” that the accused has committed the offence triable under the chapter, he is required by Section 240 to frame in writing a charge against the accused. The order for the framing of the charge is also not an empty or routine formality. It is of a far-reaching nature, and it amounts to a decision that the accused is not entitled to discharge under Section 239, that there is, on the other hand, ``` CRL.MCNO.993OF2021 ``` ``` 7 ``` ground for presuming that he has committed an offence triable under Chapter XIX and that he should be called upon to plead guilty to it and be convicted and sentenced on that plea, or face the trial. (See : _V.C. Shukla_ v. _State_ [ _V.C. Shukla_ v. _State_ , 1980 Supp SCC 92 : 1980 SCC (Cri) 695]). I am of the view that the learned Magistrate has considered all the factors in its proper perspective while passing the impugned order. This petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sru ``` CRL.MCNO.993OF2021 ``` ``` 8 ``` ## **`APPENDIX OF CRL.MC 993/2021`** |`PETITIONERS ANNEXURES`|| |---|---| |`ANNEXURE A`|`CERTIFIED COPY OF FIRST INFORMATION REPROT`| ||`DATED 27.12.2017 REGISTERED AS CRIME NO. 1582`| ||`OF 2017 BY THE KANAKAKKUNNU POLICE, ALAPPUZHA`| ||`DISTRICT.`| |`ANNEXURE B`|`TRUE COPY OF FINAL REPORT DTD. 22.02.2018 IN`| ||`CRIME NO. 1582 OF 2017 ON THE FILE OF THE`| ||`JUDICIAL MAGISTRATE OF FIRST CLASS-1, HARIPAD`| ||`AND RENUMBERED A C.C. NO. 467 OF 2018.`| |`ANNEXURE C`|`TRUE COPY OF REPORT DTD. 15.02.2020 SUBMITTED`| ||`BY THE DEPUTY SUPERINTENDENT OF POLICE,`| ||`KAYAMKULAM ALONG WITH THE REPORT OF THE S.H. OF`| ||`KAYAMKULAM POLICE STATION.`| |`ANNEXURE D`|`TRUE COPY OF PETITION DT. 25.11.2020 SUBMITTED`| ||`BY THE PETITIONERS AS CMP 2613 OF 2020 IN C.C.`| ||`NO. 467 OF 2018 ON THE FILE OF THE JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT I HARIPAD.`| |`ANNEXURE E`|`TRUE COPY OF ORDER OF DT. 22.01.2021 IN CMP`| ||`2613 OF 2020 IN C.C. NO. 467 OF 2018 ON THE`| ||`FILE OF THE JUDICIAL FIRST CLASS MAGISTRATES`| ||`COURT-1 HARIPAD.`| |`RESPONDENTS ANNEXURES`|| |`ANNEXURE R3(A)`|`TRUE COPY OF THE ORDER IN CRL.R.P 137/2015`| ||`DATED 2.3.2015.`|