High Court of KeralaSingle Judge2010-12-21Petition allowed; Ext.P10 order quashed; CC 627...

Reena Anil v. State of Kerala and Others

Case / Petition Number:WP(C) No. 10233/2007

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: M. Sasidharan Nambiar
Judgment Date: 2010-12-21
Court Decision / Holding: Petition allowed. Ext.P10 order passed by Judicial First Class Magistrate's Court-I, Kollam accepting Ext.P8 report, without serving notice on the petitioner, and the order discharging the second respondent is quashed. C.C.627/2001 is restored to file. The petitioner and respondents 2 and 3 are directed to appear before the Judicial First Class Magistrate's Court-I, Kollam on 16/02/2011 for filing objections to Ext.P8 or to file a protest complaint; the Magistrate shall hear the petitioner, the Assistant Public Prosecutor, and the accused before accepting Ext.P8 and pass appropriate orders in accordance with law.
Final Disposition: Petition allowed; Ext.P10 order quashed; CC 627/2001 restored; matter to proceed with due notice and hearing.

Parties to the Case

Appellants / Petitioners

Reena Anil

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Renjith Kumar, Thonanaloor Thottathil, Anechuttamukku, Njarakkal Cherry, Perinad P.O., Thrikaruvā Village, Kollam District
K.S. Karunakaran Pillai, Jayasree Bhavan, Perinad P.O., Thrikkaruvā Village, Kollam District

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Bechu Kurian Thomas

Counsels for Respondents

• Sri. Sabu Sreedharan (Govt Pleader) for State of Kerala
• Not disclosed for Renjith Kumar
• Sri. Raja Vijayaraghavan for K.S. Karunakaran Pillai

Case Synopsis & Summary

Reena Anil, the de facto complainant in CC 627/2001 before the Judicial First Class Magistrate, Kollam, challenges the acceptance of Ext. P8 (further investigation under Section 173(8) CrPC) and the subsequent Ext. P10 discharge order against the second respondent. The Magistrate had taken cognizance of offences under IPC sections 297, 337, 338 and Motor Vehicles Act sections 34(a), 34(b) on the final report submitted by the investigating officer. After further investigation, Ext. P8 was filed and Ext. P10 order accepting it led to discharge of the second respondent. The petitioner contends that no notice was served on her regarding Ext. P8, violating the principle laid down by the Supreme Court that the de facto complainant must be heard before such final reports are accepted. The issue arose from the court's obligation to ensure fair procedure in accepting a final report after investigation. The petitioner approached Article 227 to quash Exts. P8 and P10. The learned Magistrate's report indicated no notice to the petitioner. The court found no notice had been served and held that Ext. P8 could not be validly accepted without an opportunity to file objections; relying on Union Public Service Commission v. S. Papaiah, the court quashed Ext. P10 order, restored CC 627/2001 to file, and directed the Magistrate to provide due notice, hear both sides, and proceed in accordance with law.

Provisions of Law Cited

Indian Penal Code: sections 297, 337, 338Motor Vehicles Act: sections 34(a) and 34(b)Code of Criminal Procedure: Section 173(8)Constitution of India: Article 227

Legal Doctrines & Maxims

Notice to the de facto complainant before accepting a final report under Section 173(8) CrPC (as held by Supreme Court in Union Public Service Commission v. S. Papaiah, 1997 (7) SCC 614).

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner contends that Ext.P8 was filed after further investigation under Section 173(8) CrPC and that no notice was served on her, depriving her of an opportunity to oppose the report or file objections. Ext.P9 shows notice attempted but returned; Ext.P10 discharge was thus illegal for lack of due process. The petitioner invokes Article 227 to quash Ext.P8 and Ext.P10 and to restore CC 627/2001, arguing fair procedure requires notice and hearing before accepting a final report in a case involving her as de facto complainant. The reliance is placed on the principle that the court, not the police, must ensure notice to the complainant; Union Public Service Commission v. S. Papaiah is cited to support this proposition.

Contentions of Respondents

Respondents contend Ext.P8 arose from a valid further investigation under CrPC 173(8). They argue that notice may have been sent (as per Ext.P9) or that the procedural position requires consideration in light of the police and court roles. They maintain that Ext.P8 was acceptable under law and that the petition should be dismissed to avoid obstructing ongoing investigation. They contend the order of acceptance of Ext.P8 does not prima facie violate procedural rules, and that the court should exercise restraint in quashing such orders without clear proof of notice failure.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Union Public Service Commission v. S. Papaiah	1997 (7) SCC 614	Positive	Cited to support the proposition that the de facto complainant must be given notice by the court before accepting a final report under CrPC 173(8); the current court applies this principle and quashes the order for lack of notice.

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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 M.SASIDHARAN NAMBIAR** **TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932** **WP(C).No. 10233 of 2007(R)** **------------------------------------CC. 627/2001 JUDICIAL IST CLASS MAGISTRATE COURT, KOLLAM. ........** ## **PETITIONER(S):** **--------------------** **REENA ANIL, W/O.ANIL ISSAC, AGED 41 YEARS, L BATHEL, CONTONEMENT EAST WARD, A.G.NAGAR, OPPOSITE UPASANA HOSPITAL, KOLLAM.** **BY ADV. SRI.BECHU KURIAN THOMAS** **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. RENJITH KUMAR, THONNALLOOR THOTTATHIL, ANECHUTTAMUKKU, NJARACKAL CHERRY, PERINAD P.O., THRIKKARUVA VILLAGE, KOLLAM DISTRICT** ## **3. K.S.KARUNAKARAN PILLAI,** - **"JAYASREE BHAVAN", PERINAD P.O., THRIKKARUVA VILLAGE, KOLLAM DISTRICT.** **R1 BY GOVT. PLEADER SRI.SABU SREEDHARAN R3 BY ADV. SRI.RAJA VIJAYARAGHAVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/12/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.10233/2007** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE NUMBEREDAS 803/2000 DTD. 8.8.2000.** ## **P2:- COPY OF THE WOUND CERTIFICATE ISSUED TO THE PETITIONER.** **P2(a):- COPY OF THE WOUND CERTIFICATE DTD. 6.8.2000 ISSUED TO PETITIONER'S DAUGHTER.** **P3:- COPY OF THE MAHAZAR DTD. 30.1.2001 PREPARED BY THE POLICE.** ## **P4:- COPY OF THE SCENE MAHAZAR DTD. 8.8.00.** ## **P5:- COPY OF THE FINAL REPORT DTD. 5.2.2001 IN CC. 627/2001 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLLAM.** **P6:- COPY OF THE WRITTEN STATEMENT FILED BY RESPONDENTS 2 AND 3 IN OP(MV) 560/2001.** **P7:- COPY OF THE PETITION DTD. 24.1.02.** **P8:- COPY OF THE UN REPORT DT. 14.6.2004.** ## **P9:- COPY OF THE STATEMENT DTD. 14.6.04. FILED BY THE POLICE.** **P10:- COPY OF THE ORDER DTD. 18.9.2006 IN CC. 627/01 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT – I, KOLLAM.** **P11:- COPY OF THE AMVI REPORT INCC 467/2000 OF JUDICIAL FIRST CLASS MAGISTRTE COURT, KOTTARAKARA.** **TRUE COPY** ## **P.S. TO JUDGE** **tss** ## M.SASIDHARAN NAMBIAR,J. --------------------------------------------- `W.P.C.NO.10233 OF 2007` --------------------------------------------- `Dated 21[st] December, 2010` ## JUDGMENT Petitioner is the de facto complainant in C.C.627/2001 on the file of Judicial First Class Magistrate's Court-I, Kollam. Learned Magistrate has taken cognizance of the offences under Sections 297, 337 and 338 of Indian Penal Code and Section 34(a) and (b) of Motor Vehicles Act on the final report submitted by Sub Inspector of Police. Prosecution case was that on 6/8/2000 at about 7 p.m, second respondent the accused drove Tata Sumo car No.KL-2J-684 in a rash and negligent manner, so as to endanger human life, along Kollam-Chengotta public road from west to east and hit against scooter KL-01-5214 which was driven by the petitioner Wpc 10233/07 2 with his daughter as pillion rider, near Kadappakada Muslim Mosque and caused fracture of the left leg of the petitioner and injuries on his daughter and thereby committed the offences. After the second respondent appeared and pleaded not guilty, investigating officer sought permission to investigate the case further under Section 173(8) of Code of Criminal Procedure. By order dated 17/6/2002, permission was granted for further investigation. After completing further investigation, Ext.P8 further report was submitted under Section 173(8) of Code of Criminal Procedure. Learned Magistrate by Ext.P10 order accepting the said report discharged the second respondent. Petition is filed under Article 227 of Constitution of India to quash Exts.P8 and P10 contending that proper investigation was not conducted and the Wpc 10233/07 3 petitioner was not given opportunity to oppose Ext.P8 further report. It is contended that as no notice was served on her on Ext.P8, learned Magistrate should not have discharged the second respondent. 2. As per order dated 26/3/2007, based on the submission of the counsel appearing for the petitioner that the petitioner was not given notice regarding Ext.P8 further report, Judicial First Class Magistrate was directed to report whether any notice was served on the petitioner before accepting Ext.P8 report by Ext.P10 order. Learned Magistrate submitted report dated 3/4/2007 that records show that no notice was served by the Court on the petitioner, after final report under Section 173(8) of Code of Criminal Procedure was submitted. 3. Learned counsel appearing for the Wpc 10233/07 4 petitioner, respondents 2 and 3 and learned Public Prosecutor were heard. 4. Report submitted by the learned Magistrate establishes that case of the petitioner that she was not served with any notice about the submission of Ext.P8 further report, by the Court is established. Though learned counsel appearing for respondents 2 and 3 submitted that Ext.P9 would show that notice was sent to the petitioner, Ext.P9 only shows that notice sent to the petitioner, was returned on the report that she had taken leave and joined her husband, who is working abroad and would return only by April, 2005. No further notice was sent by the police. Notice to be served on the de facto complainant before accepting the final report is by the Court and not by the Police as declared by the Honourable Supreme Court in **Union Public Service** Wpc 10233/07 5 ## **Commission v. S.Papaiah (1997 (7) SCC 614)** . Learned Magistrate should not have accepted without notice to the petitioner and granting opportunity to be heard. Ext.P8 report was submitted after further investigation under Section 173(8) of Code of Criminal Procedure. It was accepted without serving notice on the de facto complainant and granting him an opportunity to file objection to the final report or to file a protest complaint. Hence Ext.P10 order, accepting Ext.P8 final report can only be quashed. Petition is allowed. Ext.P10 order passed by Judicial First Class Magistrate's Court-I, Kollam accepting Ext.P8 report, without serving notice on the petitioner, and the order discharging second respondent is quashed. As petitioner has already obtained copy of Ext.P8 report, I do not find it Wpc 10233/07 6 necessary now to issue a direction to the Magistrate to issue a copy of Ext.P8 to the petitioner. C.C.627/2001 is restored to file. Petitioner and respondents 2 and 3 are directed to appear before Judicial First Class Magistrate's Court-I, Kollam on 16/2/2011 at 11 a.m. Petitioner to file objections, if any to Ext.P8 report or a protest complaint on that day. Learned Magistrate shall hear the petitioner, Assistant Public Prosecutor as well as the accused before accepting Ext.P8 report and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.