Riyas v. State of Kerala (Criminal Misc. Case No. 556 of 2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY ,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** ## **Crl.MC.No. 556 of 2019** **AGAINST THE ORDER/JUDGMENT IN SC 381/2018 of ADDITIONAL SESSIONS COURT - IV, KOTTAYAM DATED 29-12-2018** **AGAINST THE ORDER/JUDGMENT IN CP 14/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANUR DATED 06-09-2018** **CRIME NO. 745/2018 OF Gandhinagar Police Station , Kottayam PETITIONER/S:** **RIYAS AGED 26 YEARS S/O. IBRAHIMKUTTY, RIYAS MANZIL,K.V.S. ROAD, NEAR GOVERNMENT L.PS., EDAMON, PUNALUR, KOLLAM DISTRICT** **BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.K.SUDHINKUMAR SRI.MUHAMMED IBRAHIM ABDUL SAMAD SRI.P.MOHANDAS (ERNAKULAM) SRI.SABU PULLAN SRI.S.K.ADHITHYAN SRI.S.VIBHEESHANAN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULMA,KOCHI-682 031** **2 THE DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, KOTTAYAM-686 008** ## **OTHER PRESENT:** **(SR.PP) SRI. SUMAN CHAKRAVARTHY.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 556 of 2019** -2- ## **ORDER** **The petitioner is the fourth accused in Crime No.745/2018 of Gandhi Nagar Police Station registered for the offences punishable under Sections 120(B), 449, 427, 506(ii), 323, 342, 201, 364(A) and 302 r/w Section 34 IPC.** **2. After investigation, the final report was filed before the court concerned. Thereafter, the case was committed to the Court of Sessions by the learned Magistrate under Section 209 Cr.P.C.** **3. The petitioner has filed this Crl.M.C. praying for quashing Annexure-1 order passed by the court below committing** ## **Crl.MC.No. 556 of 2019** -3- **the case to the Sessions Court.** **4. Heard.** **5. The learned counsel for the petitioner has submitted that since the statements of some of the witnesses recorded by the police under Section 161 Cr.P.C. were not produced before the Magistrate Court concerned along with the final report, the copy of the said statements could not be served on the petitioner before committing the case to the Sessions Court. Thereafter, the petitioner obtained the copy of the said statements only from the Sessions Court. In the said circumstances, it has to be held that Annexure-I committal order passed the learned Magistrate cannot be sustained.** ## **Crl.MC.No. 556 of 2019** **6. This Court called for the report from the Magistrate Court concerned. The learned Magistrate reported that all the accused persons were in custody at the committal stage and all of them were served with copy of the final report by the court when they were produced before the court for hearing on committal proceedings. Since the records were in bulk, the court directed the office to give the copies to the accused. Accordingly, copies were given to the accused. Thereafter, hearing was done. However, no counsel raised any objection with regard to the non-receipt of the copy of any of the documents including the statement of witnesses recorded by the** ## **Crl.MC.No. 556 of 2019** -5- **police under Section 161 Cr.P.C. Therefore, the case was committed to the Sessions Court.** **7. It has been admitted by the learned Senior Public Prosecutor that the statement of some of the witnesses could not be produced before the Magistrate Court concerned due to an inadvertent mistake and the said mistake was noticed only when the accused pointed out the same before the Sessions Court. Immediately, the said statements were produced before the Sessions Court and copies were given to the accused. The above facts are not disputed by the accused.** **8. The learned counsel also challenged** ## **Crl.MC.No. 556 of 2019** **Annexure-5 order passed by the Sessions Court dismissing CMP 3178/18 and CMP 3179/2018 in S.C.381/2018, filed by the petitioner and another accused requesting for sending back the records to the Magistrate Court concerned for initiating fresh committal proceedings. The first question to be considered now is as to whether Annexure-A1 order passed by the learned Magistrate committing the case to the Sessions Court is liable to be set aside on the above said reason alone. There is no dispute that the provisions of 207 Cr.P.C have to be complied with before committing the case to the Sessions court. Now, the question is as to whether the omission to** ## **Crl.MC.No. 556 of 2019** -7- **produce some of the statements of the witnesses recorded by the police under Section 161 Cr.P.C. before the Magistrate Court concerned will render the committal order illegal.** **9. The learned counsel for the petitioner relied on the Two-Bench decision of the Apex Court in State of U.P. v. Lakshmi Brahman and Another (1983 KHC 392 : AIR 1982 SC 439) and argued that Section 207 Cr.P.C. is mandatory and hence the Magistrate was duty bound to enquire from the accused as to whether the copies of various documents were supplied to him or not.** **10. In this case, it is clear from the report of the learned Magistrate that the** ## **Crl.MC.No. 556 of 2019** -8- **petitioner or the other accused did not make any submission before the learned Magistrate that they did not receive the copy of any of the documents. Therefore, the learned Magistrate** _**bona fide**_ **committed the case to the Sessions Court.** **11. Three Judge Bench of the Hon'ble Apex Court in Central Bureau Of Investigation v. R.S. Pai and Another [(2002) 5 SCC 82] held in paragraph seven thus:-** **“From the aforesaid subsections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be** ## **Crl.MC.No. 556 of 2019** -9- **produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some** ## **Crl.MC.No. 556 of 2019** -10- **omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh (1958 SCR 283 at P.293) and it was held that the word 'shall' occurring in subsection (4) of Section 173 and subsection (3) of Section 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is not precluded. If further investigation is not precluded, then there is no question of not permitting the prosecution to produce additional documents which were gathered prior** ## **Crl.MC.No. 556 of 2019** -11- **to or subsequent to investigation. In such cases, there can not be any prejudice to the accused”.** **12. In this case, due to an inadvertent mistake, the Investigating Officer could not produce statements of some of the witnesses before the Magistrate court concerned along with the final report. Nobody including the accused was aware of that at that point of time. However, after committing the case to the Sessions Court, the accused submitted before the Sessions Court with regard to the non-receipt of the copy of the statements of some of the witnesses. Then only, the Investigating Officer came to know about the the non-production of the statements of some of the witnesses recorded by the police** ## **Crl.MC.No. 556 of 2019** **under Section 161 Cr.P.C. before the Magistrate Court along with the final report. Immediately, the said statements were produced before the Sessions Court and copies were also given to the petitioner and the other accused. In view of the decision of the Apex Court in Central Bureau of Investigation (supra), the said omission in producing the statements of some of the witnesses before the Magistrate Court is not fatal to the prosecution case.** **13. It is also to be noted that the only request of the petitioner is to set aside the committal order and send back the records to the Magistrate Court concerned for committing the case afresh, after** ## **Crl.MC.No. 556 of 2019** -13- **complying with the provisions of Section 207 Cr.P.C. Since the petitioner and the other accused had already received the copy of the entire statements, no purpose will be served in remitting the case to the Magistrate Court concerned. For the said reason also, the prayer of the petitioner cannot be sustained.** **14. In view of the above reasons, I do not find any reason to set aside Annexure-I committal order passed by the learned Magistrate or Annexure-V order passed by the Sessions Court, rejecting the request of the petitioner for sending the case back to the Magistrate Court. That apart, the situation as provided under Section 228(1)(a) Cr.P.C.** ## **Crl.MC.No. 556 of 2019** -14- **did not arise at all in this case. For that reason also, Annexure-V order passed by the Sessions Court cannot be interfered with. Having gone through the relevant inputs, I do not find any reason to interfere with Annexure-I or Annexure-V orders.** **In the result, this Crl.M.C. stands** **dismissed.** Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE// **Crl.MC.No. 556 of 2019** -15- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 CERTIFIED COY OF THE ORDER DATED 6.9.2018 IN C.P.NO.14/2018 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASSI,ETTUMANOOR** **ANNEXURE-AII CERTIFIED COPY OF THE PETITION FILED BY THE PETITIONER AND ANOTHER AS CRL.M.P.3178/2018 IN S.C.NO.381/2018 DATED 6.12.2018 BEFORE THE ADDITIONAL SESSIONS COURT NO.IV,KOTTAYAM** **ANNEXURE-AIII CERTIFIED COPY OF THE CRL.M.P.3179/2018 IN S.C.NO.381/2018 DATED 6.12.2018 PETITION FILED BY THE PETITIONER AND ANOTHER ACCUSED BEFORE THE ADDITIONAL SESSIONS COURT NO.IV,KOTTAYAM** **ANNEXURE-AIV CERTIFIED COPY OF THE COMMON OBJECTION FILED BY THE SPECIAL PUBLIC PROSECUTOR DATED 12.12.2018 IN CRL.M.P.NO.3178/2018 AND CRL.M.P.NO.3179/2018 IN S.C.NO.381/2018 BEFORE THE ADDITIONAL SESSIONS COURT NO.IV,KOTTAYAM** **ANNEXURE-V CERTIFIED COPY OF THE COMMON ORDER PASSED BY THE ADDITIONAL SESSIONS COURT NO.IV KOTTAYAM DATED 29.12.2018 IN C.M.P NO.3178/2018 AND 3179/2018 IN S.C.381/2018 RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.A. TO JUDGE** **STK**