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2000 DIGILAW 462 (KER)

Abubaker v. State of Kerala

2000-08-29

G.SASIDHARAN

body2000
Judgment :- The final report in a crime was submitted in Court after three years of the date of occurrence. The occurrence took place on 14-5-1995 and the final report was submitted in Court on 9-6-1999. The petitioners who are the accused in the crime seek to quash the proceedings in the criminal case alleging that cognizance of the offences was taken by the Magistrate after three years of the occurrence. 2. Sections 468, Cr.P.C. provides that the period of limitation for taking cognizance of the offences punishable with imprisonment for a term exceeding one year but not exceeding three years is three years. The offences alleged to have been committed by the petitioners in the final report are punishable with imprisonment for a term not exceeding three years. Section 473, Cr.P.C. deals with extension of period of limitation in certain cases. What that section provides is that notwithstanding anything contained in the other provisions in Chapter XXXV, the Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice. The satisfaction mentioned in S. 473, Cr.P.C. regarding the explanation for the delay is that of the Court which takes cognizance of the offence. 3. In this crime, as is seen from the case diary made available by the learned Public Prosecutor for perusal, a refer report was sent to the Court by the Investigating Officer. After that, as directed by the Inspector General of Police, Central Zone, Ernakulam by letter dated 26-7-1996, the Circle Inspector of Police, Tripunithura conducted further investigation of the crime. It is seen that the C.D. file in Crime No. 92 of 1995 of Kalamessery Police Station was also forwarded along with the letter sent by the Inspector General of Police. There was a further direction in that letter that the case had to be reinvestigated. What has to be understood from the letter is that direction was given by the Inspector General of Police for reinvestigation of the crime after going through the C.D. file in Crime No. 92 of 1995 of Kalamassery Police Station. There was a further direction in that letter that the case had to be reinvestigated. What has to be understood from the letter is that direction was given by the Inspector General of Police for reinvestigation of the crime after going through the C.D. file in Crime No. 92 of 1995 of Kalamassery Police Station. On 29-7-1996, the Circle Inspector of Police who was asked to reinvestigate the crime sent report to the Magistrate stating that refer report had already been sent to Court and as directed by the Inspector General of Police, he was conducting reinvestigation of the crime. The report sent to Court saying that reinvestigation of the crime was being done by the Circle Inspector of Police was before the Court accepting the refer report filed by the Investigating Officer earlier. Thereafter on completing the investigation, final report was submitted in Court on the basis of which a case was taken on the file of the Magistrate. 4. When a final report is filed in Court stating that the accused have committed the offences, the Court can accept the report and take cognizance of the offences and issue process to the accused. Even in cases where the report says that the offences appear to have been committed by the accused, it is open to the Court to disagree with the report and drop the proceedings. The Court also has the power to direct to conduct further investigation of the crime. After completing investigation of the crime, if commission of the offences is not disclosed during the course of investigation, the Investigating Officer can sent a refer report to the Court. When a refer report is received by the Magistrate, it is open to the Magistrate to accept the report and drop the proceedings. He can also disagree with the report and on taking the view that there is sufficient ground for proceeding further, take cognizance of the offences and issue process. In a case where refer report is received, the Magistrate on disagreeing with the report of the investigating agency can direct further investigation of the crime. 5. Incidentally, the question whether further investigation of the crime on the basis of the direction given by the Inspector General of Police without obtaining permission of the Court was proper also arises for consideration. 5. Incidentally, the question whether further investigation of the crime on the basis of the direction given by the Inspector General of Police without obtaining permission of the Court was proper also arises for consideration. There is nothing to show that permission of the Court was obtained before conducting further investigation of the crime. Sending a report saying that on the instruction of the Inspector General of Police, reinvestigation was being conducted itself would indicate that further investigation of the crime commenced without getting permission from the Court. 5-A. In Vijayakumar v. Kamaruddin, 1999 1 Ker LT 184 : (1999 Cri LJ 1294), the question whether obtaining formal permission from the Court for conducing further investigation of the crime is necessary came up for consideration. In Ram Lal Narang v. State, AIR 1979 SC 1791 : (1979 Cri LJ 1346) which was referred to in the above decision, it was held that even though there is no statutory requirement for the police to obtain permission from the Court to conduct further investigation in the case in the interest of independence of magistracy and judiciary, in the interest of purity of administration of criminal justice and in the interest of comity of various agencies and institutions entrused with different stages of such administration, it would ordinarily by desirable that the police should inform the Court and seek formal permission to make further investigation when fresh facts come to light, In State of Kerala v. Sreedharan 1993 2 Ker LT 490 : (1994 Cri LJ NOC 433), also this Court took the view that it is necessary that the police should obtain formal permission from the Court for conducting further investigation as envisaged in S. 173(8), Cr.P.C. In Vijayakumar's case 1999 1 Ker LT 184 : (1999 Cri LJ 1294), the refer report was sent to Court and that report was accepted by the Magistrate. It was after that further investigation of the crime was found necessary. Here, in this case, even though refer report was sent to Court, the decision for further investigation of the crime was taken by the investigating agency before the refer report was accepted by the Court, So, when considering the question whether permission of the Court would have been obtained, the fact that nothing was done by the Court after getting the refer report is of importance. 6. 6. In Ram Lal Narang v. State, AIR 1979 SC 1791 : (1979 Cri LJ 1346), which has been referred to above, the Supreme Court held that notwithstanding that the Magistrate had taken cognizance of the offence upon a police report submitted under S. 173 of the 1898 Code, the right of the police to further investigate was not exhaused and the police could exercise such right as often as necessary when fresh information came to light. The further observation made by the Supreme Court is that where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation. That is a case in which after conducting investigation final report was filed in one Court and after conducting further investigation, report of the second investigation was submitted in another Court. The second report of further investigation was submitted before another Magistrate and not before the Magistrate who had taken cognizance of the offence. The facts of the case which came up for consideration before the Supreme Court are different from the facts of the present case in so far as in the present case the Magistrate did not act upon the refer report before further investigation was started by the investigating agency. 7. In Mariam Rasheeda v. State of Kerala, 1998 1 Ker LT 835 : (1998 Cri LJ 2897) (SC), the Supreme Court observed that even after submission of police report under sub-section (2) of S. 173 on completion of investigation, the police has a right of further investigation under sub-section (8) but not fresh investigation. The further observation made in the above judgment is that further investigation is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab-initio wiping out the earlier investigation altogether. That was a case in which investigation of the crime was done by the Kerala Police and subsequently investigation was handed over to the Central Bureau of Investigation. On conducting investigation, the C.B.I. filed a refer report which was accepted by the Court and thereafter decision was taken at the Government level to get the crime again investigated by the Kerala Police. On conducting investigation, the C.B.I. filed a refer report which was accepted by the Court and thereafter decision was taken at the Government level to get the crime again investigated by the Kerala Police. In the present case, what is seen from the case diary is that the Inspector General of police said that reinvestigation of the crime had to be done by the Circle Inspector of Police. What he meant was to conduct further investigation of the crime. Even though final report was filed earlier and nothing was done by the Court in pursuance to the final report, the direction given by the Inspector General of Police can only be said to be a direction for further investigation of the crime. It cannot be said that the direction given by the Inspector General of Police for conducting further investigation of the crime was a direction given for investigation being conducted by another agency. The investigation on the basis of which refer report was filed in Court was conducted by the Circle Inspector of Police, Kalamassery. The direction given by the Inspector General of Police was to conduct further investigation by the Circle Inspector of Police, Tripunithura who is also another officer of the investigating agency. So, it can hardly be said that further investigation conducted in pursuance of the direction given by the Inspector General of Police was an investigation conducted by a different agency. 8. Verification of the investigation conducted by a police officer, by a superior officer is permissible, Section 36, Cr.P.C. says that police officers superior in rank to an officer in charge of a police station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. As noted earlier, at the time when direction was given to the Circle Inspector of Police to conduct fresh investigation of the crime, the case diary was with the Inspector General of Police who forwarded the same along with the letter containing the direction for fresh investigation of the crime. 9. As noted earlier, at the time when direction was given to the Circle Inspector of Police to conduct fresh investigation of the crime, the case diary was with the Inspector General of Police who forwarded the same along with the letter containing the direction for fresh investigation of the crime. 9. When an Investigation Officer or an officer superior in rank to him who has the right to supervise investigation receives some materials, further investigation of the crime by the police officer who conducted the investigation or direction by the superior officer to conduct further investigation is permissible under S. 173(8), Cr.P.C. In a case where the final report is accepted by the Magistrate, it is desirable that for further investigation of the crime, permission of the Magistrate is obtained. But in cases in which the Magistrate did not do anything on the basis of the refer report, it is not mandatory that prior permission of the Magistrate has to be obtained for conducting further investigation of the crime. Even if it is seen that seeking permission of the Magistrate for conducting further investigation is needed, the fact that no such permission was obtained cannot be considered as a defect in the investigation conducted by the investigation agency so as to say that the entire investigation conducted thereafter is not proper. This is a case in which a report was sent promptly to the Court to the effect that further investigation of the crime was being done. 10. What the petitioner wants is to quash the proceedings in C.C. No. 531 of 1999 on the ground that the final report was filed in Court after three years of the date of occurrence. The Magistrate before whom final report is filed beyond the period of limitation has the power to consider the question whether there is sufficient reason for condoning the delay in giving the final report. That is a question which has to be considered by the Court before which the final report is filed. Since the Magistrate has the power to condone the delay in deserving cases, this Court may not be justified in quashing the proceedings before the Magistrate for the mere reason that final report is filed after three years of the date of occurrence. 11. Since the Magistrate has the power to condone the delay in deserving cases, this Court may not be justified in quashing the proceedings before the Magistrate for the mere reason that final report is filed after three years of the date of occurrence. 11. Then the question arises as to whether it is necessary that an application for condoning the delay in filing the final report has to be given to the Magistrate by the investigation agency. This question has been considered by this Court in Sreedharan v. State of Kerala, 1999 1 Ker LT 387 : (1999 Cri LJ 785. (This Court in paragraph 11 of the judgment held that the Magistrate is not precluded from taking cognizance of the offence when there is no application filed for condoning the delay in filing the chargesheet. Even though there is no application for condoning the delay, the Court can go into the question whether there are sufficient reasons for condoning the delay in filing the report. The same view was taken by this Court in the decision reported in Lakshmi v. Sujatha, 1999 1 Ker LT (SN) 17 (Case No. 19), The decision in Arun Vyas v. Anita Vyas, AIR 1999 SC 2071 : (1999 Cri LJ 3479) was also brought to the notice of this Court in this connection, So, this Court cannot now quash the proceedings in C.C. No. 531 of 1999 by saying that the final report was filed beyond three years of the date of occurrence and there is no application filed for condoning the delay in filing the final report. It is seen that Annexure-2 application was filed in the Court of the Judicial Magistrate of the First Class, Aluva by the petitioners to drop the proceedings in the case for the reason that it is barred by limitation. The learned Magistrate will have to consider that application. Along with that, the Magistrate is expected to consider the question whether there are sufficient grounds for condoning the delay even though there is no application for condoning the delay.Hence, the prayer for quashing the proceedings in C.C. No. 531 of 1999 cannot be allowed. Direction is given to the learned Magistrate to consider the question whether the delay in filing the final report can be condoned along with Annexure-2 application filed by the petitioner. Direction is given to the learned Magistrate to consider the question whether the delay in filing the final report can be condoned along with Annexure-2 application filed by the petitioner. The learned Magistrate will take a decision on the above points within two months from today. The Cri. M.C. is disposed or as above. Ordered accordingly.