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Kerala High Court · body

2018 DIGILAW 369 (KER)

Joseph v. Antony Joseph

2018-05-22

A.M.BABU

body2018
ORDER : 1. Relief is sought under Sec.482 of Cr.P.C. Petitioners are the accused persons in C.C.314/2011 on the file of the court of the judicial magistrate of the first class, Erattupetta. They allegedly committed offences punishable under Secs 427 and 447 of IPC read with IPC 34. They seek to quash the criminal prosecution against them. 2. Facts are simple and go as under : The compound wall of the property of the 1st respondent was demolished on the night of 3.4.2011. He filed a complaint before the magistrate. It was alleged in it that the compound wall was demolished by petitioners 1 and 2 and two others who could be identified by sight. The learned magistrate forwarded the complaint to the local station house officer under Sec. 156(3) of Cr.P.C. The station house officer was directed to hold an investigation. Thereupon an FIR was registered. Investigation was conducted. A report under Sec. 173(2) of Cr.P.C was filed. A copy of it is annex-A. The petitioners moved a Crl.M.C before this court to get annex-A final report quashed. This court dismissed the said Crl.M.C holding that there were sufficient allegations in the final report, if proved, to sustain a conviction. Annex-F is a copy of the said order. Thereafter the 3rd petitioner submitted annex-B petition to the director general of police seeking further investigation. Further investigation was conducted. A report under Sec. 173(8) of Cr.P.C was filed. Annex-C is a copy of the said report. The request therein was to close the case as undetected. The 1st respondent moved annex-E application seeking permission under Sec.302 of Cr.P.C for conducting the prosecution by himself. The said application was allowed by the learned magistrate as per annex-D order. This court is now called upon to quash annex-D order. It is also requested to quash all further proceedings arising from annex-A final report. 3. Heard the learned counsel for the petitioners and the 1st respondent. 4. The learned magistrate took cognizance of offences under Secs 427 and 447 of IPC against the petitioners upon annex-A final report. The case was taken on file as C.C.314/2011. The attempt of the petitioners to get annex-A quashed failed. However, further investigation was conducted and annex-C report under Sec. 173(8) of Cr.P.C was filed. It was a negative report requesting to close the case as undetected. The case was taken on file as C.C.314/2011. The attempt of the petitioners to get annex-A quashed failed. However, further investigation was conducted and annex-C report under Sec. 173(8) of Cr.P.C was filed. It was a negative report requesting to close the case as undetected. A report under Sec.173(8) of Cr.P.C does not supersede the report under Sec.173(2) Cr.P.C. A further or supplementary report is not intended to erase the original report and its substitution by a new report. It is held so by this court in State v. Gopakumar ( 1988 (1) KLT 924 ). The apex court holds that one of the significant features of further investigation is that it does not have the effect of wiping out directly or indirectly the initial investigation conducted by the investigating agency. The decision is Vinay Tyagi v. Irshad Ali ( (2013) 5 SCC 762 ). The cognizance taken on the original police report does not get cancelled by reason of the filing of the report under Sec. 173(8) of Cr.P.C, whether negative or not. Therefore, when cognizance is taken upon the report under Sec.173(2) of Cr.P.C, the proceedings should go on and end in its logical conclusion according to law and procedure, despite the filing of a negative report under Sec.173(8) of Cr.P.C. The proceedings cannot be dropped or closed on receipt of a negative report under Sec. 173(8). The petitioners are therefore not entitled to get the criminal prosecution against them quashed on the ground that a negative report was filed under Sec. 173(8) of Cr.P.C. 5. Sec. 302 of Cr.P.C permits any magistrate holding an inquiry or a trial to permit the prosecution to be conducted by any person other than a police officer below the rank of an inspector. The learned magistrate as per annex-D order permitted the 1st respondent to conduct the prosecution. He was the person aggrieved. His was the compound wall demolished. The conduct of the prosecution was given to the best and safest hand. Annex-D order is therefore not liable to be quashed. 6. The learned counsel for the petitioners relied on the decision of this court in Parameswaran Nair v. Surendran ( 2009 (1) KHC 801 ). He was the person aggrieved. His was the compound wall demolished. The conduct of the prosecution was given to the best and safest hand. Annex-D order is therefore not liable to be quashed. 6. The learned counsel for the petitioners relied on the decision of this court in Parameswaran Nair v. Surendran ( 2009 (1) KHC 801 ). It states what are the options for a magistrate when a protest complaint is filed against a final report filed under Sec.173 (2) of Cr.P.C. The said decision has no application to the facts and circumstances of the present case. No protest complaint was filed by the 1st respondent against the supplementary report. No protest complaint could be filed by him against the negative report, and it was not necessary also. For, cognizance was already taken by the learned magistrate upon the original report and the case was numbered. The decision in Parameswaran Nair (supra) does not come to the rescue of the petitioners. 7. Annex-D order of the learned magistrate is not free from mistakes. The order states that the subsequent charge-sheet (annex-C) is rejected and the original charge-sheet (annex-A) is reopened. There was no question of re-opening annex-A report as the proceedings taken pursuant thereto was not, and could not be, closed. The rejection of annex-C report was also not correct. When a positive report under Sec.173(2) of Cr.P.C is followed by a negative report under Sec.173(8) Cr.P.C and cognizance has been taken upon the former report, the magistrate shall proceed with the case ignoring the latter report. But the supplementary report and the papers connected therewith shall form part of the record of the case and can be used at the trial. What I should do is to dispose of the Crl. M.C making this position clear. 8. I conclude. The relief sought by the petitioners to quash the criminal prosecution against them is refused. The request to quash annex-D order of the learned magistrate also stands refused. The Crl. M.C is disposed of making it clear that annex-C supplementary report and the papers connected therewith form part of the record of the case and therefore can be used at the trial to the extent permissible under law.