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2024 DIGILAW 686 (KER)

Johnson, S/o S. Garibel v. State Of Kerala

2024-06-20

A.BADHARUDEEN

body2024
ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure to quash all further proceedings in Crime No.1725/2018 of Kottayam East Police Station, now pending as C.C.No.568/2019 on the files of the Chief Judicial Magistrate Court, Kottayam. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor. Perused the relevant documents. 3. The learned counsel for the petitioner would submit that initially crime was registered alleging commission of offences punishable under Sections 465 and 471 of IPC, on the allegation that somebody manipulated the records with a view to deny compassionate employment to the defacto complainant in between 30.07.2004 to 15.11.2005. On investigation, Annexure-II final report filed and acting on the same, the trial court took cognizance for the offences punishable under Sections 465 and 471 of IPC and the case was numbered as C.C.No.568/2019. Thereafter, at the instance of the accused, further investigation conducted, which led to filing of Annexure-VI supplementary final report, and as per which Annexure II final report was negatived. Further, it is stated in Annexure VI that, on getting further documents the option for further investigation would be considered. 4. The learned counsel for the petitioner submitted that in view of two reports, viz., Annexure-II and Annexure-VI, the learned Magistrate is bound to consider both reports and enter into a finding as to whether the persons named as accused had committed any offence. 5. The learned counsel for the petitioner emphasized the legal position, with reference to paragraph No.16 of the decision in Luckose Zachariah v. Joseph Joseph reported in 2022 (2) KLT 144 (SC), referring Vinay Tyagi v. Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya v. State of Gujarat reported in 2013(1) KLT SN 69 (SC) and 2019(4) KLT 3025 (SC), as under: “16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under S.173(2) as well as the supplementary report which was submitted after further investigation in terms of S.173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence. While the High Court has relied upon the decision in Vinay Tyagi (supra), it becomes necessary for this Court to set the matter beyond any controversy having due regard to the fact that the Sessions Judge in the present case had while remitting the proceedings back to the Magistrate relied on the judgment of the Single Judge.” 6. Now the question arises for consideration is, what is the procedure to be followed by the Court when report under Section 173(2) of the Cr.P.C. (final report) and a supplementary report under Section 173 (8) of the Cr.P.C. were produced?. The legal position is not in dispute that when an initial report filed under Section 173(2) of Cr.P.C. and a supplementary report filed thereafter under Section 173(8) of Cr.P.C., the court would have to take a considered view of both reports, in accordance with law, so as to ensure whether there is ground for presuming that the persons named as accused had committed an offence. If the Court finds that cumulative effect of both reports would make offence/offences committed by the accused, prima facie, the court shall take cognizance of the offence/offences made out and proceed further. If the court finds when considering both reports in juxtaposition, no offence/offences made out prima facie against the accused, the court is bound to take a decision accordingly. 7. In view of the above, this Crl.M.C stands disposed of, with direction to the learned Magistrate to consider both reports and frame charge, if necessary, on the facts of the given case, following the ratio already stated. For the said purpose, Annexure-IX charge stands set aside, with liberty to the learned Magistrate to frame fresh charge as herein above directed. If both reports cumulatively suggest no materials to go for trial, the court shall take a decision accordingly, as per law. For the said purpose, Annexure-IX charge stands set aside, with liberty to the learned Magistrate to frame fresh charge as herein above directed. If both reports cumulatively suggest no materials to go for trial, the court shall take a decision accordingly, as per law. In such situation, the power of the Court to order further investigation before start of trial can also be resorted to, in view of the ratio of the decision in Luckose Zacharia' case (supra), holding the view that the power of the Court to order further investigation as traced from Section 156(3) read with Section 156(1), Sections 2(b) and 173(8) of Cr.P.C. is available before start of trial by framing charge, even after cognizance is taken.