Criminal Procedure Code, 1973 – Ss. 173 (2) & (8) – Further Investigation – If the further investigation was done without the prior permission of the court, what will be the effect of such a report – Held, Further investigation is the prerogative of the Police, permission is only a formality or courtesy. Under such circumstances, no illegality committed by the Police in respect of further investigation.
Criminal Procedure Code, 1973 – Ss. 173 (2) & (8) – When there are reports which are contradictory in nature, what is the option available for the court – Whether the court is entitled to accept one report and thereafter reject the second report – Held, the trial court to consider the entire record i.e. both reports filed by the investigating agencies. At the time of hearing of charge, the first and second reports can be considered by the court and the court will be at liberty to take an independent decision as to whether charge has to be framed or not.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.P. JYOTHINDRANATH, J.
Crl.M.C.No.3783 OF 2015
Dated this the 10th day of August, 2016
CP 117/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VADAKARA IN CRIME NO. 567/2014 OF VADAKARA POLICE STATION , KOZHIKODE
BY ADV. SMT.K.LASITHA
1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADDITIONAL RESPONDENT
2. ANJALI V. (MINOR)
R2 BY ADV. SRI.MANSOOR.B.H. BY PUBLIC PROSECUTOR SMT.M.T.SHEEBA
This is an application filed under Section 482 of Cr.P.C. The prayer of the petitioner is to quash the proceeding in C.P.117/2014 on the file of the Judicial First Class Magistrate Court, Vadakara. The ground highlighted is that a further investigation was done by the police and a report under Section 173(8) of Cr.P.C. filed showing that case is a false case. But the Magistrate rejected the report by passing Annexure A5 order. The case of the petitioner is that as a counter blast to C.C.No.1389/2013 on the file of the same court, this false case is foisted.
3. It is the case of the second respondent herein that further investigation in the crime was conducted without informing the learned Magistrate that also on extraneous reasons. It is also pointed out that the further investigation was conducted on the basis of an order issued by the District Police Chief, Kozhikode vide order No.211/Camp/2014/DR dated 4/11/2014 and the same was entrusted to Sri.C.D.Sreenivasan, Dy.S.P. of Police, DCRB, Kozhikode.
4. It is also the case of the respondent that C.C.No.1389/2013 has no connection with C.P.No.117/2014 pending before the JFCM, Vadakara. Both cases are different and the same is not a counter case towards the latter case. The impugned order of the learned Magistrate did not warrants any interference by this court and the same was passed considering the materials on record including the wound certificate.
5. The points for consideration in this case are as follows :
1. When there are reports under Sections 173(2) and 173 (8) of Cr.P.C., which are contradictory in nature, what is the option available for the court.
2. Whether the court is entitled to accept one report and thereafter reject the second report.
3. If the further investigation was done without the prior permission of the court, what will be the effect of such a report.
6. Point Nos. 1 and 2 are interlinked. In paragraph 4 of the statement filed by the Sub Inspector of Police, Vadakara, it is stated that the further investigation was done by Sri.C.D.Sreenivasan, Deputy Superintendent of Police, District Crime Record Bureau, Kozhikode Rural. It is further stated that Sri.C.D.Sreenivasan, Deputy Superintendent of Police, District Crime Record Bureau, Kozhikode Rural took up the investigation and he filed a petition before the Judicial First Class Magistrate’s Court, Vadakara for stopping the proceedings of the case and then he conducted investigation about the matter, questioned the witnesses and recorded their statements. It is also the case of the investigating officer that one Smt.Valsala was the sole eye witness to the incident and she stated that she was present at the place, but did not see the incident.
7. After considering the further investigation, the then S.I. of Police, Vadakara filed a report before the JFCM Court for treating the case as false and it is the case that the JFCM Court, Vadakara served the refer notice to the complainant for treating the case as false, but the complainant rejected the SHO’s opinion and the court has accepted their objection and committed the case to sessions court.
Now in this case, it can be seen that there is a final report as well as a report under 173 (8) of Cr.P.C. Surely, the court accepted the first report. There will be no question of dropping the case or treating the case as closed by the committal court. The powers of the committal court are limited in respect of the committal of a case. In
Vinay Tyagi v. Irshad Ali @ Deepak and Others, (2013) 5 SCC 762
in a similar situation, where there was a Delhi Police charge as well as a closure report filed by the CBI, the Apex Court directed the trial court to consider the entire record i.e. both reports filed by the investigating agencies. The only option available in this case is to send the second report to the sessions court for enabling the said court to consider the same along with the earlier report. Surely, in the impugned order, the Magistrate stated that no statement is seen produced. It can be seen that in the statement submitted by the S.I. of Police, it is clearly stated that witnesses were questioned during further investigation.
Thus, at the time of hearing of charge, the first and second reports can be considered by the court of sessions and the court of sessions will be at liberty to take an independent decision as to whether charge has to be framed or not. To avoid miscarriage of justice, it is also made open for the prosecutor to produce before the court any additional statements of witnesses who are already cited as witnesses in the first final report by the police, which are recorded during the further investigation mentioned above. It is also open for the prosecutor to cite additional witnesses (whose statements are recorded during further investigation), if any, by filing appropriate application before the court.
The next point is regarding the permission of court for further investigation. In this case, police reported that it was informed to the court and sought a stay of proceedings. Further investigation is the prerogative of the Police, permission is only a formality or courtesy. Under such circumstances, no illegality committed by the Police in respect of further investigation.
Thus, the impugned order of the Magistrate dated 25/03/2015 which is produced as Annexure A5 in this case is hereby set aside. The Judicial First Class Magistrate, Vatakara is hereby directed to transmit the report filed under Section 173(8) of Cr.P.C. in Crime No.567/2014 to the Sessions Court to consider along with the police report in C.P.No.117/2014 while hearing on charge. To avoid miscarriage of justice, prosecutor in charge of the case is at liberty to produce before the court the statements of witnesses, if any, recorded during the further investigation to consider along with the final report on which cognizance is taken by the court.