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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.P.JYOTHINDRANATH
10TH DAY OF AUGUST 2016
Crl.MC.No. 3783 of 2015
RADHAKRISHNAN
Vs
STATE OF KERALA
Citation: 2016 CRLJ 4763 Kerala
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.
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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.P.JYOTHINDRANATH
10TH DAY OF AUGUST 2016
Crl.MC.No. 3783 of 2015
RADHAKRISHNAN
Vs
STATE OF KERALA
Citation: 2016 CRLJ 4763 Kerala
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.
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