Kerala High Court
Anil Kumar vs Latha Mohan on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
Crl.MC.No.552 OF 2018
AGAINST THE ORDER DATED 31/1/2017 IN C.M.P.NO.639/2016
IN CC 31/2011 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -II,THIRUVANANTHAPURAM
CRIME NO.749/2010 OF FORT POLICE STATION, THIRUVANANTHAPURAM
PETITIONER/COMPLAINANT:
ANIL KUMAR, AGED 47 YEARS, S/O.GOPI,
T.C.NO.22/345, GOPI KRISHNA, ATTUKAL,
IRANIMUTTAM, MANACAUD P.O.,
THIRUVANANTHAPURAM.
BY ADV. SRI.S.MOHAMMED AL RAFI
RESPONDENTS/COUNTER PETITIONERS:
1 LATHA MOHAN, T.C.21/349,
JANARDHANAN THAMPI LANE,
NEDUNKAD WARD, MANACAUD VILLAGE,
THIRUVANANTHAPURAM - 695009
2 STATE OF KERALA
REPRESENTED BY IT'S PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
ADDITIONAL RESPONDENTS
ADDL. SWAPNA MOHAN, W/O MURALI KRISHNA,
R3 SREE VILASOM (NANDANAM),
KONOTHU KIZHAKKUM KARA PUTHENVEEDU, NEAR MULLASSERRY
HIGH SCHOOL,
LAKSHAM VEEDU LANE, KARAKULAM P.O, THIRUVANANTHAPURAM
- 695 564
ADDL. MOHANAN NAIR, S/O SUKUMARAN NAIR,
R4 SREE VILASOM (NANDANAM),
KONOTHU KIZHAKKUM KARA PUTHENVEEDU,
NEAR MULLASSERRY HIGH SCHOOL,
LAKSHAM VEEDU LANE, KARAKULAM P.O, THIRUVANANTHAPURAM
- 695 564
Crl.MC.No.552 OF 2018 2
ADDL. MANOJ, S/O MOHANAN NAIR, THIRUVATHIRA,
R5 T.C.43/551(3),
MANACAUD P.O, THIRUVANANTHAPURAM - 695 009
ARE IMPLEADED AS ADDL.R3,R4 & R5 AS PER ORDER DTD
27/2/19 IN CRL.M.A.3/19 IN CRL.M.C.552/18
R1 BY ADV. SRI.M.RAJENDRAN NAIR
R1 BY ADV. SMT.M.SANTHY
R2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC
PROSECUTOR
AMICUS CURIAE SR.ADV.SRI.P.VIJAYA BHANU
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
18.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.552 of 2018
3
C.R.
ORDER
An application under Section 319 Cr.P.C. to proceed
against three persons other than the accused was
dismissed by the trial court. Aggrieved by the said
order, the defacto complainant, who filed the
application, came up under Section 482 Cr.P.C.
2. Initially, crime was registered against four
persons based on a reference of complaint under Section
156(3) Cr.P.C., but after investigation, final report was
submitted only against one among the accused persons
named in the FIR ie. the 2nd one and a separate report was
submitted seeking to delete and remove the names of
accused No.1, 3 and 4 in the FIR from the array of the
accused.
3. It is thereafter, charge was framed and trial
was commenced against the 2nd named accused in the FIR,
who is the sole accused in the final report submitted.
The report submitted for deleting and removing the names
of accused No.1, 3 and 4 in the FIR came to the notice
of the defacto complainant only at the time of trial of
the case. As such, he preferred an application under
Section 319 Cr.P.C. at the trial stage to proceed
against the above said persons as additional accused.
4. Admittedly, the report submitted by the
investigating officer for deleting the names of accused
No.1, 3 and 4 is not a report as envisaged under
Section 173(2) Cr.P.C. and no notice was issued to the
first informant, without which the report was accepted
by deleting them from the array of accused. The final
report submitted against accused No.2 (sole accused)
was proceeded and trial was commenced. It is at that
time, the defacto complainant came to know about the
report seeking removal of accused No.1, 3 and 4 named
in the FIR and its acceptance by the Magistrate.
5. It was brought to the notice of this Court by
the learned Senior Public Prosecutor Sri.Suman
Chakravarthy that the practice of submitting such
report for deleting accused person either at the
interim stage of investigation or at its final stage is
followed throughout Kerala and so far nobody has
raised any legal objection to the said practice. Since
the question requires elaborate consideration, this
Court sought the help of an Amicus Curiae and the
learned senior counsel Sri.P.Vijayabhanu expressed his
willingness. Accordingly, it was ordered.
6. From Section 154 to Section 173 under Chapter
XII of Cr.P.C., there is no provision for submitting
any report by the officer in charge of police
station/investigating officer except under Section 157
[Section 158 and 173(3)], 170, 173(2) and 173(8)
Cr.P.C. At least three modalities were incorporated
under Section 157 Cr.P.C. regarding the further steps
to be taken by the officer in charge of the police
station, on an information received or otherwise,
regarding the commission of an offence, which he is
empowered under Section 156 Cr.P.C. to investigate.
When the officer in charge of a police station has
reason to suspect commission of an offence, which he
is empowered under Section 156 to investigate, he shall
forthwith send a report to the Magistrate empowered to
take cognizance of such offence upon a police report
and shall proceed in person to the spot, to investigate
the facts and circumstances of the case and if
necessary to take measures for the discovery and arrest
of the offender or shall depute one of his subordinate
officers not below the rank as the state Government may
by general or special order prescribe in that behalf,
to proceed, to the spot, to investigate the facts and
circumstances of the case and if necessary to take
measures for discovery and arrest of the offender. The
said provision is subject to two exceptions in the form
of two provisos. Clause (a) to the proviso to Section
157(1)Cr.P.C. gives an option to the officer in charge
of the police station not to make any investigation on
the spot when the offence alleged is not of serious
nature. clause (b) to the said proviso permits the
officer in charge of the police station not to
investigate any case, if it appears to him that there
is no sufficient ground for entering on an
investigation. In the case of clause (a) and (b) of the
said proviso, he is bound to submit a report as
mandated under Section 157(2)Cr.P.C. stating his reason
for not fully complying with the requirement. In the
case mentioned in clause (b) of the said proviso, the
officer shall forthwith notify to the informant, if
any, in such manner as may be prescribed by the State
Government, the fact that he will not investigate or
enter on any investigation or cause it to be done
through any subordinate officer. Section 157 Cr.P.C.
casts a duty upon the officer in charge of the police
station/investigating officer to send a report to the
concerned Magistrate and in the case of proviso (b), he
shall forthwith notify the same to the informant, if
any, in such manner as may be prescribed by the State
Government, the fact that he will not investigate the
case either by him or through any subordinate officer.
Section 158 Cr.P.C. deals with the way in which the
report under Section 157 Cr.P.C. has to be submitted.
Section 173(3) Cr.P.C. enables the superior officer of
the police through him a report has to be submitted
under Section 158 Cr.P.C. to direct the officer in
charge of the police station to make further
investigation pending orders of the Magistrate.
7. Section 173 Cr.P.C. is extracted below for
reference:
"173. Report of police officer on
completion of investigation. -
(1) Every investigation under this Chapter
shall be completed without unnecessary delay.
[(1A) The investigation in relation to [an
offence under sections 376, 376A, 376AB, 376B,
376C, section 376D, section 376DA, section
376DB or section 376E of the Indian Penal Code
(45 of 1860) shall be completed within two
months.] from the date on which the information
was recorded by the officer in charge of the
police station.]
(2) (i) As soon as it is completed, the officer
in charge of the police station shall forward
to a Magistrate empowered to take cognizance of
the offence on a police report, a report in the
form prescribed by the State Government,
stating -
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond
and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody
under section 170;
[(h) Whether the report of medical examination
of the woman has been attached where
investigation relates to an offence under
[Sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB]] or section 376E of the Indian
Penal Code (45 of 1860)]
(ii) The officer shall also communicate, in
such manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any, by whom the information
relating to the commission of the offence was
first given.
(3) Where a superior officer of police has been
appointed under section 158, the report shall,
in any case in which the State Government by
general or special order so directs, be
submitted through that officer, and he may,
pending the orders of the Magistrate, direct
the officer in charge of the police station to
make further investigation.
(4) Whenever it appears from a report forwarded
under this section that the accused has been
released on his bond, the Magistrate shall make
such order for the discharge of such bond or
otherwise as he thinks fit.
(5) When such report is in respect of a case to
which section 170 applies, the police officer
shall forward to the Magistrate along with the
report -
(a) all documents or relevant extracts thereof
on which the prosecution proposes to rely other
than those already sent to the Magistrate
during investigation;
(b) the statements recorded under section 161
of all the persons whom the prosecution
proposes to examine as its witnesses.
(6) If the police officer is of opinion that
any part of any such statement is not relevant
to the subject-matter of the proceedings or
that its disclosure to the accused is not
essential in the interests of justice and is
inexpedient in the public interest, he shall
indicate that part of the statement and append
a note requesting the Magistrate to exclude
that part from the copies to be granted to the
accused and stating his reasons for making such
request.
(7) Where the police officer investigating the
case finds it convenient so to do, he may
furnish to the accused copies of all or any of
the documents referred to in sub-section (5).
(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub-section (2) has
been forwarded to the Magistrate and, where upon
such investigation, the officer in charge of the
police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a
further report or reports regarding such evidence
in the form prescribed; and the provisions of sub-
sections (2) to (6) shall, as far as may be, apply
in relation to such report or reports as they apply
in relation to a report forwarded under sub-section
(2).
(emphasis supplied)
8. The language employed under Section 173(1)
Cr.P.C. that "every investigation under this Chapter
shall be completed without unnecessary delay" stands
for all investigations commenced under Section 156
Cr.P.C., that is to say, based on the FIR registered
under Section 154 Cr.P.C. and a reference under
Section 156(3) Cr.P.C.. What is stated in Section
173(2) Cr.P.C. that "as soon as it is completed" stands
for "investigation" made mentioned in Section 173(1)
Cr.P.C.. The user of the words " every investigation"
in sub-section (1) and "as soon as it is completed" in
sub-section (2) to Section 173 Cr.P.C. and a conjoint
reading with the mandate of submitting a report on
culmination of investigation under sub-section (2),
would make the legal position clear that when
investigation was commenced under Section 156 Cr.P.C.,
it is incumbent on the officer in charge of the police
station/the investigating officer to submit a report
under Section 173(2) Cr.P.C. in every case. There is no
enabling provision or any provision in the Code to
submit a casual report with a prayer to delete or
remove any person from the party array of the accused,
except a report as envisaged under Section 173(2)
Cr.P.C. Further, there is no provision in the Code
either to seek deletion or removal of any person from
the array of the accused. On the other hand, the
investigating officer is bound to submit a report as
envisaged under Section 173(2) Cr.P.C. for taking
cognizance of any offence appears to have been
committed by any person of accused (a charge sheet) or
a refer report (referred charge) for its acceptance.
The words "final report", "refer report", "charge
sheet" etc. are not made mentioned anywhere in the
Code. But the user of the said expressions with its
meaning was considered by the Apex Court in Gangadhar
Janardan Mhatre v. State of Maharashtra and others
[(2004) 7 SCC 768] in the following lines:
"The expressions "charge sheet" or "final
report" are not used in the Code, but it is
understood in Police Manuals of several States
containing the rules and regulations to be a
report by the police filed under Section 170 of
the Code, described as a "charge-sheet". In case
of reports sent under Section 169 i.e. where
there is no sufficiency of evidence to justify
forwarding of a case to a Magistrate, it is
termed variously i.e. referred charge, final
report or summary."
9. Yet another reason is also available for
insisting compliance of mandate under Section 173(2)
Cr.P.C. In the absence of a report as envisaged under
Section 173(2) Cr.P.C., there cannot be any application
of Section 173(8) Cr.P.C. even in a case of
detection/revelation of any new material fact or
evidence pertaining to the issue. A supplementary
report under Section 173(8) Cr.P.C. can be submitted
only after submission of a final report under Section
173(2) Cr.P.C. and in the absence of such a report,
Section 173(8) Cr.P.C. cannot be applied. This would
make the legal position crystal clear that the report
that can be submitted after investigation must be in
consonance with the mandate under Section 173 Cr.P.C.
10. Further, a right of notice and right of hearing
to the first informant/defacto complainant is well
recognized both under Section 157 and 173 Cr.P.C.,
based on the well evolved principles of natural justice
and gives the first informant a right to set the
criminal law again in motion despite the adverse report
submitted under Section 157(2) Cr.P.C. not to
investigate the case or a refer report (referred
charge) under Section 173(2) or 173(8) Cr.P.C., by
maintaining a protest complaint. Hence the right of
notice and right of hearing both under Sections 157,
173(2) and 173(8) Cr.P.C. to the first
informant/defacto complainant cannot be defeated. This
might be the reason why the legislature has
incorporated provision for issuance of notice under
Section 157(2) and 173(2)(ii) Cr.P.C.. It was well
recognized and settled by a three Judge Bench of the
Apex Court in Bhagwant Singh v. Commissioner of Police
and another [(1985) 2 SCC 537 = AIR 1985 SC 1285 ] in
the following lines:
"4. Now, when the report forwarded by the
officer in charge of a police station to the
Magistrate under sub-section (2)(i) of Section
173 comes up for consideration by the
Magistrate, one of two different situations
may arise. The report may conclude that an
offence appears to have been committed by a
particular person or persons and in such a
case, the Magistrate may do one of three
things: (1)he may accept the report and take
cognizance of the offence and issue process or
(2)he may disagree with the report and drop
the proceeding or (3) he may direct further
investigation under sub-section (3) of Section
156 and require the police to make a further
report. The report may on the other hand
state that, in the opinion of the police, no
offence appears to have been committed and
where such a report has been made, the
Magistrate again has an option to adopt one of
three courses:(1) he may accept the report and
drop the proceeding or (2) he may disagree
with the report and taking the view that there
is sufficient ground for proceeding
further,take cognizance of the offence and
issue process or (3)he may direct further
investigation to be made by the police under
sub-section (3) of Section 156. Where, in
either of these two situations, the Magistrate
besides to take cognizance of the offence and
to issue process, the informant is not
prejudicially affected nor is the injured or
in case of death, any relative of the deceased
aggrieved, because cognizance of the offence
is taken by the Magistrate and it is decided
by the Magistrate that the case shall proceed.
But if the Magistrate decides that there is no
sufficient ground for proceeding further and
drops the proceeding or takes the view that
though there is sufficient ground for
proceeding against some, there is no
sufficient ground for proceeding against
others mentioned in the First Information
Report, the informant would certainly be
prejudiced because the First Information
Report lodged by him would have failed of its
purpose, wholly or in part. More over, when
the interest of the informant in prompt and
effective action being taken on the First
Information Report lodged by him is clearly
recognized by the provisions contained in sub-
section (2) of Section 154, sub-section (2) of
Section 157 and sub-section (2)(ii) of Section
173, it must be presumed that the informant
would equally be interested in seeing that the
Magistrate takes cognizance of the offence
and issues process, because that would be
culmination of the First Information Report
lodged by him. There can, therefore, be no
doubt that when, on a consideration of the
report made by the officer in charge of a
police station under sub-section (2)(i) of
Section 173, the Magistrate is not inclined to
take cognizance of the offence and issue
process, the informant must be given an
opportunity of being heard so that he can make
his submissions to persuade the Magistrate to
take cognizance of the offence and issue
process. We are accordingly of the view that
in a case where the Magistrate to whom a
report is forwarded under sub-section (2) (i)
of Section 173 decides not to take cognizance
of the offence and to drop the proceeding or
takes the view that there is no sufficient
ground for proceeding against some of the
persons mentioned in the First Information
Report, the Magistrate must give notice to the
informant and provide him an opportunity to be
heard at the time of consideration of the
report. It was urged before us on behalf of
the respondents that if in such a case notice
is required to be given to the informant, it
might result in unnecessary delay on account
of the difficulty of effecting service of the
notice on the informant. But we do not think
this can be regarded as a valid objection
against the view we are taking, because in
any case the action taken by the Police on the
First Information Report has to be
communicated to the informant and a copy of
the report has to be supplied to him under
sub-section (2)(i) of Section 173 and if that
be so, we do not see any reason why it should
be difficult to serve notice of the
consideration of the report on the informant.
More over, in any event, the difficulty of
service of notice on the informant cannot
possibly provide any justification for
depriving the informant of the opportunity of
being heard at the time when the report is
considered by the Magistrate.
5. The position may, however, be a little
different when we consider the question
whether the injured person or a relative of a
deceased, who is not the informant, is
entitled to notice when the report comes up
for consideration by the Magistrate. We
cannot spell out either from the provisions
of the Criminal Procedure Code, 1973 or from
the principles of natural justice, any
obligation on the Magistrate to issue notice
to the injured person or to a relative of a
deceased for providing such person an
opportunity to be heard at the time of
consideration of the report, unless such
person is the informant who has lodged the
First Information Report. But even if such
person is not entitled to notice from the
Magistrate, he can appear before the
Magistrate and make his submissions when the
report is considered by the Magistrate for
the purpose of deciding what action he should
take on the report. The injured person or any
relative of the deceased, though not entitled
to notice from the Magistrate, has locus to
appear before the Magistrate at the time of
consideration of the report, if he otherwise
comes to know that the report is going to be
considered by the Magistrate and if he wants
to make his submissions in regard to the
report, the Magistrate is bound to hear him.
We may also observe that even though
Magistrate is not bound to give notice of the
hearing fixed for consideration of the report
to the injured person or to any relative of
the deceased, he may, in the exercise of his
discretion, if he so thinks fit, gives such
notice to the injured person or to any
particular relative or relatives of the
deceased, but not giving of such notice will
not have any invalidating effect on the order
which may be made by the Magistrate on a
consideration of the report."
(emphasis supplied)
11. It was followed by another Bench of the Apex
Court in Union Public Service Commission v. S.Papaiah
and others [(1997) 7 SCC 614] and held that even
issuance of notice by the investigating agency
regarding a final report under Section 173 Cr.P.C.
(refer report/referred charge) to the first informant
was not sufficient and laid down that the Magistrate
must give notice and an opportunity of hearing to the
informant before accepting the final report (a refer
report/referred charge) and closing the case. The
relevant portions of paragraphs 9,10 and 11 of the said
judgment is extracted below for reference:
"9. In the present case, admittedly,
no notice was issued by the Vth
Metropolitan Magistrate to the appellant
before accepting the final report
submitted by the CBI and deciding not to
take cognizance and drop the proceedings.
This omission vitiates the order of the
learned court accepting the final report.
The issue is no longer res
integra..........
10. As per the law laid down in
Bhagwant Singh's case the issuance of a
notice by the Magistrate to the informant
at the time of consideration of the final
report is a "must". This binding
precedent which is the law of the land,
has not been followed by the Vth
Metropolitan Magistrate and was wrongly
ignored by the revisional court also.
11. The argument of the learned counsel
for the respondent that since the CBI had
issued a notice to the appellant, it
should be deemed to be sufficient
compliance with the requirement of law
does not appeal to us. In the first place,
the issuance of notice by the CBI to the
appellant was not a substitute for the
notice which was required to be given by
the Magistrate in terms of the judgment in
Bhagwant Singh's case. The CBI also did
not issue any fresh notice to the UPSC
before it resubmitted the final report to
the learned Magistrate on 24.2.1995.
Learned Magistrate could not in any event
"delegate" to the investigating agency its
function of issuing notice..........."
12. The legal position was reiterated in Gangadhar
Janardan Mhatre's case (supra). Hence the practice of
submitting a casual report for deleting or removing any
person from the array of the accused without notice to
the first informant, instead of a referred charge
(refer report) as envisaged under Section 173(2) and
173(8) Cr.P.C., is deprecated. The report that can be
submitted after the stage under Section 157 and 158
Cr.P.C. must be in accordance with the mandate under
Section 173(2) Cr.P.C. in the prescribed form
enumerating the requirement under sub-clause (a) to (h)
to clause (i) and it shall be communicated to the first
informant as mandated under clause (ii) of Section
173(2) Cr.P.C. When such report is in respect of a
case to which Section 170 Cr.P.C. applies (when there
is sufficient evidence or reasonable ground for the
trial or for commitment of trial of the accused), the
police officer in compliance with the requirement
under Section 173(5) Cr.P.C. shall forward to the
Magistrate along with the report (a) all documents or
relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the
Magistrate during investigation; and (b) the statements
recorded under section 161 of all the persons whom the
prosecution proposes to examine as its witnesses,
subject to the restriction imposed under Section 173(6)
Cr.P.C..
13. Then comes the question whether the
investigating officer in a refer report (referred
charge) is bound to comply with the requirement under
sub-section (5) of Section 173 Cr.P.C. by forwarding
all the documents and statement along with the report
or a formal refer report without the documents and the
statement recorded would be sufficient. It is not
addressed anywhere in the Code except under Section
173(4) Cr.P.C., wherein the jurisdiction of discharge
of bail bond and such other act alone were addressed.
The language employed in clause (ii) of Section
173(2)Cr.P.C. would show that the production of
documents collected and statement recorded as mandated
under Section 173(5) Cr.P.C. would be applicable with
respect to a case which would fall under Section 170
Cr.P.C. (a final report for taking cognizance against
the accused person). There is no provision in the Code
mandating production of those records with a refer
report (referred charge). But it is settled by the
Apex Court in Bhagwant Singh's case (supra) that there
are three options available to the Magistrate on
submission of a refer report under Section 173(2)
Cr.P.C. that (1) he may accept the report and drop the
proceeding or (2) he may disagree with the report and
taking the view that there is sufficient ground for
proceeding further,take cognizance of the offence and
issue process or (3)he may direct further investigation
to be made by the police under sub-section (3) of
Section 156. To exercise these options, especially the
last two, the documents collected and the statements
recorded including the one under Section 161 Cr.P.C.
must be made available to the Magistrate subject to the
restriction imposed under Section 173(6) Cr.P.C..
Otherwise, it would amount to curtailing the exercise
of jurisdiction by the Magistrate. Hence all the
documents or relevant extracts thereof collected during
the course of investigation and all statements
including statement recorded under Section 161 Cr.P.C.,
subject to the restriction imposed under Section 173(6)
Cr.P.C., must be forwarded along with a refer report
(referred charge), so as to enable the Magistrate to
exercise his jurisdiction. The said requirement was
also taken into consideration by the Apex Court in
dealing with the application of Section 173(2) Cr.P.C.
in Gangadhar Janardhan Mhatre's case (supra) and laid
down that :
"The position is, therefore, now
well settled that upon receipt of a
police report under Section 173(2), a
Magistrate is entitled to take
cognizance of an offence under Section
190(1)(b) of the Code even if the police
report is to the effect that no case is
made out against the accused. The
Magistrate can take into account the
statements of the witnesses examined by
the police during the investigation and
take cognizance of the offence
complained of and order the issue of
process to the accused. Section 190(1)
(b) does not laid down that a Magistrate
can take cognizance of an offence only
if the investigating officer gives an
opinion that the investigation has made
out a case against the accused. The
Magistrate can ignore the conclusion
arrived at by the investigating officer
and independently apply his mind to the
facts emerging from investigation and
take cognizance of the case, if he
thinks fit, exercise his powers under
Section 190(1)(b) and direct the issue
of process to the accused."
(emphasis supplied)
It is made clear that all the abovesaid legal
positions are squarely applicable to a report to be
submitted under Section 173(8) Cr.P.C., which would
stand as a supplementary report to the final report
submitted under Section 173(2) Cr.P.C..
14. One of the requirements made mentioned under
Section 173(2) Cr.P.C. to be complied with while
submitting a final report is to answer specifically the
offence appears to have been committed and the person
who committed the same. It was submitted by the learned
Senior Counsel Sri.P.Vijayabhanu that the said
requirement by itself will explain that a final report
(charge sheet) alone can be submitted under that
provision and it must be a report under Section 170
Cr.P.C. showing sufficient evidence regarding
commission of offence alleged and the person who
committed it. It is further submitted that in a refer
report (referred charge), there cannot be any positive
answer to the above said query. It is too difficult to
accept the said argument simply because of the reason
that, as discussed in earlier paragraphs, it is quite
permissible to submit a refer report (referred charge)
under Section 173 Cr.P.C. and as such, there is no
legal impediment in giving a negative answer to the
above said query in the said report against any person
of accused named in the FIR or subsequently added
during the course of investigation.
15. The learned Senior Public Prosecutor Sri.Suman
Chakravarthy produced a Government notification G.O.
(P)No.86/93/Home dated 28/6/1993- SRO No.1043/93 by
which circulated a format for the report to be
submitted under Section 173 Cr.P.C., wherein column
No.13 is to furnish the particulars of accused person
not charge sheeted. But it is fairly conceded that the
present format did not contain any such clause. He had
also raised a doubt as to the permissibility of
submitting a refer report (referred charge) under
Section 173(2) Cr.P.C. against a particular accused
before the completion of investigation as against
others. No doubt, a report under Section 173(2)
Cr.P.C. should be submitted with respect to each and
every accused persons showing their respective offences
for the purpose of taking cognizance or a refer report
(referred charge) for dropping the proceedings. It is
quite permissible to submit a joint report with respect
to the same transaction against more than one accused
and also a refer report as against some other accused.
It is also permissible to file separate final reports
against each and every accused persons and as such,
when investigation is completed as against any of the
accused person, it is permissible to submit a final
report as against him either by way of a refer report
(referred charge) or a final report (charge sheet)
before the completion of investigation as against the
other accused persons.
16. The reports submitted casually for deletion of
persons from the array of accused without the
compliance of requirement under Section 173(2) Cr.P.C.
and without production of the documents or extracts
thereof or statement recorded, in any of the pending
cases shall be rejected so as to enable the
investigating agency to submit a report as envisaged
under Section 173(2) Cr.P.C. along with all the
documents and records or copies/extracts thereof along
with the statement or copies including the statement
recorded under Section 161 Cr.P.C.. and it must be
notified to the first informant in compliance of
mandate under clause (ii) of Section 173(2) Cr.P.C..
17. In the instant case, no final report was
submitted against the named accused persons 1,3 and 4
in the FIR as envisaged under Section 173(2) Cr.P.C..
The final report was submitted against accused No.2
named in the FIR. A casual report was submitted seeking
deletion of accused No.1, 3 and 4, without the
compliance of requirement under Section 173(2) Cr.P.C.
and without forwarding the documents and statement
collected during the course of investigation. It has
no legal effect or sanctity and hence liable to be
rejected. Necessarily, the Station House Officer or
the investigating officer, as the case may be, shall
submit a report as envisaged under Section 173(2)
Cr.P.C. as against the accused No.1, 3 and 4 named in
the FIR and it shall be notified to the first informant
so as to enable him to exhaust his right of protest
complaint.
18. Section 319 Cr.P.C. is an independent
provision apart from the other provisions contained in
Code and enables the court to proceed against other
persons not being an accused when it appears from the
evidence that he has committed an offence, for which
such person could be tried together with the accused.
The said section can be applied irrespective of whether
any protest complaint was maintained against any refer
report (referred charge) regarding such person or
whether the same was ended in dismissal. By its nature,
Section 319 Cr.P.C. is independent and can be exercised
when it appears from the evidence his involvement in
the alleged crime irrespective of whether any protest
complaint was maintained against him and whether the
same was ended in dismissal.
19. What is involved in the instant case is
centering around the execution of a sale deed in
favour of the nominees of the petitioner and the
alleged suppression of earlier mortgage over the
property. The mortgage created by the seller over the
property is admittedly disclosed in the sale deed. But
the mortgage created by her predecessor-in-interest,
her mother, over the property was not disclosed. Her
predecessor-in-interest admittedly is not a party to
the sale. The dispute is only a civil one and the
purchaser/defacto complainant is equally responsible
for not conducting a proper enquiry with respect to its
encumbrances prior to the execution of the sale deed.
Hence the order of dismissal of the application under
Section 319 Cr.P.c. deserves no interference. The
Crl.M.C. is dismissed accordingly.
20. The Registry shall forward a copy of this
order to the State Police Chief so as to circulate the
same among all the district level police officers and
station house officers and a copy to the Principal
District and Sessions Judges so as to circulate the
same among the subordinate officers in their respective
judicial district.
The valuable service and assistance given by the
Amicus Curaie, Sri.P.Vijayabhanu, the learned Senior
Counsel, is placed on record with high appreciation,
besides the assistance given by the Senior Public
Prosecutor Sri.Suman Chakravarthy.
Sd/-
P.SOMARAJAN
JUDGE
sv
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A- CERTIFIED COPY OF THE FINAL REPORT FILED IN
FIR NO.749/2010 OF FORT STATION.
ANNEXURE B- CERTIFIED COPY OF THE DEPOSITION OF THE
PETITIONER AS PW1.
ANNEXURE C- TRUE COPY OF THE PETITION FILED BY THE
PETITIONER UNDER SECTION 319 OF CRL.P.C.
ANNEXURE D- CERTIFIED COPY OF THE ORDER DATED
31/01/2017 IN C.M.P.NO.639/16 IN
C.C.NO.31/11.
ANNEXURE E TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE
PETITIONER BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT II, THIRUVANANTHAPURAM AS C.M.P.
NO.1750/2010
/TRUE COPY/
Sd/-
P.S. TO JUDGE
