Kerala High Court
Father George Mathirapally vs State Of Kerala on 3 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.3275 of 2018
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2024:KER:73968
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 3275 OF 2018
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1258 OF
2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOCHI
PETITIONER/ACCUSED:
FATHER GEORGE MATHIRAPALLY
VICAR, SAINT PETER AND PAUL CHURCH,
KATARI BAGH, NAVAL BASE, KOCHI.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENTS/STATE/PETITIONER:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
(CRIME NO.178/2014 OF HARBOUR POLICE STATION,
ERNAKULAM DISTRICT)
2 SURESH P.A.
AGED 62 YEARS, AGED 62 YEARS, S/O.AYYAPPAN,
Crl.M.C. No.3275 of 2018
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PUTHENPURAICKAL HOUSE, MANAVA NAGAR,
KONTHURUTHY, THEVARA, KOCHI-682 013.
BY ADV.:
SRI.RENJITH.T.R, SR.PP
SRI.M.H.HANIS - R2
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 03.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.3275 of 2018
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.3275 of 2018
----------------------------------------------
Dated this the 03rd day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash
the proceedings in CC No.1258/2015 on the file of
Judicial First Class Magistrate Court-I, Kochi. The
petitioner is the accused in the above case.
2. The crime was registered based on the
statement recorded from the 2nd respondent alleging
that he is a person who was conducting a shop near
Katari Bagh and one Mr. Joshi and 8 other persons, who
are identifiable by sight, assaulted the defacto
complainant and on the basis of this allegation, the
crime was registered alleging offences punishable
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under Sections 143, 146, 147, 294(b), 323, 427 and 447
of IPC.
3. After investigation conducted by the 1 st
respondent, a final report was submitted before the trial
court against five named persons alleging offences
punishable under Sections 143, 146, 147, 294(b), 323,
427 and 447 of IPC. Annexure-1 is the Final Report.
The petitioner was not arrayed as an accused in the
above case. The case was taken on file as CC
No.1258/2015 before the Judicial First Class Magistrate
Court-I, Kochi. It is the case of the petitioner that no
protest complaint is filed by the defacto complainant.
But, a petition was filed by the defacto complainant
under Section 173(8) of Cr.P.C. for conducting further
investigation implicating the petitioner as one of the
accused. The learned Magistrate, as per Annexure-II
order, allowed the prayer of the defacto complainant
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and directed to conduct further investigation. After
further investigation, a further report was filed in which
the petitioner is implicated as an accused. Annexure-III
is the second Final Report. According to the petitioner,
even if the entire allegations are accepted, no offence
is made out against the petitioner. Hence, this Crl.MC is
filed.
4. Heard the learned counsel appearing for the
petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner raised a short
point. According to the petitioner, if a further report is
filed after further investigation, the learned Magistrate
has to consider that report along with the original
report in the light of the principle laid down by the Apex
Court in Luckose Zachariah @ Zak Nedumchira
Luke v. Joseph Joseph and Others (2022 KHC 6253).
It will be better to extract paragraph Nos.15 and 16 of
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the above said judgment:
"15. The Sessions Judge was justified in setting aside
the order of the Magistrate for the simple reason that
after the supplementary report submitted by the
investigating officer, the Magistrate was duty bound
in terms of the dictum in paragraph 42 of the decision
in Vinay Tyagi (supra), as well as the subsequent
three - Judge Bench decision in Vinubhai Haribhai
Malaviya (supra) to consider both the original report
and the supplementary report before determining the
steps that have to be taken further in accordance
with law. The Magistrate not having done so, it was
necessary to restore the proceedings back to the
Magistrate so that both the reports could be read
conjointly by analyzing the cumulative effect of the
reports and the documents annexed thereto, if any,
while determining whether there existed grounds to
presume that the appellants have committed the
offence. The order of the Sessions Judge restoring the
proceedings back to the Magistrate was correct to
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that extent. However, the Sessions Judge proceeded
to rely upon the decision of a Single Judge of the
Kerala High Court in Joseph (supra), where it was held
that:
"7. (xxxxx xxxxxx) When a positive report under S.
173(2) of Cr.P.C. is followed by a negative report
under S. 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."
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
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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 of the Kerala High Court in Joseph
(supra) which is contrary to the position set out in
Vinay Tyagi. Hence, the JFCM - I Alappuzha shall
reexamine both the reports in terms of the decisions
of this Court in Vinay Tyagi v Irshad Ali alias Deepak
and Vinubhai Haribhai Malaviya v. State of Gujarat as
noted above and in terms of the observations
contained in the present judgment. The Magistrate
shall take a considered decision expeditiously within a
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period of one month from the date of the present
order."
6. The learned Magistrate accepted Annexure-III
final report as per order dated 25.01.2018, which is
extracted hereunder:
"1. This is a police report filed by Sub Inspector of
Police, Harbour Police Station after conducting further
investigation.
2. Heard the counsel for CW1 and APP on
27.12.2017, I perused the records.
3. On Perusal of this report, I am of the opinion
that investigating officer has complied with the
direction to conduct further investigation. So this
police report is accepted."
7. A perusal of the same would show that, the
learned Magistrate has not considered the dictum laid
down by the Apex Court in Luckose Zachariah's case
(supra). Therefore, I am of the considered opinion that,
the order dated 25.01.2018 of the learned Magistrate
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can be set aside and there can be a direction to the
learned Magistrate to reconsider Annexure-III further
report, in the light of the principle laid down in
Luckose Zachariah's case (supra).
Therefore, this Criminal Miscellaneous Case is
disposed of with the following directions:
1. The order dated 25.01.2018 in CC
No.1258/2015 of the Judicial First Class
Magistrate Court-I, Kochi is set aside.
2. The Judicial First Class Magistrate Court-I,
Kochi is directed to reconsider Annexure-III
further report along with Annexure-I, in the
light of the principle laid down by the Apex
Court in Luckose Zachariah's case (supra).
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
2024:KER:73968
PETITIONER ANNEXURES
ANNEXURE I CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.178/2014 OF HARBOUR POLICE
STATION, KOCHI CITY.
ANNEXURE II TRUE COPY OF THE ORDER DATED 27-01-
2017 IN CC NO.1258/2015 PASSED BY
JUDICIAL MAGISTRATE FIRST CLASS-1
KOCHI.
ANNEXURE III CERTIFIED COPY OF THE SECOND FINAL
REPORT IN CRIME NO.178/2014 OF
HARBOUR POLICE STATION, KOCHI CITY.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
