Kerala High Court
Dr. Mohanan.B.P vs State Of Kerala on 17 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.6519 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946
CRL.MC NO. 6519 OF 2018
CRIME NO.303/2016 OF HOSDURG POLICE STATION, KASARGOD
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1284 OF
2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,HOSDRUG
PETITIONERS/ACCUSED NOS.1 & 2:
1 DR. MOHANAN.B.P
AGED 59 YEARS, S/O PURUSHOTHAMAN,
KAUSTHUBHAM, LAKSHMI NAGAR, ALAMPALLY,
KANHANGAD, HOSDURG, KASARGOD DISTRICT.
2 ROHITH MOHAN
AGED 21 YEARS, S/O. MOHANAN, KAUSTHUBHAM
LAKSHMI NAGAR, ALAMPALLY, KANHANGAD,
HOSDURG, KASARAGOD DISTRICT
BY ADVS.
GRASHIOUS KURIAKOSE (SR.)
GEORGE MATHEWS
T.T.RAKESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
Crl.M.C. No.6519 of 2018
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HIGH COURT OF KERALA, ERNAKULAM.
2 SAROJINI K.,
AGED 56 YEARS, W/O. MADHAVAN V., 55/16
LAKSHMI NAGAR, ALAMPALLY, S.M. NIVAS,
HOSDURG, KASARAGOD DISTRICT - 671 121
BY ADV:
SRI.RENJITH.T.R, SR.PP
SRI.A.ARUNKUMAR - R2
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 17.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.6519 of 2018
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.6519 of 2018
-----------------------------------------
Dated this the 17th day of October, 2024
ORDER
This Criminal Miscellaneous Case is filed to quash
the proceedings in CC No.1284/2016 pending before
the Judicial First Class Magistrate Court-I, Hosdurg,
arising from Crime No.303/2016 of Hosdurg Police
Station. The above case is charge sheeted alleging
offences punishable under Sections 294(b), 323, 341,
354, 506(i) r/w 34 of IPC.
2. The petitioners are accused Nos.1 and 2 in
the above case. The said case was instituted based on
a first information statement given by the 2 nd
respondent on 26.03.2016 before the Hosdurg Police.
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Based on the same, Annexure-I FIR was registered.
After investigation is over, final report was filed as
evident by Annexure-II, alleging offences punishable
under Sections 341, 323, 294(b), 506(i) r/w 34 of IPC.
According to the petitioners, the allegation against the
petitioners are false and manipulated.
3. It is submitted that a further investigation
was conducted in this case and a supplementary final
report under Section 173(8) Cr.P.C. was filed by the
Police and it is stated that, it is a refer report.
Annexure-III is the refer report. In Annexure-III refer
report, it is stated that the 2 nd respondent and her
husband were engaged in verbal spat with the
petitioners with respect to a disputed pathway and no
assault and injury occurred pursuant to the said
incident. When Annexure-III refer report was filed, the
learned Magistrate rejected the same as per order
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dated 17.08.2018, which is evident from Annexure-IV
proceeding sheet. Thereafter, the accused is directed
to appear. Aggrieved by the same, this Criminal
Miscellaneous Case is filed.
4. Heard the learned counsel appearing for the
petitioners and the learned Public Prosecutor. I also
heard the counsel appearing for the defacto
complainant.
5. The short point raised by the petitioners is
that, originally the case is charge sheeted and
subsequently after further investigation, it is found that
the matter is false and a refer report is filed. According
to the petitioner, if a further report is filed after further
investigation, the learned Magistrate has to consider
the refer report along with the original report and
thereafter decide whether the case is to be proceed or
not. I think, there is force in the above argument. The
Apex Court considered this point in detail in Luckose
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Zachariah @ Zak Nedumchira Luke v. Joseph
Joseph and Others (2022 KHC 6253). It will be better
to extract paragraph Nos.15 and 16 of 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
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presume that the appellants have committed the
offence. The order of the Sessions Judge restoring the
proceedings back to the Magistrate was correct to
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
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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 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
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noted above and in terms of the observations
contained in the present judgment. The Magistrate
shall take a considered decision expeditiously within a
period of one month from the date of the present
order."
6. In the light of the dictum laid down by the
Apex Court in Luckose Zachariah's case (supra), I am
of the considered opinion that the order dated
17.08.2018 in Annexure-IV proceedings is to be set
aside and the matter is to be reconsidered by the
learned Magistrate in the light of the two reports.
Therefore, this Criminal Miscellaneous Case is
allowed in the following manner:
1. The order dated 17.08.2018 in CC
No.1284/2016 on the file of Judicial First
Class Magistrate Court-I, Hosdurg, as evident
by Annexure-IV is set aside.
2. The learned Magistrate is directed to
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reconsider the matter in the light of
Annexure-II and Annexure-III and also in the
light of the principle laid down by the Apex
Court in Luckose Zachariah's case (supra).
Sd/-
P.V.KUNHIKRISHNAN
nvj JUDGE
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PETITIONER ANNEXURES
ANNEXURE 1 A TRUE COPY OF THE FIR AND FIS IN
CRIME NO 303/2016 OF HOSDURG POLICE
STATION KASARAGOD.
ANNEXURE II A TRUE COPY OF THE FINAL REPORT/
CHARGE SHEET U/S 173 (2) CRPC IN
CRIME NO. 303/2016 OF HOSDURG POLICE
STATION FILED BEFORE JUDICIAL FIRST
CLASS MAGISTRATE COURT-1
ANNEXURE III A TRUE COPY OF THE SUPPLEMENTARY
FINAL REPORT U/S. 173 (8) CRPC IN
CRIME NO. 303/2016 OF HOSDURG POLICE
STATION FIELD BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-1
HOSDURG
ANNEXURE IV A TRUE COPY OF THE PROCEEDING SHEET
WITH RESPECT TO CC NO 1284/2016
PENDING BEFORE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I HOSDURG
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
