Kerala High Court
Juliat vs State Of Kerala on 24 October, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.2564 of 2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.MC NO. 2564 OF 2018
AGAINST SC NO.710 OF 2017 OF SPECIAL COURT FOR
THE TRIAL UNDER POCSO ACT, IDUKKI ARISING FROM CRIME
NO.615/2017 OF MUTTOM POLICE STATION, IDUKKI
PETITIONER/DEFACTO COMPLAINANT:
JULIAT
AGED 42 YEARS
W/O.TIMMY MATHEW, PAZHAYIDATH, KUDAYATHOOR
P.O., THODUPUZHA.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM - 682 031,(CRIME
NO.615/2017 OF MUTTOM POLICE STATION,
IUDKKI DISTRICT).
2 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF, IDUKKI
DISTRICT - 686 026.
Crl.M.C. No.2564 of 2018
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BY ADVS.
SRI.THOMAS J.ANAKKALLUNKAL
SMT.MARIA PAUL
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 24.10.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
Crl.M.C. No.2564 of 2018
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P.V.KUNHIKRISHNAN, J.
--------------------------------
Crl.M.C. No.2564 of 2018
----------------------------------------------
Dated this the 24th day of October, 2024
ORDER
Petitioner is the defacto complainant in Crime
No.615/2017 of Muttom Police Station which is now
pending as S.C. No.710/2017 on the file of the
District and Sessions Court (Special Court for POCSO
Act Cases 2012), Thodupuzha. The above case is
charge sheeted alleging offences punishable under
Sections 341 and 506(i) IPC and also under Section
11(1) of the POCSO Act, 2012.
2. The crime was registered based on a
complaint filed by the petitioner before the Special
Court for trial of POCSO Act cases against four
persons. It is alleged that the accused in Crime
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No.615/2017 wrongfully restrained the child of the
petitioner and abused her with vulgar languages.
When this fact was revealed to the petitioner and
her husband, the petitioner filed a complaint before
the police. The statement under Section 164 Cr.P.C.
was recorded by the investigating agency from the
minor child and the final report was filed. Annexure
- I is the final report.
3. After taking cognizance based on the final
report, an application was submitted by one of the
accused before the District Police
Chief/Superintendent of Police, Idukki to conduct a
re-investigation in the matter, is the submission. As
per Annexure - II order, reinvestigation was
ordered. According to the petitioner, the order
passed by the 2nd respondent is without jurisdiction
and there is no provision in the Criminal Procedure
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Code to order reinvestigation. It is also submitted
that the Special Judge was informed about the same
and the Special Judge ordered further investigation.
This Crl.M.C. is filed to quash Annexure - II order
passed by the District Police Chief, Idukki, by which
reinvestigation was ordered.
4. Admittedly, this Crl.M.C. is filed under
Section 482 Cr.P.C. It is doubtful whether Annexure
- II, which is an order passed on administrative side
by the District Police Chief, can be challenged in a
petition filed under Section 482 Cr.P.C. before this
Court. According to the petitioner, Annexure - II
order was passed based on a request from the side
of the accused. In this Crl.M.C. the accused is not
arrayed as a party. For that simple reason also, this
Crl.M.C. can not be entertained against Annexure -
II order.
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5. But, if an additional report is submitted
after further investigation, the same is to be
considered by the court along with Annexure - I
final report in the light of the dictum laid down by
the Apex Court in Luckose Zachariah @ Zak
Nedumchira Luke v. Joseph Joseph and Others
[2022 KHC 6253]. The relevant portion of the above
judgment is extracted hereunder:
"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
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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 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. ( xxxx xxxx xxxx) 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
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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 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."
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6. Once the report after further investigation
is submitted, the jurisdictional court will consider the
same in the light of the dictum laid down by the
Apex Court in Luckose Zachariah's case (supra),
after giving an opportunity of hearing to the
petitioner also.
With the above observation, this Criminal
Miscellaneous Case is disposed of.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
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PETITIONER ANNEXURES
ANNEXURE I TRUE COPY OF THE FINAL REPORT IN SC
NO.710/2017 PENDING ON THE FILE OF
THE SPECIAL COURT FOR THE TRIAL OF
POCSO ACT CASES, THODUPUZHA.
ANNEXURE II CERTIFIED COPY OF THE PROCEEDINGS
DATED 10/01/2018 IN D2/1664/2018
PASSED BY THE DISTRICT POLICE
CHIEF, IDUKKI.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
