LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE AND OTHERS versus JOSEPH JOSEPH AND OTHERS on 18 February 2022

1. Leave granted.

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2. This appeal arises from a judgment of a learned Single Judgeof the High Court of Kerala dated 3 March 2021.

3. On 3 February 2016, FIR 205 of 2016 was registered at policestation Alappuzha North against the appellants for the alleged commissionof offences punishable under Sections 294(b), 323, and 324 read withFSection 34 of the Indian Penal Code 1806. The first appellant was namedas the second accused, the second appellant as the third accused andthe third appellant as the first accused. On 26 September 2016, the Sub-Inspector of police at Alappuzha North police station submitted a reportunder Section 173(2) of the Code of Criminal Procedure 1973 implicatingGthe appellants in the commission of the alleged offences. The case cameto be numbered as CC No 2177 of 2016 before the JFCM Court - I,Alappuzha.

4. The first appellant moved the Superintendent of Police and theIGP complaining of the registration of a false case and sought a furtherHinvestigation in the matter. On 21 February 2017, the Dy SP

(Administration) Alappuzha submitted a report recording that there wereserious flaws in the earlier investigation. On 6 December 2017, the DySP Crime Branch submitted a supplementary report before the court ofthe JFCM Court - I, Alappuzha recommending that the proceedingsagainst the appellants be dropped on the ground that no offence hadbeen established during the course of the further investigation.

5. The first respondent filed a protest petition. By an order dated19 May 2018, the Magistrate dismissed the protest petition for want ofprosecution. On 30 May 2018, the Magistrate accepted the final reportobserving that the protest petition lodged by the complainant had beendismissed.

6. The first respondent at whose behest the FIR was registeredchallenged the order of the Magistrate before the Sessions Court,Alappuzha. Exercising the revisional jurisdiction, the Sessions Judge setaside the order of the Magistrate on 26 October 2019 and directed theMagistrate to take the case on file and proceed further in accordancewith law. While doing so, the Sessions Judge relied on a judgment of aSingle Judge of the High Court of Kerala in Joseph v. Antony Joseph[1].Aggrieved by the order of the Sessions Judge, the appellants moved theHigh Court under Section 482 of the Code of Criminal Procedure. TheHigh Court by its impugned judgment dated 3 March 2021 dismissed thepetition on the following grounds:

(i) The positive and negative reports submitted under the Sub-sections (2) and (8) of Section 173 respectively must beread conjointly to determine if there is prima facie groundfor believing that the accused has committed the offence.The reports do not have a separate existence. This positionis settled by the decision of the Supreme Court in VinayTyagi v. Irshad Ali[2];

(ii) There is no scope for filling a protest petition against a reportunder Section 173(2) or Section 173(8) of the CrPC. Theprotest petition and its dismissal for non-prosecution doesnot have any legal impact; and

(iii) The scope of a protest petition would arise only when boththe reports that is, the final report under Section 173(2)

1 2018 (3) KHC 23

2 (2013) 5 SCC 762

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ACrPC and the supplementary report under Section 173(8)CrPC, are “negative reports”.

7. While entertaining the Special Leave Petition on 13 December2021, the following order was passed by this Court, recording thesubmissions of the appellants:

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B“1Mr R Basant, Senior Counsel appearing on behalf of thepetitioners, has, while placing reliance on the decision ofthis Court in Vinay Tyagi v Irshad Alia alias Deepak(2013) 5 SCC 762, (paragraphs 41 and 42), submitted thatsince a supplementary report under Section 173(8) of theCode of Criminal Procedure 1973 was presented beforeCthe Magistrate after further investigation, the Magistratewould be required to take into account both the report underSection 173(2) as well as the supplementary report and thendetermine as to whether there is any ground for proceeding.However, it has been submitted that on the basis of theDjudgment of the High Court which has been cited in theorder of the Sessions Judge only the report under Section173(2) would be considered while the supplementary reportwould be taken into account at the stage of the trial.

2Issue notice, returnable on 18 February 2022.

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3Counter affidavit, if any, be filed within a period of fourweeks from the date of service.

4Pending further orders, there shall be a stay of furtherproceedings in CC 2177/2016 pending before the JudicialFirst Class Magistrate Court-I, Alappuzha.”

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8. In pursuance of the order issuing notice, the respondents haveappeared in these proceedings. Accordingly, we have heard Mr R Basant,learned senior counsel appearing on behalf of the appellants with MrRaghenth Basant and Dr S Gopakumaran Nair, learned senior counselfor the first respondent with Mr T G Narayanan Nair.

9. The initial report under Section 173(2) CrPC which was submittedbefore the competent court after investigation found that prima facie theappellants were involved in the commission of the offences alleged. Thesubsequent report under Section 173(8) however has come to the conclusionthat the proceedings were liable to be dropped since prima facie no caseinvolving the commission of the offences has been established.

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LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE v. JOSEPH JOSEPH[DR. DHANANJAYA Y CHANDRACHUD, J.]

10. In the judgment of this Court in Vinay Tyagi (supra) it hasbeen held that a further investigation conducted under the orders of thecourt or by the police on its own accord would lead to the filing of asupplementary report. The supplementary report, the Court noted, wouldhave to be dealt with “as part of the primary report” in view of theprovisions of sub-Sections 3 to 6 of Section 173.

11. Section 173(8) specifically provides as follows:

“(8) Nothing in this section shall be deemed to preclude furtherinvestigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where uponsuch investigation, the officer in charge of the police station obtainsfurther evidence, oral or documentary, he shall forward to theMagistrate a further report or reports regarding such evidence inthe form prescribed; and the provisions of sub- sections (2) to (6)shall, as far as may be, apply in relation to such report or reportsas they apply in relation to a report forwarded under sub- section(2).”

12. In terms of sub-Section 8 of Section 173, in the event of afurther investigation, the report has to be forwarded to the Magistrateupon which, the provisions of sub-Sections (2) to (6) shall (as far as maybe) apply in relation to such report or reports as they apply in relation toa report forwarded in sub-section (2). In this backdrop, while interpretingthe above provisions, in Vinay Tyagi (supra) this Court held thus:

“42. Both these reports have to be read conjointly and it is thecumulative effect of the reports and the documents annexedthereto to which the court would be expected to apply its mind todetermine whether there exist grounds to presume that the accusedhas committed the offence. If the answer is in the negative, onthe basis of these reports, the court shall discharge an accused incompliance with the provisions of Section 227 of the Code.”

13. The decision in Vinay Tyagi (supra) was noticed togetherwith other decisions of this Court in the judgment of a three-Judge Benchin Vinubhai Haribhai Malaviya v. State of Gujarat[3]. This Court held:

“42. There is no good reason given by the Court in these decisionsas to why a Magistrate’s powers to order further investigationwould suddenly cease upon process being issued, and an accused 3 (2019) 17 SCC 1

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appearing before the Magistrate, while concomitantly, the powerof the police to further investigate the offence continues right tillthe stage the trial commences. Such a view would not accordwith the earlier judgments of this Court, in particular,Sakiri [SakiriVasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri)440], Samaj Parivartan Samudaya [Samaj ParivartanSamudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3SCC (Cri) 365], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013)5 SCC 762 : (2013) 4 SCC (Cri) 557], and Hardeep Singh[Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State ofPunjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearlyheld that a criminal trial does not begin after cognizance is taken,but only after charges are framed. What is not given anyimportance at all in the recent judgments of this Court is Article21 of the Constitution and the fact that the Article demands noless than a fair and just investigation. To say that a fair and justinvestigation would lead to the conclusion that the police retainthe power, subject, of course, to the Magistrate’s nod under Section173(8) to further investigate an offence till charges are framed,but that the supervisory jurisdiction of the Magistrate suddenlyceases midway through the pre-trial proceedings, would amountto a travesty of justice, as certain cases may cry out for furtherinvestigation so that an innocent person is not wrongly arraignedas an accused or that a prima facie guilty person is not so left out.There is no warrant for such a narrow and restrictive view of thepowers of the Magistrate, particularly when such powers aretraceable to Section 156(3) read with Section 156(1), Section 2(h)and Section 173(8) CrPC, as has been noticed hereinabove, andwould be available at all stages of the progress of a criminal casebefore the trial actually commences. It would also be in the interestof justice that this power be exercised suo motu by the Magistratehimself, depending on the facts of each case. Whether furtherinvestigation should or should not be ordered is within the discretionof the learned Magistrate who will exercise such discretion onthe facts of each case and in accordance with law. If, for example,fresh facts come to light which would lead to inculpating orexculpating certain persons, arriving at the truth and doingsubstantial justice in a criminal case are more important thanavoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi[Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC347 : 2004 SCC (Cri) 1603] . Therefore, to the extent that thejudgments in Amrutbhai Shambhubhai Patel [AmrutbhaiShambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4SCC 177 : (2017) 2 SCC (Cri) 331], Athul Rao [Athul Rao v.State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri)594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State(NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613]have held to the contrary, they stand overruled. Needless to add,Randhir Singh Rana v. State (Delhi Admn.) [Randhir SinghRana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nagv. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129: (2009) 3 SCC (Cri) 1051] also stand overruled.”

14. In the present case, the record before the Court indicates thatupon the submission of the supplementary report, the JFCM Court - I,Alappuzha by an order dated 19 May 2018 dismissed the protest petitionsubmitted by the first respondent for non-prosecution. On 30 May 2018,the JFCM proceeded to accept the supplementary report in terms of thefollowing order:

“It is seen from the records that after further investigation, policehas referred the charge against the accused. Notice was issuedto Defacto Complainant and he filed C.M.P. 155/2018 against therefer charge. The same was dismissed on 19.05.2018 due to nonprosecution. Hence, final report referring the charge as false ishereby accepted. Hence, the further proceedings are dropped.

Hence, the further proceedings in the case dropped.”

15. The Sessions Judge was justified in setting aside the order ofthe Magistrate for the simple reason that after the supplementary reportsubmitted by the investigating officer, the Magistrate was duty bound interms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra),as well as the subsequent three-Judge Bench decision in VinubhaiHaribhai Malaviya (supra) to consider both the original report and thesupplementary report before determining the steps that have to be takenfurther in accordance with law. The Magistrate not having done so, itwas necessary to restore the proceedings back to the Magistrate so thatboth the reports could be read conjointly by analyzing the cumulativeeffect of the reports and the documents annexed thereto, if any, whiledetermining whether there existed grounds to presume that the appellants AB

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Ahave committed the offence. The order of the Sessions Judge restoringthe proceedings back to the Magistrate was correct to that extent. However,the Sessions Judge proceeded to rely upon the decision of a Single Judgeof the Kerala High Court in Joseph (supra), where it was held that:

“7. […] When a positive report under Section 173(2) of Cr.P.C. isBfollowed by a negative report under Section 173(8) Cr.P.C. andcognizance has been taken upon the former report, the magistrateshall proceed with the case ignoring the latter report. But thesupplementary report and the papers connected therewith shall formpart of the record of the case and can be used at the trial. What Ishould do is to dispose of the Crl.M.C. making this position clear.”C16. In view of the clear position of law which has been enunciatedin the judgments of this Court, both in Vinay Tyagi (supra) and VinubhaiHaribhai Malaviya (supra), it is necessary for the Magistrate, to havedue regard to both the reports, the initial report which was submittedunder Section 173(2) as well as the supplementary report which wasDsubmitted after further investigation in terms of Section 173(8). It isthereafter that the Magistrate would have to take a considered view inaccordance with law as to whether there is ground for presuming thatthe persons named as accused have committed an offence. While theHigh Court has relied upon the decision in Vinay Tyagi (supra), itEbecomes necessary for this Court to set the matter beyond anycontroversy having due regard to the fact that the Sessions Judge in thepresent case had while remitting the proceedings back to the Magistraterelied on the judgment of the Single Judge of the Kerala High Court inJoseph (supra) which is contrary to the position set out in Vinay Tyagi.Hence, the JFCM – I Alappuzha shall reexamine both the reports inFterms of the decisions of this Court in Vinay Tyagi vs Irshad Ali aliasDeepak and Vinubhai Haribhai Malaviya vs State of Gujarat as notedabove and in terms of the observations contained in the present judgment.The Magistrate shall take a considered decision expeditiously within aperiod of one month from the date of the present order.

G17. The appeal shall stand disposed of accordingly in the aboveterms.

18. Pending applications, if any, stand disposed of.

Devika GujralH(Assisted by : Mahendra Yadav, LCRA)