IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 Crl.MC.No. 1724 of 2006() ------------------------- CC.981/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT, KOLENCHERRY .................... PETITIONER/ACCUSED NO.1: ------------------------------------------ SABU M.JACOB, S/O.M.C.JACOB, MEKKAM KUNNEL, VILANGUKARA, KIZHAKKAMBALAM, KUNNATHUNADU. BY ADV. MR.B.RAMAN PILLAI MR.GEORGE PHILIP MR.R.ANIL MR.RAJU RADHAKRISHNAN MR.ANIL K.MOHAMMED MR.DELVIN JACOB MATHEWS RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.B. VINOD. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/08/2009, ALONG WITH CRMC NO. 1725 OF 2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------------------- CRL.M.C.NOs.1724/06 & 1725/06 200 ------------------------------------------------------ Dated 7th August 2009 O R D E R Petitioner is the first accused in C.C.981/2001 and C.C.8/2002 on the file of Judicial First Class Magistrate, Kolencherry. C.C.981/2001 was taken cognizance for the offence under Sections 143, 147, 148, 452, 435 and 427 read with Section 149 of Indian Penal Code. There were originally eleven accused in that case. Cognizance was taken on the final report submitted under Section 173(2) of Code of Criminal Procedure. Petitioner filed O.P.3567/2002 for a further investigation of the case contending that there was no proper investigation. As per Annexure-A judgment, this court directed further investigation of crime Nos.248/2000, 249/2000, 250/2000, 115/2001, 116/2001, 117/2001, 118/2001 and 119/2001. Thereafter, final report was filed under Section 173(8) whereunder original accused 1,4 and 6 were found to be not involved in the offences and in their place three new accused were substituted. Under CRMC 1724 & 1725/06 2 Annexure-C order learned Magistrate following the decision of the Apex court in Adalath Prasad v. Rooplal Jindal (2004(3) KLT 382) held that as cognizance was already taken against the petitioner and accused 4 and 6, case is to be proceeded as against them also. Crl.M.C.1724/2006 is filed to quash that order contending that in the light of the final report, after further investigation under Section 173(8) of Code of Criminal Procedure, petitioner cannot be prosecuted further. 2. C.C.8/2002 was taken cognizance on the final report submitted in Crime No.117/2001 of Kunnathunadu police station for the offence under Sections 143, 147, 148, 323, 324, 452 and 427 read with Section 149 of Indian Penal Code. While so, petitioner filed O.P.3567/2002 referred to earlier and this court directed further investigation in Crime No.117/2001 also. Subsequent to the further investigation under Section 173(8) of Code of Criminal Procedure a report was filed by the investigating officer stating that accused 1,4,6 and 9 are not involved and instead offence was committed by four other accused persons. Under Annexure-C order learned Magistrate holding that as CRMC 1724 & 1725/06 3 cognizance was taken against petitioner, accused 4,6 and 9, case is to be proceeded against them also. That order is challenged in Crl.M.C.1725/2006. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. Based on the investigation final report was filed under Section 173(2) of Code Criminal Procedure in Crime 119/2001 and crime 117/2001. After learned Magistrate has taken cognizance of the offence against accused shown in the final report, petitioner being the first accused in both the crimes approached this court complaining about unfair and biased investigation and filed O.P.3567/2002. This court accepting the case of the petitioner directed further investigation. Subsequent to further investigation reports were filed before the learned Magistrate in both cases. As per final report in crime 119/2001 which was taken cognizance as C.C.981/2001, investigating officer reported that out of the original accused, accused 1, 4 and 6 are not involved and instead it was committed along with other accused, three other persons who are also shown as accused in the final report. In the final report submitted in crime 117/2001 which was taken CRMC 1724 & 1725/06 4 cognizance as C.C.8/2002, Investigating officer stated that instead of accused 1,4, 6 and 9 offence was committed along with other accused by four others who are shown as accused in the final report. Question is in the light of final report what is the procedure to be adopted. 5. Once cognizance was taken learned Magistrate has no jurisdiction to undo the cognizance taken. Learned Magistrate after taking cognizance, if charge is not framed can discharge the accused under Section 239 of Code of Criminal Procedure if it is a warrant trial on a police report. If charge was framed thereafter learned Magistrate cannot discharge the accused and could only be acquitted after evidence. But that will not prevent this court from quashing the case as against those accused who were found to be not involved in the offences based on final report. That exactly is the case herein. Even though learned Magistrate based on original final report submitted under Section 173(2) of Code of Criminal Procedure, had taken cognizance as against all the accused then shown in the final report, as directed by this court a further investigation was conducted and on the basis of further CRMC 1724 & 1725/06 5 investigation it is found that accused 1,4 and 6 in C.C.981/2001 and accused 1,4,6 and 9 in C.C.8/2002 are not involved in the case. In such circumstances, even if petitioner and other accused who were found to be not involved in the cases are to be tried, they cannot be convicted in the light of the final report. Therefore, it is not in the interest of justice to continue the proceedings as against them. Petitions are allowed. Case as against petitioner, the first accused and accused 4 and 6 in C.C.981/2001 and petitioner and accused 4,6 and 9 in C.C.8/2002 on the file of Judicial First Class Magistrate, Kolencherry are quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.