IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 29836 of 2005(B) -------------------------- CP.61/2005 of J.M.F.C.,VARKALA .................... PETITIONER: ------------ 1. SAJEEV, KUNNUMPURATHU HOUSE, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. 2. VANCHU KAMAL, MANJU VILLA, KADAKKAL P.O., KOLLAM DISTRICT. 3. AKHIL, AERAL HOUSE, MUDIYAKOD DESOM, CHERUNNIYOOR VILLAGE, ALOOMMOOD. 4. SUGANTHI, MANJU VILLA, KADAKKAL P.O., KOLLAM DISTRICT. 5. SALILA, AERAL HOUSE, MUDIYAKOD DESOM, CHERUNNIYOOR VILLAGE, ALOOMMOOD. 6. AMRITHA, D/O.SALILA, DO.DO. BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR SRI.K.P.UNNIKRISHNAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. 2. THE SUPERINTENDENT OF POLICE(RURAL), TRIVANDRUM. 3. THE CIRCLE INSPECTOR OF POLICE, VARKALA. 4. ASHOKAN, AERAL VEEDU, PRALAYAGIRI, THOKKAD P.O., VARKALA. 5. K.YESODA, PUNNATHOPPUVILA VEEDU, VADASSERIKONAM, MUDIYAKODU DESOM, CHERUNNIYOOR VILLAGE, ALLOOMOD. BY ADV. SRI.N.DHARMADAN (SR.) FOR R4 SRI.M.R.SABU FOR R4 GOVERNMENT PLEADER SRI.AMJAD ALI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.29836 of 2005 ---------------------------------------- Dated this the 28th day of August 2008 J U D G M E N T The petitioners face indictment in a sessions case alleging offences punishable inter alia under Section 307 I.P.C. They have come to this court now with this petition under Article 226 of the Constitution of India to quash the final report submitted against them by the police after conducting a further investigation under Section 173(8) Cr.P.C. 2. The fourth respondent is the husband of the fifth petitioner. The first petitioner is the brother of the fifth petitioner. Petitioners 3 and 6 are the children of fourth respondent and the fifth petitioner. The fourth petitioner is the sister of the fifth petitioner. The second petitioner is the son of the fourth petitioner. The fifth respondent is the sister of the fourth respondent. The fourth respondent, it is said, was employed abroad earlier. He came back to India and thereafter there were certain disputes between him on the one side and his wife and children as also his brother-in-law and sister-in-law on the other. Bitter animosity appears to have existed between the rival contestants. W.P.C.No.29836/05 2 3. An incident took place on 08/04/2002 at about 3 p.m. The petitioner filed a complaint before the police on 08/04/2002 itself at about 6.30 p.m alleging the commission of offences punishable under Sections 343, 323, 324 and 451 read with 34 I.P.C. Petitioners 1,2 and 3 herein were arrayed as accused. It was alleged that on account of animosity arising from disputes between the fourth respondent and petitioners 1,2 and 3, they had trespassed into the house of the fourth respondent and indulged in culpable and contumacious conduct against the fourth respondent. That crime was registered as crime No.174/2002. Investigation was conducted into that crime. 3. While so, the fifth respondent approached the learned Magistrate with a private complaint alleging that in the same incident she and her daughter had also suffered injuries. That complaint filed before the learned Magistrate was referred to the police under Section 156(3) Cr.P.C and the police registered crime No.334/2002 on 04/07/2002 on the basis of the said private complaint referred to the police. In that private complaint, all the six petitioners were arrayed as accused. Police commenced investigation in that crime also. Ext.P1 is the F.I.R W.P.C.No.29836/05 3 in crime No.174/2002 on Varkkala police station and Ext.P2 is the F.I.R in the later crime 334/2002 of the same police station. Ext.P3 is the private complaint on the basis of which Ext.P2 F.I.R was registered. In the meantime, the parties had come to this court with complaints about police harassment and for police protection. Exts.P4 and P5 are judgments of this court in such petitions. In Ext.P5 order under which two writ petitions were disposed of by a common judgment, there was a direction to the Director General of Police to see that the investigation is conducted properly. 4. It would appear that investigations into crime Nos.174 and 334 of 2002 was conducted parallelly by the police and they filed final reports after completing the investigations in those crimes. In crime No.174/2002, final report was filed alleging commission of offences punishable under Sections 341,323 and 324 read with 34 I.P.C against petitioners 1 to 3. On that final report, cognizance was taken and the case was registered as C.C.No.471/03. In crime 334/02, investigation was completed and the final report was filed alleging offences punishable under Sections 341, 323,324 and Section 326 read with 34 I.P.C W.P.C.No.29836/05 4 against all the petitioners. Cognizance was taken and all the petitioners were arrayed as accused in C.C.No.23/03. 5. While those final reports were filed and the matter was pending before the learned Magistrate, the Superintendent of Police who was addressed by the Circle Inspector of Police realised the need to conduct further investigation into both these crimes. Accordingly, Ext.P9 order was passed directing conduct of further investigation under Section 173(8) Cr.P.C after clubbing both these crimes. On the basis of that order, further investigation was undertaken by the Circle Inspector of Police, Varkkala who submitted Ext.P10 report to the learned Magistrate informing the Magistrate that further investigation was being conducted. The learned Magistrate, in these circumstances, did not proceed further with C.C.Nos.23/03 and 471/03. After completing the further investigation under Section 173(8) Cr.P.C, a further report was submitted by the investigating officer . That was a consolidated further report in crime No.174/02 as well as crime No.334/02. On the basis of that final report in supersession of the two final reports filed earlier, the learned Magistrate took cognizance of offences W.P.C.No.29836/05 5 punishable under Sections 143, 147, 148, 149, 341, 347, 294B, 323, 324, 326, 452 and 307 I.P.C. Further proceedings are continuing on the basis of such final report. Cognizance has been taken and committal proceedings 61/05 has been registered on the basis of such consolidated further report submitted under Section 173(8) Cr.P.C. The petitioners now face the prospect of the case against them being committed to the court of Session. 6. The learned counsel for the petitioners contends that the course adopted by the police is not justified. Consolidation and clubbing of the two crimes was unjustified, it is first of all urged. I find no merit in this contention at all. To me, it appears that going by the averments and allegations in the two crimes, that is crime Nos.174/02 and 334/02, the investigating officer, even at the earlier stage, must have realised the need to consolidate the allegations and proceed with a consolidated investigation in those two crimes. The fact that the investigating officer did not do the same earlier and instead chose to file separate final reports leading to separate cognizance being taken by the learned Magistrate is, according to me, no reason to W.P.C.No.29836/05 6 fault the later procedure followed for conducting a further investigation under Section 173(8) Cr.P.C and to submit a consolidated final report. Even from the point of view of the accused, I am of the opinion that such filing of consolidated final report was necessary, just, fair and reasonable. Otherwise, they would have been compelled to face two separate prosecutions in respect of the same incident. I do take note of the additional allegations raised in crime No.334/02 over and above what have been raised in crime No.174/02. Whether such conditions are justified or not, may have to be considered later at the appropriate stage. But there can be no semblance of a doubt that the allegations raised in crime Nos.174 and 334 of 2002 relate to the same integral incident. Submission of two separate final reports in respect of same allegations that are raised in the two crimes was, according to me, unjustified and improper. That the investigating officer made the consolidation later after further investigation under Section 173(8) Cr.P.C, is according to me, no reason to fault the course adopted by the investigating officer . The contention laboriously raised before me that the consolidation and clubbing of the allegations in two different W.P.C.No.29836/05 7 crimes by the further final report is not justified, is according to me, not acceptable at all. 7. Now comes the next contention that the inclusion of the allegation under Section 307 I.P.C is not justified. The learned counsel for the petitioners contends that neither in the F.I.S in crime No.174/02 nor in crime No.334/02, there is any allegation justifying the inclusion of the charge under Section 307 I.P.C. I do take note of the fact that even in the separate final reports filed earlier, the allegation under Section 326 I.P.C was raised in the final report filed in crime No.334/02. I do not intend to embark on a more detailed discussion as to whether the allegation under Section 307 I.P.C is justified or not on facts. Suffice it to say that the mere fact that such a further allegation is included in the consolidated further final report submitted under Section 173(8) Cr.P.C is, according to me, not sufficient to persuade this court now to invoke the extraordinary Constitutional jurisdiction under Article 226 of the Constitution of India. 8. The above observations may not be reckoned as giving an imprimatur of approval for the allegations raised under W.P.C.No.29836/05 8 Section 307 I.P.C. Far from that I intend only to observe that the petitioners must raise the contention before the Sessions Court at the stage of Section 227/228 Cr.P.C that charges are not liable to be framed under Section 307 I.P.C. If that contention were accepted by the Sessions Court , necessarily action will have to be taken under Section 228(i)(a) Cr.P.C and the trial will have to be conducted only before the learned Chief Judicial Magistrate. That question will have to be decided by the Sessions Court and I intend to express no opinion on that aspect. Needless to say, the Sessions Court will have to consider the final report and all other materials placed before it at the stage of Section 227/228 Cr.P.C to arrive at a proper decision on that question. 9. The learned counsel for the petitioner further submits that there has been significant additions and embellishment in the private complaint filed by the fifth respondent who is only a name lender for the fourth respondent and such allegations are raised in the private complaint belatedly after long lapse of time. This again is an aspect which can be raised before the court which takes up the matter for trial at the appropriate stage. Merely on the ground of delay in raising the allegations which W.P.C.No.29836/05 9 were raised in the private complaint, I am of the opinion that the consolidated final report submitted under Section 173(8) Cr.P.C cannot be set aside. 10. In the result, a) This writ petition is dismissed. b) I may however hasten to observe that I have not intended to express any opinion on the question whether the inclusion of the allegation under Section 307 I.P.C is justified or not. That question will have to be considered by the learned Sessions Judge at the appropriate stage - at the stage of Section 227/228 Cr.P.C or later. (R.BASANT, JUDGE) jsr W.P.C.No.29836/05 10 W.P.C.No.29836/05 11 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007