IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 30TH NOVEMBER 2010 / 9TH AGRAHAYANA 1932 Crl.MC.No. 1467 of 2010() ------------------------------------ CMP.10179/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEDUMANGAD. CRIME NO.174/2007 OF ARYANAD POLICE STATION. .................... PETITIONER(S): ACCUSED 1 TO 3 ------------------------------------------------- 1. V.C.VIJAYAKUMAR, MADHAVA SARAS, KANJIRAMPARA, THIRUVANANTHAPURAM. 2. V.BABUKUMAR, THOPPIL BUNGLOW, RAMNAGAR, NIRAPPIL LANE, PAPPANAMCODE, THIRUVANANTHAPURAM. 3. SHEENA RANI, KOMALAM, HOUSE NO.12, RAMNAGAR, PAPPANAMCODE, THIRUVANANTHAPURAM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.RAJAN VELLOTH SRI.A.S.SABU SRI.PRATHAP PILLAI RESPONDENT(S): STATE & PETITIONER & DEFACTO COMPLAINANT ------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.RAJAPPA KAIMAL, S/O.KARUNAKARA PANICKER, K.P.XI/683, ARABHI VEEDU, CHETTIKUNNU LANE, WARD NO.IV, KADAKAMPALLI VILLAGE, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR SRI.P.A.SALIM R2 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30/11/2010, ALONG WITH CRMC NO. 1468 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.Sasidharan Nambiar, J. ------------------------------- Crl.M.C.Nos.1467 & 1468 of 2010 ------------------------------- COMMON ORDER Petitioners, the accused in Crime Nos.456/2006, registered for the offences under Sections 120B, 201, 379, 406, 465, 467, 468, 471 and 420 read with Section 34 of Indian Penal Code and Crime No. 174/2007, registered for the offences under Sections 120B, 406, 409, 465, 467, 468, 471, 477 and 420 read with Section 34 of Indian Penal Code, of Aryanad Police Station. They filed these petitions under Section 482 of Code of Criminal Procedure to quash Annexure-II order passed by the learned Magistrate for further investigation, by returning the refer report submitted under Section 173(2) of Code of Criminal Procedure. 2. Learned counsel appearing for the petitioners and second respondent, the defacto complainant were heard. CRMC 1467&1468/10 2 3. Annexure-I final reports dated 18.10.2008 were submitted before the Magistrate, as refer reports, by Deputy Superintendent of Police, Narcotic Cell, Thiruvananthapuram Rural. As he is bound to, Magistrate issued notice to second respondent, the defacto complainant. Defacto complainant appeared and filed Annexure-R2(b) objections to the final reports contending that Investigating Officer did not properly investigate the cases. By respective Annexure-II orders, learned Magistrate, accepting the case of the second respondent that there are shortcomings and infirmities in the investigation, returned the refer reports to submit final reports after proper investigation. 4. Argument of the learned counsel appearing for the petitioners, relying on the decision of the Apex Court in Kishan Lal v. Dharmendra Bafna ((2009) 7 SCC 685), is that learned Magistrate should not have ordered further investigation under CRMC 1467&1468/10 3 Section 173(8) of Code of Criminal Procedure without showing on what aspects there was no investigation or deficiencies and what all aspects are to be investigated further. Learned counsel would argue that Magistrate can order further investigation only as provided under Section 173(8) of Code of Criminal Procedure and when Annexure-II order does not show on what aspects further investigation is to be made, the order is to be quashed. 5. Learned counsel appearing for the second respondent pointed out that as held by this Court in Parameswaran Nair v. Surendran (2009 (1) KHC 801), on the Investigating Officer filing a final report under Section 173(2) of Code of Criminal Procedure, Magistrate is competent to return the final report for proper investigation based on the objection filed by the complainant and by Annexure- II order, learned Magistrate returned the final report and there is no reason to interfere with CRMC 1467&1468/10 4 that order. 6.Learned counsel appearing for the petitioners pointed out that even though investigation was conducted by Deputy Superintendent of Police, by Annexure-II order, learned Magistrate directed the Station House Officer to investigate the case and it is highly improper and the threat of the investigation was hanging over the head of the petitioners like a Damocles's sword for the last three years and in such circumstances, without showing any specific reason further investigation should not have been ordered. 7. Sub-section (2) of Section 173 of Code of Criminal Procedure provides that as soon as investigation is completed, the officer in charge of the police station shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. Sub-section (1) of Section 173 provides that every investigation CRMC 1467&1468/10 5 shall be completed without unnecessary delay. Sub- section (8) of Section 173 provides that nothing in the section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). 8. When a final report under sub-section (2) of Section 173 of Code of Criminal Procedure is filed by an officer in charge of the police station, it is for the Magistrate to decide whether that report is submitted after a completed investigation. If the Magistrate finds that report was submitted CRMC 1467&1468/10 6 without a proper and completed investigation, nothing precludes him from returning the final report to submit a completed final report as provided under sub-section (8) of Section 173 of Code of Criminal Procedure. Sub-section (3) of Section 156 of Code of Criminal Procedure enables the Magistrate, empowered under Section 190, to order investigation of a cognizable offence as provided under sub-section (1) of Section 156 of Code of Criminal Procedure. When a refer report is filed, it is not the law that Magistrate is bound by the findings of the Investigating Officer. It is for the Magistrate to decide whether, on the materials furnished by the Investigating Officer after a completed investigation, cognizance could be taken or not. In spite of a refer report submitted by the officer in charge of the police station, if, on the materials furnished, Magistrate is satisfied that cognizance is to be taken, he is competent to take cognizance irrespective of the CRMC 1467&1468/10 7 findings of the Investigating Officer. Similarly, if the Magistrate finds that the conclusion of the Investigating Officer is not acceptable and an inquiry is to be conducted as provided under Section 202 of Code of Criminal Procedure, based on the complaint filed by the defacto complainant and sent for investigation earlier under Section 156(3) of Code of Criminal Procedure, Magistrate is competent to conduct an inquiry as provided under Section 202 of Code of Criminal Procedure. In that inquiry, Magistrate is competent to direct an investigation as provided under Section 202(1) of the Code. Such an investigation is not an investigation as provided under Section 156 of Code of Criminal Procedure. The Honourable Supreme Court in M/s. India Carat Pvt. Ltd. v. State of Karnataka (AIR 1989 SC 885) laid the position absolutely clear as follows: “The position is, therefore, now well settled that upon receipt of a police report under Section 173 CRMC 1467&1468/10 8 (2), a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during investigation and take cognizance of the offence complained of and other issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or 202 also.” The question has been considered in detail by this Court in Parameswaran Nair's case (supra). 9. The position considered by the Honourable Supreme Court in Kishan Lal's case (supra), case is different. In that case, a complaint was filed against nine persons and on investigation, final CRMC 1467&1468/10 9 report was submitted against two accused. A petition was filed before High Court of Madras under Section 482 of Code of Criminal Procedure. The High court, in exercise of the inherent power under Section 482, granted opportunity to the complainant to file a proper petition before the Magistrate incorporating his grievance and the alleged lapses on the part of the investigating agency and seek further investigation and directed the Magistrate to consider the same and if satisfied that a case has been made out, to order further investigation under Section 173(8) of Code of Criminal Procedure. Magistrate though ordered re-investigation, which could not have been passed, as only further investigation could be ordered, did not specifically show the aspects which were omitted to be investigated or warrants further investigation. The Honourable Supreme Court, while considering the power for further investigation under Section 173(8) of Code of Criminal Procedure, CRMC 1467&1468/10 10 held that Investigating Officer may exercise his statutory power to order further investigation in several situations, namely, when new facts come to his notice, when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle keeping in view the fact that new or further materials came to his notice. It was also held that apart from the above grounds, Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. It is to be borne in mind that said observations were made in a case where, based on the final report submitted under Section 173(2) of Code of Criminal Procedure, Magistrate has taken cognizance of the offences against two accused accepting the final report, whereunder, finding of the Investigating Officer that no case is made out against the CRMC 1467&1468/10 11 remaining seven accused was accepted. In such circumstances, their Lordships found that order of the Magistrate does not show in what respect, investigation has not been carried out and what are the hidden truths required to be unearthed. In that case investigation was conducted by two different agencies and by responsible police officers and Investigating Officer was in no way biased towards the complainant. That cannot be equated with a case where a final report was submitted and while considering the question whether final report is to be accepted or not, based on the petition filed by the complainant, Magistrate is satisfied that final report so submitted is not after a completed investigation. If so, Magistrate is competent to return the final report to conduct a proper investigation. 10. True, the impugned order does not say so. But a reading of the order shows that, that is what was intended by the learned Magistrate. When the CRMC 1467&1468/10 12 report, though filed as a final report under Section 173(2) of Code of Criminal Procedure, is found to be submitted before the Magistrate without proper and completed investigation, Magistrate is definitely competent to return the same to submit a proper report under Section 173(2) of Code of Criminal Procedure. In such circumstances, I find no reason to interfere with Annexure-II order. 11. But, there is force in the submission of the learned counsel appearing for the petitioners that as the investigation was conducted by Deputy Superintendent of Police, it was not proper to order further investigation by a Station House Officer, who is far below in rank. Learned Public Prosecutor submitted that subsequent to Annexure-II orders, the case was transferred to CBCID for investigation and it is now being investigated by Inspector, Crime Branch Detective Wing-I, Kesavadasapuram, Thiruvananthapuram. It is made clear that investigation as directed under CRMC 1467&1468/10 13 Annexure-II order shall be by an officer not below the rank of a Deputy Superintendent of Police. It is also necessary to complete the investigation at the earliest and file a final report without delay. Petitions are disposed directing that investigation ordered under Annexure-II orders shall be conducted by an officer, not below the rank of a Deputy Superintendent of Police. It is also made clear that investigation shall be completed expeditiously. At any rate, final reports are to be submitted before the Magistrate within six months from the date of receipt of a copy of this order. 30th November, 2010 (M.Sasidharan Nambiar, Judge) tkv