IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 Crl.Rev.Pet.No. 4005 of 2007() ------------------------------ CC.427/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- RASHEED, S/O.ABU, NOONIYIL HOUSE, AYINOOR AMSOM, PAZHANJI, THRISSUR DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, KUNNAMKULAM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRRP 4005/2007 ORDER ON C.MA. 11753 OF 2007 IN CRL.R.P.4005 OF 2007 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 15.1.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO.4005 OF 2007 -------------------------------------------------- Dated this the 15th day of January, 2009 O R D E R When cognizance is taken on the final report filed by the police under section 173(2) of Code of Criminal Procedure against more than one accused and later a report is filed under section 173(8) of Code of Criminal Procedure, after further investigation, stating that one of the accused against whom cognizance was taken is not involved in the offence, whether the case against him is to be dropped forthwith or whether the Court has to consider on the materials he is to be discharged or charge is to be framed against him. This is the question to be settled in this revision petition filed under section 397 and 401 of Code of Criminal Procedure. 2. Facts are not complicated. A final report dated 25.3.2004 was filed under section 173(2) of Code of Criminal Procedure by Sub Inspector of Police. Judicial First Class Magistrate, Kunnamkulam took cognizance of the offence under section 435 read with section 34 of Indian Penal Code against CRRP 4005/2007 2 four accused. Revision petitioner was the fourth accused. C.M.P.6162 of 2004 was later filed by the Sub Inspector seeking permission for further investigation. Permission was granted. In the course of further investigation Sub Inspector filed a report to the effect that revision petitioner was not involved in the incident and he is to be deleted and case is to be investigated as against the remaining three accused. Court received the report filed under section 173(8) of Code of Criminal Procedure on 4.10.2004. It is seen from the records that no order was passed on the report. Instead summons was issued to the accused and on 16.11.2004 non bailable warrant was issued against accused 1 to 3. On 15.3.2005, accused 1 and 2 appeared. Non bailable warrant and steps under section 82 and 83 of Code of Criminal Procedure as against third accused was ordered. On 24.6.2005 the case was posted for framing charge. Till then revision petitioner did not appear. On 4.8.2006 learned Magistrate passed an order stating that though as per the further report revision petitioner, is to be deleted, as cognizance of the offence is taken based on the final report even against revision petitioner, he cannot be deleted and directed issuance of CRRP 4005/2007 3 summons to the revision petitioner. That order is challenged in this revision contending that when the report filed under section 173(8) show that revision petitioner is not involved in the offence, summons cannot be issued. 3. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 4. The argument of the learned counsel is that even though cognizance was taken by the learned Magistrate on the final report filed under section 173(2) of Code of Criminal Procedure, sanction was granted to the investigating officer for further investigation and a further report is filed under section 173(8) of the Code of Criminal Procedure finding that revision petitioner is not involved in the offence, and in such circumstances learned Magistrate was not justified in issuing summons to the revision petitioner and instead revision petitioner should have been deleted from the party array as stated in the further report and the order is illegal. The learned counsel argued that when a further report as provided under section 173(8) of Code of Criminal Procedure is filed by the investigating officer, Court is bound to proceed as if it is the CRRP 4005/2007 4 report submitted under section 173(2) of Code of Criminal Procedure and when as per the further report revision petitioner is not involved in the offence, proceedings taken earlier as against the revision petitioner should have been dropped and there is no justification for issuing summons. Relying on the decision of a learned Single Judge of this Court in State Vs. Gopakumar (1988 (1) KLT 924) it was argued that when a further report is filed under section 173(8) of Code of Criminal Procedure, Magistrate can either refuse to accept the report or based on the report can take cognizance against a person who was not so far arrayed as an accused for all or some of the offences stated in the further report and what action is to be taken on the further report in such a situation is the discretion of the Magistrate and without deciding what action is to be taken on the further report under section 173(8), issuance of summons to the revision petitioner is illegal. Learned counsel also argued that cognizance is taken not against the offenders but against the offence and therefore fact that cognizance was taken on the final report filed under section 173(2) of Code of Criminal Procedure, will not disentitle the Magistrate from dropping CRRP 4005/2007 5 further proceedings as against the revision petitioner, when the further report establish that revision petitioner is not involved in the offence. Learned counsel also argued that even if the further report is not accepted by the learned Magistrate, in the light of the final report revision petitioner is to be discharged and an opportunity may be granted to the revision petitioner to move a petition for discharge under section 239 of Code of Criminal Procedure and presence of the revision petitioner may not be insisted at that stage. 5. It is not disputed that based on the report filed under section 173(2) of Code of Criminal Procedure, Magistrate has taken cognizance of the offence and issued summons to all the four accused, including the revision petitioner. On the request of the investigating officer, permission was granted for further investigation. A final report after further investigation as provided under section 173(8) of Code of Criminal Procedure was subsequently submitted by the Sub Inspector stating that revision petitioner is not involved in the offence. The question is whether for the reason that a further report is filed under section 173(8) disclosing that revision petitioner is not involved CRRP 4005/2007 6 in any offence the proceedings as against the revision petitioner is to be dropped as canvassed by the learned counsel. The fact that sanction was granted for further investigation, does not mean that the cognizance taken on final report originally submitted by the investigating officer under section 173(2) was either set aside or effaced from the records. To appreciate the true ambit and scope of sub section 8 of section 173 of the Code, the exact provision is to be seen. The sub section reads: “(8). Nothing in this 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, where upon 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, CRRP 4005/2007 7 apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” 6. When a further report is filed under section 173(8) of Code of Criminal Procedure, it is for the Magistrate to decide whether the further report is to be accepted or not. The discretion is that of the Magistrate. Based on the final report, including the report originally filed under section 173(2) of the Code and the materials produced along with the final report it is for the Magistrate to decide whether the further report as such is to be accepted and a person who was not earlier arrayed as an accused is to be proceeded against on all or some of the offences as stated in the final report filed under section 173(8). Therefore for the sole reason that a further report is filed under section 173(8) to the effect that one of the accused, against whom cognizance was taken earlier based on the report filed under section 173(2) is not involved in the offence, proceedings taken cannot be dropped. Once process was issued under section 204 of the Code finding that there is sufficient ground to proceed against, then he can be discharged only as provided CRRP 4005/2007 8 under sub sections 1 or 2 of section 245 of the Code. So also when cognizance is taken upon a police report as provided under section 190(1)(b) of the Code, in the case of an offence which is to be tried on a warrant trial case, he can be discharged only as provided under section 239 of the Code. There cannot be an automatic dropping of the case as against the revision petitioner on receipt of a final report under section 173(8) of the Code. 7. If the accused has a case that in view of the further report submitted under section 173(8) he cannot be further prosecuted, his remedy is to file a petition for discharge under section 239. So long as the opinion of the investigating officer is not binding on the Court and the Magistrate can accept or reject the findings of the police, revision petitioner is not entitled to contend that proceeding against him after the receipt of the report under section 173(8) is illegal. Therefore for the reason that a further report is filed to the effect that revision petitioner is not involved in the offence, he is not entitled to contend that the proceedings as against him cannot be continued. True when a final report is filed, the Magistrate is bound to consider the report and decide whether the report is to be accepted as such CRRP 4005/2007 9 or with modification or to be rejected. But once cognizance of the offence is taken and process is issued unless he is discharged as provided under section 239 of Code of Criminal Procedure, the Magistrate is bound to continue the proceedings. In such circumstances when the accused did not appear, the Magistrate was justified in issuing summons to the revision petitioner. When the accused appears or is brought before him, Magistrate has to satisfy as provided under section 238 of the Code that he has complied with the provisions of section 207. Therefore the Magistrate is bound to consider the police reports the one filed under section 173(2) as well as under section 173(8) and decide whether the charge against the accused is groundless or not. If groundless against the revision petitioner, he is to be discharged under section 239 of the Code. On the other hand, if he is of the opinion that there is ground for presuming that the accused has committed an offence, charge is to be framed as provided under section 240(1) of the Code. Revision petitioner is permitted to move an application for discharge under section 239 of the Code of Criminal Procedure. If such an application is filed, the Magistrate has to hear that application along with the further CRRP 4005/2007 10 report and pass orders in accordance with law. If an application is filed to dispense the presence of the revision petitioner at the time of hearing of the application, learned Magistrate not to insist for the personal presence of the revision petitioner. M. SASIDHARAN NAMBIAR, JUDGE okb