IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.MC.No. 713 of 2011() ------------------------ CP.82/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, HOSDURG ................ PETITIONERS - ACCUSED NOS. 1, 4, 5, 6, 7 AND 8 : ------------------------------------------------------------------------ 1. A.IBRAHIM, S/O.M.KADER, MUNAMBAM HOUSE, AMBALATHARA, PULLUR VILLAGE, KASARAGOD DISTRICT. 2. V.RATHEESH, S/O.KRISHNAN, ANJAMVAYAL HOUSE, MOONNAM MAILE, PULLUR GRAMAM, KASARAGOD DISTRICT. 3. T.K.NOUSHAD, S/O.KAMMU, THANKAYATH HOUSE, BATHERI, AMMAYIPPARA, WYNAD DISTRICT. 4. ABDULLA, S/O.IBRAHIM, MADIYAN HOUSE, AJANUR GRAMAM, KASARAGOD DISTRICT. 5. V.M.SALIM, S/O.MUHAMMED, VATTAPARAMBIL HOUSE, CHELAKKARA, TRICHUR NOW AT AMBALATHARA, PULLUR VILLAGE, KASARAGOD DISTRICT. 6. M.IBRAHIM @ IRACHI IBRAHIM, S/O.K.M.ABDUL SALAM, PARAPPALLI HOUSE, AMBALATHARA, PULLUR VILLAGE, KASARAGOD. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT / STATE : ----------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI – 31. BY PUBLIC PROSECUTOR SRI. JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.713 of 2011 ==================================== Dated this the 13th day of June, 2011 O R D E R Petitioners are accused 1 and 4 to 8 in Crime No.62 of 2009 of Rajapuram Police Station, C.P. No.82 of 2008 of the court of learned Judicial First Class Magistrate-I, Hosdurg and S.C. No.338 of 2009 of the court of learned Additional Sessions Judge (Adhoc-II), Kasargod for offences punishable under Sections 143, 147, 148, 326 and 316 read with Sections 120(b) and 149 of the Indian Penal Code. The original investigating agency submitted final report against 10 accused alleging that accused 9 and 10 conspired with accused 1 to 8 in the commission of the offence. While the matter was pending in court Investigating Officer sought permission for further investigation which was granted. He submitted a further report after further investigation stating that accused 9 and 10 are not involved in the alleged conspiracy and commission of offence. The investigating agency requested that accused 9 and 10 may be deleted from the array of accused. Learned Magistrate committed the case to the court of Sessions against all accused (including accused 9 and 10) for trial as per Annexures III and IV, orders. Those orders were challenged by CRL.M.C. No.713 of 2011 -: 2 :- accused 9 and 10 in Crl. M.C. No.355 of 2010 in this Court. This Court as per Annexure-V, order dated May 19, 2010 allowed that petition to the extent it concerned accused 9 and 10. Learned Sessions Judge took cognizance of the offence against accused 1 to 8 and filed S.C. No.338 of 2009. 2. Accused 1 and 4 to 8 contend that committal against them is bad as it was on the basis of the original final report. It is contended that in the light of subsequent report filed by the Investigating Officer under Section 173(8) of the Code of Criminal Procedure (for short, “the Code”) the same should be treated as final report for all purposes. Learned counsel contended that when committal is made under Sec.209 of the Code accused are entitled to get copies of all relevant documents and petitioners are not given notice of further investigation conducted by the investigating agency and hence also the investigation is bad. Learned counsel has invited my attention to the observations in Annexure-V, order passed by this Court in Crl. M.C. No.355 of 2010 that for all practical purposes report filed under Sec.173(8) of the Code must be treated as the final report. I have heard learned Public Prosecutor also. Learned Public Prosecutor submitted that Annexure-II, report filed under Sec.173(8) of the Code concerned only alleged involvement of accused 9 and 10 CRL.M.C. No.713 of 2011 -: 3 :- and it has nothing to do with the final report against petitioners. 3. Section 173(8) of the Code deals with the power of police to investigate further notwithstanding submission of report under Sec.173(2) of the Code and says that provisions of sub-secs. (2) to (6) shall as far as may apply in relation to such report or reports as they apply in relation to a report forwarded under sub-sec. (2) of Sec.173 of the Code. In Annexure-V this Court observed that since after further investigation under Sec.173(8) of the Code accused 9 and 10 were deleted, that report should be treated as the final report under Sec.173(2) of the Code. That observation was made in a situation where accused 9 and 10 challenged their committal based on the original final report notwithstanding Annexure- II, report submitted after further investigation. Certainly, so far as accused 9 and 10 were concerned, report submitted after further investigation under Sec.173(8) of the Code should be treated as final report since that report stated that accused 9 and 10 are not involved in the alleged incident. It is in the said circumstance that this Court observed in Annexure-V, order that report submitted under Sec.173(8) of the Code (stating that accused 9 and 10 are not involved in the alleged incident) must be treated as final report under Sec.173(8) of the Code (obviously in respect of accused 9 and 10). It CRL.M.C. No.713 of 2011 -: 4 :- is relevant to note from Annexure-II, report that it makes no mention about the (alleged) involvement of accused 1 to 8 and instead referring to the further investigation conducted it is stated that such investigation revealed that accused 9 and 10 are not involved in the alleged incident. 4. But that cannot be the position of petitioners-accused 1 and 4 to 8 against whom the original report stands. Even in Annexure-II, report there is no departure from the original report so far as petitioners are concerned. If that be so committal of petitioners on he basis of Annexure-II would stand. 5. The argument advanced by the learned counsel if accepted would give rise to an anomalous situation. For instance; in a case where examination of prosecution witness had commenced Investigating Officer wanted to conduct further investigation and permission in that regard was granted, Investigating Officer submitted a further report under Sec.173(8) of the Code stating that some of the accused against whom the case has already been committed and against whom evidence has been let in by the prosecution are not involved in the case, in such a case when final report against those accused who are found not involved is accepted, the court will have to revert to the committal proceedings even as against those accused CRL.M.C. No.713 of 2011 -: 5 :- whose involvement was not interfered with in the subsequent report. That is not what is contemplated by the further report under Sec.173 (8) of the Code. 6. If petitioners have a contention that there is non-supply of relevant documents which led to the report under Sec.173(8) of the Code and if those documents are relevant so far as they are concerned, it is open to them to bring the matter to the notice of the learned Sessions Judge and if Sessions Judge is of the opinion that those records are necessary, can direct the Investigating agency to make available copy of those records to the petitioners. Criminal Miscellaneous Case is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv