This High Court rejected the petitioner's challenge to a Magistrate's order dismissing an application for further investigation under Section 173(8) Cr.P.C. The Court held that this provision empowers only the Officer-in-charge of a Police Station, not a de facto complainant, to seek further investigation.
Crl.M.C. fails and is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941
Crl.MC.No.2007 OF 2014
AGAINST THE ORDER IN C.M.P.NO.7170/2013 IN C.C.NO.297/2012 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMANGALAM PENDING AS SC
NO.1057/2013 ON THE FILE OF PRINCIPAL ASSISTANT SESSIONS JUDGE,
KOZHIKODE
CRIME NO.796/2011 OF MEDICAL COLLEGE POLICE STATION, KOZHIKODE
( PETITIONER/ACCUSED)* CORRECTED AS PETITIONER/DEFACTO COMPLAINANT
P.M. ARAVINDAN,
AGED 49 YEARS,
S/O.P.P.R.KURUP, SARADA NILAYAM, P.O.MAYANAD,
CALICUT-673008.
BY ADV. SRI.P.V.ANOOP
* PETITIONER/ACCUSED OCCURRING IN THE CAUSE TITLE OF
CRL.M.C, STAY PETITION AND DOCKET SHEET IS CORRECTED
AND SUBSTITUTED AS PETITIONER/DEFACTO COMPLAINANT AS
PER ORDER DATED 11.03.2020 IN CRL.M.A.1/2020.
( RESPONDENTS/DEFACTO COMPLAINANT)* CORRECTED AS RESPONDENTS/ACCUSED AND STATE.
1 SUB INSPECTOR OF POLICE,MEDICAL COLLEGE POLICE STATION, KOZHIKODE-673008.
2 SUNILAN, AGED 44 YEARS, S/O.UNNEERIKUTTY, PERINGATTIL HOUSE, P.O.MEDICAL COLLEGE, KOZHIKODE-673008.3 ANIL KUMAR, AGED 45 YEARS, S/O.KANDANKUTTY, AREEKKAL VEEDU, P.O.MEDICAL COLLEGE, KOZHIKODE-673008.4 MOHANAN, AGED 48 YEARS, S/O.CHOYI, PUTHIYAPARAMBIL HOUSE,P.O.MEDICAL COLLEGE, KOZHIKODE-673008.Crl.MC.No.2007/2014 2
5STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
R1 & R5 BY PUBLIC PROSECUTOR SRI.JAYASURYAN.B(SR)
R2 TO R4 BY ADVS. SRI.V.V.SURENDRAN
SRI.P.A.HARISH
*RESPONDENT/DEFACTO COMPLAINANT OCCURRING IN THE
CAUSE TITLE OF CRL.M.C, STAY PETITION AND DOCKET
SHEETISCORRECTEDANDSUBSTITUTEDAS
RESPONDENTS/ACCUSED AND STATE AS PER ORDER DATED
11.03.2020 IN CRL.M.A.1/2020.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.2007/2014 3
ORDER
Dated this the 11th day of March 2020
In the petition on hand, an order passed by Judicial First Class Magistrate Court, Kunnamangalam on 12.12.2013 in C.M.P No.7170/2013 in C.C No.297/2012, copy of which is appended to the petition on hand as Annexure-G, is sought to be set aside. C.M.P No.7170/2013 is an application filed by the Sub Inspector of Medical College Police Station, Kozhikode through Assistant Public Prosecutor under Section 173(8) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking for an order to conduct further investigation in the case. The learned Magistrate has considered the application and dismissed the same for reasons which are incorporated in paragraph 8 of the order, extracted hereunder;
“8. Heard the counsel for the petitioner and the prosecution and perused the documents and the reason stated in petition to conduct further investigation. I am of opinion that the reason stated in the petition is not sufficient enough to order further investigation, since further evidence can be adduced by the petitioner during trial and also can proceed against any person not being the accused in the charge sheet, if it appears from the evidence that such person has committed any offence. Almost
Crl.MC.No.2007/2014 4
all matters referred by the petitioner in the petition can be proved by him during trial without conducting further investigation.”
Crl.MC.No.2007/2014 5
is legal and proper and interference is un-called for.
(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, apply in relation to such report or reports as they apply in relation to a report forwarded under (2).”
apply for further investigation is conferred by Cr.P.C. only on an Officer in-charge of a Police Station and that too upon collection of further evidence, by him, either oral or documentary. When further evidence have been collected by an Officer in-charge of Police Station regarding an issue seized of, as envisaged by the provision, he shall forward to the Magistrate a brief of such evidence in the form prescribed, so as to enable the court to pass an order granting
Crl.MC.No.2007/2014 6
permission for further investigation.
Crl.MC.No.2007/2014 7
additional accused and try him if evidence against him has come on
record during any inquiry or trial in a case in seizin of the court.
Section 319 Cr.P.C is extracted hereunder for easy reference;
(1)Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2)Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3)Any person attending the Court although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4)Where the Court proceeds against any person under subsection (1), then-
(a) the proceedings in respect of such person shall be commenced afresh, and witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
complainant need not have to worry about the matter. If proper evidence has been adduced to establish that the involvement of the
Crl.MC.No.2007/2014 8
person omitted to be arrayed as accused is also there, then the Court can suo motu act upon that evidence and the jurisdiction under Section 319 Cr.P.C, can be invoked to add him as additional accused and proceed against him in trial. When such a right is available, there is absolutely no merit in the learned counsel for the petitioner contending that the learned Magistrate has gone wrong and unjustified in declining to invoke the power under Sub-Section (8) of Section 173 Cr.P.C.
Crl.M.C. fails and is dismissed.
Sd/-
MARY JOSEPH
JUDGE
JJ
Crl.MC.No.2007/2014 9
APPENDIX
PETITIONER'S ANNEXURES:
ANNEXURE-A |
COPY OF THE COMPLAINT FILED BY THE |
|---|---|
PETITIONER BEFORE THE JUDICIAL FIRSTCLASSMAGISTRATECOURT-I,KUNNAMANGALAM, DT.16.12.2011. |
|
ANNEXURE-B |
COPY OF THE FIR IN CRIME NO.796/2011OF MEDICAL COLLEGE POLICE STATIONDT.21-12-2011 WHICH IS REGISTERED |
UNDER SS.143, 145, 147, 120B, 294(b),341, 324, 452, 308 R/W 149. |
|
ANNEXURE-C |
COPY OF THE WOUND CERTIFICATE OF THEPETITIONER DT.5.9.2011. |
ANNEXURE-D |
COPY OF THE 161 STATEMENT RECORDED BYTHE 1ST RESPONDENT. |
ANNEXURE-E |
COPY OF THE FINAL CHARGE IN CRIMENO.796/2011 WHICH IS TAKEN ON FILE BYTHE JUDICIAL FIRST CLASS MAGISTRATE |
COURT-I,KUNNAMANGALAM,ASCCNO.297/2012. |
|
ANNEXURE-F |
COPY OF THE PETITION FILED BY THEPETITIONER UNDER S.173(8) CRIMINALPROCEDURE CODE DT.7.11.2013. |
ANNEXURE-G |
COPY OF THE ORDER DT.12.12.2013 INC.M.P.NO. 7170/13 IN CC NO.297/12 ONTHE FILE OF THE JUDICIAL FIRST CLASSMAGISTRATE COURT, KUNNAMANGALAM. |
RESPONDENTS’ ANNEXURES: NIL
TRUE COPY
PA TO JUDGE
2 issues framed by the court
Whether a de facto complainant can invoke power under Section 173(8) Cr.P.C to seek further investigation.
Whether an order dismissing an application for further investigation by a de facto complainant is maintainable.
Colour shows how this judgement treated each authority
Thomas Athanacious Vs State of KeralaDistinguished¶35
Thomas Athanacious Vs State of Kerala [2016 (2) KHC 193]
2 provisions across 1 enactments
P.M. ARAVINDAN
STATE OF KERALA
SUNILAN
ANIL KUMAR
MOHANAN
MARY JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court