Dismissed

Luckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph

Kerala HC3 Mar 2021Crl.MC/2240/2020

Case brief

AI extract

What is this about?

High Court held that a protest complaint against a positive report has no impact on the same. Court dismissed the criminal miscellaneous petition filed under Section 482 Cr.P.C. to quash orders dropping proceedings and setting aside magistrate's order.

What did the court decide?

Criminal miscellaneous petition failed and dismissed with no reinstitution of proceedings.

Luckose Zachariah @ Zak Nedumchira Luke Vs… — Civil Procedure and Limitation | Kerala HC (2021)

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Crl.MC.No.2240 OF 2020(H) 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

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Crl.MC.No.2240 OF 2020(H)

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AGAINST THE ORDER/JUDGMENT IN CRRP 14/2018 OF ADDITIONAL SESSIONS COURT - II, ALAPPUZHA

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AGAINST THE ORDER/JUDGMENT IN CC 2177/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA

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CRIME NO.205/2016 OF ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA

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PETITIONERS/RESPONDENTS/ACCUSED 2,3 & 1:

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1 LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE, AGED 67 YEARS, S/O.LATE ITTY ZACHARIAH, HOUSE NO.421A, ERAYILKADAVU, VIJAYAPURAM VILLAGE, KOTTAYAM DIST., PIN-686001, NOW RESIDING 6145, NORTH SHERIDAN ROAD, APARTMENT NO.14D,CHICAGO, ILLINOIS-60660 USA. (WRONGLY SHOWN AS LOOKOSE ZACHARIA, S/O.E.T.ZACHARIA, AGED 64 YEARS, NEDUMCHIRA VEEDU, OORAYILKADAVU, KOTTAYAM MUNICIPALITY).

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2 M.A.EMMANUEL, AGED 72 YEARS S/O.ABRAHAM, MANNOORETTONNIL HOUSE, COLLECTORATE.P.O., KOTTAYAM, PIN-686002 WRONGLY SHOWN AS IMMANUEL @ MATHEW, S/O.ABRAHAM, MANNURATHINAL HOUSE, COLLECTORATE.P.O., KOTTAYAM DISTRICT, PIN-686002.

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3 MOOSA, AGED 51 YEARS, S/O.HASSAN KOYA, PAINGAMADAM, MUNICIPAL OFFICE WARD, ALAPPUZHA, PIN-688011.

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BY ADV. SRI.GEORGE THOMAS (MEVADA)(SR.)

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RESPONDENTS/REVISION PETITIONER/ DE FACTO COMPLAINANT/COMPLAINANT:

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1 JOSEPH JOSEPH, AGED 61, T.A.JOSEPH, PALLIPPARAMBIL HOUSE, CHUNGAM WARD, IRUMBUPALAM.P.O., MULLACKAL VILLAGE, AMBALAPPUZHA

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Crl.MC.No.2240 OF 2020(H) 2

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TALUK, ALAPPUZHA, PIN-688011.

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2 THE SUB INSPECTOR OF POLICE, ALAPPUZHA NORTH POLICE STATION, ALAPPUZHA, PIN-688001.

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3 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.

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R1 BY ADV. SRI.ARAVIND GHOSH

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PUBLIC PROSECUTOR SRI.RAMESH CHAND

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No.2240 OF 2020(H) 3

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ORDER

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After the submission of a final report

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alleging offence under Section 294 B, 323, 324 r/w Section 34 IPC as against accused No.1 to 3, at the instance of the 2^nd accused, further investigation was conducted based on a petition submitted before the District Police Chief as per Order No. 43(A)-93406/2016/A dated 06/02/2017 by the Dy.S.P., Crime Branch and filed additional report, a referred charge for the said offence against the accused persons. Thereon, the learned Magistrate issued notice on the referred charge against which, a protest complaint in C.M.P.No.155/2015 was submitted.

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The said protest complaint was dismissed for

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non-prosecution and finally, dropped the

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proceedings by order dated 30/05/2018. It was challenged before the revisional court (Addl.

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Crl.MC.No.2240 OF 2020(H) 4

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Sessions Judge II, Alappuzha) and by the

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impugned order, the learned Sessions Judge set

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aside the order of the learned Magistrate

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dropping the further proceedings and directed to

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take the case on file and to proceed in accordance with law by its order dated 26/10/2019. To quash the abovesaid order, the

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accused No.1 to 3 came up under Section 482 Cr.P.C.

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A report that can be filed under Section 173(8) Cr.P.C. has no separate entity apart from the final report submitted under Section 173(2) Cr.P.C. Both the reports have to be read conjointly so as to ascertain existence of grounds to presume that the accused has

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committed the offence. It cannot be read or

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appreciated independently, but its cumulative

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effect should be taken into account so as to

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determine whether there exists grounds to

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presume that the accused has committed the offence. The legal position is very much

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Crl.MC.No.2240 OF 2020(H) 5

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settled by the Apex Court in Vinay Tyagi v. Irshad Ali @ Deepak and others (2012 KHC 4747).

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3. There is no scope for filing a protest complaint against a referred report either under Section 173(2) or under Section 173(8) when one of

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the reports is a positive one and as such, the

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protest complaint filed and its dismissal for nonprosecution has no legal impact on the positive report already submitted. The submission of a

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supplementary report, a referred charge (a negative report) under Section 173(8) Cr.P.C. as against the earlier positive report under Section 173(2) Cr.P.C. has to be treated conjointly so as to ascertain the existence of grounds to presume that

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the accused has committed the offence. The scope

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of submission of a protest complaint would arise

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only when a referred charge was submitted under

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Section 173(2) Cr.P.C. and in the absence of a

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supplementary report or when both the reports, i.e.

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the final report under Section 173(2) Cr.P.C. and

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supplementary report under Section 173(8) Cr.P.C. are referred charges (negative reports). Hence

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Crl.MC.No.2240 OF 2020(H) 6

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there is no reason for invoking the power under

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Section 482 Cr.P.C.. Crl.M.C. fails, dismissed.

Sd/-

P.SOMARAJAN

JUDGE

msp

Crl.MC.No.2240 OF 2020(H) 7

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE 1	TRUE PHOTOCOPY OF THE FIR WITH ANNEXURES DATED 3.2.2016.
ANNEXURE 2	TRUE PHOTOCOPY OF THE MAHAZER DATED 3.2.2016.
ANNEXURE 3	TRUE PHOTOCOPY OF THE LIST OF THE WEAPONS PREPARED WITH DETAILS ON 3.2.2016.
ANNEXURE 4	TRUE PHOTOCOPY OF THE STATEMENT OF RAJESH KUMAR, ADVOCATE CLERK DATED 3.2.16.
ANNEXURE 5	TRUE PHOTOCOPY OF THE STATEMENT OF RAJEEV, S/O.HARIDAS, BEARING DATE 3.2.16.
ANNEXURE 6	TRUE PHOTOCOPY OF THE STATEMENT OF THE 1ST PETITIONER BEFORE THE ALAPPUZHA NORTH POLICE STATE 2.3.16.
ANNEXURE 7	TRUE PHOTOCOPY OF THE STATEMENT OF RAJESH KUMAR ADVOCATE CLERK RECORDED U/S 164 CR.PC ON 12.8.16.
ANNEXURE 8	TRUE PHOTOCOPY OF RESPONSE FROM THE SI OF POLICE ALAPPUZHA S. POLICE STATION TO RTI ACT QUERRY DATED 18.12.2019.
ANNEXURE 9	TRUE PHOTOCOPY OF THE RESPONSE BY SI OF POLICE ALAPPUZHA NORTH POLICE STATION DATED 18.12.2019.
ANNEXURE 10	TRUE PHOTOCOPY OF THE FINAL CHARGE SHEET FILED BY SI OF POLICE ALAPPUZHA NORTH POLICE STATION DATED 26.9.16.
ANNEXURE 11	TRUE PHOTOCOPY OF THE REPORT OF DY SP (DISTRICT ADMINISTRATION) DATED 21.2.2017.
ANNEXURE 12	TRUE PHOTOCOPY OF THE REPORT OF DY.S.P. DCRB DATED 31.7.2017.
ANNEXURE 13	TRUE PHOTOCOPY OF THE FINAL REPORT OF THEDY.SP CRIME BRANCH BEFORE THE JFM COURT, ALAPPUZHA DATED 6.12.2017.

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Crl.MC.No.2240 OF 2020(H) 8

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ANNEXURE 14	TRUE PHOTOCOPY OF THE PROTEST COMPLAINT DATED NIL FILED BY THE 1ST RESPONDENT UNDER SECTION 2000 CR.P.C..
ANNEXURE 15	TRUE PHOTOCOPY OF THE ORDER PASSED BY LD. MAGISTRATE IN CMP.155/2018 DATED 19.5.2018.
ANNEXURE 16	TRUE PHOTOCOPY OF THE ORDER DATED 30.5.2018 PASSED BY THE LD.MAGISTRATE DATED 30.5.2018.
ANNEXURE 17	CERTIFIED COPY OF THE ORDER PASSED BY THE LD. ADDITIONAL SESSIONS JUDGE II ALAPPUZHA DATED 26.10.2019.

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//TRUE COPY//

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P.A. TO JUDGE

Luckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph

Case brief

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Luckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph

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