Thursday 29 December 2016

Whether police can do further investigation without permission of court?

   The next point is regarding the permission of court for further

investigation. In this case, police reported that it was informed to the

court and sought a stay of proceedings. Further investigation is the

prerogative of the Police, permission is only a formality or courtesy.

Under such circumstances, no illegality committed by the Police in

respect of further investigation.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT:

     MR. JUSTICE K.P.JYOTHINDRANATH

  10TH DAY OF AUGUST 2016

                   Crl.MC.No. 3783 of 2015

           RADHAKRISHNAN
        Vs

             STATE OF KERALA
           Citation: 2016 CRLJ 4763 Kerala


      This is an application filed under Section 482 of Cr.P.C. The

prayer of the petitioner is to quash the proceeding in C.P.117/2014

on the file of the Judicial First Class Magistrate Court, Vadakara.

The ground highlighted is that a further investigation was done by

the police and a report under Section 173(8) of Cr.P.C. filed showing

that case is a false case. But the Magistrate rejected the report by

passing Annexure A5 order. The case of the petitioner is that as a

counter blast to C.C.No.1389/2013 on the file of the same court, this

false case is foisted.

      3.     It is the case of the second respondent herein that further

investigation in the crime was conducted without informing the

learned Magistrate that also on extraneous reasons. It is also pointed

out that the further investigation was conducted on the basis of an


order issued by the District Police Chief, Kozhikode vide order

No.211/Camp/2014/DR dated 4/11/2014 and the same was entrusted

to Sri.C.D.Sreenivasan, Dy.S.P.of Police, DCRB, Kozhikode.

      4.    It   is   also   the   case   of    the  respondent     that

C.C.No.1389/2013 has no connection with C.P.No.117/2014 pending

before the JFCM, Vadakara. Both cases are different and the same is

not a counter case towards the latter case. The impugned order of the

learned Magistrate did not warrants any interference by this court and

the same was passed considering the materials on record including

the wound certificate.

      5.    The points for consideration in this case are as follows :

            1.    When there are reports under Sections 173(2)

     and 173 (8) of Cr.P.C., which are contradictory in nature,

     what is the option available for the court.

            2      Whether the court is entitled to accept one

     report and thereafter reject the second report.

          3.      If the further investigation was done without

          the prior permission of the court, what will be the


          effect of such a report.

      6.    Point Nos. 1 and 2 are interlinked. In paragraph 4 of the

statement filed by the Sub Inspector of Police, Vadakara, it is stated

that the further investigation was done by Sri.C.D.Sreenivasan,

Deputy Superintendent of Police, District Crime Record Bureau,

Kozhikode Rural. It is further stated that Sri.C.D.Sreenivasan, Deputy

Superintendent of Police, District Crime Record Bureau, Kozhikode

Rural took up the investigation and he filed a petition before the

Judicial First Class Magistrate's Court, Vadakara for stopping the

proceedings of the case and then he conducted investigation about

the matter, questioned the witnesses and recorded their statements. It

is also the case of the investigating officer that one Smt.Valsala was

the sole eye witness to the incident and she stated that she was present

at the place, but did not see the incident.

      7.    After considering the further investigation, the then S.I. of

Police, Vadakara filed a report before the JFCM Court for treating the

case as false and it is the case that the JFCM Court, Vadakara served

the refer notice to the complainant for treating the case as false, but


the complainant rejected the SHO's opinion and the court has

accepted their objection and committed the case to sessions court.

      Now in this case, it can be seen that there is a final report as

well as a report under 173 (8) of Cr.P.C. Surely, the court accepted

the first report. There will be no question of dropping the case or

treating the case as closed by the committal court. The powers of the

committal court are limited in respect of the committal of a case. In

Vinay Tyagi v. Irshad Ali @ Deepak and Others [(2013) 5 SCC

762] , in a similar situation, where there was a Delhi Police charge as

well as a closure report filed by the CBI, the Apex Court directed the

trial court to consider the entire record i.e. both reports filed by the

investigating agencies. The only option available in this case is to

send the second report to the sessions court for enabling the said

court to consider the same along with the earlier report. Surely, in the

impugned order, the Magistrate stated that no statement is seen

produced. It can be seen that in the statement submitted by the S.I.

of Police, it is clearly stated that witnesses were questioned during

further investigation.



      Thus, at the time of hearing of charge, the first and second

reports can be considered by the court of sessions and the court of

sessions will be at liberty to take an independent decision as to

whether charge has to be framed or not. To avoid miscarriage of

justice, it is also made open for the prosecutor to produce before the

court any additional statements of witnesses who are already cited as

witnesses in the first final report by the police, which are recorded

during the further investigation mentioned above. It is also open for

the prosecutor to cite additional witnesses ( whose statements are

recorded during further investigation), if any, by filing appropriate

application before the court.

      The next point is regarding the permission of court for further

investigation. In this case, police reported that it was informed to the

court and sought a stay of proceedings. Further investigation is the

prerogative of the Police, permission is only a formality or courtesy.

Under such circumstances, no illegality committed by the Police in

respect of further investigation.

      Thus, the impugned order of the Magistrate dated 25/03/2015



which is produced as Annexure A5 in this case is hereby set aside.

The Judicial First Class Magistrate, Vatakara is hereby directed to

transmit the report filed under Section 173(8) of Cr.P.C. in Crime

No.567/2014 to the Sessions Court to consider along with the police

report in C.P.No.117/2014 while hearing on charge.            To avoid

miscarriage of justice, prosecutor in charge of the case is at liberty to

produce before the court the statements of witnesses, if any, recorded

during the further investigation    to consider along with the final

report on which cognizance is taken by the court.

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