Nathaniel vs State of Kerala and Lalitha

K. Ramakrishnan, J.—This is an application filed by the first accused in C.C. No. 1285/2006, on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara, to quash Annexure-5 Order, passed by the learned Magistrate u/s 482 of Criminal Procedure Code. The case was registered on the basis of the statement given by the defacto complainant, who is the second respondent herein, against the petitioner and others alleging offences under Sections 143, 147, 148, 149, 447, 323, 324, 427 and 354 of Indian Penal Code. According to the complainant, this is a counter case to the main case, crime No. 492/2006 of Neyyattinkara Police Station. After investigation, charge sheet was submitted and it was taken in file as C.C. No. 1285/2006 of Judicial First Class Magistrate Court-I, Neyyattinkara. In the meantime, first accused who is the petitioner herein filed application before the higher authorities and reinvestigation was ordered u/s 173(8) of Criminal Procedure Code. After getting necessary permission from the magistrate, and after conducting further investigation, Annexure-A2 refer report was filed. Before that the accused/defacto complainant in the main case filed Criminal M.C. No. 4194/2008 before this court and as per Annexure-3 order, the application was disposed of, giving direction to the learned Magistrate to consider both the reports and pass appropriate orders and proceed the case in accordance with law. It is also observed in the same order that the learned Sessions Judge must continue with the trial of S.C. No. 485/2007, only after ascertaining the action taken by the learned magistrate in C.C. No. 1285/2006 pending before that court. Thereafter, learned magistrate passed Annexure-5 order, decided to proceed with the first report, and this order is being questioned by the petitioner before this court now.

Learned counsel for the petitioner submitted that the learned magistrate had not considered the purport of the order in Annexure-A5 and no reasons have been given by the learned magistrate for accepting the first report, ignoring the second refer report. On the other hand, the counsel for the second respondent argued that there is no illegality committed by the learned magistrate and the magistrate is at liberty to consider whether the second report has to be accepted or not, and rightly exercised the discretion and that cannot be interfered by this court invoking the power u/s 482 of the Code of Criminal Procedure.

It is an admitted fact, that after investigation, the investigating officer had earlier filed a final report against the present petitioner and others and the learned magistrate has taken cognizance of the case as C.C. No. 1285/2006. It is also an admitted fact that thereafter, as per the application filed by the present petitioner before the higher police officials, further investigation was ordered u/s 173(8) of Criminal Procedure Code and after getting permission from the court u/s 173(8) of the code, the investigating officer conducted further investigation and Annexure-A2 refer report was filed. It is also an admitted fact that earlier as per Annexure-A3 order, this court has directed the learned magistrate to consider both the reports and decide as to which report has to be accepted, and proceed the case in accordance with law and till then, the trial of the Sessions case No. 485/2007 was directed to be kept in abeyance. It is thereafter, that the present impugned order dated 16.02.2009 has been passed by the Magistrate as follows:

From the records, I am satisfied that the petitioner is having a definite case against these accused, I have accepted the first charge already produced before this Court and to proceed against the accused in the first final report. Repeat summons to accused to 16.11.2009.

In the decision reported in Dharmatma Singh Vs. Harminder Singh and Others, , the Hon''ble Supreme Court has held that where the police report forwarded to the magistrate u/s 173(2) of Criminal Procedure Code states that a person has committed an offence but after investigation the further report u/s 173(8) of Criminal Procedure Code states that the person has not committed the offence, it is for the magistrate to form an opinion whether the facts set out in the two reports makes out an offence committed by the person. So, it is clear from the above dictum, that the magistrate is not bound to accept the further refer report as a matter of course. In this case, it is seen from the order that in both the reports, the defacto complainant takes the same stand regarding the commission of the offence against the accused, though, some of the witnesses have resiled from their earlier statements. So, from the circumstances, there is no bar for the court at a later stage, if the defacto complainant''s evidence is believable and reliable, inspite of the fact that other persons did not support the prosecution case, base that evidence for convicting the accused. So under the circumstances, since the defacto complainant had taken the same stand in both the investigation, it cannot be said that the magistrate was wrong in accepting the first report, ignoring second report and decided to proceed with the case. I do not find any illegality committed by the court below in passing Annexure-5 order, in view of the dictum laid down in the decision cited Supra, and I do not find any reason invoke to section 482 of Criminal Procedure Code, to quash that order as well. But at the same time, I make it clear that this will not affect the right of the accused to take all his contentions before the concerned court and the court considering the contentions and appreciating the same and deciding the case in accordance with law. With the above observations, the petition is disposed of accordingly.