Sunilkumar vs State Of Kerala

M.R.Anitha, J

The petitioner is the sole accused in S.C.No.838/2019 on the file of Fast Track Special Court, Haripad for the offences punishable u/s.451, 354 and 354(D) of IPC and Section 7 r/w. Section 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(w)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 initiated at the instance of the second respondent, a minor girl. This petition has been filed seeking to quash the entire proceedings in S.C.No.838/2019.

The prosecution case is that on 15.08.2017 the accused who is not a member of scheduled caste and scheduled tribe with the intention and preparation to commit sexual assault upon the minor defacto complainant, called her to his house No.VI/364 in Krishnapuram Village at about 3 p.m. Thereafter he hugged her with sexual intention and kissed and hold at her chest. Subsequently on 10.09.2017 accused trespassed into the kitchen of house No.VI/220 of Krishnapuram panchayat where the defacto complainant and family are residing and intimidated her and threatened her to publish her photos captured in the mobile phone. It is further alleged that on 13.10.2017 at about 10 p.m while the defacto complainant entered into the bathroom accused peeped through the ventilator and thereby committed the above offences aforementioned.

According to the petitioner, the family of the defacto complainant had been a nuisance to the family of the petitioner ever since they started residing nearby their house. In connection with the dumping of septic tank waste there was an issue two years ago in between them. When there was an attempt by the father of the defacto complainant to reclaim the paddy land, village officer issued stop memo which was accused on the petitioner and family. The family of the defacto complainant and the petitioner's family are not in a good terms for so many years. On 13.10.2017 the father of the defacto complainant abused the petitioner and family and there was some exchange of words and on seeing this his wife, mother and the only son of the petitioner came and his family members went to the police station and reported the incident and police registered two crimes; one against the father of the 2nd respondent and the other against the petitioner and the defacto complainant's father was arrested and after custody for two days this case was falsely foisted against him. According to him, there is no incident as alleged occurred and this is a totally falsely foisted case.

According to the learned counsel for the petitioner, the entire procedure adopted by the learned Special Judge is illegal and arbitrary. After filing the Final Report, Annexure-6, under Section 173(2) of the Code of Criminal Procedure, 1973, (for short, 'the Code'), compliant was filed by the wife of the defacto complainant to the Chief Minister, Director General of Police and the District Police Chief. Annexure-1 is the copy of the complaint filed before the Human Rights Commission. The complaint to the Chief Minister and to the Director General of Police and the District Police Chief got enquired through Deputy Superintendent of Police, Crime Branch, Alappuzha and Annexure-2 report was filed to the effect that there is no circumstance or evidence of committing such a crime. Chief Minister's Office also sought for a report from the District Police Chief and he submitted a report, copy of the said report obtained under Right to Information Act is produced as Annexure-3. The petitioner also filed W.P.(C)No.1166/2018 for re-investigation and on coming the matter for admission the petitioner sought for a direction to consider the representation submitted by the petitioner's wife and the Court directed that while considering his grievance the representation submitted by the wife shall also be looked into and copy of that judgment is produced as Annexure-4. Thereafter the petitioner's wife attended a police adalat and the registration receipt in connection with the same is produced as Annexure-5. After hearing the petitioner and the respondent, D.G.P. ordered further investigation and the Assistant Commissioner, Crime, Kochi City was entrusted with the task of further investigation. In the meantime, the initial investigation officer submitted the Final Report under Section 173(2) which is marked as Annexure-6. Subsequently the case was transmitted to Fast Track Special Court, Harippad and the case was renumbered as S.C.No.838/2019. In the meantime, further investigation report in the above crime was submitted under Section 173(8) of the Code and copy of which is produced as Annexure-7. It is the contention of the learned counsel that the officer who submitted Annexure-7 report had conducted a meticulous investigation referring to the background and circumstances of the case and on recording the evidence of all possible witnesses and finally concluded that no offence as alleged has been made out and is reported as 'false'. The Kerala State Human Rights Commission considered the petition filed by the petitioner's wife on the basis of the report of the police and concluded that the allegations against the petitioner is false and bogus and the allegation by the petitioner against the respondent-police officer is true. Accordingly, Director General of Police was directed to take disciplinary action against the respondent.

According to the learned counsel, in the above scenario, the learned Special Court has went wrong in passing Annexure-9 order. It is contended that the learned Special Court without appreciating the factual aspects of this case blindly followed Vinay Tyagi v. Irshad Ali @ Deepak Ali & Ors. [(2013) 5 SCC 762] and also Joseph v. Antony Joseph [2018 (3) KLT 209]. It is also his contention that nowhere in the above cited decisions it has been mentioned or suggested that first report under Section 173(2) survives after submission of the report u/s.173(8) of the Code nor is there any mention as to the credibility of the initial final report. He would contend that what has been held is that the trial court to analyze all the reports and materials available before the court and then to decide as to the nature of next course of action. So Annexure-9 order passed by the learned Special Court would result in miscarriage of justice. Hence he approaches this Court seeking to set aside the entire proceedings in S.C.No.838/2019 since it amounts to an abuse of process of law.

Notice was issued to the respondents. First respondent appeared through learned Public Prosecutor. Though notice was duly served upon the defacto complainant, 2nd respondent, there was no appearance.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

The petitioner seeks to quash the entire proceedings in S.C.No.838/2019 and would contend that Annexure-9 order on discharge petition filed by the petitioner has caused miscarriage of justice in view of the special facts and circumstance of this case. It is also his contention that the law laid down in Vinay Tyagi has not been properly appreciated or analyzed by the Special Court and hence the impugned order passed is illegal and unsustainable. Annexure-9 order would reveal that it has been passed by the Special Judge after receiving Annexure-7 S.173(8) Cr.P.C. Report. The impugned order would reveal that the initial Annexure-6 Final Report filed u/s.173(2) of the Code was filed by the Deputy Superintended of Police, Kayamkulam for the offences punishable under Sections 451, 354 and 354(D) of IPC and Section 7 r/w. Section 8 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(w)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Subsequently Annexure-7 further investigation report was filed by Assistant Commissioner of Police District Crime Branch (C) Branch, Kochi. So the learned Sessions Judge considered whether the court should accept the final investigation report which would result in culmination of the entire proceedings against the accused. Thereafter placing reliance on State v. Gopakumar [1988 (1) KLT 924], Vinay Tyagi and Joseph, the learned Sessions Judge concluded that when cognizance is taken upon the report under Section 173(2) of the Code the proceedings should go on and end in its logical conclusion according to law and procedure, despite of filing of a negative report under Section 173(8) of the Code and the proceedings cannot be dropped or closed on receipt of a negative report under Section 173(8) of the Code. It is also observed that the supplementary report and papers in connection therewith produced will form part of the record and can be used in trial.

So the main question which arises for consideration is whether the order passed by the learned Special Judge in proceeding with the trial as per Section 173(2) report inspite of the fact that a negative report under Section 173(8) of the Code was filed subsequently is legal and proper?

Though the learned counsel for the petitioner would contend that the learned Sessions Judge has misconstrued the law laid down in Vinay Tyagi, the argument so advanced by the learned counsel does not appear to be correct in view of the law laid down in Vinay Tyagi. So a detailed discussion of Vinay Tyagi would be necessary to resolve the issue.

In Vinay Tyagi, the Hon'ble Apex Court had made a detailed discussion regarding the scope of Ss.173(2) and 173(8) reports and the procedure to be followed by the court on receiving such reports. That was a case in which FIR was registered under Sections 4 and 5 of the Explosive Substances Act and under Sections 120B, 121 and 122 of the Indian Penal Code, 1860 read with Section 25 of the Arms Act, against two accused persons. They were working as informers of Special Cell, Delhi Police as well as for Intelligence Bureau. Aggrieved by the action of the Delhi Police brother of the 2nd accused filed petition before the High Court of Delhi stating that both accused were working as informers and have been falsely implicated and for a request to transfer the investigation of FIR 10/2006 to CBI. The High Court did not grant any stay of the investigation or the proceedings before the court of competent jurisdiction despite the fact that there was a prayer to that effect in the petition. In the meantime Special Cell of Delhi Police filed charge sheet before the trial court, when the matter was pending before the High Court and ultimately an enquiry by CBI was ordered and directed to file report within four weeks. The CBI also filed report indicating that the alleged recoveries effected from the accused persons did not inspire confidence and further investigation was needed. Thereafter the CBI after a detailed investigation filed closure report stating that accused persons were working as informers of Special Cell of Delhi Police and Intelligence Bureau Officials and it was a false case. After filing report by the CBI, the second accused filed application before the trial court under Section 227 of the Code with a prayer that in view of the closure report submitted by the CBI he should be discharged and that was opposed by the Special Cell, Delhi Police, who filed a detailed reply and the CBI, stood by its report and submitted that it had no objection if the accused was discharged. But the trial court observing that the CBI had not investigated all the aspects of the allegations and further noting that in the order dated 4th August, 2008, the High Court noted that transfer of investigation from Special Cell to CBI had been directed, and further, filing of charge-sheet after completion of investigation, which was pending before the Court of competent jurisdiction had been directed and the trial court upon noticing all facts and pleas, concluded that the prayer for acceptance of the closure report and discharge of the accused is premature and it cannot be granted at that stage. With that observations, the contentions of the CBI, Special Cell and the accused persons were disposed of. It is also found that no definite conclusion can be drawn at this stage to ascertain the truthfulness of the version of two different agencies and fixed the case for arguments on charge.

Second respondent filed petition under Section 482 of the Code praying that the proceedings pending before the Court of Additional Sessions Judge pertaining to FIR No.10/2006 to be quashed. But in that petition the court has not granted stay and finally disposed the petition observing that once report has been filed by CBI that agency has to be treated as investigating agency in the case and the closure report ought to have been considered by the trial court and the matter was remanded to the trial court with the following order:

“12. In these circumstances, the impugned order dated 13.02.2009 dismissing the applications moved by the petitioners for discharging them is set aside. The case is remanded back to the Additional Sessions Judge to proceed further in the matter after hearing the parties on the basis of the closure report filed by CBI dated 11.11.2008 and in accordance with the provisions contained under Section 173 and Section 190 of the Code of Criminal Procedure. In case he accepts the report, then the matter may come to an end, subject to his orders, if any, against the erring officers. However, if he feels that despite the closure report filed by CBI, it is a case fit for proceeding further against the petitioners, he may pass appropriate orders uninfluenced by what this Court has stated while disposing of this case. The only rider would be that while passing the orders the Additional Sessions Judge would not be influenced by the report of the Special Cell in this matter. Parties to appear before the Trial Judge on 14.09.2009.”

Against the above order, the appeals by special leave arose. Apex Court analyzed various provisions under the Code including Sections 154, 157, 158, 156(3) and 190, 173, 227, 228. Paragraph Nos.14 to 18 discuss the procedures after filing final report under Section 173(2) Cr.P.C.

“14. After the investigation has been completed by the Investigating Officer and he has prepared a report without unnecessary delay in terms of Section 173 of the Code, he shall forward his report to a Magistrate who is empowered to take cognizance on a police report. The report so completed should satisfy the requirements stated under Clauses (a) to (h) of Sub-section (2)(i) of Section 173 of the Code. Upon receipt of the report, the empowered Magistrate shall proceed further in accordance with law. The Investigating Officer has been vested with some definite powers in relation to the manner in which the report should be completed and it is required that all the documents on which the prosecution proposes to rely and the statements of witnesses recorded under Section 161 of the code accompany the report submitted before the Magistrate, unless some part thereof is excluded by the Investigating Officer in exercise of the powers vested in him under Section 173(6) of the Code.

A very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of Section 173(2). The legislature has specifically used the expression 'nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Section 173(2) has been forwarded to the Magistrate', which unambiguously indicates the legislative intent that even after filing of a report before the court of competent jurisdiction, the Investigating Officer can still conduct further investigation and where, upon such investigation, the officer in charge of a police station gets further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the prescribed form. In other words, the investigating agency is competent to file a supplementary report to its primary report in terms of Section 173(8). The supplementary report has to be treated by the Court in continuation of the primary report and the same provisions of law, i.e., Sub-section (2) to Sub-section (6) of Section 173 shall apply when the Court deals with such report.

Once the Court examines the records, applies its mind, duly complies with the requisite formalities of summoning the accused and, if present in court, upon ensuring that the copies of the requisite documents, as contemplated under Section 173(7), have been furnished to the accused, it would proceed to hear the case.

After taking cognizance, the next step of definite significance is the duty of the Court to frame charge in terms of Section 228 of the Code unless the Court finds, upon consideration of the record of the case and the documents submitted therewith, that there exists no sufficient ground to proceed against the accused, in which case it shall discharge him for reasons to be recorded in terms of Section 227 of the Code:

17.1. It may be noticed that the language of Section 228 opens with the words, “If after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence”, he may frame a charge and try him in terms of Section 228(1)(a) and if exclusively triable by the Court of Sessions, commit the same to the Court of Sessions in terms of Section 228(1)(b). Why the legislature has used the word 'presuming' is a matter which requires serious deliberation. It is a settled rule of interpretation that the legislature does not use any expression purposelessly and without any object. Furthermore, in terms of doctrine of plain interpretation, every word should be given its ordinary meaning unless context to the contrary is specifically stipulated in the relevant provision.

17.2. Framing of charge is certainly a matter of earnestness. It is not merely a formal step in the process of criminal inquiry and trial. On the contrary, it is a serious step as it is determinative to some extent, in the sense that either the accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to face the complete trial which may prove prejudicial to him, if finally acquitted. These are the courses open to the court at that stage.

17.3 Thus, the word “presuming” must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused has committed an offence. Such opinion has to be formed on the basis of the record of the case and the documents submitted therewith. To a limited extent, the plea of defence also has to be considered by the court at this stage. For instance, if a plea of proceedings being barred under any other law is raised, upon such consideration, the court has to form its opinion which in a way is tentative. The expression “presuming” cannot be said to be superfluous in the language and ambit of Section 228 of the Code. This is to emphasize that the court may believe that the accused had committed an offence, if its ingredients are satisfied with reference to the record before the court.

At this stage, we may refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander wherein, the Court held as under: [SCC pp.476-77,paras 16-18]

“16. The abovestated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited.

Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.

It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases.”

Thereafter it has been concluded that 'presuming' under Section 227 of the Code is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution's record, at this stage, has to be examined on the plea of demur. Presumption is of a very weak and mild nature. It would cover the cases where some lacuna has been left out and is capable of being supplied and proved during the course of the trial and it is not necessary that at that stage each ingredient of an offence should be linguistically reproduced in the report and backed with meticulous facts. Substantial compliance to the requirements would suffice. Paragraph Nos.21 and 22 of the said decision is relevant to be quoted which reads thus:

“21. The “initial investigation” is the one which the empowered police officer shall conduct in furtherance of registration of an FIR. Such investigation itself can lead to filing of a final report under Section 173(2) of the Code and shall take within its ambit the investigation which the empowered officer shall conduct in furtherance of an order for investigation passed by the court of competent jurisdiction in terms of Section 156(3) of the Code.

“Further investigation” is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a “further investigation”. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. It is commonly described as “supplementary report”. “Supplementary report” would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradistinction to a “re-investigation”, “fresh” or “de novo” investigation.”

So from the above proposition of law laid down by the Apex Court that 'further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). It is a continuation of a previous investigation and the scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation and it is commonly described as a 'supplementary report'. 'Supplementary report' would be the correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. It is also very clear that further investigation report does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. In other words, it is a kind of continuation of the previous investigation. The basis of further investigation is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto and it has to be understood in complete contradistinction to a 're-investigation', 'fresh' or 'de novo' investigation.

The Apex Court in the concluding portion of Vinay Tyagi has laid down the proposition that once a report under Section 173(2) of the Code has been filed, it can only be cancelled, proceeded further or case closed by the court of competent jurisdiction and that too in accordance with law. Neither the Police nor a specialized investigating agency has any right to cancel the said Report. It is also found that the High Court had passed no order or direction staying further investigation by the Delhi Police or proceedings before the court of competent jurisdiction. It is also held that except by a specific order of a higher court competent to make such orders, the previous as well as supplementary report shall form part of the record which the trial court is expected to consider for arriving at any appropriate conclusion, in accordance with law.

So the contention of the learned counsel for the petitioner that nowhere in Vinay Tyagi it has been mentioned or suggested that first report under Section 173(2) will survive after the submission of the report under Section 173(8) of the Code is not appear to be correct.

In the case at hand, the case of the petitioner is that 173(8) report was filed based upon the complaint filed by himself and his wife to various forums including the Chief Minister, Director General of Police etc. It is true that the report was filed exonerating the petitioner from the involvement of the act alleged and giving him a clean chit. The Apex Court while disposing the matter has categorically held that on receiving further report the trial court have three options, firstly, it may accept the application of accused for discharge, secondly, it may direct that the trial may proceed further in accordance with law and thirdly, if it is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, it is just, proper and necessary in the interest of justice to direct 'further investigation', it may do so. So what could be discerned from the above is that even in spite of the fact that an agency like CBI filed a report stating that no ground to proceed against the accused persons, the Apex Court was not inclined to give any such direction to the trial court to accept the report of the CBI and to close the proceedings in pursuance of the initial report filed by the Delhi Police. The Apex Court also had taken note of the fact that the investigation by the Delhi Police has not been stayed while ordering investigation by CBI.

In the present case also the petitioner has no case that while conducting further investigation, the proceedings before the trial court on the basis of final report was stayed. A learned Single Judge of this Court in Joseph while dealing with the reports under Sections 173(2) and 173(8) of the Code it has been held that a report filed under Section 173(8) of the Code does not supersede the report under Section 173(2). It is also held that a further or supplementary report is not intended to erase the original report and its substitution by a new report and the proceedings cannot be dropped or closed on receipt of a negative report under Section 173(8). Subsequently another learned Single Judge of this Court in Sreenivasan v. State of Kerala [2021 (1) KLT 586] has also dealt with same position and held that once a report under Section 173(2) of the Code has been filed, it can be cancelled or proceeded further or closed by a court of competent jurisdiction and that too, only in accordance with law and that neither the Police nor a specialized investigation agency has any right or power to cancell such a report filed under Section 173(2) of the Code and it was also held that once the court has taken a view that it was a case of further investigation and filing of supplementary report, there is no question of treating the first report as withdrawn, cancelled or capable of being excluded from the records by implication. The dictum laid down in Vinay Tyagi has also been followed by the learned Single Judge in that decision. So there is no room for doubt with regard to the position that subsequent filing of Annexure-7 report by the Assistant Commissioner of Police District Crime Branch (C-Branch), Kochi City will not in anyway efface Annexure-6, 173(2) report filed by the Deputy Superintendent of Police, Kayamkulam.

Since there was a submission by the learned counsel for the petitioner on 08.09.2021 when the case was taken up that case is scheduled for trial to 10.09.2021 to see whether the charge has already been framed the proceedings sheet in S.C.No.838/2019 has been called for from the Fast Track Special Court, Harippad. It would go to show that charge was not yet framed and the court was awaiting the further investigation report under Section 173(8) on 27.08.2020. Thereafter on receipt of further investigation report the case was posted for hearing to 05.03.2021 and both sides were heard on the acceptability of report under Section 173(8) and the impugned order has been passed and the case was posted for hearing on charge and subsequently the case was posted awaiting the FSL report. So the proceedings of the Special Court would only show that the impugned order has been passed after the receipt of Annexure-7 further investigation report and the court charge is not yet framed. Filing of further investigation report will not in anyway cancel or efface the final report filed under Section 173(2). In order to frame the charge, the trial court can very well take into account all the records including the supplementary report. Without the risk of repetition I would emphasis that Annexure-7 report under Section 173(8) will not in anyway cancel Annexure-6 the report filed under Section 173(2). While framing charge all the materials before the court can be evaluated by the trial court and can proceed with the case in accordance with law. Impugned order passed is modified to the above extent.

Crl.M.C. is disposed of accordingly.