173 CrPC – Magistrate should consider both preliminary final report and supplementary report before proceeding against accused: Supreme Court
The Supreme Court has observed that whether there is a ground to believe that the accused has committed the offense, the preliminary final report submitted under section 173(2) of CrPC and section 173(8) before deciding to a judicial magistrate ) should consider the supplementary reports (both supplementary reports). A bench of Justices DY Chandrachud and Surya Kant made the observation while considering a criminal appeal against the Kerala High Court’s order dated March 3, 2021.
️In this case (Lukos Zakaria @ Zak Nedumchira Luke & Ors vs Joseph Joseph et al.), the preliminary report concluded that the accused had committed the crime, but a supplementary report submitted after further investigation reached a contrary conclusion that the accused had There was no case against him. The Supreme Court said, in such a scenario, the magistrate should consider both the reports together before deciding whether there are grounds to proceed against the accused.
The judgment held: “In view of the clear position of law in the judgments of this Court in both Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate to give due consideration to both the reports, Preliminary report which was submitted under section 173(2) as well as a supplementary report which was submitted after further investigation in terms of section 173(8). Thereafter the Magistrate shall consider in accordance with the law whether there is a ground to hold that the persons named as accused have committed the offense.
An FIR was registered at Police Station, Alappuzha North on 3rd February 2016 against the appellants for alleged constitution of offenses punishable under sections 294(b), 323, and 324 read with section 34 of the Indian Penal Code 1860 . On September 26, 2016, the Sub-Inspector of Police, Alappuzha North Police Station submitted a report under section 173(2) of the Code of Criminal Procedure 1973, accusing the appellants of having committed the alleged offense.
The first appellant (Lukos Zakaria) complained about the registration of a false case with the Superintendent of Police and the Inspector General of Police and demanded a further investigation in the matter. On 21 February 2017, Deputy SP (Administration) Alappuzha submitted a report which recorded that there were serious lapses in the earlier investigation. On 6 December 2017, the Deputy SP Crime Branch submitted a supplementary report before the trial court, recommending that the proceedings against the appellants be dropped on the ground that no offense was established during further investigation.
The respondent (Joseph Joseph) filed a protest petition. On 19 May 2018, the magistrate dismissed the protest petition in the absence of prosecution. On May 30, 2018, the magistrate while accepting the final report said that the protest petition filed by the complainant was dismissed for non-prosecution. Aggrieved by this, the respondent, at whose instance the FIR was lodged, challenged the Magistrate’s order before the Sessions Court, which was dismissed by the Sessions, Judge.
The Sessions Judge directed the Magistrate to take the matter on the file and proceed as per law. Aggrieved by the order of the Sessions Judge, the appellants moved the High Court under Section 482 of the Code of Criminal Procedure. The High Court, on March 3, 2021, dismissed the petition holding that there was no scope for filing a protest petition against a report under section 173(2) or section 173(8) of CrPC and that the protest petition and non- Dismissal on the ground of prosecution have no legal effect.
It was also held by the High Court that the scope of the protest petition would arise only if both the reports, i.e. the final report under section 173(2) CrPC and the supplementary report under section 173(8) CrPC, are both “negative reports”. Vinay Tyagi vs Irshad Ali