TMI Blog2022 (2) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with as part of the primary report in view of the provisions of sub-Sections 3 to 6 of Section 173 - In terms of sub-Section 8 of Section 173, in the event of a further investigation, the report has to be forwarded to the Magistrate upon which, the provisions of sub-Sections (2) to (6) shall (as far as may be) apply in relation to such report or reports as they apply in relation to a report forwarded in sub-section (2). In the present case, the record before the Court indicates that upon the submission of the supplementary report, the JFCM Court - I, Alappuzha by an order dated 19 May 2018 dismissed the protest petition submitted by the first respondent for non-prosecution - the Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the protest petition lodged by the complainant had been dismissed. 6 The first respondent at whose behest the FIR was registered challenged the order of the Magistrate before the Sessions Court, Alappuzha. Exercising the revisional jurisdiction, the Sessions Judge set aside the order of the Magistrate on 26 October 2019 and directed the Magistrate to take the case on file and proceed further in accordance with law. While doing so, the Sessions Judge relied on a judgment of a Single Judge of the High Court of Kerala in Joseph v. Antony Joseph 2018 (3) KHC 23 . 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 by its impugned judgment dated 3 March 2021 dismissed the petition on the following grounds: (i) The positive and negative reports submitted under the Sub-sections (2) and (8) of Section 173 respectively must be read conjointly to determine if there is prima facie ground for believing that the accused has committed the offence. The reports do not have a separate existence. This position is settled by the decision of the Supreme Court in Vinay Tyagi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The subsequent report under Section 173(8) however has come to the conclusion that the proceedings were liable to be dropped since prima facie no case involving the commission of the offences has been established. 10 In the judgment of this Court in Vinay Tyagi (supra) it has been held that a further investigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with as part of the primary report in view of the provisions of sub-Sections 3 to 6 of Section 173. 11 Section 173(8) specifically provides as follows: (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2( h ) and Section 173(8) CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge was justified in setting aside the order of the Magistrate for the simple reason that after the supplementary report submitted by the investigating officer, the Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi (supra), as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya (supra) to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law. The Magistrate not having done so, it was necessary to restore the proceedings back to the Magistrate so that both the reports could be read conjointly by analyzing the cumulative effect of the reports and the documents annexed thereto, if any, while determining whether there existed grounds to presume that the appellants have committed the offence. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent. However, the Sessions Judge proceeded to rely upon the decision of a Single Judge of the Kerala High Court in Joseph (supra), where it was held that: 7. [ ] When a positive report under Section 173(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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