[Section 173 CrPC] Police Can File Final Report Against One Accused And Conduct Further Investigation Against Others :Kerala HC [Read Judgment]

The Kerala High Court has held that it is permissible for the Investigating Officer to proceed with the investigation in a crime involving more than one accused and file Final Report against one accused apprehended by him and that he is not expected to wait till the absconding accused is arrested.

A father-son duo were the accused in a crime. As the son was absconding, a final report was filed as against the 1st accused father alone. The trial court found him guilty of committing the offences punishable under Sections 323, 324 and 341 of I.P.C.; while acquitting him for the rest of the offence in the charge sheet. The District and Sessions Court allowed the appeal and set aside the conviction.

At this stage, the second accused (son) approached the High Court by filing a petition under Section 482 CrPC to quash the criminal proceedings against him mainly contending that despite the fact that he was absconding, he should have been arrayed as an accused in the final report, which the investigating officer failed to do. The investigating officer cannot reserve his right to further investigate a crime against the petitioner alone and file a second final report at a later stage, it was contended.

Disagreeing with this contention, the court observed that, in case there are more than one accused and some of them are absconding, the investigating officer is not expected to wait till the absconding accused is arrested so as to proceed with further investigation with regard to his involvement. With the available evidence on record, he is at liberty to file a final report against the accused, who have already been apprehended, Justice Ashok Menon said.

Another contention raised by the petitioner was that the completion of investigation and filing of final report even against one of the accused under the aforesaid provisions would mean closing of the said chapter of investigation and, therefore, further investigation envisaged under sub-section (8) of Section 173 of Cr.P.C. must necessarily be termed as a reopening of the same; permissible only upon altogether new and fresh materials, which were not earlier available, being discovered. The Court, in this regard, observed:

"It is not possible to accede or subscribe to this extreme stand. Where there are more than one accused, it is perfectly possible that the investigation may be totally complete against one accused; whilst it is wholly in the embryo or incomplete against an absconding or unnamed or untraced accused. In such a situation, it is indeed the mandate of law under Section 173, Cr.P.C. to complete the investigation without delay and as soon as it is complete, to file a police report before the Magistrate empowered to take cognizance. If latter investigation is completed against the absconding, unnamed or untraced accused and a police report is filed against him, it in no way involves any reopening of the investigation against the accused person or persons with regard to whom the police had already filed a report. To bring in the theory of reopening in this context is thus unwarranted. Yet again, the law does not envisage a police report once filed to be all and end all of the matter. There is no express and not even an implied provision to file a supplementary or additional police report to an earlier one. Indeed, the use of the terminology of "reopening of investigation" in the context of the expressed provisions under sub-section (8) of Section 173 of Cr.P.C. is somewhat unhappy. The Statute does not employ any such terminology of reopening investigation thereunder. It expressly talks about further investigation or of further report/reports. Furtherance it is not reopening. Consequently, such police report under Section 173(8) of Cr.P.C. may be more aptly classified as further police reports/additional/supplemental or revised police reports. As mentioned earlier, they may not imply any semblance of any reopening of the completed investigation against some of the accused at all. However, even carrying the argument to the logical extreme, if Section 173(8) of Cr.P.C. may involve any reopening of the investigation, then the same is not only permissible; but is expressly sanctified to sub-section (8) of Section 173 of Cr.P.C. The law in terms permits reopening of investigation, if necessary. There is no inflexible conclusiveness or finality about the same ."

The Court added that the Section 173 of the Code creates no embargo at all in filing of more than one charge sheet or final reports on the basis of the same investigation. It said:

"Neither is there any provisions empowering an investigating officer to file a revised charge sheet nor is there any prohibition in doing so on the basis of the same materials. What sub-section (2)(i) of Section 173 of Cr.P.C. states that soon after completion of the investigation, the officer-in-charge of the Police Station shall forward to the jurisdictional Magistrate, empowered to take cognizance of the offence, a report in the form prescribed by the State Government. Section 173(8) of Cr.P.C. was added to the Code in order to clarify merely because an investigating officer has filed a police report before the Magistrate, he will not stand precluded from making further investigation in the case and submitting a final report or reports to the Magistrate regarding the additional evidence gathered by him in the further investigation. This power would include adding of witness, correcting of errors or to set right certain mistakes or omissions in the first report. Otherwise, the interests of the State, which in other words would mean the public interest, would suffer"

The Court also rejected the contention of the petitioner that due to the acquittal of the 1 st accused by the appellate Court, the substratum of the prosecution case has been lost and the prosecution cannot now proceed against the petitioner on the very same investigation made against the 1st accused. It said:

"It has to be borne in mind that the investigation is not yet complete against the petitioner and the final report has not yet been filed. There is possibility of further evidence being gathered against the petitioner. The absconding 2nd accused cannot take advantage of the acquittal of the 1 st accused, who has faced a trial before the Court of the Magistrate and was also convicted in the first instance" 

Case name: SUSIL RAJ vs. State of Kerala

Case no.: Crl.MC.No.1797 OF 2017

Coram: Justice Ashok Menon

Counsel: Advocate V.T.RAGHUNATH

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