Section 173 CrPC - Magistrate Should Consider Initial Report & Supplementary Report Conjointly To Decide Whether To Proceed Against Accused : Supreme Court

The bench of Justices DY Chandrachud and Surya Kant made the observation while considering a criminal appeal assailing Kerala High Court's order dated March 3, 2021.

In this case( Luckose Zachariah @ Zak Nedumchira Luke and Others v. Joseph Joseph and others), the initial report concluded that the accused had committed the offence, but a supplementary report submitted after further investigation reached a contrary conclusion that there was no case against the accused. 

In such a scenario, the Magistrate should conjointly consider both the reports before taking a decision whether there were grounds to proceed against the accused, the Supreme Court observed.

The judgment held :

"In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence."

Factual Background

An FIR was registered on February 3, 2016 at Police Station, Alappuzha North against the appellants for the alleged commission of offenses punishable u/s 294(b), 323, and 324 read with Section 34 of the Indian Penal Code 1806. On September 26, 2016 the Sub-Inspector of police at Alappuzha North police station submitted a report under Section 173(2) of the Code of Criminal Procedure 1973 implicating the appellants in the commission of the alleged offenses.

The first appellant (Luckose Zachariah) moved the Superintendent of Police and the IGP complaining of the registration of a false case and sought a further investigation in the matter. On 21 February 2017, the Dy SP (Administration) Alappuzha submitted a report recording that there were serious flaws in the earlier investigation. On 6 December 2017, the Dy SP Crime Branch submitted a supplementary report before the Trial Court recommending for dropping the proceedings against the appellants on the ground that no offense had been established during the course of the further investigation.

The respondent ( Joseph Joseph) filed a protest petition. On May 19, 2018, the Magistrate dismissed the protest petition for want of prosecution. On May 30, 2018, the Magistrate accepted the final report observing that the protest petition lodged by the complainant had been dismissed for non-prosecution.

Aggrieved, the respondent at whose behest FIR was registered challenged Magistrate's order before the Sessions Court which was set aside by the Sessions Judge. The Sessions Judge directed the Magistrate to take the case on file and proceed further in accordance with 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 while observing that there was no scope for filing a protest petition against a report under Section 173(2) or Section 173(8) of the CrPC and that the protest petition and its dismissal for non-prosecution did not have any legal impact.

It was also observed by the High Court that the scope of a protest petition would arise only when both the reports, that is, the final report under Section 173(2) CrPC and the supplementary report under Section 173(8) CrPC, were "negative reports".

Referring to Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762, the High Court had observed that 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 offense and that the reports do not have a separate existence.

Supreme Court's Analysis

The bench in the judgment authored by Justice DY Chandrachud noted that the initial report u/s 173(2) CrPC which was submitted before the competent court after investigation had prima facie found that the appellants were involved in the commission of the offences alleged. However,  in the subsequent report u/s 173(8), it was concluded that there was no case against the appellants.   

In this regard, the bench referred to the judgment in Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 wherein it was 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. In the said judgment, it was also noted by the court that the supplementary report would have to be dealt with "as part of the primary report" in view of Section 173 (3) to (6).

It was also observed in Vinay Tyagi v Irshad Ali that,

"42. Both these reports have to be read conjointly and it is the cumulative effect of the reports and the documents annexed thereto to which the court would be expected to apply its mind to determine whether there exist grounds to presume that the accused has committed the offence. If the answer is in the negative, on the basis of these reports, the court shall discharge an accused in compliance with the provisions of Section 227 of the Code."

The bench also referred to Vinubhai Haribhai Malaviya v. State of Gujarat (2019) 17 SCC 1.

Relying on the judgements, the bench said,

"The Sessions Judge 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 offense. The order of the Sessions Judge restoring the proceedings back to the Magistrate was correct to that extent."

Directions were also issued to the Magistrate to reexamine both the reports in terms of the decisions of this Court in Vinay Tyagi vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat and take a considered decision expeditiously within a period of one month from the date of order.

Senior Advocate R Basant with Advocate Raghenth Basant appeared for the appellants and Senior Advocate S Gopakumaran Nair with Advocate T G Narayanan Nair appeared for the first respondent.

Case Title: Luckose Zachariah @ Zak Nedumchira Luke and Others v. Joseph Joseph and Others| Criminal Appeal No 256 of 2022

Citation : 2022 LiveLaw (SC) 230

Click Here To Read/Download Judgment