Supreme Court Nullifies Kerala High Court Direction That Final Report Under Section 173(2) CrPC Should Be Filed Even For Removal Of Accused

The Supreme Court has held that the general directions issued by the Kerala High Court regarding the deletion of parties from the array of accused in the final report should not be given effect to.

A bench comprising Justices Mohan Shantanagoudar and Vineet Saran observed that the directions will have no general application and will apply only to the facts of the particular case.

The Supreme Court held so while disposing of a special leave petition filed by the State of Kerala against the general directions issued by a single bench of Justice P Somarajan of the Kerala High Court.

The High Court had "deprecated" the practice of police filing casual reports before the Magistrate to remove or delete parties from the array of accused. The High Court had also observed that it was possible to file a 'refer report' under Section 173 of the Code of Criminal Procedure, and held that such reports should be filed even with respect to persons who have been dropped as accused in the case, along with the necessary documents and statements as per Section 173(5). It further directed that notice should be given to the informant regarding the removal or deletion of accused.

These directions have been nullified by the Supreme Court, by holding that such directions should not be taken as "general" and "shall not be given effect to".

"The directions given, if any, shall not be given effect to. They are issued in the facts of this case only. They should not be taken as general in nature", the SC ordered while disposing of the SLP.

The Apex Court further ordered to ignore the directions issued by the High Court single bench to circulate the judgment to all district level police officers, station house officers and subordinate judges.

"...the observations made by the learned Single Judge in para 20 of the impugned order shall be ignored by the Court", the Supreme Court ordered.

What did the High Court say?

The High Court issued the directions while deciding a petition filed under Section 482 of the Code of Criminal Procedure against an order dismissing an application to summon three persons as additional accused as per Section 319 CrPC.

In that case, the police had submitted final report only against one of the four accused in the FIR, and had filed a separate report removing the other three persons from the array of accused. The informant in that case claimed that he had no knowledge about the deletion of the other three accused until the commencement of trial. Therefore, he filed an application under Section 319 CrPC to add those persons as additional accused, which ultimately got dismissed.

While deciding this case, the bench of Justice Somarajan deliberated upon the general issue of procedure to be followed while deleting accused.

The single bench held that it was incumbent upon the police to file a final report under Section 173(2) of the Code of Criminal Procedure in every case in which investigation was commenced as per Section 156 CrPC.

"The user of the words " every investigation"in sub-section (1) and "as soon as it is completed" in sub-section (2) to Section 173 Cr.P.C. and a conjoint reading with the mandate of submitting a report on culmination of investigation under sub-section (2),would make the legal position clear that when investigation was commenced under Section 156 Cr.P.C.,it is incumbent on the officer in charge of the police station/the investigating officer to submit a report under Section 173(2) Cr.P.C. in every case", the High Court said.

It further observed that there was no enabling provision or any provision in the Code to submit a casual report with a prayer to delete or remove any person from the party array of the accused,except a report as envisaged under Section 173(2)Cr.P.C. Further, it said that there is no provision in the Code either to seek deletion or removal of any person fromthe array of the accused.

Senior Advocate P Vijayabhanu, who was appointed as an amicus curaie in the case, had opined that a final report under Section 173(2) CrPC can be filed only showing sufficient evidence of commission of crime. The amicus curiae submitted that in a 'refer report', there cannot be any positive replies to the queries on commission of crime under Section 173(2).

However, the single bench said that there was no legal impediment in filing a final report giving a negative answer regarding the commission of offence.

"...it is quite permissible to submit a refer report (referred charge)under Section 173 Cr.P.C. and as such, there is no legal impediment in giving a negative answer to the above said query in the said report against any personof accused named in the FIR or subsequently added during the course of investigation".

The bench further held that right to the de-facto complainant to get information about the deletion of accused was defeated due to the practice of filing casual reports for deletion of accused.

"...the practice of submitting a casual report for deleting or removing any person from the array of the accused without notice to the first informant, instead of a referred charge(refer report) as envisaged under Section 173(2) and173(8) Cr.P.C., is deprecated", the High Court said.

The single bench ordered as follows :

"The reports submitted casually for deletion of persons from the array of accused without the compliance of requirement under Section 173(2) Cr.P.C.and without production of the documents or extracts thereof or statement recorded, in any of the pending cases shall be rejected so as to enable the investigating agency to submit a report as envisaged under Section 173(2) Cr.P.C. along with all the documents and records or copies/extracts thereof along with the statement or copies including the statement recorded under Section 161 Cr.P.C.. and it must be notified to the first informant in compliance of mandate under clause (ii) of Section 173(2) Cr.P.C".

Case Details(SC Order)

Tittle : State of Kerala vs Anil Kumar and others

Bench : Justices Mohan M Shantanagoudar, Vineet Saran

Appearances : Senior Advocate R Basant,  Advocates Suman Chakravarthi, Nishe Rajen Shankar(AOR), Anu K Joy, Alim Anvar

Citation   : LL 2021 SC 173

Click here to read/download the SC Order

Click here to read/download the High Court order