Magistrate Duty Bound To Consider Both Original Report And Supplementary Report U/s. 173 CrPC Before Establishing Guilt Of Accused – SC

In this context, the Bench opined –

"Magistrate was duty bound in terms of the dictum in paragraph 42 of the decision in Vinay Tyagi vs Irshad Ali alias Deepak as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya vs State of Gujarat to consider both the original report and the supplementary report before determining the steps that have to be taken further in accordance with law."

Senior Advocate Dr. S Gopakumaran Nair appeared for the First Respondent while Senior Advocate Mr. R Basant appeared for Appellants before the Apex Court.

In this case, an appeal was preferred by the Appellants-Accused assailing the judgment of the Single Judge of the Kerala High Court. The Appellants were accused of the offences under Sections 294(b), 323, and 324 read with Section 34 of IPC.

The High Court had dismissed the petition of the Appellants filed under Section 482 CrPC.

• The Court had relied upon the case of Vinay Tyagi v. Irshad Ali and held that the positive and negative reports submitted under Sub-sections (2) and (8) of Section 173 CrPC must be read conjointly to determine if there is prima facie ground for believing that the accused committed the offence. The reports do not have a separate existence;

• The HC also opined that there was no scope for filing a protest petition against a report under Section 173(2) or Section 173(8) of CrPC. The protest petition and its dismissal for non-prosecution does not have any legal impact; and

• The High Court observed that the scope of protest petition would only arise when both the reports that are, the final report under Section 173(2) CrPC and the supplementary report under Section 173(8) are negative reports.

Aggrieved, the Appellants approached the Apex Court.

The Apex Court noted that the initial report under Section 173(2) CrPC submitted before the competent Court after an investigation found that prima facie the Appellants were involved in the commission of alleged offences. While the subsequent report under Section 173(8) however had come to a conclusion that the proceedings were liable to be dropped since prima facie no case involving the commission of the offences had been established.

Further, the Bench noted that the judgment in Vinay Tyagi (supra), 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 this context, the Court observed –

"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."

The Court also noted that the dictum in Vinay Tyagi's case was that both the reports (initial and supplementary) had to be read conjointly and it was 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.

Additionally, the Bench held that the Sessions Judge was justified in setting aside the order of the Magistrate for the reason that after a supplementary report submitted by the investigating officer, the Magistrate was duty-bound in terms of the dictum in Vinay Tyagi (supra) as well as the subsequent three-Judge Bench decision in Vinubhai Haribhai Malaviya (supra).

"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," the Court added.

Furthermore, the Court directed the JFCM – I Alappuzha to re-examine both the reports in terms of the decisions of the Court in Vinay Tyagi vs Irshad Ali alias Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat. The Court also directed the Magistrate to take an expeditious decision within a period of one month from the date of the order.

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