Shanalalu Wife of Laalu and P. Nassir Son of Hamid Vs. the Station House Officer and State of Kerala - Court Judgment

Excerpt:
- orderv. ramkumar, j.1. the petitioners are accused nos. 9 and 10 in crime no. 62 of 2008 of rajapuram police station for offences punishable under sections 143, 147, 447, 326, 307, 316 and 120(b) read with 149 ipc.2. the de facto complainant is none other than the 1st petitioner's father and the 2nd petitioner is the nephew of the de facto complainant.3. the case of the prosecution is that the accused persons hired certain persons to cause the death of the de facto complainant and his 2nd wife and with that intention they splashed acid on the body of the de facto complainant and his 2nd wife.4. originally the circle inspector of police vellarikkundu filed ext.p4 final report under section 173(2) cr.p.c. charge sheeting all the accused persons including the petitioner herein for the aforesaid offences. thereafter, at the instance of the superintendent of police, kasaragod a further investigation was conducted with the permission of the j.f.c.m-i, hosdurg. further investigation was conducted by the then circle inspector of police, vellarikundu. after further investigation the circle inspector of police, vellarikundu filed annexure a1 supplementary final report dated 5.2.2009 in which he charge-sheeted accused nos. 1 to 8 alone and excluded accused nos. 9 and 10 (the petitioners herein). the learned magistrate (j.f.c.m-i, hosdurg) while committing the case as c.p. no. 82 of 2008 came to the conclusion that eventhough accused nos. 9 and 10 were deleted from the supplementary final report, the magistrate was entitled to fall back upon the final report under section 173(2) cr.p.c. and accordingly committed the case of the petitioners also to the court of session under section 209 cr.p.c. it is the said order which is assailed in this petition under section 482 cr.p.c.5. i heard the learned counsel for the petitioners as well as the learned public prosecutor.6. while it may be permissible for the magistrate receiving a final report under section 173(2) cr.p.c. to either take cognizance of the offences mentioned in the final report or additional offences revealed by the prosecution records or refuse to take cognizance of all the offences mentioned in the final report, in the light of the decision of the apex court in raj kishore prasad v. state of bihar : air 1996 sc 1931 it is impermissible for the committal magistrate either to add to or subtract from the array of the accused mentioned in the final report. it is true that the petitioners were among the accused persons charge-sheeted in the final report filed under section 173(2) cr.p.c. but after further investigation under section 173(8) cr.p.c. their names were deleted in the supplementary final report, which by virtue of section 173(8) itself should be treated as the final report under section 173(2) cr.p.c. when the supplementary final report (annexure a1) filed after further investigation arrayed only a1 to a8 to be charge-sheeted for the offences mentioned above it was not permissible for the magistrate to add the names of the petitioners also and commit them also for trial in exercise of his powers under section 209 cr.p.c. annexure iii order dated 14.10.2009, so far as it has committed the petitioners also to the court of session, is accordingly set aside.this crl.m.c is allowed as above.dated this the 19th day of may, 2010.

Judgment:
ORDER

V. Ramkumar, J.

1. The petitioners are accused Nos. 9 and 10 in Crime No. 62 of 2008 of Rajapuram Police Station for offences punishable under Sections 143, 147, 447, 326, 307, 316 and 120(b) read with 149 IPC.

2. The de facto complainant is none other than the 1st petitioner's father and the 2nd petitioner is the nephew of the de facto complainant.

3. The case of the prosecution is that the accused persons hired certain persons to cause the death of the de facto complainant and his 2nd wife and with that intention they splashed acid on the body of the de facto complainant and his 2nd wife.

4. Originally the Circle Inspector of Police Vellarikkundu filed Ext.P4 final report under Section 173(2) Cr.P.C. charge sheeting all the accused persons including the petitioner herein for the aforesaid offences. Thereafter, at the instance of the Superintendent of Police, Kasaragod a further investigation was conducted with the permission of the J.F.C.M-I, Hosdurg. Further investigation was conducted by the then Circle Inspector of Police, Vellarikundu. After further investigation the Circle Inspector of Police, Vellarikundu filed Annexure A1 supplementary final report dated 5.2.2009 in which he charge-sheeted accused Nos. 1 to 8 alone and excluded accused Nos. 9 and 10 (the petitioners herein). The learned Magistrate (J.F.C.M-I, Hosdurg) while committing the case as C.P. No. 82 of 2008 came to the conclusion that eventhough accused Nos. 9 and 10 were deleted from the supplementary final report, the Magistrate was entitled to fall back upon the final report under Section 173(2) Cr.P.C. and accordingly committed the case of the petitioners also to the Court of Session under Section 209 Cr.P.C. It is the said order which is assailed in this petition under Section 482 Cr.P.C.

5. I heard the learned Counsel for the petitioners as well as the learned Public Prosecutor.

6. While it may be permissible for the Magistrate receiving a final report under Section 173(2) Cr.P.C. to either take cognizance of the offences mentioned in the final report or additional offences revealed by the prosecution records or refuse to take cognizance of all the offences mentioned in the final report, in the light of the decision of the Apex Court in Raj Kishore Prasad v. State of Bihar : AIR 1996 SC 1931 it is impermissible for the Committal Magistrate either to add to or subtract from the array of the accused mentioned in the final report. It is true that the petitioners were among the accused persons charge-sheeted in the final report filed under Section 173(2) Cr.P.C. But after further investigation under Section 173(8) Cr.P.C. their names were deleted in the supplementary final report, which by virtue of Section 173(8) itself should be treated as the final report under Section 173(2) Cr.P.C. When the supplementary final report (Annexure A1) filed after further investigation arrayed only A1 to A8 to be charge-sheeted for the offences mentioned above it was not permissible for the Magistrate to add the names of the petitioners also and commit them also for trial in exercise of his powers under Section 209 Cr.P.C. Annexure III order dated 14.10.2009, so far as it has committed the petitioners also to the court of Session, is accordingly set aside.

This Crl.M.C is allowed as above.

Dated this the 19th day of May, 2010.