LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE AND OTHERSversusJOSEPH JOSEPH AND OTHERS

                        [2022] 2 S.C.R. 917                             917


 LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE AND                            A
                               OTHERS
                                   v.
                  JOSEPH JOSEPH AND OTHERS
                   (Criminal Appeal No. 256 of 2022)
                         FEBRUARY 18, 2022                              B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                         SURYA KANT, JJ.]
       Code of Criminal Procedure, 1973: ss.173(2), 173(8), 173(3),
173(6) – Initial Report and Supplementary Report – Duty of
Magistrate – As per the law laid down in Vinay Tyagi v Irshad Ali       C
whenever a supplementary police report is filed after the original
police report, the Magistrate has to consider both the reports
conjointly and should not place reliance only upon the
supplementary police report – Both the reports have to be assessed
conjointly so as to find out whether there existed grounds to presume
                                                                        D
that the accused has committed the offence.
       Disposing of the appeal, the Court
       HELD: 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           E
42 of the decision in Vinay Tyagi v Irshad Ali, as well as the
subsequent three-Judge Bench decision in Vinubhai Haribhai
Malaviya v. 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. The Magistrate         F
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. [Para 15][923-F-H; 924-A]                        G
       Vinay Tyagi v. Irshad Ali (2013) 5 SCC 762 : [2012] 13
       SCR 1005; Vinubhai Haribhai Malaviya v. State of
       Gujarat (2019) 17 SCC 1 : [2019] 15 SCR 936 – relied
       on.
       Joseph v. Antony Joseph 2018 (3) KHC 23 – referred to.           H
                                917
918            SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A                             Case Law Reference
      [2012] 13 SCR 1005               relied on                  Para 6 (i)
      [2019] 15 SCR 936                relied on                  Para 13
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
B     256 of 2022.
            From the Judgment and Order dated 03.03.2021 of the High Court
      of Kerala at Ernakulam in Crl. M.C. No.2240 of 2020 (H).
            R. Basant, Sr. Adv., Raghenth Basant, Manu Krishnan, Arjun
C     Singh Bhati, Ms. Roopali Lakhotia, Ms. Urja Pandey, Advs. for the
      Appellants.
            Dr. S. Gopakumaran Nair, Sr. Adv., T. G. Narayanan Nair, Sooraj
      T. Elenjickal, Ms. Priya Balakrishnan, Aswin Kumar M. J., Harshad V.
      Hameed, Dileep Poolakkot, Mrs. Ashly Harshad, Advs. for the
D     Respondents.
            The Judgment of the Court was delivered by
            DR. DHANANJAYA Y CHANDRACHUD, J.
            1. Leave granted.
E
             2. This appeal arises from a judgment of a learned Single Judge
      of the High Court of Kerala dated 3 March 2021.
             3. On 3 February 2016, FIR 205 of 2016 was registered at police
      station Alappuzha North against the appellants for the alleged commission
      of offences punishable under Sections 294(b), 323, and 324 read with
F
      Section 34 of the Indian Penal Code 1806. The first appellant was named
      as the second accused, the second appellant as the third accused and
      the third appellant as the first accused. On 26 September 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
G     the appellants in the commission of the alleged offences. The case came
      to be numbered as CC No 2177 of 2016 before the JFCM Court - I,
      Alappuzha.
            4. The first appellant moved the Superintendent of Police and the
      IGP complaining of the registration of a false case and sought a further
H     investigation in the matter. On 21 February 2017, the Dy SP
LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE v. JOSEPH JOSEPH                             919
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

(Administration) Alappuzha submitted a report recording that there were              A
serious flaws in the earlier investigation. On 6 December 2017, the Dy
SP Crime Branch submitted a supplementary report before the court of
the JFCM Court - I, Alappuzha recommending that the proceedings
against the appellants be dropped on the ground that no offence had
been established during the course of the further investigation.
                                                                                     B
      5. The first respondent filed a protest petition. By an order dated
19 May 2018, the Magistrate dismissed the protest petition for want of
prosecution. On 30 May 2018, the Magistrate accepted the final report
observing that the protest petition lodged by the complainant had been
dismissed.
                                                                                     C
       6. The first respondent at whose behest the FIR was registered
challenged the order of the Magistrate before the Sessions Court,
Alappuzha. Exercising the revisional jurisdiction, the Sessions Judge set
aside the order of the Magistrate on 26 October 2019 and directed the
Magistrate to take the case on file and proceed further in accordance
with law. While doing so, the Sessions Judge relied on a judgment of a               D
Single Judge of the High Court of Kerala in Joseph v. Antony Joseph1.
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 by its impugned judgment dated 3 March 2021 dismissed the
petition on the following grounds:                                                   E
         (i)     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 offence.
                 The reports do not have a separate existence. This position
                                                                                     F
                 is settled by the decision of the Supreme Court in Vinay
                 Tyagi v. Irshad Ali2;
         (ii)    There is no scope for filling a protest petition against a report
                 under Section 173(2) or Section 173(8) of the CrPC. The
                 protest petition and its dismissal for non-prosecution does
                                                                                     G
                 not have any legal impact; and
         (iii)   The scope of a protest petition would arise only when both
                 the reports that is, the final report under Section 173(2)
1
    2018 (3) KHC 23
2
    (2013) 5 SCC 762                                                                 H
920              SUPREME COURT REPORTS                        [2022] 2 S.C.R.


A                  CrPC and the supplementary report under Section 173(8)
                   CrPC, are “negative reports”.
            7. While entertaining the Special Leave Petition on 13 December
      2021, the following order was passed by this Court, recording the
      submissions of the appellants:
B           “1     Mr R Basant, Senior Counsel appearing on behalf of the
                   petitioners, has, while placing reliance on the decision of
                   this Court in Vinay Tyagi v Irshad Alia alias Deepak
                   (2013) 5 SCC 762, (paragraphs 41 and 42), submitted that
                   since a supplementary report under Section 173(8) of the
                   Code of Criminal Procedure 1973 was presented before
C
                   the Magistrate after further investigation, the Magistrate
                   would be required to take into account both the report under
                   Section 173(2) as well as the supplementary report and then
                   determine as to whether there is any ground for proceeding.
                   However, it has been submitted that on the basis of the
D                  judgment of the High Court which has been cited in the
                   order of the Sessions Judge only the report under Section
                   173(2) would be considered while the supplementary report
                   would be taken into account at the stage of the trial.
            2      Issue notice, returnable on 18 February 2022.
E           3      Counter affidavit, if any, be filed within a period of four
                   weeks from the date of service.
            4      Pending further orders, there shall be a stay of further
                   proceedings in CC 2177/2016 pending before the Judicial
                   First Class Magistrate Court-I, Alappuzha.”
F            8. In pursuance of the order issuing notice, the respondents have
      appeared in these proceedings. Accordingly, we have heard Mr R Basant,
      learned senior counsel appearing on behalf of the appellants with Mr
      Raghenth Basant and Dr S Gopakumaran Nair, learned senior counsel
      for the first respondent with Mr T G Narayanan Nair.
G            9. The initial report under Section 173(2) CrPC which was submitted
      before the competent court after investigation found that prima facie the
      appellants were involved in the commission of the offences alleged. The
      subsequent report under Section 173(8) however has come to the conclusion
      that the proceedings were liable to be dropped since prima facie no case
      involving the commission of the offences has been established.
H
LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE v. JOSEPH JOSEPH                         921
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

       10. In the judgment of this Court in Vinay Tyagi (supra) it has           A
been 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. 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.
                                                                                 B
       11. Section 173(8) specifically provides as follows:
       “(8) Nothing in this section shall be deemed to preclude further
       investigation in respect of an offence after a report under sub-
       section (2) has been forwarded to the Magistrate and, where upon
       such investigation, the officer in charge of the police station obtains
       further evidence, oral or documentary, he shall forward to the            C
       Magistrate a further report or reports regarding such evidence in
       the form prescribed; and the provisions of sub- sections (2) to (6)
       shall, as far as may be, apply in relation to such report or reports
       as they apply in relation to a report forwarded under sub- section
       (2).”                                                                     D
       12. In terms of sub-Section 8 of Section 173, in the event of a
further investigation, the report has to be forwarded to the Magistrate
upon which, the provisions of sub-Sections (2) to (6) shall (as far as may
be) apply in relation to such report or reports as they apply in relation to
a report forwarded in sub-section (2). In this backdrop, while interpreting      E
the above provisions, in Vinay Tyagi (supra) this Court held thus:
       “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           F
       the basis of these reports, the court shall discharge an accused in
       compliance with the provisions of Section 227 of the Code.”
       13. The decision in Vinay Tyagi (supra) was noticed together
with other decisions of this Court in the judgment of a three-Judge Bench
in Vinubhai Haribhai Malaviya v. State of Gujarat3. This Court held:             G
       “42. There is no good reason given by the Court in these decisions
       as to why a Magistrate’s powers to order further investigation
       would suddenly cease upon process being issued, and an accused

3
    (2019) 17 SCC 1                                                              H
922      SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     appearing before the Magistrate, while concomitantly, the power
      of the police to further investigate the offence continues right till
      the stage the trial commences. Such a view would not accord
      with the earlier judgments of this Court, in particular,Sakiri [Sakiri
      Vasu v. State of U.P., (2008) 2 SCC 409 : (2008) 1 SCC (Cri)
      440], Samaj Parivartan Samudaya [Samaj Parivartan
B     Samudaya v. State of Karnataka, (2012) 7 SCC 407 : (2012) 3
      SCC (Cri) 365], Vinay Tyagi [Vinay Tyagi v. Irshad Ali, (2013)
      5 SCC 762 : (2013) 4 SCC (Cri) 557], and Hardeep Singh
      [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2
      SCC (Cri) 86]; Hardeep Singh [Hardeep Singh v. State of
C     Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] having clearly
      held that a criminal trial does not begin after cognizance is taken,
      but only after charges are framed. What is not given any
      importance at all in the recent judgments of this Court is Article
      21 of the Constitution and the fact that the Article demands no
      less than a fair and just investigation. To say that a fair and just
D     investigation would lead to the conclusion that the police retain
      the power, subject, of course, to the Magistrate’s nod under Section
      173(8) to further investigate an offence till charges are framed,
      but that the supervisory jurisdiction of the Magistrate suddenly
      ceases midway through the pre-trial proceedings, would amount
E     to a travesty of justice, as certain cases may cry out for further
      investigation so that an innocent person is not wrongly arraigned
      as an accused or that a prima facie guilty person is not so left out.
      There is no warrant for such a narrow and restrictive view of the
      powers of the Magistrate, particularly when such powers are
      traceable to Section 156(3) read with Section 156(1), Section 2(h)
F     and Section 173(8) CrPC, as has been noticed hereinabove, and
      would be available at all stages of the progress of a criminal case
      before the trial actually commences. It would also be in the interest
      of justice that this power be exercised suo motu by the Magistrate
      himself, depending on the facts of each case. Whether further
      investigation should or should not be ordered is within the discretion
G
      of the learned Magistrate who will exercise such discretion on
      the facts of each case and in accordance with law. If, for example,
      fresh facts come to light which would lead to inculpating or
      exculpating certain persons, arriving at the truth and doing
      substantial justice in a criminal case are more important than
H     avoiding further delay being caused in concluding the criminal
LUCKOSE ZACHARIAH @ ZAK NEDUMCHIRA LUKE v. JOSEPH JOSEPH                       923
           [DR. DHANANJAYA Y CHANDRACHUD, J.]

       proceeding, as was held in Hasanbhai Valibhai Qureshi                   A
       [Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC
       347 : 2004 SCC (Cri) 1603] . Therefore, to the extent that the
       judgments in Amrutbhai Shambhubhai Patel [Amrutbhai
       Shambhubhai Patel v. Sumanbhai Kantibhai Patel, (2017) 4
       SCC 177 : (2017) 2 SCC (Cri) 331], Athul Rao [Athul Rao v.
                                                                               B
       State of Karnataka, (2018) 14 SCC 298 : (2019) 1 SCC (Cri)
       594] and Bikash Ranjan Rout [Bikash Ranjan Rout v. State
       (NCT of Delhi), (2019) 5 SCC 542 : (2019) 2 SCC (Cri) 613]
       have held to the contrary, they stand overruled. Needless to add,
       Randhir Singh Rana v. State (Delhi Admn.) [Randhir Singh
       Rana v. State (Delhi Admn.), (1997) 1 SCC 361] and Reeta Nag            C
       v. State of W.B. [Reeta Nag v. State of W.B., (2009) 9 SCC 129
       : (2009) 3 SCC (Cri) 1051] also stand overruled.”
       14. In the present case, the record before the Court indicates that
upon the submission of the supplementary report, the JFCM Court - I,
Alappuzha by an order dated 19 May 2018 dismissed the protest petition
                                                                               D
submitted by the first respondent for non-prosecution. On 30 May 2018,
the JFCM proceeded to accept the supplementary report in terms of the
following order:
       “It is seen from the records that after further investigation, police
       has referred the charge against the accused. Notice was issued
       to Defacto Complainant and he filed C.M.P. 155/2018 against the         E
       refer charge. The same was dismissed on 19.05.2018 due to non
       prosecution. Hence, final report referring the charge as false is
       hereby accepted. Hence, the further proceedings are dropped.
       Hence, the further proceedings in the case dropped.”
       15. The Sessions Judge was justified in setting aside the order of      F
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
                                                                               G
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       H
924               SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A     have committed the offence. The order of the Sessions Judge restoring
      the proceedings back to the Magistrate was correct to that extent. However,
      the Sessions Judge proceeded to rely upon the decision of a Single Judge
      of the Kerala High Court in Joseph (supra), where it was held that:
               “7. […] When a positive report under Section 173(2) of Cr.P.C. is
B              followed by a negative report under Section 173(8) Cr.P.C. and
               cognizance has been taken upon the former report, the magistrate
               shall proceed with the case ignoring the latter report. But the
               supplementary report and the papers connected therewith shall form
               part of the record of the case and can be used at the trial. What I
               should do is to dispose of the Crl.M.C. making this position clear.”
C
              16. 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
D     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. While the
      High Court has relied upon the decision in Vinay Tyagi (supra), it
E     becomes necessary for this Court to set the matter beyond any
      controversy having due regard to the fact that the Sessions Judge in the
      present case had while remitting the proceedings back to the Magistrate
      relied on the judgment of the Single Judge of the Kerala High Court in
      Joseph (supra) which is contrary to the position set out in Vinay Tyagi.
      Hence, the JFCM – I Alappuzha shall reexamine both the reports in
F     terms of the decisions of this Court in Vinay Tyagi vs Irshad Ali alias
      Deepak and Vinubhai Haribhai Malaviya vs State of Gujarat as noted
      above and in terms of the observations contained in the present judgment.
      The Magistrate shall take a considered decision expeditiously within a
      period of one month from the date of the present order.
G              17. The appeal shall stand disposed of accordingly in the above
      terms.
               18. Pending applications, if any, stand disposed of.

      Devika Gujral                                               Appeal disposed of.
H     (Assisted by : Mahendra Yadav, LCRA)