O R D E R

This Criminal Miscellaneous Case is filed to quash the proceedings in CC No.1258/2015 on the file of Judicial First Class Magistrate Court-I, Kochi. The petitioner is the accused in the above case.

2. The crime was registered based on the statement recorded from the 2^nd respondent alleging that he is a person who was conducting a shop near Katari Bagh and one Mr. Joshi and 8 other persons, who are identifiable by sight, assaulted the defacto complainant and on the basis of this allegation, the crime was registered alleging offences punishable under Sections 143, 146, 147, 294(b), 323, 427 and 447 of IPC.

3. After investigation conducted by the 1^st respondent, a final report was submitted before the trial court against five named persons alleging offences punishable under Sections 143, 146, 147, 294(b), 323, 427 and 447 of IPC. Annexure-1 is the Final Report. The petitioner was not arrayed as an accused in the above case. The case was taken on file as CC No.1258/2015 before the Judicial First Class Magistrate Court-I, Kochi. It is the case of the petitioner that no protest complaint is filed by the defacto complainant. But, a petition was filed by the defacto complainant under Section 173(8) of Cr.P.C. for conducting further investigation implicating the petitioner as one of the accused. The learned Magistrate, as per Annexure-II order, allowed the prayer of the defacto complainant and directed to conduct further investigation. After further investigation, a further report was filed in which the petitioner is implicated as an accused. Annexure-III is the second Final Report. According to the petitioner, even if the entire allegations are accepted, no offence is made out against the petitioner. Hence, this Crl.MC is filed.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

5. The counsel for the petitioner raised a short point. According to the petitioner, if a further report is filed after further investigation, the learned Magistrate has to consider that report along with the original report in the light of the principle laid down by the Apex Court in Luckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph and Others (2022 KHC 6253). It will be better to extract paragraph Nos.15 and 16 of the above said judgment:

“15. 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 ofÏcer, 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 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. (xxxxx xxxxxx) When a positive report under S. 173(2) of Cr.P.C. is followed by a negative report under S. 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."

16. In view of the clear position of law which has been enunciated in the judgments of this C