The magistrate must consider both initial and supplementary investigation reports to determine the presence of grounds for presuming an offence.

ORDER

Petitioner is the defacto complainant in Crime No.615/2017 of Muttom Police Station which is now pending as S.C. No.710/2017 on the file of the District and Sessions Court (Special Court for POCSO Act Cases 2012), Thodupuzha. The above case is charge sheeted alleging offences punishable under Sections 341 and 506(i) IPC and also under Section 11 (1) of the POCSO Act, 2012.

2. The crime was registered based on a complaint filed by the petitioner before the Special Court for trial of POCSO Act cases against four persons. It is alleged that the accused in Crime No.615/2017 wrongfully restrained the child of the petitioner and abused her with vulgar languages. When this fact was revealed to the petitioner and her husband, the petitioner filed a complaint before the police. The statement under Section 164 Cr.P.C. was recorded by the investigating agency from the minor child and the final report was filed. Annexure - I is the final report.

3. After taking cognizance based on the final report, an application was submitted by one of the accused before the District Police Chief/Superintendent of Police, Idukki to conduct a re-investigation in the matter, is the submission. As per Annexure – II order, reinvestigation was ordered. According to the petitioner, the order passed by the 2nd respondent is without jurisdiction and there is no provision in the Criminal Procedure Code to order reinvestigation. It is also submitted that the Special Judge was informed about the same and the Special Judge ordered further investigation. This Crl.M.C. is filed to quash Annexure – II order passed by the District Police Chief, Idukki, by which reinvestigation was ordered.

4. Admittedly, this Crl.M.C. is filed under Section 482 Cr.P.C. It is doubtful whether Annexure – II, which is an order passed on administrative side by the District Police Chief, can be challenged in a petition filed under Section 482 Cr.P.C. before this Court. According to the petitioner, Annexure – II order was passed based on a request from the side of the accused. In this Crl.M.C. the accused is not arrayed as a party. For that simple reason also, this Crl.M.C. can not be entertained against Annexure – II order.

5. But, if an additional report is submitted after further investigation, the same is to be considered by the court along with Annexure – I final report in the light of the dictum laid down by the Apex Court inLuckose Zachariah @ Zak Nedumchira Luke v. Joseph Joseph and Others [ 2022 KHC 6253 ]. The relevant portion of the above judgment is extracted hereunder:

“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 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 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. ( xxxx xxxx xxxx) 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 repor