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.
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 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 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 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.
PARTY: Luckose Zachariah @ Zak Appellants Nedumchira Luke and Others vs. Joseph Joseph and Others – Criminal Appeal No 256 of 2022 (Arising out of SLP (Crl) No 9556 of 2021) – February 18, 2022.
https://main.sci.gov.in/supremecourt/2021/29392/29392_2021_34_11_33505_Judgement_18-Feb-2022.pdf
Luckose Zacharia @ Zak Nedumchira Luke and others vs. Joseph Joseph and others
