Allowed

K.S.Jayendran v. State of Kerala

Kerala HC12 Mar 2009Crl.MC/4024/2006

Case brief

AI extract

What is this about?

A single judge in the High Court of Kerala allowed Criminal Miscelleneous Applications to expunge strictures against prosecution witnesses made in an acquittal judgment. The court held that making such observations without affording an opportunity to be heard violated principles of natural justice and set aside directions to initiate action against the witnesses.

What did the court decide?

Prayers allowed; remarks in para 14 of the impugned judgment expunged; direction to take action set aside.

K.S.Jayendran Vs State of Kerala — Civil Procedure and Limitation | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930

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Crl.MC.No. 4024 of 2006()

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------------------------SC.292/2002 of ASSISTANT SESSIONS COURT, OTTAPPALAM ....................

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PETITIONER/PW1:

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K.S.JAYENDRAN, CIRCLE INSPECTOR OF

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EXCISE, EXCISE CIRCLE OFFICE, IRINJALAKKUDA.

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BY ADV. SRI.C.C.THOMAS, SENIOR ADVOCATE

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RESPONDENT(S): COMPLAINANT:

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STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, PATTAMBI, PALAKKAD DISTRICT REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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PUBLIC PROSECUTOR SHRI THOMAS JOHN AMBOOKKEN

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/02/2009, ALONG WITH CRMC NO.4074 OF 2006 THE COURT ON 12/03/2009 PASSED THE FOLLOWING:

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ORDER ON CRL.M.A.NO.7257/06 IN CRL.M.C.4024/06

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//DISMISSED//

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12.3.09 SD/-M.C.HARI RANI, JUDGE.

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TRUE COPY

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P.A.TO JUDGE

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M.C.HARI RANI, J.

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---------------------------------------------------CRL.M.C.No.4024 & 4074 OF 2006

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DATED THIS THE 12TH DAY OF MARCH , 2009

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O R D E R

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Petitioners in these two petitions are the witnesses examined on the side of the prosecution as PWs 1 and 5 respectively in S.C.No.292/02 on the file of the Assistant Sessions Court, Ottappalam. These petitions are filed before this Court under Section 482 of Cr.P.C. with the prayer to expunge the observations/strictures against them in the judgment of the learned Sessions Judge in the above mentioned case passed on 27.10.2004. Crime No.18/98 of Excise Range, Pattambi was registered on 14.8.1998 by the petitioner in Crl.M.C.No.4024/06, the then Excise Inspector, who detected the offence against the accused in that case under sections 55(a) and 58 of the Abkari Act. The investigation of that case was completed and charge sheet was laid before the Court of J.F.C.M., Pattambi, by the petitioner in Crl.M.C.No.4074/06 as the then Excise Inspector.

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The learned Magistrate committed the case to the Sessions Court, Palakkad and that court made over the case for trial and

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CRL.M.C.Nos. 4024 & 4074/06 -2-

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disposal to the Court of Assistant Sessions Judge, Ottappalam. The case was numbered as S.C.No.292/02 and after trial, the accused was acquitted as per judgment dated 27.10.2004. Copy of that judgment is produced as Annexure B in Crl.M.C.No.4024/06 and Annexure-I in Crl.M.C.No.4074/06. In paragraph 14 of that judgment, it was stated as follows:

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“14. ........ Therefore it is seen that this is a false case foisted mainly by PW1, the detecting officer and PW5 the investigation officer in this case against the accused. Ignoring the notification No.S.R.O.225/98 unnecessarily and without any basis, the accused was dragged to the Court to undergo the ordeal of a Sessions trial. Fore more than six years, the accused in this case was forced to suffer the consequences of the illegal action taken against him by PW1 and PW5 in this case. PW1, the detecting officer and PW5, the investigating officer are liable to account for their laches and mis-use of the official authority conferred upon them. The High authorities in the Excise Department are bound to see why such a false case was falsely foisted against the accused in this case.

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CRL.M.C.Nos. 4024 & 4074/06

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The concerned Excise Officials are liable to account for their misdoings. The liberty and freedom of an innocent citizen was trampled without any rhyme or reason by PW1 and PW5, the concerned Excise Officials in this case by misusing the provisions of law. Stern and appropriate action has to be taken against such misdeeds in order to avoid such repetitions in future.”

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Based on that strictures, memos were issued to the petitioners in this petition by the Joint Excise Commissioner, copy of which is produced by the petitioner in Crl.M.C.No.4074/06 as Annexure-II. True copy of the reply submitted by the petitioner in Crl.M.C.No.4074/06 is also produced as Annexure -III. Thereafter, both the petitioners were served with memo of charges on 30.10.2006 by the Excise Commissioner, Thiruvananthapuram. True copy of the memo of charge issued to the petitioner in Crl.M.C.No.4024/06 is produced as Annexure-C in that petition, whereas memo of charges issued to the petitioner in Crl.M.C.No.4074/06 is produced as Annexure-IV in that petition. The explanation given by these petitioners were produced in these petitions as Annexures D and Annexure V respectively. Thus, according to the petitioners, the above said proceedings were initiated

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CRL.M.C.Nos. 4024 & 4074/06 -4-

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against them on the basis of the observations/strictures made against them in paragraph 14 of the judgment in S.C.No.292/02 on the file of the Assistant Sessions Court, Ottappalam, which is liable to be expunged to prevent abuse of process of the court and to secure the ends of justice.

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Heard the learned counsel appearing for the petitioners in these petitions and also the learned Public Prosecutor.

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Crime No.18/98 of Excise Range, Pattambi was registered against the accused, Shri Raghunathan under Sections 55(a) and 58 of the Abkari Act with the allegation that on 14.8.1998 at 8PM, while the petitioner in Crl.M.C.No.4024/06, was working as the Excise Inspector, Pattambi, found the accused in possession of 3 litres of coloured liquor in four bottles having capacity of 750ml each on the road in Ongallur Village and was carrying the same in violation of the provisions of the Abkari Act and Rules and he arrested the accused. Annexure A produced in Crl.M.C.No.4024/06 is the mahazar prepared by the petitioner as the Detecting Officer. The case was investigated by the petitioner in Crl.M.C.No.4074/06, while working as the Excise Inspector of Excise Range, Pattambi and laid the charge sheet against the accused before the J.F.C.M. Court, Pattambi, for the above-

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CRL.M.C.Nos. 4024 & 4074/06

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-5-

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mentioned offences. The learned Magistrate committed the case to the Court of Sessions, Palakkad and the Sessions Court, Palakkad made over the case for trial and disposal before the Court of Assistant Sessions Judge, Ottappalam and that Court tried the case against the accused and pronounced the judgment on 27.10.2004, whereby the accused was found not guilty and was acquitted under Section 235 of Cr.P.C. In that judgment, certain observations and strictures were made against the Detecting Officer and the Investigating Officer in the above crime who were examined on the side of the prosecution as PWs 1 and 5 respectively . In pursuance of of that observation and the direction of the learned Sessions Judge, proceedings were initiated against them. Memo of charges was served to the petitioners without accepting their explanations given by them to the memo issued by the Excise Officials.

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The accusation made against the accused as revealed from the mahazar prepared by the Detecting Officer, Annexure A in Crl.M.C. No.4024/06 and the case of the prosecution as narrated in the judgment of Assistant Sessions Court, Ottappalam is that the accused was found in possession of 3 litres of liquor which was not purchased from the Kerala State Beverages Corporation, for which no duty had

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CRL.M.C.Nos. 4024 & 4074/06

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been paid, which is in violation of the Abkari Act and Rules and will come under the purview of Section 58 of the Abkari Act. Further, it was revealed from the label affixed on the bottles which contained the liquor that it was intended for sale in the State of Karnataka only and the above crime was registered against the accused. The learned Sessions Judge has acquitted the accused as per judgment dated 27.10.2004 in S.C.No.292/02 with the finding that at the time of the alleged commission of the offence, the permissible quantity of liquor, which could have been kept in the possession of a person as per notification No.SRO.225/98 was 4.5 litres. Therefore, a false case has been foisted mainly by PW1, the Detecting Officer and PW5 the Investigating Officer in the case against the accused after ignoring the above said notification unnecessarily and without any basis. In the light of that finding, the learned Sessions Judge has directed the concerned higher authorities in the Excise Department to see why such a false case was foisted against the accused by the petitioners herein who are PWs 1 and 5. Further direction was given to take stern and appropriate action against the misdeeds of the above persons in order to avoid such repetitions in future.

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The learned counsel for the petitioners relied on the decision

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CRL.M.C.Nos. 4024 & 4074/06

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reported in P.Ajayababu v. State of Kerala (2002(2) KLJ 582),

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wherein it was held as follows:

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“........ The settled position of law is that before any castigating remarks are made by the court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned, he should be given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Giving of such an opportunity is the basic requirement and if no opportunity is given, the offending remark would be in violation of the principles of natural justice.”

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............ ........” A passage which is likely to militate seriously against a party's earning livelihood and not necessary to the conclusion of the Judge, nor even necessary to his argument, should be expunged from the judgment. It is a general principle of highest importance that a derogatory remark ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely

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CRL.M.C.Nos. 4024 & 4074/06

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necessary for the decision of the case to animadvert on their conduct.”.

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It is evident from the facts of the instant case that Crime No.18/98 was registered against the accused by the Detecting Officer, PW1 and it was investigated by the Investigating Officer, PW5 in accordance with the sections in the Abkari Act, after preparing the mahazar and considering the fact that the liquor seized from the possession of the accused was intended for sale in Karnataka State only and without paying the necessary duty for the transaction of the same within the State of Kerala. Therefore, the offence will lie against the accused who was in possession of the liquor without lawful authority, which is punishable under the Abkari Act. There is no sufficient ground to come to the conclusion by the learned Sessions Judge that a false case has been foisted against the accused. No enmity whatsoever has been elicited against the Detecting Officer and the Investigating Officer to lay a false charge sheet against the accused. No notice was issued by the learned Assistant Sessions Judge to the petitioners in these petitions and no opportunity for hearing was given to them before making the observations and the strictures against them as mentioned in paragraph 14 of the judgment. It is true

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CRL.M.C.Nos. 4024 & 4074/06 -9-

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that no appeal has been preferred against the judgment which contains the above observations and strictures against the petitioners. It is true that in order to maintain the independence of judiciary it is necessary that every Judge or Magistrate should have the freedom to express his opinion in the judgment. But, while expressing his opinion, it is relevant for the Judge to consider whether such expression of opinion thereon going to the extent of commenting or criticizing becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary for the purpose of arriving at a decision on the issue involved in the litigation. It is the settled law that before making any disparaging remarks by any court against any person, especially in the case of witnesses or parties not before him and more particularly when such remarks could ensue serious consequences on the future career of the person concerned, he should be given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. It is revealed from the judgment in the present case that no such opportunity is given to the petitioners who are the witnesses. Without giving such an opportunity, which is the basis requirement, the proceedings initiated against them by the Excise Officials in pursuance

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CRL.M.C.Nos. 4024 & 4074/06 -10-

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of the direction given in the judgment would definitely be in violation of the principles of natural justice. Therefore, this Court by invoking the inherent jurisdiction envisaged under Section 482 of Cr.P.C. can expunge that observation made against them, which is unwarranted for deciding the offence alleged against the accused in that case. So, the prayers in these petitions are to be allowed.

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In the result, both Crl.M.Cs. are allowed, expunging the remarks made against the petitioners by the learned Assistant Sessions Judge, Ottappalam in paragraph 14 of the judgment rendered by him on 27.10.2004 in S.C.No.292/02. The direction given by the learned Sessions Judge to the higher authorities in the Excise Department to take action against the petitioners is also unsustainable and stands set aside.

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M.C.HARI RANI, JUDGE.

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dsn

K.S.Jayendran v. State of Kerala

Case brief

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K.S.Jayendran v. State of Kerala

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