Partly allowed

Pradeepan v. State of Kerala

Kerala HC9 Oct 2012Crl.MC/4148/2011

Case brief

AI extract

What is this about?

High Court held that disparaging remarks forming the integral basis of an acquittal cannot be expunged under inherent powers but clarified the legal unsustainability of the Sessions Judge's reasoning regarding police officers' liability and vacated the direction for departmental action.

What did the court decide?

Appeal allowed to vacate direction for departmental action after clarifying that police officers were not liable for non-production of residue.

Pradeepan Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

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TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934

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Crl.MC.No. 4148 of 2011 ( )

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--------------------------SC.144/2007 of ADDL. SESSIONS COURT (ADHOC-III), KASARAGODE

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PETITIONER(S):PW5:

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PRADEEPAN, S/O.P.A.NANU, AGED 39 YEARS, KANNIPPOYIL HOUSE, PATHIRIYAD P.O. PINARAYI VIA-670 741, NOW WORKING AS C.I .OF POLICE, CRIME BRANCH, KOZHIKODE.

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BY ADVS.SRI.I.V.PRAMOD

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SRI.B.VINOD SRI.MANSOOR.B.H.

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RESPONDENT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. R. RANJITH

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26/09/2012, THE COURT ON 09/10/2012 PASSED THE FOLLOWING:

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Kss

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CRMC.NO.4148/2011

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APPENDIX

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PETITIONER'S ANNEXURES:

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ANNEX.A1: COPY OF THE JUDGMENT IN SC.NO.144/07 OF ADDITIONAL SESSIONS COURT ADHOC III, KASARAGOD DATED 7/05/11.

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ANNEX.A2: COPY OF THE NOTICE ISSUED BY THE ADDITIONAL SESSIONS JUDGE ADHOC III, KASARAGOD DATED 30/06/2010.

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ANNEX.A3: COPY OF THE REPLY SUBMITTED BY THE PETITIONER.

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RESPONDENT'S ANNEXURES:

N I L

/TRUE COPY/

P.A.TO JUDGE

Kss

S.S.SATHEESACHANDRAN, J.

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----------------------------------------------Crl.M.C No.4148 OF 2011

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------------------------------------------------------Dated this the 9^th day of October, 2012

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ORDER

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Petitioner is an Inspector of Police in Kerala Police. While working as Sub Inspector of Police, detecting an abkari offence he arrested the offender thereof and seized the contraband possessed by him in violation of the Abkari Act. Prosecution of that offender before the Sessions Court however led to his acquittal with the learned Additional Sessions Judge making some comments/remarks against the petitioner and another, both of them police officers involved in one way or other in the detection/investigation of the crime. Learned Additional Sessions Judge in the judgment pronounced in that case directed forwarding a copy of that judgment to the Director General of Police for taking appropriate action against the above two police officers. Feeling aggrieved and contending that the remarks/comments directed against him by the learned Additional

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Sessions Judge and the direction issued to communicate a copy to the Head of Police force for taking action against him are unwarranted, totally unjustified and such orders were passed without hearing him, he has filed the above petition u/s 482 of the Code of Criminal Procedure, for short, ‘the Code’ to expunge the remarks/ comments and vacate the aforesaid direction of the Sessions Judge.

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Annexure A1 is copy of the judgment in the Sessions Case in which ordering the acquittal of the accused the learned Sessions Judge had made comments/remarks against the petitioner and another, two police officers. Annexure A2 is a copy of the notice issued to the petitioner while the trial of that case was in progress to show cause why he should not be proceeded against under Section 53A of the Kerala Abkari Act for having not produced the residue of the property involved in the case before the court. Annexure A3 is a copy of the reply given by the petitioner to Annexure A2 notice stating that there was no

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negligence nor laches on his part in the nonproduction of the residue, which had been disposed of as per the then existing provisions of the statute. Learned Sessions Judge has not proceeded against the petitioner as contemplated under A2 notice after receipt of A3 reply; but, while disposing the Sessions Case ordering acquittal of the accused commented upon the nonproduction of the residue before court and how far it has affected the prosecution case fatally imputing culpable laches and negligence thereof on the part of the two police officers.

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Going through Annexure A1 judgment, it is seen, pursuant to information received over illicit transportation of liquor in an autorickshaw a police party headed by the petitioner intercepted that vehicle. Three passengers were in the autorickshaw driven by the first accused. One among the passengers alone could be apprehended and others ran away. Search over the vehicle revealed a sack containing 11 bottles of XXX Rum each of 750 ml and 18 bottles of the same brand each

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Crl.M.C No.4148/2011 4

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of 375 ml. Samples were collected from such bottles preparing a mahazar. Crime registered over the detection of the abkari offence and seizure of the contraband after investigation led to indictment of four accused persons. In the trial of that case before the Sessions Judge, prosecution examined seven witnesses among whom the petitioner/detecting officer was examined as PW5. Another police officer, who took part in the investigation of the crime, was examined as PW4. The above two police officers were culpable for not producing the residue of the contraband seized before court, and its nonproduction was fatal to the prosecution case against the accused, was the view taken by the learned Sessions Judge, to make comments/remarks against petitioner and the other officer (PW4 and PW5) with direction for sending a copy of the judgment to the Director General of Police.

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Learned counsel for the petitioner contended that the remarks/comments made by the Sessions Judge and also the directions issued by him, which find expression in para 30, 31, 34

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in the judgment, are quite unwarranted and, further more, the reasons stated by the Sessions Judge on the preceding paragraphs discussing the evidence are legally unsustainable as well. Learned Sessions Judge has not given any opportunity to the petitioner before making such comments/remarks in the judgment disparaging his conduct and also taking exception and finding fault with the discharge of his duties as a police officer. Placing reliance on “State of U.P v Mohammad Naim” (AIR 1964 SC 703) and “State of Maharashtra v Public Concern for Governance Trust and Others” (2007(3) SCC 587), the learned counsel contended that the fundamental principles to be adhered to in making disparaging remarks against persons or authorities whose conduct is found objectionable have been given scant respect by the learned Sessions Judge. The relevant considerations applicable in making comments/remarks over the conduct of a party when it comes for consideration by the court adverted to by the apex court in the aforesaid decisions are relied by the counsel to contend that they were not taken notice by the

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learned Sessions Judge and the comments made against the petitioner by the learned Sessions Judge are inexcusable. Such comments stated in the judgment are liable to be expunged and the orders passed for sending a copy of the judgment to the Director General for taking action against the petitioner liable to be vacated, is the submission of the counsel.

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Learned counsel for the petitioner has placed much emphasis on certain principles which require to be taken note of and followed by the courts as stated by the apex court in the aforesaid decisions when it finds necessary to observe/make remarks or comments against persons or authorities, whose conduct arises for consideration in a case. The apex court has held, in such a situation, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the

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case as an integral part thereof, to animadvert on that conduct. The apex court has also cautioned the judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.

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Over and above the principles to be adhered to in passing of remarks/observations over the conduct of a person or authority, in the present petition moved under Section 482 of the Code invoking the inherent powers of this court to expunge the remarks made and directions issued by the Sessions Judge a larger issue is involved relating to the exercise of such powers by this court as canvassed of. A reading of Annexure A1 judgment would indicate in unmistakable terms the order of acquittal is squarely based and in fact founded upon the laches/dereliction attributed to petitioner and another police officer in not causing production of residue of the contraband seized before the court. In paragraph 26 to 29 of the judgment the Sessions Judge has dilated upon the evidence of the case, more particularly that of

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PW4 and PW5, with respect to the nonproduction of the residue before the court and how far it was fatal to the prosecution case. After discussion of such evidence, he has made some scathing comments/remarks against PW4 and PW5 and issued a direction for sending a copy of the judgment to their departmental head for taking action against them. Those comments/remarks and directions are given expression to in paragraph 30, 31 and 34 of the judgment, which extracted in the petition as well, read thus:

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“30. Here in this case, as I have stated earlier PW4 who detected the offence and PW5 who filed the final report against the accused in court has failed to forward the properties seized in this case except the samples said to have been drawn from the quantity of the IMFL said to have been seized from the autorikshaw. Section 60 of the Act reads as “any officer or person, exercising powers under this Act, who vexatiously and unnecessarily delays forwarding to an Ankari Inspector or to the officer in charge of the nearest police station, as required by Section 40 of this Act, any person arrested, or any articles seized under this Act, shall on conviction before a competent court, be punished with fine which may extend to ten thousand rupees or with imprisonment for a term which may extend to one year or with both”.

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31. In the case on hand it can be seen that PW4 and 5 has not produced the articles seized in this case before the court as contemplated u/s. 40(3) (a) of the Act. In such a circumstance both of them can be jointly made liable for an offence punishable u/s.60 of the Kerala Abkari Act for which appropriate action has to be taken against both of them. At the same time this court feels that it is inevitable to forward a copy of the judgment to the Director General of Police for taking appropriate action against the erring police officers (PWs. 4 and 5) who acted in such a way to save the accused from the penal consequences of law.

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34. The office is hereby directed to forward a copy of the judgment to the Director General of Police, Thiruvananthapuram through the Hon’ble High Court of Kerala for taking appropriate action against PW4 and 5.”

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Reasoning of the Sessions Judge given expression to in para 26 to 29 of the judgment over the evidence involved in the

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case, particularly that of PW4 and 5, dilating upon the nonproduction of the residue of the contraband and that affecting the worth of the prosecution case, is assailed as legally unsustainable in the petition. In fact, the reasoning so adapted by the Sessions Judge on the evidence of the case has led to the

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remarks/observations and direction in para 30, 31 and 34 referred to above. Order of acquittal rendered in favour of the accused in the case thus is seen to be founded upon the laches imputed over the conduct of PW4 and PW5 in nonproduction of the residue of the contraband before court. When that be so, the question that is to be considered is whether under the inherent powers of this court the comments/remarks made by the Sessions Judge could be expunged even if it has been made without following the principles to be adhered to in making of a comment/remark over the conduct of a party in a case. If the remarks, though unjustified, form an integral part of the judgment and are not distinctly separate, it is not proper or appropriate to expunge such remarks exercising inherent powers of the court. When the order of acquittal rendered in the case is founded upon the conduct imputed against the police officers, PW4 and PW5, that too based on the discussion of the evidence in the case, even if the factual basis thereof is assailable on any ground whatsoever, invoking of the jurisdiction of this court under Section 482 of the

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Code to expunge such remarks will not be available. Jurisdiction to expunge the remarks under Section 482 of the Code is of an extraordinary character and has to be exercised with care and caution and only in exceptional cases. This court while exercising its jurisdiction under Section 482 of the Code necessarily has to take note that in weighing the evidence let in the case, forming conclusion on questions of fact and reviewing the conduct and veracity of witnesses with respect to one or other aspect in the case, the trial court is entitled to make observations/remarks, which sometimes may cause aspersions on the character and conduct of the witness and party to the case. It is inappropriate for this court to substitute its opinion and expunge the remarks, which is formed by the trial judge, where it is based on appreciation of evidence of the case, and, more so, where the reasoning formed has led to the final decision showing unmistakably that the observation/comment form an integral part of the decision. In such situation, it is vitally important and more so necessary to take note that in the administration of justice the

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“trial courts should be allowed to perform their functions freely and fearlessly” without any interference.

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I do take note the petitioner has a case that the final report in the case was not laid by him but by another police officer, and the statement to the contrary made in the judgment is wrong. He has also got a case that the reasoning of the Sessions Judge over the nonproduction of residue in the case is also legally unsustainable, apart from the contention that the finding of fault on him for the same not justified. Findings on disputed questions of facts and law, when it forms an integral part and also the basis of the decision of the case can only be challenged in appeal or revision, and not by an application under Section 482 of the Code. When an aggrieved party seeks redressal, taking exception to the remarks made against him in the decision of the court invoking the inherent jurisdiction to do so, it can be resorted to only where it is shown that such remarks are separable from the decision and not relevant to its findings.

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When that be not the case and observations/comments are seen made on a justiciable issue, this court cannot mutilate the judgment of the subordinate court ordering deletion of one part or other of its judgment. At best, in such a case, a clarification alone can be made, if it is so found necessary, to advance justice.

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Though I find that the expunging of the

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remarks/comments in the judgment canvassed for by the petitioner is not possible, the reasoning of the Sessions Judge that PW4 and PW5 can be prosecuted for the offence under Section 60 of the Abkari Act for noncompliance of Sub Section (3) of Section 40 of the above Act for the nonproduction of the residue is patently erroneous and legally unsustainable. When PW4 is shown to be a police officer empowered to detect, register and investigate the offences covered by the Abkari Act, Sub Section (5) of Section 40 of the Act enables him to take such steps necessary for disposal of the articles seized. Subject to the clarification made as above, no further comment or any dilation thereof is called for in the present case where I have found that

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expunging of the remarks/observations made in the judgment where it forms an integral part of the judgment invoking inherent powers of this court is not to be resorted to.

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Remarks/comments made by the Sessions Judge in the judgment cannot be expunged, but, are clarified as indicated above, in exercise of the inherent powers of this court. Direction issued to the Director General of Police by the Sessions Judge for taking appropriate action against the police officers (PW4 and PW5), sending him a copy of the judgment, is liable to be interfered with where it is shown that the reasoning/conclusion formed to do so suffers from serious legal infirmity. So much so, the direction given in para 31 of Annexure A1 judgment by the Sessions Judge for sending a copy of the judgment to the Director General of Police for taking appropriate action against the petitioner and another police officer (PW4 and PW5) shall stand vacated, and it is clarified that no departmental action is called for or to be proceeded against the above police officers on the

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basis of the comments/observations made in Annexure A1 judgment by the Sessions Judge.

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Subject to the clarification made as above the petition is disposed of.

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vdv

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S.S.SATHEESACHANDRAN, JUDGE

Pradeepan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Pradeepan v. State of Kerala

Case brief

What is this about?

What did the court decide?

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