Disposed

Sabu E.K. v. State of Kerala

Kerala HC31 Mar 2016Crl.Rev.Pet/1170/2015

Case brief

AI extract

What is this about?

Police officers challenged charges arising from a custodial death and alleged concealment of evidence. The court upheld the CBI reports, committal and framing of charges, directed efforts toward early trial, and ordered interim victim compensation for the deceased's dependent mother. The revision was disposed of.

What did the court decide?

Interim compensation to the deceased's mother through Kerala State Legal Services Authority; State to provide funds if unavailable. Early completion of trial directed.

Sabu E.K. Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2016)

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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 P.D.RAJAN

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THURSDAY, THE 31ST DAY OF MARCH 2016/11TH CHAITHRA, 1938

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CRL.REV.PET.NO. 1170 OF 2015 ()

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S.C. NO.917/2012 IN THE COURT OF SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM C.P. NO.227/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THIRUVANANTHAPURAM CRIME NO.412/2005 OF CBCID, THIRUVANANTHAPURAM

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REVISION PETITIONER(S)/ACCUSED NOS.6 & 5:

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1. SABU E.K., AGED 54 YEARS, S/O.K.ESREAL, K.P.BHAVAN, VELLARADA, THIRUVANANTHAPURAM.

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2. AJITH KUMAR, AGED 46 YEARS, S/O.THANKAPPAN NAIR, PRASANNA BHAVAN, PALLICHAL, NEMOM, THIRUVANANTHAPURAM.

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN SRI.V.VINAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.K.RAJEEV

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RESPONDENT(S)/STATE/COMPLAINANT :

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-------------------------------

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1. STATE, REP. BY CBI, CHENNAI, (RC 10 (S)/2007-CBI/SCB/CHENNAI, ORIGINALLY, CRIME NO.704/2005 OF FORT POLICE STATION, THIRUVANANTHAPURAM).

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**** R2 TO R4 IMPLEADED.**

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2. ADDITIONAL DIRECTOR GENERAL OF POLICE (CRIME),

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POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.

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3. THE HOME SECRETARY, GOVT. SECRETARIAT,

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THIRUVANANTHAPURAM.

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4. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.

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**** ARE SUO MOTU IMPLEDED AS ADDL. R2 TO R4 AS PER ORDER DATED 14.12.2015 IN CRIMINAL R.P. NO.1170 OF 2015.**

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2/-

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Crl.Rev.Pet.No. 1170 of 2015 () -2-

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***** ADDITIONAL R5 IMPLEADED.**

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5. J. PRABHAVATI AMMA, AGED 71 YEARS, D/O JAGATHAMMA, SIVASAILAM, NEAR MANNADU BHAGAVATHI TEMPLE, PALLITHANAM, KARAMANA P.O., THIRUVANNATHAPURAM.

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IS IMPLEADED AS ADDITIONAL R5 AS PER ORDER DATED 15.03.2016 IN CRL.M.A. NO.5884 OF 2015 IN CRL.R.P.NO.1170 OF 2015.

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BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. BY ADV. SRI.SIRAJ KAROLY BY ADV. SRI.R.PARAMESWARA IYER BY ADV. SRI.N.SURESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No. 1170 of 2015 () -3-

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APPENDIX

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PETITIONER(S) ANNEXURES :

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ANNEXURE I: COPY OF THE FINAL REPORT IN CRIME NO.703/2005 DATED 28.09.2005 OF FORT POLICE STATION.

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ANNEXURE II: COPY OF THE RELEVANT PAGES OF THE GENERAL DIARY DATED 27.09.2005 MAINTAINED IN THE FORT POLICE STATION.

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ANNEXURE III: COPY OF THE RELEVANT PAGES OF THE NOTE BOOK (MO13) MAINTAINED IN THE FORT POLICE STATION.

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ANNEXURE IV: COPY OF THE RELEVANT PAGES OF THE SENTRY RELIEF BOOK (MO10), MAINTAINED IN THE FORT POLICE STATION.

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ANNEXURE V : COPY OF THE MEMORANDUM OF CRL.R.P.NO.2902/2007 FILED BY RAVEENDRAN NAIR.

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ANNEXURE VI: COPY OF THE JUDGMENT DATED 08.07.2008 IN W.P.(C) NO.12365/2008 OF THIS HON'BLE COURT.

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ANNEXURE VII: COPY OF THE DEPOSITION OF A3 P. RAVEENDRAN NAIR.

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ANNEXURE VIII:COPY OF THE DEPOSITIONS OF A4 HEERALAL.

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ANNEXURE IX : COPY OF THE DEPOSITION OF A5 A.THANGAMANI.

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ANNEXURE X : COPY OF THE DEPOSITION OF A6. N.RAMACHANDRAN.

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ANNEXURE XI :COPY OF THE DEPOSITION OF A7 SHEEJAKUMARI.

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ANNEXURE XII: COPY OF THE DEPOSITION OF A8 SAJITHA.

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ANNEXURE XIII:COPY OF THE ORDER IN CRL.M.P.NO.5036/2010 DATED 28.09.2010 IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XIV : COPY OF THE ORDER IN CRL.M.P.NO.5035/2010 DATED 28.09.2010, IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XV : COPY OF THE ORDER IN CRL.M.P.NO.5034/2010 DATED 30.09.2010 IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XVI:COPY OF THE ORDERS IN CRL.M.P.NO.5033/2010 DATED 30.09.2010 IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XVII:COPY OF THE ORDER IN CRL.M.P.NO.5032/2010 DATED 30.09.2010 IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XVIII: COPY OF THE ORDER IN CRL.M.P.NO.5031/2010 DATED 30.09.2010 IN R.C.05/S/2008/CBI/SCB/CHENNAI.

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ANNEXURE XIX : COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5871/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A4.

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ANNEXURE XX : COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5872/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A5.

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ANNEXURE XXI :COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P.NO.5873/2010 IN R.C.NO.10/S/2007/CBI/SCB/ CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A7.

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ANNEXURE XXII :COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5874/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A8.

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ANNEXURE XXIII:COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5878/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A9. ANNEXURE XXIV:COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5875/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A10.

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ANNEXURE XXV: COPY OF THE ORDER DATED 11.10.2010 IN CRL.M.P. NO.5876/2010 IN R.C.NO.10/S/2007/CBI/SCB/CHENNAI OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, ERNAKULAM, TENDERING PARDON TO A11.

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ANNEXURE XXVI : COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CRL.M.C.NO.4957/2010, WHICH HAS BEEN REPORTED IN 2012(4)KLT 306.

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ANNEXURE XXVII: COPY OF THE JUDGMENT IN CRL.APPEAL NO.871/2008 OF THE HON'BLE SUPREME COURT.

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ANNEXURE XXVIII: COPY OF THE JUDGMENT DATED 09.01.2015 IN CRL.M.C. NO.3189/2014 OF THIS HON'BLE COURT. ANNEXURE XXIX : COPY OF THE B DIARY IN S.C.916/2012 OF THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM. ANNEXURE XXX : COPY OF THE B DIARY IN S.C.917/2012 OF THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM. ANNEXURE XXXI : COPY OF THE COMMON ORDER DATED 04.07.2015 IN S.C. NO.917/2012 AND CRL.M.P.20/2015 IN S.C.917/2012 OF THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM.

/ TRUE COPY /

P.A. TO JUDGE

' CR'

P.D. RAJAN, J.

-------------------------------Crl. R.P. No.1170 of 2015

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Dated this the 31^st day of March, 2016

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O R D E R

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This Criminal Revision Petition is filed under Secs.397 and 401 of the Code of Criminal Procedure (hereinafter referred to as the Code for short) by the 6^th and 5^th accused in S.C. No.917 of 2012 of the Special Court (for the trial of CBI cases) Thiruvananthapuram (hereinafter referred to as the 'Special Court' for short). Accused nos.1 to 3 were charge sheeted by the Special Court, Thiruvananthapuram under Secs.323, 331, 348 and 302 read with Sec.34 of the Indian Penal Code. A1 to A3 and A5 to A7 were charge sheeted under Sec.120B read with Sec.167, 201, 466, 477 and 474 of the Indian Penal Code. A4 was discharged by the Special Court, CBI cases. The accused were Police officers in the Fort Police station, Thiruvananthapuram.

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The prosecution case is that, on 27.09.2005 at 2.00 p.m., one Uadayakumar and Suresh Kumar alias Mani were taken into illegal custody from

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Sreekandeswaram Park, Thiruvananthapuram by the 1^st accused (Jithakumar) and 2^nd accused (Sreekumar). Subsequently, both of them were taken to Fort Police station. In order to extort confession from Udayakumar they took him into the office of the Circle Inspector of Police, Fort Police station and wrongfully confined them without making any entries in the records of the Fort Police station and without registering any crime. Subsequently, Udayakumar was put on a wooden bench inside the room made to lie on it and his both hands tied with a towel (thorth) and A2 (Sreekumar) beat on the soles of his feet using a bamboo cane and enquired about the money found in his possession when he was caught from Sreekandeswaram park. The 3^rd accused (Soman) also joined the interrogation in order to extort confession from Udayakumar. A3 held the head of Udayakumar forcefully, in the meantime A1 and A2 took a long GI pipe and started to knead it forcefully on the thighs of Udayakumar repeatedly, which resulted in causing grievous injuries and he succumbed to the injuries on 27.09.2005 at night. After the death of Udayakumar, on

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27.09.2005, A1, A2, A3, A5 and A6 entered into a criminal conspiracy, caused evidence of the offence to disappear and registered a false crime as Crime No.703 of 2005 under Sec.41(1)(d) and Sec.102 of the Code of Criminal Procedure against Suresh Kumar and Udayakumar as A1 and A2, which was later referred by CBCID. They also registered another crime No.704 of 2005 under Sec.174 of the Code of Criminal Procedure after the death of Udayakumar and caused disappearance of articles such as cane, iron rod and towel (Thorth). The investigation was initially conducted by the Narcotic Cell and thereafter CBCID, Thiruvananthapuram. After completing investigation, CBCID filed a final report in Crime No.704 of 2005 against A1 to A3 under Secs.323, 331, 348 and 302 read with Sec.34 of the Indian Penal Code. The case was committed to Sessions Court, Thiruvananthapuram which was taken on file as S.C. No.1542 of 2006. Subsequently, it is made over to Additional Sessions Court (Fast Track-III) Thiruvananthapuram.

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During trial, most of the witnesses had turned hostile and it was revealed that the official

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witnesses were trying to help the accused/police officials. In such a situation, the Special Public Prosecutor, filed Crl. M.P. No.1964 of 2007 before the Additional Sessions Court seeking permission for further investigation under Sec.173(8) of the Code. The learned Additional Sessions Judge allowed Crl.M.P. No.1964 of 2007 and directed further investigation. At the same time, J. Prabavathy Amma (R5), the mother of the deceased approached this Court and filed W.P.(C) No.24258 of 2007 for conducting investigation by Central Bureau of Investigation (hereinafter referred to as the CBI for short) which was allowed by this Court. In the circumstance, CBI reregistered Crime No.704 of 2005 as R.C. No. 10/S/2007/CBI/SCB/CHE. After completing investigation, they filed final report against six persons namelyJithakumar (A1), Sreekumar(A2), Soman (A3), Mohanan (A4), Ajithkumar (A5) and E.K. Sabu (A6) under Secs.323, 331, 348 and 302 read with Sec.34 of the Indian Penal Code and under Sec.120B read with Secs.201, 116 and 193 of the Indian Penal Code. Subsequently, mother of Udayakumar approached this Court with another Writ

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Petition No.12365 of 2008 for entrusting the investigation of Crime No.703 of 2005 of Fort Police station to CBI, which also was allowed by this Court and CBI reregistered the crime as R.C. No.5/S/2008/CBI/SEB/CHE. After completing investigation, they filed final report against five persons, A1 (Jithakumar), A2 (Sreekumar), A3 (Ajith Kumar), A4 (E.K. Sabu) and A5 (T.K. Haridas). In RC No.10/S/2007/CBI/SEB/CHE A4, A5, A7, A8, A9, A10 and A11 had tendered pardon before Chief Judicial Magistrate, Ernakulam and they were arrayed as approvers by the Chief Judicial Magistrate. In R.C. No.5/S/2008/CBI/SEB/Chennai A3, A4, A5, A6, A7 and A8 were arrayed as approvers. CBI filed final report in both the cases before the Chief Judicial Magistrate, Ernakulam which was taken on file as C.P. No.8 and C.P. No.9 of 2010 from there, the case was committed to Sessions Court, which was taken on file as S.C. No.916 of 2012 and S.C. No.917 of 2012.

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In the circumstances, Public Prosecutor filed Crl. M.P. No.58 of 2014 and Crl. M.P. No.59 of 2014 for joint trial of both the cases. Since the conspiracy in both

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cases are same and the involvement and the transaction alleged against the accused are also common, the learned Special Judge allowed the joint trial petition. The 5^th accused in S.C. No.916 of 2012 was added as the additional 7^th accused in S.C. No.917 of 2012 invoking Sec.319 of the Code. In the circumstances, the learned Special Judge framed charge against A1 to A3 under Secs.323, 331, 348 and 302 read with Sec.34 of the Indian Penal Code and also charge sheeted A1 to A7 under Sec.120B read with Sec.201, 167, 466 and 474 of the Indian Penal Code. Both cases, S.C. Nos.916 and 917 of 2012, were clubbed together and tried as S.C. No.917 of 2012. Being aggrieved by that, A3 and A7 approached this Court with Crl. M.C. Nos.3189 of 2014 and Crl. M.C. No.3083 of 2014 respectively under Sec.482 of the to quash the common order invoking the inherent power. In the above petition, this court approved the clubbing of S.C. No.916 of 2012 and S.C. No.917 of 2012, and confirmed adding of the 5^th accused in S.C. No.916 of 2012 as the additional 7^th accused in S.C. No.917 of 2012 and directed to hear both parties and frame appropriate

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charge in respect of each accused and disposed of S.C. No.917 of 2012 as per law. As per the direction, the Special Judge, on 10.07.2015, framed charge against the accused. Being aggrieved by that charge, the 6^th and 5^th accused approached this court with this revision petition.

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The main contention advanced by the learned counsel, Sri. Pirappancode V.S. Sudhir, appearing for the revision petitioner is that the honourable High Court directed the CBI to conduct further investigation in S.C. No.1542 of 2006 pending on the file of Additional Sessions Judge (Fast Track-III), Thiruvananthapuram but, instead of conducting further investigation, the CBI reregistered the crime and submitted a supplementary final report before the Chief Judicial Magistrate, Ernakulam. In such a situation, the committal of the case by Chief Judicial Magistrate to Sessions Court is illegal since, the 1^st committal order was not set aside by a competent court. When cases are already committed and pending before the Sessions Court, the CBI approached the Chief Judicial Magistrate, Ernakulam invoking Sec.306 Cr.P.C to make some of the accused as approvers. Therefore, the

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main accused were sponsored as approvers by the prosecution. In this context, CBI submitted final report in R.C. No.5/S/2008/CBI/SEB/CHE before the Chief Judicial Magistrate though, the original report was submitted before the Judicial First Class Magistrate Court-II, Thiruvananthapuram under Sec.173 of the Code. Hence, charge is vitiated against the petitioners. Learned counsel relied following decisions in Vinay Tyagi v. Irshad Ali @ Deepak & Ors. [2013 (5) SCC 762 ], Babubhai vs. State of Gujarat and others [2010 (12) Supreme Court Cases 254], Mithubhai Pashabhai Patel and Others vs. State of Gujarat [2009 (6) Supreme Court Cases 332], Ramachandran vs. R.Udhayakumar and Others [2008 (5) Supreme Court Cases 413] , Renjith vs. Sub Inspector of Police, Alappuzha and Another [2015 (4) KHC 681], Vipul Shital Prasad Agarwal vs. State of Gujarat and another [2013 (1) Supreme Court Cases 197], Chandra Babu Aliaz Moses vs. State Through Inspector of Police and Others [2015 (8) Supreme Court Cases 774] .

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In reply to the above arguments, Adv. P. Chandrasekhara Pillai, the learned Standing Counsel

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appearing for the CBI, contended that Crime No.703 of 2005 was referred by the CBCID. Subsequently, the investigation in that case was conducted by the CBI, which is a different investigating agency. With a view to obtain the evidence of persons supposed to have directly or indirectly concerned with the offence, CBI has the power to inquire or investigate into the facts alleged. During that stage of inquiry, the Magistrate has ample power to tender pardon to an accused for making full and true disclosure of the circumstance in his knowledge relating to the offence during CBI investigation. Therefore, no illegality in tendering pardon under Sec.306 of the Code. and filing a fresh report before the committal court. It is also submitted that the investigation in S.C. No.1542 of 2006 was transferred to CBI as per the direction of High Court, hence trial is to be conducted by Special Court. The Chief Judicial Magistrate Court, Ernakulam is the designated court, records were filed in that court as per the direction of the High Court in the above writ petition and there is no illegality in that procedure. The final report was filed by the CBI in the

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Chief Judicial Magistrate Court which is the notified court of CBI investigation. Subsequently, the case was committed to Sessions Court and there is no illegality. The learned Special Judge for CBI cases considered all relevant records at the time of framing charge and there is no illegality in framing of the charge and he prays to dismiss the petition. Learned counsel relied the decision reported in Nirmal Singh v. State of Punjab and others (AIR 2009 SC 984) .

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Additional respondents 2 to 5 fully agreed with the contentions raised by the 1^st respondent and submitted that they have nothing more to argue than the above contentions. There is no illegality or irregularity in the committal proceedings and proper charge was framed by the trial court and no reason to interfere in that charge.

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Both parties admitted that CBI conducted investigation on the basis of direction issued by a Division Bench of this court in W.P.(C) No.24258 of 2007 and another direction by a Single Judge of this court in W.P.(C) No.12365 of 2008 and reports were filed in the

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Chief Judicial Magistrate Court, Ernakulam. Subsequently, those two cases were committed to Sessions Court, Special (SPE-CBI), Thiruvananthapuram as C.P. No.8 and C.P. No.9 of 2010. The Special Court numbered the case as S.C. Nos.916 and 917 of 2012. According to Crl.M.P. Nos.58 of 2014 and 59 of 2014, joint trial was permitted by the Special Judge. Fifth accused in S.C. No.916 of 2012 was added as additional 7^th accused in S.C. No.917 of 2012. Charge was framed against A1 to A3 under Secs.323, 331, 348 and 302 read with Section 34 IPC and also against A1 to A7 under Sec.120B read with Ses.201, 167, 466 and 474 IPC, the case was tried as S.C. No.917 of 2012. Crl. M.C. No.3189 of 2014 and Crl.M.C. No.3083 of 2013 have been filed under Section 482 of the Code to quash the common order. In that petition, High Court approved the clubbing of the case and confirmed adding of 7^th accused in S.C. No.917 of 2012 and directed the trial court to frame appropriate charge. Now the contention of the petitioners is that the two reports submitted by the CBI in two cases are supplementary final reports or fresh reports, further

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report or additional reports etc. The position of investigation by two different agencies, one by CBCID and subsequent investigation by the CBI as directed by higher courts had been explained by the Apex Court in Vinay Tyagi v. Irshad Ali @ Deepak and others (2013 (5) SCC 762). Apex Court explained the legal position and discussed the impact of the report of the same agency or different investigating agency in furtherance of the court orders. Apex Court also considered the impact of fresh investigation or re investigation and cognizance of the offence on the basis of that report in the above judgment.

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Sections 173(1), (2) and (8) of the Code read

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as follows ;

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173(1). Report of Police officer on completion of investigation- Every investigation under this Chapter shall be completed without unnecessary delay.

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173(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

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(a) the names of the parties;

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(b) the nature of the information;

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acquainted with the circumstances of the case;

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(d) whether any offence appears to have been

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committed and, if so, by whom;

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(e) whether the accused has been arrested;

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(f) whether he has been released on his bond and, if so, whether with or without sureties;

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(g) whether he has been forwarded in custody under section 170;

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(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376C or 376D of the Indian Penal Code (45 of 1860).

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x x x x x x x x xx x

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(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

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From the plain reading of the above Sections, it is clear that even after completion of investigation u/s.173(2) of the Code, the officer in charge

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of the Police station have right to conduct further

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investigation under sub-section (8) if he obtains further evidence. But, they have no right to conduct fresh investigation or reinvestigation. Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation wiping out the earlier investigation. On completion of further investigation under sub section (8), the Officer in charge of the Police Station or the investigating agency has to forward to the Magistrate a further report or reports, but not fresh report or reports regarding the further evidence obtained during such investigation. This would mean that in this case, after direction of higher Court, CBI purported to have registered a fresh FIR, it does not lead to a conclusion that the earlier report or materials collected by the Narcotic Cell or CBCID ceased to exist. Therefore, the practice of the CBI to register a fresh FIR and the investigation undertaken by the CBI as per the direction of higher Court in the nature of further investigation u/s.173(8) of the Code and filing report to the Chief Judicial Magistrate, Ernakulam is legal. This position has been explained by the Apex Court in the

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following decisions:

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Apex Court in Ramachandran v.

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R. Udhayakumar and others [(2008) 5 SCC 413] held as follows:

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“7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala . It was, inter alia, observed as follows:

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(SCC p.237, para 24)

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'24. The dictionary meaning of 'further' (when used as an adjective) is 'additional; more; supplemental'. 'Further' investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a 'further' report or reports- and not fresh report or reportsregarding the 'further' evidence obtained during such investigation”

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Apex Court in Vipul Shital Prasad Agarwal

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v. State of Gujarat and another [(2013) 1 SCC 197] held as follows:

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“21. In my opinion, the mere undertaking of a further investigation either by the investigating officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the investigating agency or the court concerned is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.

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Therefore, the submission of Mr. Sushil Kumar, learned Senior Advocate appearing for the petitioner, that the directions given by this Court earlier in Narmada Bai v. State of Gujarat [(2011) 5 SCC 79] would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that CBI purported to have registered a “fresh FIR”, in my opinion, does not lead to a conclusion in law that the earlier report or the material collected by Gujarat Police (CID) on the basis of which they filed the charge sheet ceased to exist. It only demonstrates the administrative practice of CBI.

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In my view, notwithstanding the practice of CBI to register a “fresh FIR” the investigation

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undertaken by CBI is in the nature of further investigation under Section 173(8) Cr.P.C pursuant to the direction of this Court.”

¶134

In this case two different investigating agency conducted investigation and filed report. Apex court discussed the impact of such investigation and the duty of the court in Vinay Tyagi vs. Irshad Ali @ Deepak & Ors. [2013 (5) SCC 762 ] and considered two points:

¶135

Whether in exercise of its powers under Sec.173 of the Code of Criminal Procedure, 1973 (for short, 'the Code”), the Trial Court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect? and ;

¶136

Whether the Central Bureau of Investigation (for short, 'the CBI') is empowered to conduct 'fresh'/'re-investigation' when the cognizance has already been taken by the Court of competent jurisdiction on the basis of a police report under Sec.173 of the Code?

¶137

In paragraph 40 of the judgment, the apex court answered as follows:

¶138

“40. We have already noticed that there is

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no specific embargo upon the power of the learned Magistrate to direct 'further investigation' on presentation of a report in terms of Section 173(2) of the Code. Any other approach or interpretation would be in contradiction to the very language of Section 173(8) and the scheme of the Code for giving precedence to proper administration of criminal justice. The settled principles of criminal jurisprudence would support such approach, particularly when in terms of Section 190 of the Code, the Magistrate is the competent authority to take cognizance of an offence. It is the Magistrate who has to decide whether on the basis of the record and documents produced, an offence is made out or not, and if made out, what course of law should be adopted in relation to committal of the case to the court of competent jurisdiction or to proceed with the trial himself. In other words, it is the judicial conscience of the Magistrate which has to be satisfied with reference to the record and the documents placed before him by the investigating agency, in coming to the appropriate conclusion in consonance with the principles of law. It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to

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order the investigating agency to further substantiate its charge sheet. The satisfaction of the learned Magistrate is a condition precedent to commencement of further proceedings before the court of competent jurisdiction. Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation' as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, re-investigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation. In this regard, we may refer to the observations made by this court in the case of Sivanmoorty and Others v. State represented by Inspector of Police [(2010) 12 SCC 29]. In the light of the above discussion, we answer the questions formulated at the opening of this judgment as follows:

¶143

Answer to Question No.1.

¶144

The court of competent jurisdiction is duty bound to consider all reports, entire records and documents submitted therewith by the

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¶146

Investigating Agency as its report in terms of Section 173(2) of the Code. This Rule is subject to only the following exceptions;

¶147

(a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof;

¶148

(b) Where an order is passed by the higher courts in exercise of its extra-ordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on 'fresh investigation' or 're-investigation' or any part of it be excluded, struck off the court record and be treated as non est.

¶149

Answer to Question No.2

¶150

No investigating agency is empowered to conduct a 'fresh', 'de novo', or 're-investigation' in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate.”

¶151

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¶152

In the light of the above legal discussion,

¶153

it is better to analyse the facts of the case in hand. As already stated earlier in W.P.(C) No.24258 of 2007, the High Court directed the CBI to conduct further investigation in Crime No.704 of 2005 (R.C. No. 10/S/2007/CBI/SCB/CHE.) and after completing investigation, they laid final report against six persons under Sec.323, 331, 348 and 302 r/w Sec.34 of the Indian Penal Code and under Sec.120B read with Secs.201, 116 and 193 IPC. The mother also filed another W.P.(C) No.12365 of 2008 for entrusting the investigation in Crime No.703 of 2005 of Fort Police station to CBI, which was also allowed by the High Court. In the circumstance, CBI re-registered the crime as RC. No.5/S/2008/CBI/SCB/CHE and after completing investigation, they laid charge against five accused persons. Therefore, the result of the CBI investigation whether it is a denovo investigation, fresh investigation or re-investigation, whatever it may be, as alleged by the petitioners, the position is explained earlier in Vinay Tyagi's case that no investigating agency is empowered

¶154

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¶155

to conduct a 'fresh', 'de novo', or 're-investigation' in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned magistrate. Accepting the above parameters, there is no illegality in submitting report before the Chief Judicial Magistrate Court, Ernakulam and committal of the case to the Special Court. The trial court has considered all relevant reports, found out a prima facie case and framed charge against the accused as per the direction of the High Court.

¶156

The learned counsel appearing for the petitioner contended that the records furnished by the CBI alone were considered by the trial court at the time of framing charge. But, the learned Special Public Prosecutor appearing for the CBI submitted that all relevant records were considered at the time of framing

¶157

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charge. It is clear that the trial Judge has not mentioned which documents were considered for discharging the 4^th accused and for framing charge against other accused. The normal principle is that if the accused is not discharged under Sec.227 of the Code and if material noticed by the trial judge makes out a prima facie case, he has a right to proceed against the accused after making an opinion that the ingredients attracting the alleged charge came to his notice. In such a situation, prima facie case naturally depend upon the facts of each case and it is difficult to lay down a universal rule for application by each court. Where the materials placed before the court gave any suspicion against the accused, which was not explained by the prosecution, the court is at liberty to discharge him, but if the accused has not properly explained the circumstance, the court is fully justified in framing a charge and proceeding with the trial. At the same time, if two views are equally possible and the Judge is satisfied that the evidence produced before him creates some suspicion about the involvement of the accused, that is also a chance for discharging the

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¶160

accused at the time of hearing under Sec.227 of the Code.

¶161

Section 227 of the Code reads as follows:

¶162

“Sec.227. Discharge- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

¶163

While opening the case for prosecution

¶164

under Section 226 of the Code, Prosecutor has a responsibility to describe the charge against the accused and state by what evidence, he proposes to prove the guilt of the accused. Then only comes the duty of the court to consider the records of the case and document submitted therewith and to hear the submission of the accused and the Public Prosecutor in this behalf. Thereafter the Judge has to pass an order invoking Sec.227 or Sec.228 of the Code. If the Judge presumes that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and has to record the reason for doing so under Section 227. But on

¶165

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¶166

the other hand, if the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by the court of Sessions, he shall frame a charge in writing against the accused provided under Section 228 of the Code. While considering the two provisions of the Code, it would be clear that the beginning of the trial, the truth, veracity and the effect of the evidence which the Prosecutor relied need not be meticulously analysed. At that time, the probable defence put forward by the accused is also not to be considered. The primary obligation on the part of the trial Judge at this stage is to weigh the fact if proved would be against the innocence of the accused.

¶167

The principle with regard to the scope of Sec.227 and the Judge's power to pass orders of discharge invoking Sec.227 has been explained by the apex court in Union of India v. Prafulla Kumar Samal and another [1979 (3) SCC 4] and held as follows:

¶168

In exercising the jurisdiction under Sec.227, the Special Judge, which under the present Code is a senior and experienced court, cannot act

¶169

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¶170

merely as a post office or mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. While considering the question of framing charges under this section, he has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (para 10)

¶171

The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. By and large however, if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (para 10)

¶172

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¶173

In the above case the apex court relied on its earlier decision in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, K.P. Raghavan v. M.H. Abas [ AIR 1967 SC 740] and Almohan Das v. State of West Bengal [AIR 1970 SC 863]

¶174

Another decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another (1989) 1 Supreme Court Cases 715 ) also settled the law with regard to framing of charge and discharge. Paragraphs 14 and 20 read as follows:

¶175

Section 227 itself contains enough guidelines as to the scope of inquiry for the purpose of discharging an accused. It provides that “the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused”. The “ground” in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court therefore, need not undertake an elaborate inquiry in sifting and weighing the materials. Now is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would

¶176

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¶177

reasonably connect the accused with the crime. (para 14)

¶178

Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience to criminal trials. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the court in the face (para 20).

¶179

In a subsequent decision Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Others (1990)4 Supreme Court Cases 76 held as follows:

¶180

Under Section 227 Cr.P.C, a duty is cast on the judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. At the Sections 227-228 stage the court is

¶181

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¶182

required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence. (para 4 and 7).

¶183

In this context, I have examined the ground

¶184

for framing charge in this case. Section 228 of the Code reads as follows:

¶185

Framing of charge : (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-

¶186

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trail of warrantcases instituted on a police report;

¶187

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

¶188

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked

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whether he pleads guilty of the offence charged or claims to be tried.

¶191

A perusal of Sec.228 shows that if upon consideration of the records of the case and after hearing of the accused and the prosecution, the Judge considers that there is sufficient grounds for proceeding against the accused, the Judge shall frame a charge against the accused and the charge shall be read over to the accused and explained to him and ask whether he pleads guilty or not.

¶192

Apex Court has explained the scope of Sec.228 of the Code in State of Bihar V. Ramesh Singh ( 1977 Crl.LJ 1606) where in it was held as under:“ Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of

¶193

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the criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it, is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible not advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227”.

¶195

Apex Court in State of M.P. V. S.B.Johari and others (2000 Crl LJ 944) held that “at the stage of framing charge, trial court is not required to

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marshall materials on record but has to prima facie consider whether there is sufficient materials against the accused”. Apex Court in State of Maharashtra v. Priya Sharan Maharaj and others ( 1997 Crl. LJ 2248) held that “at the state of framing of the charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction” .(Para 8). In Sajjan Kumar v. Central Bureau of Investigation (2010(9) SCC 368) it was held that “at the stage of framing charge under Section 228 or while considering discharge petition filed under S.227, it is not for Magistrate or Judge concerned to analyse all the materials including pros and cons, reliability or acceptability thereof, etc”. In Shoraj Singh Ahlawat and others v. State of UP and another (AIR 2013 SC 52) it was held that “discharge under Section 239 - consideration - Magistrate has on basis of material on record only to see whether there is ground to presume that accused has committed offence -even strong suspicion about existence of facts constituting offence - sufficient to refuse discharge” (Para 11).

¶198

The learned Judge at the time of framing charge perused all materials on record and framed

¶199

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¶200

charge against the accused. From the court charge, it is difficult to identify which documents and materials were relied by the Prosecutor while describing the charge against the accused and which documents and materials were relied by the learned Judge for finding out the prima facie case. The trial Judge need not specifically mention those materials which were relied by him for making out prima facie case. Therefore the settled position of law is that while considering the question of framing charge, the court has to sift and weigh the evidence for limited purpose of finding out the prima facie case alone.

¶201

The tender of pardon to a person by a court under Section 306 of the Code duly supported by the State is a judicial act. While Magistrate is performing such act, he is bound to consider the consequences of grant of pardon taking into consideration, the policy of the State and the culpability of the person seeking pardon. Further, the court while exercising such power, should not assess the probative value of the evidence of the person seeking permission to become an approver in

¶202

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¶203

anticipation. Once that immunity extends to the accused, then accused is made an approver under Section 306 of the Code, he ceases to be an accused and would be examined only as a witness unless the said privilege is revoked. Section 114 Illustration (b) and Section 133 of the Evidence Act, 1872 provide for the same that an accomplice is a competent witness and that his testimony can be relied upon, depending upon the quality of the evidence. While exercise of judicial power in relation to grant of pardon is disputed by the petitioners, in order to remove any suspicion of grant of pardon or its political consideration or to ensure that the pardon is in the interest of justice, petitioners can raise that matter in the trial Court. The evidentiary value of the accomplice and its relevancy is a matter of appreciation by the trial Judge, even before scrutinizing those matters in a judicial proceeding. It is not fair to discuss the validity and admissibility of such evidence, hence there is no merit in that contention.

¶204

However, in view of the above facts and circumstances in this case, I am of the opinion that the

¶205

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¶206

learned Judge (Special Court for trial of CBI cases), Thiruvananthapuram has considered the relevant facts for finding out a prima facie case. At the stage of Secs.227 and 228 of the Code, the court is required to evaluate the materials and documents on record with a view to find out the existence of ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence for finding out a prima facie case. In the light of the prima facie evidence, the charge was framed against the accused. Since the incident occurred on 07.09.2015, I direct the trial Judge to take sincere effort for completion of the trial at the earliest, for which, the prosecution and the accused shall render their assistance. The learned trial Judge is free to analyze, appreciate and evaluate the evidence and dispose of the matter after considering the defence of the accused also.

¶207

Before parting with this judgment, I may observe that the 5^th respondent, mother of the deceased (Udayakumar) approached this Court and filed several writ petitions. Really, the mother is a dependent of the

¶208

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¶209

deceased and head of the family of the victim and after her son's death, nobody is there to look after her. In the circumstance, I am thinking of giving an interim compensation to the mother of the deceased (Udayakumar) invoking Sec.357A of the Code of Criminal Procedure, which reads as follows:

¶210

357A . Victim compensation scheme .- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

¶211

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

¶212

(3) If the trial Court, at the conclusion of the trial, is satisfied that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the Victim has to be rehabilitated, it may make recommendation for compensation.

¶213

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

¶214

(5) On receipt of such recommendations or on the

¶215

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¶216

application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

¶217

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.

¶218

The special provision 'victim compensation' has been inserted by the Parliament by Act 5 of 2009 with effect from 31.12.2009. According to Section 2 (WA) “ victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir; Victim Compensation Scheme has been inserted under Sec.357 (A) of the Code with an aim to give compensation to the victim or his dependents. As per the Scheme, every State government in co-ordination with the Central government shall prepare scheme for providing funds for the purpose of giving compensation to the victims or his dependents,

¶219

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who have suffered loss or injury as a result of the crime and who require rehabilitation. 357(A)(6) empowers the

¶221

State or District Legal Services authority, as the case may be, to alleviate the sufferings of the victim by granting interim relief.

¶222

Apex court in Suresh v. State of Haryana [(2015) 2 SCC 227 ] held that the victims of the crime are entitled to get interim compensation and rehabilitation. Paragraph 16 of the judgment reads as follows:

¶223

“ It is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind,

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apart from such other factors as may be found relevant in the facts and circumstances of an individual case.”

¶226

The Apex court in another decision State of Madhya Pradesh v. Mehtaab (2015) 5 Supreme Court Cases 197 held that,

¶227

“apart from sentence and fine/ compensation to be paid by accused, reiterated, court has to award compensation to be paid by the State under S.357-A when the accused is not in a position to pay fair compensation - Imposition of default sentence to ensure payment of compensation.”

¶228

Accordingly, Government of Kerala issued notification G.O.(MS)No.37/2014/Home dated 24.02.2014 vide SRO No.167/14 in exercise of power under Sec.357A of the Code and the Home department shall be the nodel department. The fund shall be operated by the Member Secretary, Kerala State Legal Services Authority. In the schedule, maximum compensation amount for death is fixed as Rs.5,00,000/- (Rupees five lakhs only) in the year 2014. Apex court in Suresh's case supra held that the scheduled amount is not sufficient and it needs enhancement. Considering the earning capacity and depreciation of money value from 2005 onwards, fixing of the amount to the maximum limit is unsustainable. In the circumstance, the mother of the deceased Udayakumar is

¶229

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entitled to get interim compensation of Rs.10,00,000/(Rupees ten lakhs only) under Sec.357A of the Code. State of Kerala will make necessary arrangements for making the payment of compensation under Sec.357A of the Code within one month from the date of receipt of a copy of this order. Thus the State of Kerala is liable to pay interim compensation to the mother of the victim. The interim compensation payable is without affecting any other rights or remedies of the victim in any other proceedings. State of Kerala represented by Additional respondents R2 to R4 ie, Home Secretary, State Police Chief and DGP Crimes shall ensure that prompt payment is made in time as directed by this Court. If the amount is not deposited, mother of the deceased Udayakumar is at liberty to realise the amount as per law. Final amount of compensation will be fixed by the trial court and realize it from the service benefits of the accused if they are found guilty. If they are acquitted, State Government will pay the amount, if any. The accused are directed to appear in the trial court and co-operate with the trial.

¶231

However, it is the duty of the criminal

¶232

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Courts, while taking cognizance of a criminal offence, to ascertain whether there are any materials to indicate commission of crime and if the victim is identifiable, whether he needs immediate financial assistance. If such relief is sought by a victim on an application or the Court on its own motion and on satisfaction of the Court, a direction can be given to grant interim compensation to the victim, subject to the final decision of compensation on conclusion of trial. Such interim compensation shall be granted according to the gravity of offence and urgent need of victim, which are some of the relevant factors to be borne in mind by the Courts apart from other factors as may be relevant in the facts and circumstances of each individual case. At the time of final hearing, it is the duty on the part of the Court to record a finding whether the victim or his legal heir is entitled to get compensation and if so, who is so entitled and how much. If courts are implementing the above interim compensation scheme properly, I think that this will reduce the increasing crime rate in the future. I also direct that a copy of this order be forwarded to Kerala Judicial Academy so that all

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judicial officers in the State can be imparted requisite training to apply the provision in a meaningful manner.

¶236

In the result, Prabhavathy Amma, the mother of deceased Udayakumar representing the victim be paid with interim compensation of Rs.10,00,000/- (Rupees Ten Lakhs). It will be payable by the Kerala State Legal Services Authority within one month from the date of receipt of a copy of this order. If the funds are not available for payment with the said authority, the State of Kerala will allot such funds available within one month from the date of receipt of a copy of this order and the Kerala State Legal Services Authority will disburse the compensation within one month thereafter. The revision petition stands disposed of with the above observation.

Sd/- P.D. RAJAN,

/ True copy /

NS/04/04/2016

P.A. To Judge

Sabu E.K. v. State of Kerala

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