Xxx Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2020)

Xxx Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2020)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942

WP(C).No.13820 OF 2020(B)

PETITIONER:

VICTIM

BY ADVS. SRI. J. JULIAN XAVIER SRI. FIROZ K. ROBIN SRI. ROY JOSEPH SRI. JOSE. V. V. (THENGATHARA) SMT. ANNIES MATHEW SRI. E. HARIDAS

RESPONDENTS:

1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031. 2 STATION HOUSE OFFICER, MEDICAL COLLEGE POLICE STATION, MEDICAL COLLEGE P. O., KOZHIKODE DISTRICT, PIN - 673 008. 3 MUHAMMED JASIM, AGED 20 YEARS, S/O. IBRAHIM M. K., KUTTIKANDI HOUSE, THOTTUMOOLA, HOUSE NO.8/37, KARUVANNUR P. O., KOZHIKODE - 673 614. 4 ALI AKBAR @ HARIS K. P, AGED 41 YEARS, S/O. ABDULLA KOYA, K. P. HOUSE, MANTHRAVILPADAM, KULANGARA PEEDIKA, KINASSERRY, POOKKUNNU P. O., KOZHIKODE - 673 007. R1 & R2 - SRI. SAIGI JACOB PALATTY, PUBLIC PROSECUTOR R3 – SRI. SHARAN SHAHIER R4 – SRI. T. R. HARIKUMAR – SRI. ADITHYA RAJEEV

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ALEXANDER THOMAS, J.

W.P.(C) No.13820 of 2020

Dated this the 14^th day of September, 2020

JUDGMENT

The prayers in the above Writ Petition (Civil) are as follows:-

“i. To call for the records leading to the committal proceedings in Ext.P3 final report and set aside the said order and direct the learned JFCM Court, Kunnamangalam, to order further investigation in Crime No.645/2019 of Medical College Police Station, Kozhikode in the light of the 164 statement given by the petitioner as evidenced by Ext.P2, in the interest of justice.

ii. To award cost of these proceedings.

iii. To grant such other reliefs that may be deemed just and proper by this Hon'ble Court.”

Heard Sri. J. Julian Xavier, learned counsel appearing

for the petitioner/victim, Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for respondents 1 and 2, Sri. Sharan Shahier, learned counsel appearing for the contesting respondent No.3 (A1) and Sri. Adithya Rajeev, learned counsel appearing for contesting respondent No.4 (A2).

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The petitioner is the lady victim in Ext.P1. Ext.P1 is the F.I.R in Crime No.645 of 2019 registered on 08.08.2019 by the Kozhikode Medical College Police Station in which the contesting respondents 3 and 4 have been arrayed as accused Nos.1 and 2 therein, for the offences punishable under Sections 376, 384 and 506 of the I.P.C. The police after investigation has now filed Ext.P3 final report/charge sheet in the abovesaid crime which is now pending as C.P No.45 of 2019 on the file of the Judicial First Class Magistrate Court, Kunnamangalam, Kozhikode District. Learned counsel for the petitioner would further states that thereafter the case has been committed the Sessions Court and was taken cognisances of the case and the matter is pending in Sessions Court as S.C No.381 of 2020 on the file of the First Additional Sessions Court notified to the POCSO cases, Kozhikode.

The abovesaid crime has been registered on the basis of the First Information Statement given by the petitioner/victim in the said case. Ext.P2 is the copy of the statement under Section 164 of the Cr.P.C given by the petitioner/victim to the learned Magistrate on 06.08.2019 in the course of the investigation. The crime was initially registered before the Nadakkavu Police Station, Kozhikode as Crime No.692 of 2019 on 05.08.2019, on the basis of

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the First Information Statement given by the petitioner/victim. Later in the course of the said investigation the statement of the petitioner/victim has been taken under Section 164 of the Cr.P.C on 06.08.2019 before the learned Magistrate. Later on finding that the subject matter of the allegations have a result mainly within the territorial limits of the Medical College Police Station, Kozhikode the crime was transferred to the said Medical College Police Station, Kozhikode wherein it has been re-registered as Ext.P1 Crime No.645 of 2019 for the abovesaid offence. The complaint of the petitioner/victim is to the effect that though she has serious allegations against A1 that he had forcibly taken away Rs.5,000/from the petitioner/victim which she had kept as payment as hostel fee and had also forcibly taken away her gold bracelet and ring without her consent and after intimidating and threatening her etc. and some of the aspects in that regard as also been stated by CW3 (Soly Joseph), who is the mother of the petitioner/victim, new aspects are stated by the Investigating Officer in the impugned Ext.P3 final report/ charge sheet as to the steps taken by him in the course of the investigation to ascertain the correctness of the said allegation disclosing the offence as per Section 384 of the I.P.C (extortion) and as to how the investigation has been disclosed to commit the offence as per Section 384 of the I.P.C etc. On the other

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hand the Investigating Officer has mechanically only stated about the version of the petitioner has given by her in the First Information Statement to the petitioner/victim as well as the version of a mother and new details are given in the final report more particularly in internal pages 6 to 11 of Ext.P3 as to the steps taken by the Investigating Officer in the course of the investigation for ascertaining the crucial allegations regarding the offence under Section 384 of the I.P.C and as to the materials collected in the course of investigation and the opinion of the Investigating Officer regarding as to how the offence under Section 384 of the I.P.C will says disclosed after the completion of the investigation. In the light of these factual aspects that the petitioner/victim has filed the instant Writ Petition (Civil) with the aforementioned prayers.

The parties have been heard. The learned counsel appearing for contesting respondent No.3 (A1) and the learned advocate appearing for contesting respondent No.4 (A2) has seriously opposed the prayers in this writ petition and has also pointed out that in matters like this petitioner/victim can approach the learned Magistrate before whom the matter in relation to Ext.P3 final report/charge sheet is pending and can seek for directions in the matter of further investigation after making out

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the case in that regard. After hearing both sides it is seen that the matter is now pending in CP No.45 of 2019 on the file of the Judicial First Class Magistrate Court, Kunnamangalam, Kozhikode District and the case has not so far been committed by the learned Magistrate to the Sessions Court concerned. No objections are raised by the respondents that this Court is not having jurisdiction to consider the pleas as in the abovesaid case and to examine as to whether the case is made out for granting directions for the conduct of further investigation in a case like this. After hearing both sides it is seen that Ext.P3 is the copy of the final report/charge sheet filed in this case internal pages 6 to 11 of Ext.P3 final report/charge sheet are the details given by the Investigating Officer regarding the allegations in the crime and as to the details of the investigation conducted for the various offences alleged in the said crime and also as to the opinion of the investigating agency regarding disclosure of the offence. Exhaustive reading of internal pages 6 to 11 of Ext.P3 would make it clear like the day light that the only discussion regarding the offence as per Section 384 of the I.P.C (extortion) is given in the middle portion of internal page 7 of Ext.P3 which is mainly the version of the petitioner/victim regarding the allegations that contesting respondent No.3 (A1) had forcibly taken away Rs.5,000/- from her which she kept for paying

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the hostel fee and has also forcibly taken away her gold bracelet and ring, after threatening and intimidating her etc. No discussion is made by the Investigating Officer anywhere in Ext.P3 final report/charge sheet more particularly in pages 6 to 7 thereon as to the steps taken by the Investigating Officer in the course of investigation to ascertain the correctness of both the allegations regarding Section 384 of the I.P.C. No discussion is also given in internal pages 6 to 11 of Ext.P3 as to the opinion of the Investigating Officer, his appreciation of the evidence and materials on record and as to how the offence as per Section 384 of the I.P.C is disclosed in the abovesaid case. Further it can be seen that Ext.P4 is the Memorandum of Evidence in this case submitted by the Investigating Officer along with Ext.P3 final report/charge sheet. Ext.P4 appears to be continuation of Ext.P3 final report/charge sheet. Internal page 2 of Ext.P4 would deal with CW-3 (one Smt.Soly Joseph, aged 42) who is stated to be the mother of the petitioner/victim. It is stated that a statement has been taken from her (CW-3), as she is the mother and the guardian of the petitioner/victim and about the incidents that happened on 25.07.2019 and about the version of CW-3 regarding the money and gold ornaments with the petitioner/victim etc. No discussion is made anywhere in internal pages 6 to 11 of Ext.P3 about the

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statement given by CW-3. That apart the respondents do not have any case that any other particular charge witnesses have been questioned by the Investigating Officer to ascertain the allegations as per Section 384 of the I.P.C. In the light of these aspects this Court is constrained to take the view that investigation conducted by the Investigating Officer in relation to the offence under Section 384 of the I.P.C is rather faulty and seriously flawed and would require interdiction so that further investigation may be conducted to ascertain those allegations.

It is by now established by series of judicial decisions that the statutory duty of the Investigating Officer is a solemn one in the course of investigation and his duty is essentially to ferret out the unvarnished truth of the matter. Accordingly this Court is constrained to take the view that the matter would require interference at hands of the Court. It is brought to the notice of this Court that an officer in the rank of Circle Inspector of Police (Station House Officer concerned) has conducted the investigation in Ext.P1 crime, who has submitted Ext.P3 final report/charge sheet.

Accordingly, it is ordered that the District Police Chief, Kozhikode will immediately pass orders entrusting further

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investigation in relation to Ext.P1 Crime No.645 of 2019 of Kozhikode Medical College Police Station to a superior officer not below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police and orders in this regard shall be rendered by the District Police Chief, Kozhikode within ten days from the date of receipt of a copy of this judgment. The new Investigating Officer shall ensure that thorough and exhaustive further investigation in the matter is conducted more particularly about the allegations regarding Section 384 of the I.P.C and complete the further investigation so as to file a supplemental charge sheet/final report, in Ext.P1 Crime No.645 of 2019 of Kozhikode Medical College Police Station which has now led to the pendency of S.C No.381 of 2020 on the file of the First Additional Sessions Court, Kozhikode. The further investigation as abovedirected shall be duly completed by the new officer without much delay preferably within a period of four months and then submit the supplemental final report of the case thereon without much delay preferably within a period of five months from the date of production of the certified copy of this judgment. Until the said process is duly completed, further steps in regard to S.C No.381 of 2020 on the file of the First Additional Sessions Court, Kozhikode shall be kept in abeyance. Registry will forward a copy of this order to the First Additional

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Sessions Court, Kozhikode, who is dealing with S.C No.381 of 2020 for necessary information. Secretary to the office of the Advocate General will ensure that certified copy of the judgment is forwarded to the District Police Chief, Kozhikode and the Investigating Officer concerned for necessary information and for further action.

With these observations and directions, the Writ Petition (Civil) will stand finally disposed of.

Sd/-

ALEXANDER THOMAS JUDGE

SPR

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APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE FIR IN CRIME NO.645/2019 REGISTERED ON 08.08.2019 BY THE MEDICAL COLLEGE POLICE STATION. EXHIBIT P2 TRUE COPY OF THE STATEMENT OF THE PETITIONER UNDER SECTION 164 CR.PC DATED 06.08.2019. EXHIBIT P3 CERTIFIED COPY OF THE FINAL CHARGE SUBMITTED BY THE 2ND RESPONDENT IN CRIME NO.645/2019 OF KOZHIKODE MEDICAL COLLEGE POLICE STATION BEFORE THE LEARNED JFCM COURT, KUNNAMANGALAM. EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF EVIDENCE IN CRIME NO.645/2019 OF KOZHIKODE MEDICAL COLLEGE POLICE STATION BEFORE THE LEARNED JFCM COURT, KUNNAMANGALAM. EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT FILED BY THE PETITIONER IN BAIL APPLICATION NO.8330/2019 WITHOUT ANNEXURES.

RESPONDENT'S/S EXHIBITS: NIL.