Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941 Crl.MC.No.419 OF 2020(B) SC 983/2017 OF ADDITIONAL DISTRICT & SESSIONS COURT - II, NORTH PARAVUR CRIME NO.1397/2011 OF ANGAMALI POLICE STATION, ERNAKULAM PETITIONER: SHELCY, AGED 49 YEARS, W/O. LATE THOMAS, PALATTI HOUSE, PARAMBAYAM KARA, MUKKANNOOR VILLAGE, ANGAMALI. BY ADVS. SRI.SAJAN MANNALI SRI.AADITHYAN S.MANNALI SRI.ALPHIN ANTONY RESPONDENTS:
1 DETECTIVE INSPECTOR CBCID, HHW - II, ERNAKULAM. 2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ANGAMALI POLICE STATION. 3 SANTHOSH AGED 47 YEARS, S/O. PALLI, THALIYAN HOUSE, JAYAKERALA NAGAR, PULLUVAZHI KARA, RAYAMANGALAM VILLAGE, PERUMBAVOOR, ACCUSED NO.8 4 BAIJU, AGED 35/11, S/O.AUGUSTY, NEDUMPURATH HOUSE, KARUKUTY VILLAGE, EZHATTUMUGHAM, ANGAMALY, ACCUSED NO.9 5 SURESH, AGED 37/11, S/O.BALAKRISHNAN, ARIYATH HOUSE, ERATUKULAM KARA, NALEPPALLY VILLAGE, PALAKKAD, ACCUSED NO.12
Crl.MC.No.419 OF 2020(B) 2
6 BIJU T. MENON, AGED 32/11, S/O.SUNDARA MENON, PETTATU HOUSE, AVANJOOR VILLAGE, THRISSUR, ACCUSED NO.19 7 SUDEVAN AGED 44/11, S/O.BALAN, KOLUTHUPARAMBIL HOUSE, THEKKUMURI KARA, VARANTHARAPPILLY VILLAGE, THRISSUR, ACCUSED NO.20 8 SUNIL KUMAR @ UNNIVARMA, AGED 38/12, S/O.VELAPANKUTTY, PALAKKAL HOUSE, WILVATAM VILLAGE, VIYYOOR, ACCUSED NO.21 9 SHIBU K. K. AGED 40/13, S/O.KRISHNANKUTTY, KURULATH HOUSE, PATHUVAPURAM P. O., PALISSERY KARA, ANGAMALY VILLAGE, ERNAKULAM, ACCUSED NO.23
BY SENIOR PUBLIC PROSECUTOR SRI.C.K.SURESH BY SASTHAMANGALAM S AJITHKUMAR, SPECIAL PUBLIC PROSECUTOR, CBCID R2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R3 TO R9 BY ADV.GEO PAUL THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No.419 OF 2020(B) 3
ORDER
Dated this the 12th day of March, 2020 This is an application filed under Section 482 of the Code of Criminal Procedure (for short 'Cr.P.C.'). The petitioner is the wife of the deceased in CBCID Crime No.1025/CR/2011 (originally numbered as Crime No.1397/2011 of Angamali Police Station). The 1st respondent is
the officer of the Crime Branch who had held
investigation in the case. 2nd respondent is the State represented by the Public Prosecutor and respondents 3 to 9 are accused Nos. 8,9,15,19,20,21 and 23 who were already discharged from the case, by order passed by the trial court. S.C.No.983/2017 is the case registered from the aforesaid crime after filing of the final report. The Court of Sessions, North Paravur seized of the final report and it is pending consideration now as SC No.983/2017 before Additional Court of Sessions-II, North
Crl.MC.No.419 OF 2020(B) 4 Paravur. After ordering discharge of seven accused, who are respondents 3 to 9 in the
petition on hand, charge was framed and trial
held against the other accused. Trial was also
concluded. At that juncture, the petitioner approached this Court seeking for the following reliefs:
(a) to conduct a further investigation in the
above CBCID Crime No.1025/CR/2011 (Earlier at Angamali Police Station in Crime No.1397/2011), and which case is numbered as SC 983/2017 before the Principal Sessions Court (no-2), North Paravur,
(b) to set aside Annexure A3 order in the Addl.Sessions court (no-2), Paravur in the interest of justice.
(c) To direct the respondents to pay the cost of the proceedings.
(d) To grant any other reliefs as prayed by the petitioner, during the course of arguments and which this Hon'ble court deems fit to grant.
2. Sri. Sajan Mannali, the learned counsel
advanced arguments for the petitioner. The 1st and 2nd respondents are represented by the learned Public Prosecutor and respondents 3 to 9 are represented by Advocate Sri.Geo Paul.
Crl.MC.No.419 OF 2020(B) 5
3. When the Criminal M.C. was taken up for
hearing, at the outset, Sri.Geo Paul, thelearned counsel for the respondents as well as the learned Public Prosecutor has raised an argument on non-maintainability of the petition on hand and urged that the question of maintainability must be heard first.
4. It is submitted by the learned counsel
for the petitioner that the first prayer in the petition is to conduct a further investigation in the above case numbered as S.C. 983/2017 and pending consideration before Additional Court of
Sessions, North Paravur. According to him a direction for further investigation is sought in the case. Further investigation being a
prerogative of the Investigating Officer, it is submitted by the learned counsel that a relief in the matter cannot be granted on a prayer
being made by the defacto complainant. The second argument was centered on the second prayer in the petition. Annexure-A3 order of Crl.MC.No.419 OF 2020(B) 6 Additional Court of Sessions, North Paravur
discharging accused No.23 is sought to be set aside. The argument of the learned counsel was that the order discharging an accused being a final order, revision is the appropriate remedy.
According to the learned counsel, when an alternative remedy is available to the petitioner, she ought to have availed that remedy and invocation of jurisdiction under Section 482 Cr.P.C is totally impermissible. According to him,the prayer to pay costs is ancillary depends on the grant of the other
reliefs.
5. Per contra, Sri. Sajan Mannali, the learned counsel for the petitioner has contended
that for dispensation of justice, this Court is empowered to invoke jurisdiction under Section 482 Cr.P.C. According to him, he has approached this Court immediately after examination of the accused under Section 313 Cr.P.C. It is urged that in the case on hand proper investigation Crl.MC.No.419 OF 2020(B) 7 was not conducted by the Investigating Officer and being highly prejudiced, the petitioner had approached this Court seeking for entrustment of investigation to CBCID. Accordingly, this Court has directed the investigation to be held by CBCID. According to the learned counsel after entrustment of investigation with the CBCID, for about four years, the investigation was dragged and laying of final report was delayed. Therefore, this Court was approached seeking for a direction to lay final report at an earlier
stage. This Court has intervened and in accordance with direction issued, a final report was laid before the Court of Sessions and the case was taken cognizance of. It is also pointed out by the learned counsel that at the time when a preliminary hearing was held, several accused had applied before the trial court for getting
discharged. The Trial Court granted order of discharge in favour of seven accused. According to him accused No.23, who has serious Crl.MC.No.419 OF 2020(B) 8 involvement in the case has also been granted an
order of discharge by the trial court. According
to the learned counsel, call details collected by the Investigating Officer, though formed part of the Case Diary, were not produced before the
court alongwith the documents proposed to be marked in evidence by the prosecution. During the course of trial, the learned Public
Prosecutor came across with the call details in the case diary and applied for getting those produced and marked in evidence. The matter was opposed by the learned defence counsel but, in view of the permission granted by the court in favour of the prosecution, those were produced. But, marking being vehemently opposed by the defence, those were marked subject to proof. The ground of opposition is not stated by the court specifically. Thereafter, the learned public prosecutor applied for summoning and examining nodal officers who had downloaded the
call details. The prayer was allowed and Crl.MC.No.419 OF 2020(B) 9 additional witnesses were permitted to be
examined. During examination of those witnesses they have categorically stated that material particulars relating to the call details are not available in the system since those will be maintained only for one year and therefore, production is impossible.
6. It is submitted by Sri.Sajan Mannali,
the learned counsel for the petitioner that since the call details are marked subject to proof, the failure to examine the nodal officers, who are instrumental in downloading those, would be prejudicial to the defacto complainant. This Court is also in darkness about the nature of opposition raised against marking of the call details subject to proof. According to Sri.Sajan Mannali, the learned Sessions Judge during trial has stated that the call list is required to be marked through nodal officers responsible for downloading those. Crl.MC.No.419 OF 2020(B) 10
7. With regard to accused No.23, this Court
has gone into the materials to see whether order
discharging him passed by the Court suffer from illegality, impropriety or infirmity of any nature. A glance at the chargesheet would reveal that the accusations levelled against accused No.23 are liable only to attract his culpability in an offence under Section 212 IPC. Allegations in the final report are totally insufficient to attract an offence under Section 120 B IPC, for which he stood chargesheeted. The sole offence alleged against the petitioner being one punishable under Section 120 B IPC and for want of any materials to support the alleged complicity that the trial court has passed an
order to discharge accused No.23. In the absence
of any justifiable ground pointed out by the learned counsel to establish illegality, impropriety or infirmity which vitiates the order, this Court is declined to interfere with. As rightly pointed out by the learned counsel Crl.MC.No.419 OF 2020(B) 11 for respondents, the petitioner ought to have invoked the revisional jurisdiction.
8. Further investigation can be sought by the officer who had been entrusted with the Investigation alone and that too on collection of additional evidence. Authority is not conferred on the defacto complainant to seek for further investigation under Sub-Section (8) of
Section 173 Cr.P.C. The authority to order
further investigation is the court where a report under Sub-Section (2) of Section 173 is filed. Therefore, as rightly pointed out by the learned counsel for respondents, the 1st relief is not liable to be granted by invocation of jurisdiction under Section 482 Cr.P.C. Regarding
the second prayer as stated by the learned counsel for the respondents and the learned Public Prosecutor the order discharging the
accused being a final order, revision is the appropriate remedy. As already stated the 3 rd relief being one incidental to the two reliefs Crl.MC.No.419 OF 2020(B) 12 referred to above, is also not liable to be granted by invoking the jurisdiction under Section 482 Cr.P.C.
9. It is apprised from either sides that the trial is concluded and the case now stands posted for pronouncing judgment. Now, the question is whether direction needs to be issued to the trial court to re-open the evidence to
permit the examination of nodal officers responsible for downloading the call details in dispensation of justice. The learned counsel for the respondents as well as the learned public prosecutor submit in one voice that additional witnesses examined by the prosecution have already apprised the court that the call details and associated particulars would only be maintained for one year and those with reference to the case on hand are not available now for that reason. Therefore, valid purpose would not be served by issuing the direction as sought for. Therefore, this Court finds that summoning Crl.MC.No.419 OF 2020(B) 13 and examining the nodal officers who have downloaded the call details from the original system cannot improve the evidence available on record, in any manner. In view of the above discussion, the Criminal M.C. is only to be dismissed. In the result, Criminal M.C. stands dismissed. Sd/- MARY JOSEPH JUDGE MJL Crl.MC.No.419 OF 2020(B) 14
APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE SAID JUDGMENT IN OP(CRL) NO.578/2016, DATED 4.2.2019. ANNEXURE A2 A TRUE COPY OF THE RELEVANT PORTION OF THE FINAL REPORT IN CBCID CRIME NO.1025/CR/2011 OF (ANGAMALI POLICE STATION CRIME NO.1397/2011), DATED 12.01.2017. ANNEXURE A3 A CERTIFIED COPY OF THE SAID DISCHARGE
ORDER IN SC 983/2017 PENDING BEFORE
HON'BLE ADDL. SESSIONS COURT, NORTH PARAVUR. ANNEXURE A4 THE TRUE COPY OF THE ORDER IN CMP NO.237/2019 IN SC 983/2017 OF HON'BLE ADDL. SESSIONS COURT, NORTH PARAVUR. ANNEXURE A5 CERTIFIED COPY OF THE SAID ORDER OF THE HON'BLE HIGH COURT OF KERALA IN CRL. MC.4958/2019, DATED 23.7.2019. ANNEXURE A6 TRUE COPY OF THE STATEMENT FILED BY R. RAJESHKUMAR, DETECTIVE INSPECTOR, CRIME BRANCH, ERNAKULAM AS DIRECTED BY THIS HON'BLE COURT DATED 6.5.2019. ANNEXURE A7 THE TRUE COPY OF THE SAID 'CHART' PREPARED BY THE SAID POLICE OFFICER SRI. SUNDAR RAJ (PW 54) IS PRODUCED HEREWITH.
RESPONDENTS' EXHIBITS: NIL