IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1212 of 2009()
1. JOSEPH SAJU.P.M, S/O. MATHEW,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE ADDITIONAL DIRECTOR GENERAL OF
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/05/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
===========================
CRL.M.C.No.1212 OF 2009
===========================
Dated this the 25th day of May,2009
ORDER
Petitioner is Circle Inspector of Police,
Kottayam. He was promoted as Circle Inspector
of Police on 28.6.2004 and posted as Circle
Inspector of Police, Mannarcaud. He was in
charge of investigation in Crime 68/2004 of
Sholayur police station for the day. It was
subsequently investigated by T.Raman Circle
Inspector of Police, Agali. It was the Circle
Inspector Mr.Raman who completed the
investigation and laid the charge against the
accused for the offence under section 302 read
with section 201 of Indian Penal Code. Accused
was tried by Sessions Court, Palaghat in
S.C.100/2006. Under Annexure 1 judgment dated
27.11.2006, accused was found not guilty and
was acquitted. Petitioner was examined as PW11
Crl.M.C.1212 /2009 2
and Circle Inspector Mr.Raman as PW12. In the
order of acquittal learned Sessions Judge passed
some adverse remarks against PW11 and PW12. This
petition is filed under section 482 of Code of
Criminal Procedure to quash the adverse remarks as
against the petitioner in paragraph 39 of the
judgment. In paragraph 39 of the judgment learned
Sessions Judge remarked that there was no earnest
attempt on the part of the Investigating Officers,
PW11 and PW12, to properly investigate the case.
It is stated that when examined as PW11 petitioner
deposed that he arrested the accused and at that
time accused was wearing the same trousers and
shirt which he was worn at the time of occurrence
and he had seized the dresses under Ext.P11 mahazar
but he did not take care to produce them before
the court and he did not forward them to the
Forensic Science Laboratory for examination also.
Learned Sessions Judge also found that PW12 who
took over the investigation did not make any
Crl.M.C.1212 /2009 3
attempt to trace them and produce them before court
and his evidence revealed that PW12 did not find
any entry with regard to the dresses in the thondi
register kept at the Police Station. In view of
the said findings learned Sessions Judge remarked
that even while PW11 and 12 knew that the wearing
apparels of the accused are material piece of
evidence, for reasons best known to them, they did
not produce the same before court and this kind of
indifference, inefficiency and callousness are not
expected from an experienced police officers and
these point out the lack of proper supervision
from the high-ups.
2. The grievance of the petitioner is that he
was in charge of the investigation only for two
days and after he arrested the accused and seized
his dresses under Ext.P11 mahazar, the material
objects were entrusted to the Sub Inspector of
Sholayur Police Station with a direction to produce
them before the Investigating Officer and the
Crl.M.C.1212 /2009 4
adverse remarks passed against him are unwarranted
and passed without granting opportunity to offer
his explanation and if at all it is for PW12 the
subsequent Investigating Officer to direct the Sub
Inpector to produce the dresses seized under
Ext.P11 and in such circumstance, the adverse
remarks as against the petitioner are to be
quashed. Petitioner has also a case that pursuant
to the remarks, Annexure V disciplinary proceedings
was initiated against him and it is also to be
quashed.
3. Learned counsel appearing for the
petitioner and learned Public Prosecutor were
heard.
4. Adv.Sri.Vijayabhanu, learned counsel
appearing for petitioner submitted that Ext.P11
seizure mahazar show that the dresses worn by the
accused were seized by the petitioner and pages 58
to 60 of the Case Diary shows that petitioner had
entrusted the dresses seized under Ext.P11 to the
Crl.M.C.1212 /2009 5
Sub Inspector of Police, Sholayur with a direction
to produce them before the Investigating Officer
and as petitioner was in charge of the
investigation only for two days, it is not for the
petitioner to produce them before the court and it
was for the subsequent Investigating Officer, who
was examined as PW12 to direct the Sub Inspector
of Police to produce the material objects seized
under Ext.P11 when it is recorded in the Case
Diary that they were entrusted with the Sub
Inspector and in any circumstance the adverse
remarks passed against the petitioner without
hearing him are unwarranted and are to be quashed.
5. Learned Public Prosecutor on verifying the
records submitted that the Case Diary contains
specific entry to the effect that the dresses
seized from the accused under Ext.P11 mahazar were
entrusted to the Sub Inspector of Police, Sholayur.
In such circumstance, petitioner, who was in charge
of the investigation only for two days, cannot be
Crl.M.C.1212 /2009 6
found to be negligent in the investigation. The
case could have been different if the subsequent
Investigating Officer directed the Sub Inspector of
Police who was entrusted with the material seized
from the accused under Ext.P11, as seen from the
Case Diary, to produce them and he reported that he
did not get possession of the material objects.
When PW12 has no case that he did not ask the Sub
Inspector to produce the material objects seized
under Ext.P11 or that they are not available with
the Sub Inspector, petitioner who was in charge of
the investigation only for two days cannot be held
liable for the negligence or laches in the
investigation. Learned Sessions Judge unfortunately
did not consider this aspect while passing the
adverse remarks against the petitioner who was
examined as PW11.
6. Learned counsel made available copy of the
deposition of PW11. It is seen that in chief
examination itself PW11 had deposed that he had
Crl.M.C.1212 /2009 7
seized the dresses,viz., the trousers and the
shirt worn by the accused at the time of arrest,
which are stated to be worn by the accused at the
time of the occurrence, under Ext.P11 mahazar.
He was not cross examined with regard to the
custody of the dresses seized under Ext.P11 or
their non production. PW11 was not given an
opportunity to explain why he did not produce the
material objects seized under Ext.P11 before the
court or before the subsequent Investigating
Officer. Learned counsel also pointed out that the
concerned Sub Inspector when examined as PW9 was
also not asked about the custody of the dresses
seized by the petitioner under Ext.P11 or the
material objects entrusted to him as shown in the
Case Diary. In such circumstance, learned Sessions
Judge was not justified in passing adverse remarks
as against the petitioner as seen in paragraph 39
of the judgment. As these adverse remarks were
passed without granting opportunity to the
Crl.M.C.1212 /2009 8
petitioner and are against the factual position,
the adverse remarks as against the petitioner in
paragraph 39 of Annexure 1 judgment are quashed.
7. Annexure V order shows that disciplinary
proceedings was initiated against petitioner only
on account of the adverse remarks in Annexure 1
judgment against him. In view of the quashing of
the adverse remarks against the petitioner in
Annexure 1 judgment, Annexure 5 proceedings
initiated pursuant to the adverse remarks as
against the petitioner is also quashed.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
———————
JUDGMENT
SEPTEMBER,2006