High Court Kerala High Court

Joseph Saju.P.M vs State Of Kerala on 25 May, 2009

Kerala High Court
Joseph Saju.P.M vs State Of Kerala on 25 May, 2009
       

  

  

 
 
  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.

———————

W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006