Aneesh V Korah v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944`** ## **`CRL.MC NO. 5731 OF 2020`** ## **`AGAINST THE ORDER/JUDGMENT IN SC 97/2016 OF DISTRICT COURT & SESSIONS COURT, KOTTAYAM`** ## **`CP 16/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHANGANACHERRY`** ``` CRIME NO. 1843 OF 2015 OF KARUKACHAL POLICE STATION ``` ## **`PETITIONER/PROSECUTION WITNESS NO. 28:`** ``` ANEESH V KORAH AGED 45 YEARS S/O.V.C.KORAH, VALIYAPARAMBIL, PANACHIKKADU VILLAGE, POOVAMTHURUTHU P.O., KOTTAYAM, PIN-686 012. BY ADVS. BIJU BALAKRISHNAN SRI.T.S.SARATH SMT.V.S.RAKHEE SMT.K.J.GISHA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 031. BY ADV SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER ``` ## **`OTHER PRESENT:`** ## **`PP M K PUSHPALATHA`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5731 OF 2020 ``` ``` 2 ``` ## **BECHU KURIAN THOMAS, J. ======================== Crl. M.C. No. 5731 of 2020 ======================== Dated this the 10[th] day of January, 2023** ## **O R D E R** The Investigating Officer in a murder case has invoked the inherent jurisdiction of this Court under Section 482 of Cr.P.C, to expunge certain adverse remarks made by the learned Sessions Judge, against him, in the judgment acquitting the accused. 2. Petitioner was the Circle Inspector of Police of Vakathanam Police Station in the year 2015, when an offence under Section 302 of the Indian Penal Code, 1860, was detected. The incident came to light based on a complaint filed by the wife of the deceased on 23.10.2015. Crime No. 1843 of 2015 of Karukachal Police Station was registered initially for a missing person under Section 57 of the Kerala Police Act, 2011. Based on the FIR, an investigation was commenced by the Sub Inspector of Police, Karukachal Police Station and thereafter, when the son of the deceased was apprehended, it was realized by the said Officer that, a murder would have been committed. Therefore, at night, ``` CRL.MC NO. 5731 OF 2020 ``` ``` 3 ``` petitioner was intimated, whereupon he questioned the accused on the next morning. On the basis of the statement confessing to the guilt of the crime, two accused were arrested and after completion of investigation, the final report was filed. Since the case revealed an offence triable exclusively by the court of sessions it was committed to the Sessions Court, Kottayam as SC No. 97/2016. After trial, the learned Sessions Judge acquitted the accused by Judgment dated 06.08.2019. 3. Petitioner being the investigating officer was examined as PW28 during the trial in the above mentioned sessions case. Certain observations were made by the learned Sessions Judge in paragraph 38 of the judgment in SC No. 97/2016 referring to the role of the petitioner. For the purpose of reference, paragraph 38 of the judgment in SC No. 97/2016 is extracted hereunder; “ 38. Further, glaring latches in investigation is noted on the part of PW28. His testimony itself shows that he got information about the commission of offence u/s.302 IPC by accused No.1 on 25.11.2015 itself and also got information that accused No.1 was kept in Karukachal police station without arresting him. But he did not cared to proceed to the station. Instead, he instructed the police officials to keep accused No.1 in illegal custody in the police station till next morning. It is elementary for a police officer to record the statement of accused if he is ``` CRL.MC NO. 5731 OF 2020 ``` ``` 4 ``` intending to rely upon that statement u/s.27 of the Evidence Act. PW28, though would depose that accused Nos.1 and 2 gave confession statements to him, he has not cared to record those statements. Being the investigating officer, it was his duty to record the alleged confession statements made by accused Nos. 1 and 2. Failure on his part to do so had adversely affected the prosecution case. It is also noted that after taking over investigation he allowed PW27 to do investigation without any reason. Thus the latches in the investigation had seriously affected the prosecution case. This shall be brought to the notice of the District Police Chief, Kottayam, the superior authority of PW26, PW27 and PW28 for taking appropriate action in the matter.” 4. Petitioner is aggrieved by the observations made against him in the above extracted paragraph. It is pleaded that the comments against the petitioner are sweeping, made without any basis and has an adverse impact on his career. Petitioner also contends that the observations were made without even giving an opportunity of being heard and therefore those adverse remarks are liable to be expunged. 5. Heard Sri. Biju Balakrishnan, the learned Counsel for the petitioner and Smt.M.K.Pushapalatha, the learned Public Prosecutor. 6. Advocate Biju Balakrishnan contended that, the observations are liable to be expunged for legal and factual reasons. It was submitted that, petitioner’s chances of ``` CRL.MC NO. 5731 OF 2020 ``` ``` 5 ``` promotion have been seriously prejudiced due to the observations in the judgment and therefore, unless the adverse remarks are expunged, petitioner will be put to great prejudice. The learned Counsel also pointed out that even on facts, the observations were unwarranted, while on law, as an opportunity to explain or show cause was not granted, the same cannot sustain. Attention of this Court was invited to various decisions also. 7. Smt. M.K.Pushapalatha, the learned Public Prosecutor objected to the reliefs sought for and contended that, the observations have been made by the learned Sessions Judge after appreciating the facts of the said case and therefore, no fault can be found with the observations. 8. I have considered the rival contentions. It is trite that an adverse observation cannot be made against a stranger to the litigation or even against a witness in a case, without giving notice of such intention to make the adverse observation. Giving notice of the proposal to make an adverse remark or observation is an element of the principles of natural justice. An opportunity to explain before an adverse remark is made is a right that enures to every person, whether he is a witness or a stranger or even a party to the ``` CRL.MC NO. 5731 OF 2020 ``` ``` 6 ``` litigation. ## 9. In the decision in **Manish Dixit and Others v. State of Rajasthan (2001) 1 SCC 596** the Apex Court had observed that “Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly when such remarks could ensure serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is a basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice”. Similarly in the decision in **Testa Setalvad and Another v. State of Gujarat and Others** (2004) 10 SCC 88, Supreme Court observed that the practice of making observations and judgments without being granted an opportunity of having their say in the matter unmindful of the serious repercussions that may entail on such persons is to be deprecated. Similar observations were also made by the Supreme Court in the decisions in **Kishan Singh and Another v. State of Panjab (2007) 14 SCC 204, Dr. Raghubir Saran, v. State of Bihar and Another (AIR 1964 SC 1), State of UP v. Mohammad Naim (AIR 1964 SC 703),** and by this Court in **R. Jayaram Menon v. E.** ``` CRL.MC NO. 5731 OF 2020 ``` ``` 7 ``` **Gheevarghese (1972 KLT 691), Ajayababu v. State of Kerala (2002 (2) KLJ 582) and Senkumar T.P. v. State of Kerala and Others (2012 (2) KHC 35)** . 10. On an appreciation of the legal principles laid down in the judgments mentioned above, it is evident that, while castigating a witness, courts would be justified in making observations only if prior notice had been given. In the instant case, the learned Sessions Judge had made the observations without any notice having been issued and therefore, the said observations are legally unwarranted. The observations in paragraph 28 of the Judgment in SC No. 97/2016 are liable to be expunged. 11. Factually also the observations are incongrous to the preceding paragraphs itself. In paragraph 23 of the Judgment, the learned Sessions Judge had observed that, PW28 as a Circle Inspector of Police, Vakathanam Police Station had, on getting information that the accused is in the police station directed him to be kept in surveillance and took his confession statement on the next day (date is wrongly mentioned as 27.11.2015 instead of 26.11.2015). Referring to the deposition of PW28, the learned Sessions Judge also observed that, accused Nos. 1 and 2 had given confession ``` CRL.MC NO. 5731 OF 2020 ``` ``` 8 ``` statements based upon which they were arrested. Despite the said observations based upon the evidence of PW28, adverse observations have been made that confession statements were not recorded by PW28. The adverse observations as against the petitioner in paragraph 28 of the Judgment are factually incorrect and contradictory to the deposition referred to in paragraph 23. Therefore, factually also, the observations in paragraph 28 of the judgment in SC No. 97/2016 are incorrect. 12. Having regard to the above discussions, I am of the view that, the adverse observations against the petitioner as PW28, made in paragraph 38 of the aforementioned judgment are liable to be expunged. 13. In the result, all adverse observations in paragraph 38 as against the petitioner as PW28 in the judgment dated 06.08.2019 in SC No. 97/2016 on the files of the Sessions Court, Kottayam shall stand expunged. The Crl. M.C. is allowed. Sd/- ## **BECHU KURIAN THOMAS JUDGE** LU ## **Corrigendum dated 20.01.2023** The words ‘paragraph 28’ appearing in paragraph ``` CRL.MC NO. 5731 OF 2020 ``` ``` 9 ``` Nos. 10 & 11 shall stand corrected and read as ‘paragraph 38’. **Sd/-** **BECHU KURIAN THOMAS JUDGE** LU ``` CRL.MC NO. 5731 OF 2020 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 5731/2020`** ``` PETITIONER ANNEXURES : ``` ``` ANNEXURE A1 ``` ``` CERTIFIED COPY OF THE JUDGMENT DATED 06.08.2019 IN SESSIONS CASE NO.97/2016 OF THE SESSIONS COURT, KOTTAYAM DIVISION. ``` ``` // True Copy // PA To Judge ```