A.U. Joy v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.` ``` TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIKA, 1944 ``` ## `CRL.MC NO. 4622 OF 2022` ``` [CRIME NO.1277/2020 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM] ``` ``` [IN CRMP 81/2021 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST ``` ## `CLASS-1,MUVATTUPUZHA]` ## `PETITIONER/PETITIONER:` ``` A.U.JOY AGED 63 YEARS ELLAL HOUSE, VALAKOM KARA, VALAKOM VILLAGE, MOOVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN – 682316 ``` ``` BY ADV RAJIV NAMBISAN ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` BY ADV C S HRITHWIK -SR PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO. 4622 OF 2022 ``` 2 ``` ## **O R D E R** ``` The petitioner is the father of Aswin Joy, ``` ``` who died in a Motor Accident occurred on 3.5.2020 ``` ``` at about 9.p.m at Makkadambu Pallithazham Bhagam ``` ``` at Valakom Kara. He was implicated as the accused ``` ``` in Crime No.1277/2020, which was registered by the ``` ``` Muvattupuzha Police Station, alleging offences punishable under sections 188, 269, 337, 338, 304 IPC and section 185 of the M.V. Act. ``` ``` 2.As per the prosecution case the incident ``` ``` occurred on the above time and date when a Maruti Dzire car bearing Registration No.KL-07 BT 4643, driven by Sri. Aswin Joy, son of the petitioner, carrying one Nidhin and Basil George and two others, rammed into a building after losing its control by hitting a motorcycle. Due to the injuries sustained, Aswin Joy, the petitioner’s son, Basil George and Nidhin, passed away and ``` CRL.MC NO. 4622 OF 2022 ``` 3 ``` ``` others suffered injuries. The crime was registered ``` ``` in such circumstances. During the investigation, the son of the petitioner was named as the accused person. The petitioner, being aggrieved by the same, submitted Annexure A7 complaint before the District Chief of Police Aluva, highlighting that the investigation in the matter was not being properly conducted by the police. According to the petitioner, at the relevant time, the vehicle ``` ``` was being driven by Nidhin, one of the persons who ``` ``` died in the accident, and the petitioner’s son was sitting on the rear side of the car. However, in ``` ``` response to the Annexure A7 application, the District Police Chief issued Annexure A8 rejecting ``` ``` the said application by pointing out that, two of the persons who were travelling along with the deceased in the car had given statements to the effect that it was the petitioner’s son who was driving the vehicle at the relevant time. In such ``` CRL.MC NO. 4622 OF 2022 ``` 4 ``` ``` circumstances, the petitioner submitted Annexure A9 complaint before the Judicial First Class Magistrate Court-I, Muvattupuzha, under section 156(3) of Cr.P.C., a copy of which is produced as Annexure A9. ``` ``` 3.While the aforesaid application was ``` ``` pending consideration before the learned ``` ``` Magistrate, the police completed the investigation and submitted Annexure A1 final report. Subsequently, as per Annexure A10 order dated 04.01.2022 in C.M.P 81/2021, the learned ``` ``` Magistrate dismissed the Annexure A9 application submitted by the petitioner. This Crl.M.C is ``` ``` filed by the petitioner in such circumstances ``` ``` seeking for an order to set aside the Annexure A10 ``` ``` order passed by the learned Magistrate and to direct the learned Magistrate to consider Annexure A9 afresh and also to direct him to ``` ``` reject Annexure A1 final report. ``` CRL.MC NO. 4622 OF 2022 ``` 5 ``` ``` 4.Heard Sri.Rajiv Nambisan, the learned counsel appearing for the petitioner and Sri. C.S Hrithwik, the learned Public Prosecutor for the State. ``` ``` 5.The learned Counsel for the petitioner would vehemently contend that the investigation conducted by the police, which led to the filing of Annexure A1 final report, was not at all proper and the same was conducted in a biased manner, presumably under the influence of the father of deceased Nidhin who was an influential person. The specific case of the learned Counsel for the ``` ``` petitioner is that, at the time of the accident, the vehicle was being driven by Nidhin, and the ``` ``` said fact is also reported in the newspaper, which was produced as Annexure A2, published on the next day of the accident. It is also pointed out that the police arrived at the conclusion that it was the petitioner’s son who was driving the ``` CRL.MC NO. 4622 OF 2022 ``` 6 ``` ``` vehicle at the relevant time, mainly based on the statements given by CW5 and CW17 and also by ``` ``` placing reliance upon Annexure A6 examination report of State Forensic Science Laboratory, ``` ``` Thiruvananthapuram as to the DNA profiling done ``` ``` from the blood samples collected by the scientific ``` ``` officer in a cotton gauzefrom the driver side airbag of Maruti Swift Dzire car. As far as the statements of the aforesaid witnesses are ``` ``` concerned, it is pointed out that both of them are the relatives of the deceased Nidhin and therefore, highly interested. With regard to ``` ``` Annexure A6 DNA report, it is pointed out that, the result of the same is to the effect that the ``` ``` blood samples detected therein matches with that ``` ``` of Basil George and Aswin, the son of the ``` ``` petitioner. By placing reliance upon the materials ``` ``` collected by the police, it is pointed out by the learned Counsel for the petitioner, there is ``` CRL.MC NO. 4622 OF 2022 ``` 7 ``` ``` nothing to indicate that the driver side airbag of ``` ``` the vehicle got burst in the accident. In such circumstances, it is pointed out that, the conclusion entered by the police after conducting the investigation is highly suspicious and therefore under no circumstances it can be treated ``` ``` that a proper investigation has been conducted in the matter. Even though those aspects were ``` ``` specifically highlighted in Annexure A9 petition, ``` ``` the learned Magistrate dismissed the application merely on the ground that, since the final report has been submitted, the court cannot entertain the ``` ``` application as it is not vested with the power to order reinvestigation of the said case. The ``` ``` Crl.M.C is filed in such circumstances. ``` ``` 6.On the other hand, the learned Public ``` ``` Prosecutor would oppose the aforesaid application. ``` ``` It is pointed out that, a detailed investigation has been conducted in the said case and the ``` CRL.MC NO. 4622 OF 2022 ``` 8 conclusion was arrived at after meticulously examining all the statements of the witnesses and also the other materials that they could collect. It is pointed out that a final report was prepared after recording the statements of 49 witnesses, and also based on scientific datas. Therefore, no interference is warranted in the order passed by the learned Magistrate. ``` ``` 7.The learned Public Prosecutor made ``` ``` available the case diary as well. ``` ``` 8.I have gone through the entire records, including the case diary of the case. One of the crucial contentions raised by the learned Counsel ``` ``` for the petitioner is that while issuing the Annexure A10 order, the Learned Magistrate did not exercise the jurisdiction vested upon him under section 156(3) of Cr.P.C. in a proper manner. By ``` ``` placing reliance upon the decision rendered by the ``` CRL.MC NO. 4622 OF 2022 ``` 9 ``` ``` Hon’ble Supreme Court in Sakiri Vasu v. State of ``` ``` U.P and Others [2008 (2)KHC 13 (SC)], it was contented by the learned counsel for the petitioner that the learned Magistrate is vested with ample power to monitor the investigation and to pass appropriate orders to ensure a proper investigation in any case. In this case, even though specific irregularities and shortcomings in ``` ``` the investigation were pointed out before the learned Magistrate by way of Annexure A9 ``` ``` application, instead of considering the aforesaid aspects on merits, the learned Magistrate simply dismissed the said application by stating that the said court has no power to order re-investigation in the matter. ``` ``` 9.After carefully going through the statutory provisions in this regard, the principles laid down by the Honourable Supreme Court in Sakiri Vasucase (supra) and also the ``` CRL.MC NO. 4622 OF 2022 ``` 10 materials available before me in the form of the documents produced in this Crl.MC, as well as the case diary produced before me, I find some force in the contention put forward by the learned Counsel for the petitioner. As rightly pointed out by the learned Counsel for the petitioner, Annexure A10 order was issued by the learned ``` ``` Magistrate merely on the ground that there is no power to order the reinvestigation in the said case. However, while passing such an order, the learned Magistrate failed to consider certain relevant aspects including the nature of prayer sought by the petitioner in Annexure A9 application. It is also a crucial aspect omitted to be noticed by the learned Magistrate that, the Annexure A9 application was submitted by the petitioner even before the submission of the final report, although the learned Magistrate passed the order on the said application after the submission ``` CRL.MC NO. 4622 OF 2022 ``` 11 of the final report. In such circumstances, it ``` ``` was not at all proper to simply dismiss the application submitted by the petitioner without considering the contentions raised by the petitioner on merits. ``` ``` 10.When coming to the merits of the ``` ``` contentions raised by the petitioner to show the inadequacy and discrepancies in the investigation conducted, the crucial aspect is Annexure A6 ``` ``` examination report of DNA profiling and also the ``` ``` statements of CW5 and CW17. The specific case of ``` ``` the learned Counsel for the petitioner is that CW5 ``` ``` and CW17 are closely related to the deceased ``` ``` Nidhin who, according to the petitioner was driving the vehicle at the relevant time. ``` ``` Therefore, it was pointed out that, by placing ``` ``` reliance upon the statements of the said witnesses ``` ``` alone, the petitioner’s son could not have been implicated as the accused person. When going ``` CRL.MC NO. 4622 OF 2022 ``` 12 ``` ``` through the entire facts and circumstances of the ``` ``` case and materials placed before me, I find that the said contentions cannot be simply brushed aside. I have carefully gone through the case diary to find out the circumstances under which the incident occurred. Even though the prosecution cited several witnesses to establish the manner in ``` ``` which the incident occurred, it is discernable from their statements that most of the said ``` ``` persons, including those who have actively participated in taking the deceased persons and other injured to the hospital, were not having acquaintance of any of the persons travelling in the car except one Basil. The statements of the said witnesses are to the effect that as the victim’s faces and bodies were covered with blood, ``` ``` mud and soil at the relevant time, they were not at all recognizable at the time of the accident. None of the statements of the said witnesses would ``` CRL.MC NO. 4622 OF 2022 ``` 13 ``` ``` give any indication as to who was driving the vehicle at the relevant time. This is one of the reasons I find that the contention raised by the Learned Counsel for the petitioner cannot be simply brushed aside. ``` ``` 11.The other contention raised by the learned Counsel for the petitioner is in relation to Annexure A6 Certificate. The said certificate would indicate that after DNA profiling, it was ``` ``` found that the blood sample collected from the driver side airbag of the vehicle was that of Basil George and Aswin. This was one of the ``` ``` crucial documents relied on by the police to ``` ``` conclude that, it was the petitioner who was ``` ``` driving the vehicle at the relevant time. However, the specific case of the petitioner is ``` ``` that there are no materials available on record ``` ``` to indicate that the air bag of the vehicle got ``` ``` burst at the time of the accident. To establish ``` CRL.MC NO. 4622 OF 2022 ``` 14 ``` ``` the same, learned Counsel for the petitioner ``` ``` brought my attention to the Annexure A3 mahazar prepared by the police after the accident. Even ``` ``` though a clear description of the condition of the ``` ``` vehicle and the damages sustained to it were ``` ``` mentioned in the said report, absolutely nothing ``` ``` is mentioned as to the bursting of the air bag, ``` ``` which aspect, appears to be very conspicuous. In ``` ``` the inspection conducted by the Motor Vehicle ``` ``` Inspector also, nothing is mentioned about the ``` ``` bursting of the airbag. This is a crucial aspect ``` ``` which supports the contention put forward by the ``` ``` learned Counsel for the petitioner as to the ``` ``` shady nature of the investigation conducted. The ``` ``` aforesaid contention is further strengthened by ``` ``` the fact that, the paper report with respect to ``` ``` the accident contains a statement to the effect ``` ``` that the vehicle at the relevant time was being driven by Nidhin, who also died in the accident. ``` CRL.MC NO. 4622 OF 2022 ``` 15 Even though the paper report by itself cannot be taken as a valuable piece of evidence to arrive at the conclusion as to the role of any person in the commission of the crime, when all the other circumstances and materials discussed above are taken into consideration, it creates a doubt. ``` ``` 12.When there existed such a shadow of doubt as to the manner in which the investigation was conducted, the dismissal of the application submitted by the petitioner without taking into consideration the contentions raised therein by the petitioner on merits is a crucial illegality. In Sakiri Vasu’s case (supra) the Hon’ble Supreme Court considered in detail the legal obligation of the Jurisdictional Magistrate and the powers vested upon him to monitor the investigation and also to deal with the instances of the improper investigation of any case. In paragraphs 17 and ``` CRL.MC NO. 4622 OF 2022 ``` 16 18 of the said decision it was observed by the Hon’ble Supreme Court as follows: ``` ``` “17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as necessary for ensuring a proper investigation. ``` ``` 18.It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In words, when any power is expressly granted by the statute, there is impliedly included in the grant, even power without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such acts or employ such means are as essentially necessary to its execution.” ``` **==> picture [483 x 14] intentionally omitted <==** **==> picture [261 x 12] intentionally omitted <==** ``` “24.In view of the above mentioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) Cr.P.C. to order registration of criminal offence ``` CRL.MC NO. 4622 OF 2022 ``` 17 and or to direct the offer in charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C, we are of the opinion that they are implied in the above provision. ``` ``` 25. We have elaborated on the above matter because we often find that when someone has a grievance that this FIR has not been registered at the police station and or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition under Section 482 Crl.PC. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and section 36 Cr.P.C,before the concerned police officers and if that is of no avail, by approaching the concerned Magistrate under Section 156(3).” ``` ``` In paragraph 26 of the said decision it was ``` ``` further observed that, in case any person has a ``` ``` grievance that the police have not registered the FIR, his first remedy is to approach the ``` ``` Superintendent of Police under section 154(3) Cr.P.C. or other police officer referred to in ``` ``` section 36 of Cr.P.C. If despite approaching the ``` ``` Superintendent of Police or the officer referred ``` ``` to in section 36, his grievance still persists, then he can approach the Magistrate under section ``` CRL.MC NO. 4622 OF 2022 ``` 18 ``` ``` 156(3). In this case it is evident that, as the ``` ``` petitioner was having grievance as to the manner in which the investigation was progressing, he approached the District Police Chief by submitting Annexure A7 application which the District Police Chief rejected as per Annexure A8. Annexure A9 application was submitted thereafter. Therefore, ``` ``` it is evident that the petitioner has exhausted all his available remedies before submitting an Exhibit A9 application. In the said application, he has specifically highlighted the discrepancies in the investigation which was in progress at the relevant time. ``` ``` 13.However, none of the said contentions were ``` ``` explicitly referred to by the Learned Magistrate and answered the same and instead, simply dismissed the said application by pointing out that he is not vested with the power to issue a direction to re-investigate the matter. However, it is evident ``` CRL.MC NO. 4622 OF 2022 ``` 19 ``` ``` from the Annexure A9 application that it was never ``` ``` the prayer of the petitioner to re-investigate the matter. The prayer sought was to monitor the investigation and, if necessary, to pass ``` ``` appropriate orders to change the investigation officer. Going by the principles laid down by the Hon'ble Supreme Court inSakiri Vasu’s case (Supra), the aforesaid prayer was legally sustainable and the learned Magistrate was duty- bound to consider the same and pass appropriate orders on merits. Since the reasons mentioned ``` ``` above, including the discrepancies in the Annexure ``` ``` A6 report when it is taken into consideration along with the scene mahazaras well as the report ``` ``` of the Assistant Motor Vehicle Inspector, are crucial aspects to be taken into consideration in this regard. Thus, when all the aforesaid aspects ``` ``` are taken into consideration together, the ``` ``` irresistible conclusion that is possible is that, ``` CRL.MC NO. 4622 OF 2022 ``` 20 ``` ``` the matter has to be reconsidered by the learned ``` ``` Magistrate, and fresh orders are to be passed on the question as to whether any further investigation is to be conducted or not. It is ``` ``` also a well settled position of law that, the Magistrate is competent to order further ``` ``` investigation in a case. It is also a well settled position of law that the learned Magistrate is not bound by the conclusion arrived by the police after completing the investigation. The Magistrate ``` ``` has the power to go through the contents of the final report and to find out whether the ``` ``` conclusion arrived at by the police is correct or ``` ``` not. In case the Magistrate is not satisfied with the conclusion arrived by the police nothing would preclude the learned Magistrate to order further investigation in the matter after rejecting the final report submitted by the police under section ``` CRL.MC NO. 4622 OF 2022 ``` 21 ``` ``` 173(2) of Cr.P.C. In this case despite having such powers, the same was never invoked. ``` ``` In such circumstances, I find that this as a fit case in which the powers of this court under section 482 Cr.P.C. has to be invoked. In the result, this Crl.M.C is allowed Annexure A10 order is set aside, and the matter is remitted back to the Judicial First Class Magistrate Court-1, Muvattupuzha, who shall reconsider Annexure A9 application, hear the petitioner and pass appropriate orders in accordance with law by ``` ``` taking note of the principles laid down by the Hon’ble Supreme Court inSakiri Vasu’s case (supra)and also the materials placed on record by the police along with the final report as well as the case diary. ``` **Sd/- ZIYAD RAHMAN A.A. JUDGE** mus/pkk CRL.MC NO. 4622 OF 2022 ``` 22 ``` ## `APPENDIX OF CRL.MC 4622/2022` |`PETITIONER’S`|`ANNEXURES`| |---|---| |`Annexure A1`|`PHOTOCOPY OF FINAL REPORT IN CRIME NO:`| ||`1277/2020 DATED 21.7.21 OF MOOVATTUPUZHA`| ||`POLICE STATION`| |`Annexure A2`|`PHOTOCOPY OF MALAYALAMANORAMA DAILY DATED`| ||`05.05.2020`| |`Annexure A3`|`PHOTOCOPY OF SCENE MAHAZAR DATED 04.05.2020`| ||`IN CRIME NO: 1277/2020`| |`Annexure A4`|`PHOTOCOPY OF M.V.I REPORT DATED 5.5.2020 IN`| ||`CRIME NO: 1277/2020`| |`Annexure A5`|`PHOTOCOPY OF CHEMICAL REPORT NO.3117 DATED`| ||`26.6.2020`| |`Annexure A6`|`PHOTOCOPY OF F.S.L. REPORT NO: 7030 DATED`| ||`28.6.2021`| |`Annexure A7`|`PHOTOCOPY OF COMPLAINT PREFERRED TO`| ||`S.P.OFFICE,ALUVA, DATED 12.5.2020`| |`Annexure A8`|`PHOTOCOPY OF REPLY FROM S.P. OFFICE,ALUVA`| ||`DATED 21.12.2020`| |`Annexure A9`|`PHOTOCOPY OF COMPLAINT FILED BEFORE JUDICIAL`| ||`FIRST CLASS MAGISTRATE COURT-I MOOVATTUPUZHA`| ||`DATED 4.2.2021`| |`Annexure A10`|`CERTIFIED COPY OF ORDER IN CRLM.P.81/21 IN`| ||`CRIME NO;1277/2020 OF JUDICIAL FIRST CLASS`| ||`MAGISTRATE COURT-I MOOVATTUPUZHA DATED`| ||`4.2.2021.`| |`Annexure A11`|`PHOTOCOPY OF CHEMICAL REPORT NO:2933 DATED`| ||`22.6.2020.`|