E.M. Vijayakumar v. State of Kerala and Binny Devassia (De facto complainant)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 23RD KARTHIKA, 1944** **CRL.MC NO. 4618 OF 2017** **AGAINST CC 2785/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** **CHAVAKKAD** ## **PETITIONER/ACCUSED:** E.M.VIJAYAKUMAR AGED 61 YEARS, S/O.MUTHU,ELAVATHODI HOUSE,KOLAKALAM, VARODE P.O,KOTTAYI, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.RAJIT SRI.C.DHEERAJ RAJAN ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2 BINNY DEVASSIA, PEZHATH MOOTTIL HOUSE, MANNIYANKARA LANE, CHETTUPUZHA P.O, THRISSUR-680012 BY ADVS.SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.S.M.PRASANTH SRI.K.RAMAKUMAR SR., SRI.G.SUDHEER-PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON 14.11.2022 PASSED THE FOLLOWING: Crl.M.C.No.4618/2017 ## -:2:- ## O R D E R Dated this the 14[th ] day of November, 2022 This Crl.M.C has been filed to quash all further proceedings in CC No.2785/2014 on the file of JFCM, Chavakkad (for short, the court below). 2. The petitioner is the accused. The 2[nd] respondent is the _de facto_ complainant. The offence alleged is punishable u/s 201 of IPC. 3. The petitioner was a Sub Inspector of Police who conducted the initial part of the investigation of Crime No.504/2005 of Pavaratty Police Station. The said crime related to the death of one Jeesamol P. Devasia, a 21-year-old final year General Nursing Student at San Joes Parish Hospital, Pavaratty in Thrissur District. It was alleged that she was found copying during the model examination held by the nursing school on 5/12/2005, consequent to which the invigilator expelled her and asked her to continue the exam only after obtaining permission from the Principal. After some time, she was found hanging on a fan in her Crl.M.C.No.4618/2017 ## -:3:- room at the hostel. Her friends, other students and staff attempted to rescue her and brought her to the casualty of the hospital, but was declared dead after about 1½ hours. Consequently, Crime No.504/2005 was registered by Pavaratty Police Station under the caption 'unnatural death' u/s 174 of Cr.P.C. The initial part of the investigation was conducted by the petitioner herein. The investigation was later on handed over to CBCID and then to CBI. 4. After four years from the date of the incident and three years from the commencement of the investigation conducted by the CBCID, the 2[nd] respondent filed a private complaint against the petitioner at the court below. It was alleged in the private complaint that the petitioner did not conduct the investigation in a fair manner. On the other hand, he deliberately caused the evidence of the commission of the offence to disappear with the intention of screening the offender from legal punishment. Annexure A is the said private complaint. The court below, after examining the 2[nd] respondent, the witnesses and the Doctor who conducted the postmortem, took the complaint on file as CC Crl.M.C.No.4618/2017 -:4:- No.2785/2014 against the petitioner u/s 201 of IPC. 5. I have heard Sri.Rajit, the learned counsel for the petitioner, Sri.K.Ramakumar, the learned Senior Counsel for the 2[nd] respondent and Sri.G. Sudheer, the learned Public Prosecutor. 6. Even though the main challenge raised in the Crl.M.C is that the petitioner cannot be prosecuted without any sanction as contemplated u/s 197 of Cr.P.C, it was not pursued by the learned counsel for the petitioner at the time of the hearing. On the other hand, the learned counsel submitted that even if the entire allegations in the complaint, together with the materials collected during the investigation, are believed in their entirety, no offence u/s 201 of IPC is made out. I find some force in the said argument. 7. As stated already, the case of the 2[nd] respondent is that the initial investigation was done by the petitioner in a shabby manner, and various material facts to rule out suicide and to suggest that it was a case of homicide were wilfully suppressed by him with an intention to screen the offender from legal punishment. In Annexure A complaint, the 2[nd] respondent pointed Crl.M.C.No.4618/2017 -:5:- out some inherent defects in the investigation conducted by the petitioner. According to her, the petitioner failed to conduct a fiber test and wilfully delayed the seizure of the material object and failed to show the shawl which was used for hanging to the doctor. It is alleged that the procedure related to death by hanging was not complied with by the petitioner. It is further alleged that the petitioner failed to send the vaginal swab and smear for chemical examination in time. It is also alleged that the petitioner purposefully delayed the seizure of material objects to screen the offender. According to the 2[nd] respondent, these acts of the petitioner were done with the intention of causing the disappearance of the evidence. 8. S.201 of IPC is attracted when the offender knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false. The ingredients of an offence u/s 201 of IPC are (1) that an Crl.M.C.No.4618/2017 -:6:- offence was committed; (2) that the accused knew or had reason to believe that such an offence had been committed; (3) that the accused caused evidence thereof to disappear; and (4) that the accused caused disappearance of the evidence with the intention of screening the offender from legal punishment. 9. The CBI, after a full-fledged investigation, concluded that the death of Jeesamol was due to suicide by hanging. A detailed closure report has been filed. The 2[nd] respondent submitted a protest to the acceptance of the said report on a variety of reasons by filing a protest complaint. The learned Magistrate, after taking into account all the materials collected by the investigating agency, dismissed the protest complaint and accepted the final report as per the order dated 13[th] December 2017. The said order was challenged by the 2[nd] respondent before this court in Crl.R.P No.89/2018. It was dismissed, holding that the death of Jeesamol was suicide and not a homicide. In the final report filed by the CBI, it was found that no evidence could be collected to substantiate the allegation of the 2[nd] respondent that the police destroyed the evidence. It was specifically found Crl.M.C.No.4618/2017 -:7:- that the petitioner, though committed some mistake in collecting the evidence properly during the initial stage of the investigation, there is nothing to suggest any criminal intention in his acts. The Division Bench of this Court in _**Treesa v. State of Kerala**_ (1991 (1) KLT 503) has held that the accused charged with the offence u/s 201 of the IPC should have caused evidence of the main offence to disappear or should have given false information regarding the main offence with the intention of screening the person who committed the main offence. Such intention cannot be presumed if the accused did not know the identity of the offender. Here, as already stated, the investigating agency has ruled out the theory of homicide projected by the 2[nd] respondent. In short, there is absolutely no material on record to _prima facie_ suggest that the accused intentionally caused evidence of the alleged offence to disappear with the intention of screening the offender from legal punishment. As stated already, the final report indicates that even the alleged offence does not stand established. There is no offender as well. In these circumstances, I am of the view that no offence u/s 201 of IPC is attracted. Crl.M.C.No.4618/2017 -:8:- Hence, all further proceedings in CC No.2785/2014 on the file of Judicial First Class Magistrate Court, Chavakkad are hereby quashed. The Crl. M.C. is allowed. Sd/- **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** Crl.M.C.No.4618/2017 ## -:9:- ## **APPENDIX OF CRL.MC 4618/2017** PETITIONER ANNEXURES ANNEXURE A THE TRUE COPY OF CMP 5583/2009 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVAKKAD ANNEXURE B THE TRUE COPY OF THE PROCEEDINGS SHEET DATED 17-11-2014 IN CMP 5583/2009 OF THE JFCM, CHAVAKKAD