K. H. Muhammed Kabeer Rawther v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 27TH DAY OF JULY 2020 / 5TH SRAVANA, 1942** **Crl.MC.No.1586 OF 2020(G)** **SC 1017/2012 OF ADDITIONAL SESSIONS COURT - V, KOZHIKODE CRIME NO.58/2011 OF Chemmangad Police Station, Kozhikode** ## **PETITIONER/S:** **K.H.MUHAMMED KABEER RAWTHER, AGED 54 YEARS S/O. HASSAN RAWTHER, KUTTIPLAVIL HOUSE, ALAPRA P.O., KARIKKATTUR,KOTTAYAM DISTRICT** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT/S:** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI ,PIN-682 031** ## **OTHER PRESENT:** **PP SREEJA V.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.1586 of 2020 2 ## **ORDER** Dated this the 27[th] day of July, 2020 **The petitioner, who was, for a short period of time, entrusted with the investigation in Crime No.58 of 2011 of Chemmangad Police Station, has filed this Crl.M.C seeking to expunge the disparaging remarks in Annexure E judgment, whereunder Sessions Case No.1017 of 2011, which had arisen out of Crime No.58 of 2011, was decided by the Additional Sessions Judge-V, Kozhikode.** **2. The essential facts are as follows:** **On completion of investigation in Crime No.58 of 2011, final report was submitted alleging commission of the offence punishable under Section 302 r/w 34 of Indian Penal Code. The prosecution allegation was that the accused, who were serving policemen, had caused grievous injuries to one** Crl.M.C No.1586 of 2020 3 **Udayan due to their previous enmity towards him and Udayan had succumbed to his injuries at the hospital. Before the trial court, the prosecution examined PW 1 to PW27 and marked Exts.P1 to P29. On the defence side, Exts.D1 to D4 were marked, but no witness was examined. By Annexure E judgment, the trial court found that the prosecution had failed to prove the case against the accused beyond reasonable doubt and there was absolutely no evidence to connect the accused to the crime as per the versions given by the eye witnesses. The learned Sessions Judge had further found that the investigating officers, ie, PWs 23, 25 to 27 had conducted the investigation in desultory manner and were not eager to bring the culprits to book.** **3. The petitioner, who in his capacity as investigating officer was examined as PW23, is** Crl.M.C No.1586 of 2020 4 ## **aggrieved by the following observations and** ## **directions in the judgment:** _**“ Para 35. I am indeed sorry to notice the scrappy and haphazard manner of investigation conducted by PW23, 25 to 27. I wonder whether the higher officers do actually scrutinize the case diaries or exercise any supervision over investigation or the work of investigator. I am inclined to think that it was a motivated omission on the part of the investigators.**_ _**Para 36:- The records would reveal that the investigation done by the investigating officers i.e. Pws.23, 25 to 27 and desultory and they were not eager to bring the real accused to book.**_ _**Para 38:- Before parting with the case, I feel that it is my duty as a Sessions Judge, to bring to the notices of the Director General of Police, State of Kerala about the designatedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of investigation by the investigating agency in this case.**_ _**Para 41:- In this case the evidence would clearly show that it is a case of irresponsible investigation. The prosecution attempts to misdirect the trial on the basis of a perfuctionary or designatedly defective investigation as well as to withhold material evidence from the court. Due to that, guilty person is not booked in this case. It cannot be considered a case of bonafide or unintentional omission or commission. It is not a case of faulty investigation simplicitor but is an investigation coloured with motivation or an**_ Crl.M.C No.1586 of 2020 5 _**attempt to ensure that the suspect can go scotfree. According to me, the way the investigation conducted by the investigating officers in this case is considered a serious enough to call for departmental enquiry or action.**_ _**Para 42:- Therefore, the Director General of Police, State of Kerala is hereby requested to examine the case and proceed in accordance with law. Office is directed to sent a copy of judgment to the Director General of Police, State of Kerala through the Hon'ble High Court of Kerala.”**_ **4. Heard Sri.Babu S.Nair, learned Counsel for** **the petitioner and Smt.Sreeja V, learned Public Prosecutor.** **5. The learned Counsel for the petitioner submits that the unwarranted observations made in** **the judgment has not only hampered the petitioner's career prospects, but has resulted in disciplinary action being initiated.** **6. It is submitted that Crime No.58 of 2011 was registered at the Chemmangad Police Station on 05.03.2011 after Udayan succumbed to his injuries. Since suspicion was raised regarding the reasons** Crl.M.C No.1586 of 2020 6 **for Udayan's death, the District Police Chief, Kozhikode, entrusted the investigation with the petitioner on 06.03.2011, at which time, the petitioner was working as the Assistant Commissioner of Police, Crime Detachment, Kozhikode City. It is submitted that after taking over the investigation, the petitioner had proceeded to the Medical College Hospital and on the requisition made by the petitioner, inquest was conducted. On conclusion of the inquest at 12.00 noon, 13 inquest witnesses, including the Doctor was questioned and their statements were recorded. The body was thereafter subjected to post-mortem examination and thereafter, the petitioner had proceeded to scene of occurrence and on the very next day, the petitioner had filed report deleting Section 174 Cr.P.C from the FIR and incorporating Section 302 IPC. The next day** Crl.M.C No.1586 of 2020 7 **(07.03.2011), the petitioner questioned one Balakrishnan; an alleged eye witness, and recorded his statement. The petitioner thereafter directed Balakrishnan to come to the scene of occurrence for the purpose of preparing scene mahazar and proceeded to the spot. Since Balakrishnan did not turn up, the scene mahazar was not prepared that day. By the afternoon of 08.03.2011, the petitioner was transferred to the Vigilance and Anti-Corruption Bureau, Kottayam and was relieved of the investigation in Crime No.58 of 2011. It is contended that during the short period of three days, when the petitioner was in charge of the investigation, he had investigated the crime in the best possible manner and that, the adverse remarks in the judgment are contrary to the actual facts and made without even putting a question to the petitioner regarding the manner in** Crl.M.C No.1586 of 2020 8 **which he had conducted the investigation.** **7. The learned Public Prosecutor submits that the petitioner was in charge of the investigation in Crime No.58 of 2011 only from 06.03.2011 to 08.03.2011 and had in the meanwhile, made arrangements for conduct of inquest and postmortem and had questioned the inquest witnesses and an alleged eye witness.** **8. On perusal of the judgment, I am unable to find any discussion, based on the evidence elicited, regarding the manner in which PW23 had conducted the investigation. All that is stated is that he did not prepare the scene mahazar and was not able to identify the place of occurrence after questioning the witnesses. It is obvious that the remarks in the judgment were made in the context of the learned Session Judge having been compelled to acquit the accused for want of** Crl.M.C No.1586 of 2020 9 ## **evidence.** **9. The Apex Court has often cautioned against the tendency to make disparaging and derogatory remarks against subordinate courts as well as quasi-judicial and other authorities/persons. In** **this regard, it would be profitable to advert to the following observations of the Honourable Supreme Court in** _**Niranjan Patnaik v. Sashibhusan Kar**_ **and another [(1986) 2 SCC 569]** _**“24. It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. We hold that the adverse remarks made against the appellant were neither justified nor called for.”**_ **10. Herein also, it is evident that the disparaging remarks in Annexure E Judgment was made without considering the action taken by the petitioner during his short stint of less than three days as the officer in charge of the investigation. Circumstances being such, there was** Crl.M.C No.1586 of 2020 10 **no reason for the learned Sessions Judge to have made derogatory comments against the manner in which investigation was conducted by the petitioner.** **In the result, the Crl.M.C is allowed and the derogatory comments at paragraphs 35, 36, 38, 41 and 42 in Annexure E judgment, insofar as it relates to the petitioner, shall stand expunged.** **sd/V.G.ARUN JUDGE** Scl/27.07.2020 Crl.M.C No.1586 of 2020 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE-A** **TRUE COPY OF THE FIR IN CRIME NO. 58/2011 OF THE CHEMMANGAD POLICE STATION DATED 5.3.2011** **ANNEXURE-B TRUE COPY OF THE ORDER ISSUED BY THE DISTRICT POLICE CHIEF, KOZHIKKODE CITY DATED 6.3.2011** **ANNEXURE-C TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE RELIEVING OF THE PETITIONER DATED,8.3.2011 AFTER NOON** **ANNEXURE-D TRUE COPY OF THE DEPOSITION OF PW23-THE PETITIONER IS SC NO.1017/2012 OF THE ADDITIONAL SESSIONS COURT-V,KOZHIKKODE** **ANNEXURE-E CERTIFIED COPY OF THE JUDGMENT IN SC NO.1017/2012 OF THE ADDITIONAL SESSIONS COURT-V,KOZHIKKODE DATED 30.4.2014**