Ratheesh V.R. v. Sujitha Jacob and State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944 ``` ``` CRL.MC NO. 8063 OF 2019 ``` ``` [AGAINST THE ORDER DATED 13.07.2018 IN CRL.M.P.NO.687/2017 IN S.C.NO.241/2010 PASSED BY THE COURT OF THE IIIRD ADDITIONAL SESSIONS ``` ``` JUDGE, THRISSUR] ``` ## `PETITIONER/DEFACTO COMPLAINANT:` ``` RATHEESH V.R., AGED 36 YEARS S/O.RAJAN, VANNERI HOUSE, VELAPPAYA ROAD, MULAMKUNNATHUKAVU, THRISSUR, PIN-680581 ``` ``` BY ADV M.REVIKRISHNAN ``` ## `RESPONDENTS/ACCUSED & STATE:` ``` 1SUJITHA JACOB W/O.LAJI VARGHESE, CHARUVILA PUNNAN HOUSE, AALUMUCK, KOLLAM, PRESENTLY RESIDING AT JOHNS VILLA, NETHAJI ROAD, PUNALUR, KOLLAM PIN-691305 2STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SHRI.HARIKRISHNAN S. SRI.AJAY BEN JOSE SRI.MANJUNATH MENON ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.11.2022, THE COURT ON 9.12.2022 PASSED THE FOLLOWING: ``` CRL.MC No.8063 of 2019 2 ## `O R D E R` ``` The petitioner is the defacto complainant in S.C.No.241/2010 on the file of the IIIrd Additional Sessions Judge, Thrissur. The aforesaid case arises from Crime No.136/2019 of Viyyur Police Station, which was registered for the offences punishable under Sections 306 and ``` ``` 420 of the Indian Penal Code (IPC). The aforesaid ``` ``` crime was registered in respect of the suicide of ``` ``` the brother of the petitioner herein. The ``` ``` allegation is that the 1[st] respondent/accused had ``` ``` cheated the deceased under the pretext of a love affair and collected an amount of Rs.19 lakhs from him. Later, upon realizing that he was ``` ``` cheated by the accused, the deceased committed ``` ``` suicide, leaving a suicide note referring to the ``` ``` acts of the 1[st]respondent. The crime was registered by the Viyyur Police in such ``` CRL.MC No.8063 of 2019 3 `circumstances, and after completing the` ``` investigation, Annexure-A final report was submitted. ``` ``` 2.Later, after the commencement of the trial and examination of 14 witnesses, the learned Public Prosecutor submitted an application viz. Crl.M.P.No.687/2017 seeking permission to conduct a further investigation under Section 173(8) of the Code of Criminal Procedure (Cr.PC). The reason highlighted by the learned Public ``` ``` Prosecutor in the said application was that the computer printouts of accounts’ extracts produced by CW10 and CW13, who are the officers of the bank, were not properly certified as contemplated under Section 65B of the Evidence Act. Therefore, further investigation was sought to be conducted to enable the investigation officer to produce the same. Annexure-B is the order disallowing the said prayer, and it is under challenge in this ``` ``` Crl.M.C. ``` CRL.MC No.8063 of 2019 4 ``` 3.Heard Sri.M.Ravikrishnan, the learned counsel for the petitioner, Sri.S. Sreekumar, the ``` ``` learned Senior Counsel appearing for the 1[st] respondent and Sri.C.S. Hrithwik, the learned ``` ``` Public Prosecutor for the State. ``` ``` 4.The contention put forward by the learned ``` ``` counsel for the petitioner is that, Annexure-B order passed by the learned Sessions Judge is not ``` ``` legally sustainable, and the same would cause serious prejudice to the prosecution, which ``` ``` would, in turn, affect the interest of the petitioner/defacto complainant. It is pointed out ``` ``` that one of the crucial allegations against the ``` ``` accused is that she had cheated the deceased ``` ``` under the pretext of a love affair by collecting an amount of Rs.19 lakhs. Some of the documents to be relied on to establish the said offence are ``` ``` certain statements of the bank accounts which ``` ``` happened to be produced before the court without ``` CRL.MC No.8063 of 2019 5 ``` a proper certification under Section 65B of the Evidence Act. If the prayer sought by the investigation officer is not allowed, it may not ``` ``` be possible for the prosecution to produce the ``` ``` said documents as admissible pieces of evidence, which would seriously prejudice the case advanced ``` ``` by the prosecution. On the other hand, the said prayer is opposed by the learned Counsel appearing for the 1[st] respondent. ``` ``` 5.I have gone through the order and other ``` ``` materials placed on record. It is seen from the impugned order that the prayer sought by the ``` ``` petitioner was dismissed mainly on the ground ``` ``` that further investigation under Section 173(8) ``` ``` Cr.PC is permissible only in cases where the ``` ``` investigating Officer obtains further evidence, ``` ``` oral or documentary. Here, some of the documents ``` ``` produced are not properly certified, and ``` ``` therefore, further investigation is required. ``` CRL.MC No.8063 of 2019 6 ``` According to the learned Sessions Judge, such a ``` ``` situation is not contemplated under Section 173(8) Cr.PC and, therefore, the application was dismissed. ``` ``` 6.The legal position with regard to the ``` ``` powers of the investigating officer to conduct a further investigation under Section 173(8) Cr.PC ``` ``` is very clear. The investigation is the ``` ``` prerogative of the Police and to exercise the ``` ``` powers under Section 173(8), no permission ``` ``` is required, but as a practice and as a courtesy ``` ``` measure, a formal permission of the court needs ``` ``` to be sought. It is a well settled position of ``` ``` law that, merely because of the reason that, ``` ``` the investigating officer did not obtain ``` ``` permission for further investigation, the ``` ``` submission of a supplementary report by the ``` ``` investigating officer would not become illegal (Ram Lal Narang v. State (Delhi Administration) ``` CRL.MC No.8063 of 2019 7 ``` 1979 KLT OnLine 1044(SC). ``` ``` 7.In Hasanbhai Valibhai Qureshi v. State of Gujarat and Others [2004(5)SCC 347], it was observed by the Hon’ble Supreme Court that the prime consideration for further investigation is to arrive at the truth and do real and ``` ``` substantial justice. The hands of investigating agency for further investigation should not be ``` ``` tied down on the ground of mere delay. In other words, the mere fact that there may be further ``` ``` delay in concluding the trial should not stand in the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective ``` ``` justice. The power of the court as well as ``` ``` investigating officer in the matter of exercising ``` ``` the stipulations contained under Section 173(8) ``` ``` Cr.PC was considered by the Hon’ble Supreme Court inCentral Bureau of Investigation v. R.S. Pai ``` CRL.MC No.8063 of 2019 8 ``` [2002(2) KLT 149(SC). In paragraph 7 of the said decision, it was observed as follows: ``` ``` “From the aforesaid sub-sections, it is apparent that normally, the Investigating Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge- sheet, it is always open to the Investigating Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word 'shall' used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4)of the Code of Criminal Procedure, 1898 was considered by this Court in Narayan Rao v. The State of Andhra Pradesh[(1958) SCR 283 at 293] and it was held that the word 'shall' occurring in sub-section 4 of Section 173 and sub- section 3 of Section 207A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, ``` CRL.MC No.8063 of 2019 9 ``` further investigation, if called for, is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to investigation. In such cases, there can not be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.” ``` ``` Recently this Court in Gopalakrishnan @ Dileep v. ``` ``` State of Kerala [2022(2) KLT OnLine 1183]after referring to various decisions rendered by the Hon’ble Supreme Court inRam Lal Narang’s case (supra), Vinay Tyagi v. Irshad Ali @ Deepak and Others [2013(5) SCC 762] and Vigilance and Anti- Corruption Bureau, TVM v. K. Sasikala & Ors. (2021(2) KLT OnLine 1068=2021(4) KLT SN 42 ``` ``` (C.No.26), it was observed as follows: ``` ``` “24. Further investigation is the privilege and prerogative of the investigating officer. Permission for it is only a formality. It is only as a matter of courtesy that the investigating officer is required to inform the court regarding the further investigation so as to enable the court to decide the further action to be taken in the case. In Ram Lal Narang (supra), the Apex Court has only stated that it would ordinarily be desirable that the police should inform the Court and seek ``` CRL.MC No.8063 of 2019 10 ``` formal permission to make further investigation. In Rama Chaudhary (supra) and A.S.Peter (supra), the Apex Court has categorically held that the law does not mandate obtaining prior permission from the Magistrate for further investigation and that carrying out further investigation even after filing of the charge sheet is the statutory right of the police. Vinay Tyagi (supra) only recognizes the legal practice adopted by the investigating agencies to seek permission of the court for conducting further investigation [See Vigilance and Anti-Corruption Bureau, Tvm v. K.Sasikala and Others 2021 KHC 196]. In Ram Lal Narang (supra), the Apex Court held that absence of permission by the court does not render the further investigation illegal.” ``` ``` Thus, from the reading of the observations made ``` ``` by the Hon’ble Supreme Court as well as this Court in the above referred decisions, it can be seen that the powers under Section 173(8) Cr.PC can be invoked even after the trial commences and merely because of the reason that the further ``` ``` investigation would delay in concluding the trial should not stand in the way. This is because the purpose of conducting a further investigation is to ensure that the real truth is unearthed by the ``` CRL.MC No.8063 of 2019 11 ``` investigating agency and therefore, the hands of the investigating officer cannot be tied merely on technicalities. ``` ``` 8.When the aforesaid principles are applied ``` ``` to the facts of this case, it is noted that further investigation was sought only to produce certification under Section 65B of the Evidence ``` ``` Act in respect of the statement of bank accounts ``` ``` before the Court. As held in various decisions of ``` ``` the Hon’ble Supreme Court, in the absence of a proper certification under Section 65B, no ``` ``` electronic records can be admitted in evidence ``` ``` [Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal 2020(4)KLT OnLine 1143(SC)]. Moreover, ``` ``` in paragraph 53 of the said decision, after referring to the decision of the Hon’ble Supreme Court in R.S.Pai’s case (supra) it was observed as follows: ``` **==> picture [332 x 11] intentionally omitted <==** CRL.MC No.8063 of 2019 12 ``` that the investigation is completed and the prosecution has, as such, concretised its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacunae during a trial. As recognised by this Court in Central Bureau of Investigation v. R.S. Pai (2002) 5 SCC 82, the only exception to this general rule is if the prosecution had ‘mistakenly’ not filed a document, the said document can be allowed to be placed on record. The Court held as follows: ``` ``` “7. From the aforesaid sub- sections, it is apparent that normally,theinvestigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in notproducingtherelevant documentsatthetimeof submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court.” ``` ``` Thus, it is clearly observed by the Hon’ble Supreme Court in the said decision that if the prosecution could not produce a document mistakenly, the said document should be allowed to be placed on record. In this case, the prayer ``` CRL.MC No.8063 of 2019 13 ``` for further investigation was sought to produce ``` ``` certification as mentioned above, which was omitted to be produced while the relevant bank statements were produced before the Court. Therefore, the non-production of a certificate under Section 65B of the Evidence Act was only ``` ``` due to a mistake and the said mistake is sought to be rectified by the prosecution agency. I do not find any reason to reject the same. It is ``` ``` also to be noted in this regard that, by allowing the production of the certificate as mentioned ``` ``` above, no prejudice would also be caused to the ``` ``` accused persons. The documents sought to be ``` ``` relied on are certain bank statements already on record and the contents of the said documents are ``` ``` already made known to the accused persons. The ``` ``` certification under Section 65B of the Evidence Act is only in relation to the manner in which ``` ``` the said account statements were maintained in ``` CRL.MC No.8063 of 2019 14 ``` the computer system from which the said certificate was taken. Therefore, so long as the prosecution does not intend to bring any new facts that are not within the knowledge of the accused, I cannot find any prejudice being caused ``` ``` to the accused. Moreover, the certificate sought to be produced is to enable the document to be admitted in evidence by marking the same. Merely because the said document is marked, the accused would not be deprived of the opportunity to dispute or question the contents of the said document. Therefore, for that reason also, no ``` ``` prejudice would be caused to the accused. In such ``` ``` circumstances, I have no hesitation in holding that the decision taken by the learned Sessions Judge as per Annexure-B is liable to be ``` ``` interfered with. ``` ``` In the result, the Crl.M.C. is allowed. ``` ``` Annexure-B order passed by the IIIrd Additional ``` CRL.MC No.8063 of 2019 15 ``` Sessions Judge, Thrissur in Crl.M.P.No.687/2017 in S.C.No.241/2010 on 13.7.2018 is set aside. The Investigating Officer is permitted to conduct further investigation as expeditiously as possible and submit the supplementary report without delay. It is ordered that further proceedings in S.C.No.241/2010 shall be kept in abeyance by the learned IIIrd Additional Sessions ``` ``` Judge, Thrissur until such supplementary final report is submitted. It is further ordered that further investigation into this matter shall be completed within a period of two months from the date of production of a copy of this order. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.8063 of 2019 16 ## `APPENDIX OF CRL.MC 8063/2019` ``` PETITIONER’S ANNEXURES: ANNEXURE ATRUE COPY OF THE FINAL REPORT IN CRIME NO.136/2009 OF VIYYUR POLICE STATION, THRISSUR DISTRICT ANNEXURE BTRUE COPY OF THE ORDER DATED 13.07.2018 IN CRL.M.P.NO.687 OF 2017 IN S.C.NO.241/2010 PASSED BY THE COURT OF THE IIIRD ADDITIONAL SESSIONS JUDGE, THRISSUR ```