S. Ashad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 3RD DAY OF APRIL 2014/13TH CHAITHRA, 1936** ## **Crl.MC.No. 4244 of 2011** **---------------------------SC NO.364/2008 OF ASSISTANT SESSIONS COURT, CHENGANNUR CRIME NO. 179/2007 OF MANNAR POLICE STATION , ALAPPUZHA** **.....** ## **PETITIONER(S)/PW8:** **----------------------------------** **S.ASHAD, CIRCLE INSPECTOR OF POLICE, MEENANGADI POLICE, STATION, WAYANAD DISTRICT.** **BY ADV. SRI.S.RAJEEV** **RESPONDENT(S)/STATE:** **----------------------------------------** **STATE OF KERALA, REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. (CRIME NO.179/07 OF MANNAR POLICE STATION, ALAPPUZHA), SC NO.364/2008 ON THE FILE OF THE ASSISTANT SESSIONS JUDGE, CHENGANNUR).** **BY PUBLIC PROSECUTOR SRI.REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **Crl.M.C.No.4244/2011** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEX.1: COPY OF THE JUDGMENT IN SC NO.364/2008 PASSED BY THE ASSISTANT SESSIONS JUDGE, CHENGANNUR, DTD. 12/04/2011.** - **ANNEX.II: COPY OF THE DIRECTIONS ISSUED BY THE STATE POLICE CHIEF, KERALA.** **ANNEX.III: COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL, POLICE TRAINING COLLEGE.** ## **RESPONDENT'S ANNEXURES: N I L** ## **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## P.D.RAJAN, J ......................................... Crl.M.C.No.4244 of 2011 ......................................... Dated 3[rd] April, 2014 ## ORDER This petition is filed under Section 482 Cr.P.C to quash the observation made against the petitioner in paragraphs 9 and 10 of the judgment in S.C.No.364 of 2008 of the Assistant Sessions Judge, Chengannur. On 5.7.2007 Petitioner was the S.I of Police, Mannar at that time, he registered Crime No.179 of 2007 of Mannar police station for offences punishable under Section 341, 447 and 308 IPC. 2. After completing investigation, PW7 laid charge before Judicial First Class Magistrate-II, Chengannur and from there the case was committed to Sessions Court, Alappuzha and which was made over to Assistant Sessions Judge, Chengannur for trial and disposal. The case was disposed of by learned Assistant Sessions Judge, Chengannur on 12.4.2011. While disposing the case, learned Sessions Judge made some remarks against the petitioner, who conducted the initial investigation. Crmc 4244/2011 2 Petitioner contended that the above observation was made without hearing him and without giving any opportunity to explain the circumstances. Hence those remarks may be expunged in the interest of justice. 3. The above crime 179 of 2007 of Mannar police was registered on the basis of information given by one Sowmya alleging that on 5.7.2007, at 8.45 pm, accused in the above case trespassed into the courtyard and wrongfully restrained her and thereafter splashed acid on her face and body by using a syringe and as a result of she sustained severe burn injuries. Immediately, she was removed to hospital. Initial investigation was conducted by the petitioner. Accused surrendered before Judicial First Class Magistrate, Chengannur and from there, he obtained custody and he recovered Mo1 and Mo2, he questioned the witnesses and the material objects seized were produced before court. In the meantime on 28.7.2007 he got direction from C.I of police, Mannar and he handed over charge to another officer and report at the Police Training College, Thiruvananthapuram for Crmc 4244/2011 3 attending S.I's Talent Enhancement Programme, 2007. There he underwent training from 1.8.2007 to 30.10.2007. The final report in the above was filed by PW7 and petitioner is not aware of the result of investigation. Therefore, the observation made about him may be expunged, as it may affect his career as a police officer. l 4. Learned counsel for the petitioner contended that there were no lapses from his side during the course of investigation, and from the beginnning to the end of that case till 28.7.2007, he was vigilant in his duties and discharged them without fear or favour, affection or ill will. Further investigation was conducted by PW7 and it is the responsibility of PW7 to analyse further evidence, verify the documents and question the Doctor who treated in the Medical College Hospital, Pushpagiri and make a final opinion with regard to the guilt of the accused and submit a final report before the Magistrate Court. 5. Learned Public Prosecutor appearing for the respondent contended that major portion of the Crmc 4244/2011 4 discussion was with regard to the analysis of the evidence. It is difficult to remove all observations but such observation with regard to part of the investigation may be expunged. Since a portion of the investigation was also conducted by PW7, accusation of PW8 alone is not fair. Hence it is submitted that interference may be made to a limited extent. 6. Learned counsel relied on the decision reported in **State of Uttar Pradesh V. Mohammad Naim** (AIR 1964 SC 703), **Niranjan Patnaik V. Sashibhusan Kar and another** (AIR 1986 SC 819), **Rajan V. State of Kerala and others** (2012(1) KLD 476), **Nandakumaran V. State of Kerala** (2001(2) KLT 500) **Saseendran C.G V. athew Exal and others** ( 2013(3) KHC 832) and **Pradeepan V. State of Kerala** (2013(1) KLT 580). 7. The inherent jurisdiction under Section 482 Cr.P.C can be invoked to prevent abuse of process of any court or otherwise to secure ends of justice. This power can be exercised either suo motu in the interest of justice or on the basis of any petition filed by any authority. Such Crmc 4244/2011 5 jurisdiction can be exercised for substantial as well as procedural matters in a proceedings. At the same time, High Court can exercise its inherent jurisdiction to expunge the remarks made by it or by a lower court in respect of any conduct of a person or any government official if it is necessary to prevent abuse of process of any court. However, this can be exercised in exceptional cases only. This question came up before Apex Court in **State of Uttar Pradesh V. Mohammad Naim'** s case (supra). The Constitution Bench held thus:- “10. The last question is, is the present case a case of an exceptional nature in which the learned Judge should have exercised his inherent jurisdiction under S. 561-A Cr. P.C. in respect of the observations complaind of by the State Government?If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of Judges and Magistrate must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in Crmc 4244/2011 6 expressing their opinions Judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve”. 8. This decision was followed by Apex Court in Niranjan Patnaik's case (supra). Paragraph 24 of the judgment reads thus: Having regard to the limited controversy in the appeal to the High Court and the hearsay Crmc 4244/2011 7 nature of evidence of the appellant it was not at all necessary for the Appellate Judge to have animadverted on the conduct of the appellant for the purpose of allowing the appeal of the first respondent. Even assuming that a serious evaluation of the evidence of the appellant was really called for in the appeal the remarks of the learned Appellate Judge should be in conformity with the settled practice of Courts of observe sobriety, moderation and reserve.We need only remind that the higher the forum and the greater the powers, the greater the need for restraint and the more mellowed the reproach should be”. 9. This view was followed by this court in various decisions viz, Saseendran C.G's case (supra), Rajan's case (supra) and Nandakumaran's case (supra) and Pradeepan' case (supra). Therefore, it is clear that whether the party whose conduct is questioned is before court, and the court has given any opportunity of explaining or give any chance to defend himself about the remarks is a main point. Considering the principle of natural justice, it is the primary responsibility to hear the Crmc 4244/2011 8 concerned party before making any remarks about him. 10. Another aspect to be considered is that whether there is any evidence on record for justifying the remarks and for taking a fair decision in a case, the discussion about the conduct of that particular person is an integral part or not ? These are the criteria to be followed in a case when making an observation about a person. In this context, I have analysed the observation made in various paragraphs of the judgment. Annexure A1 is the judgment. The procedure adopted by the Investigating Officers were discussed in paragraphs 9, 10, 11, 12 & 13. There is a clerical mistake in noting the paragraphs in the judgment. Therefore from paragraphs 9 to 14, the analysis of evidence was considered by the learned Judge. But in paragraph 14, an observation was made “since the investigation conducted by PW8 is irregular and there was flaw of investigation, a copy of this judgment is to be forwarded to DGP, Kerala for initiating necessary action against Investigating Officer (PW8)”. Those remarks made by the learned Assistant Crmc 4244/2011 9 Sessions Judge is not fully correct. After relieving PW8 from the post of SI of Police, Mannar police station, PW7 was the SI who conducted further investigation in the above case. In such a situation, there is some relevancy in the submission made by the learned counsel that an opportunity must be given to the petitioner before making such remarks. Without giving such opportunity, it is not fair to pass any comment. This was explained by the Constitution Bench of the Apex Court in _**The State of Uttar Pradesh**_ v. _**Mohammed Naim**_ [1964 SC 703]. Therefore, the remarks made by the Assistant Sessions Judge, Chengannur cannot be fully expunged. But it is clarified that a portion of direction, for sending copy of the judgment to the DGP, is liable to be interfered, since it is not a part of the discussion of the judgment, which shows some serious infirmity. Therefore, that part of the observation made in Annexure-A1 judgment by the Assistant Sessions Judge, Chengannur, for sending copy of the judgment to the DGP viz, “there was flaw of investigation and a copy of the judgment is to be Crmc 4244/2011 10 forwarded to DGP for initiating necessary action against the investigating officer”, shall stand expunged and it is clarified that no departmental action is called for against the petitioner on the basis of the observations made in Annexure-A1 judgment. Crl.M.C. is partly allowed. P.D.RAJAN, JUDGE lgk