Shelcy Thomas v. Detective Inspector, CBCID, HHW-II, Ernakulam; State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 23RD DAY OF JULY 2019 / 1ST SRAVANA, 1941** ## **Crl.MC.No.4958 of 2019** **AGAINST THE ORDER/JUDGMENT IN SC 983/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, NORTH PARAVUR DATED 15-06-2019** **AGAINST THE ORDER/JUDGMENT IN CP 13/2017 of JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY(TEMPORARY)** **CRIME NO.1397/2011 OF Angamali Police Station , Ernakulam** ## **PETITIONER/S:** **SHELCY THOMAS, AGED 49 YEARS W/O.LATE THOMAS, PALATTI HOUSE, PARAMBAYAM KARA, MUKKANNOOR VILLAGE, ANGAMALI - 683 577.** ## **BY ADV. SRI.SAJAN MANNALI** ## **RESPONDENT/S:** **1 DETECTIVE INSPECTOR, CBCID, HHW-II, ERNAKULAM - 682 011. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI SURESH BABU THOMAS SR. PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.4958 of 2019** **2** ## **ORDER** Sri.Thomas, the husband of the petitioner herein, was murdered by a group of persons and a crime was registered at the Angamaly Police Station in the year 2011. Investigation was later handed over to the CBCID and final report was submitted, inter alia, under Section 302 of the IPC. Twenty-three persons were arrayed as accused in the final report. The case was committed to the Court of Session and is pending on the files of the Additional Sessions Judge-II, North Paravur as S.C. No.983 of 2017. 2. The trial commenced and prosecution examined 52 witnesses on their side, through whom, Exhibits-P1 to P58 were marked. When the case was posted for examination of the investigating officer, an application was filed by the Public Prosecutor seeking a direction to the investigating officer to produce copies of the Call Data Records (CDR) as well as the shirt worn by the deceased. 3. The learned Sessions Judge dismissed the said application holding that no such directions need to be issued to the investigating officer as he is expected to work hand in hand with the Prosecutor. 4. The above order is under challenge. 5. Sri.Sajan Mannali, the learned counsel appearing for the petitioner, submitted that the prosecution had relied on the CDR to connect **Crl.MC.No.4958 of 2019** **3** the accused with the crime. The same was collected by the investigating officer from the service provider and it is in his possession. However, the said evidence was not produced before the court. It was in the said circumstances that the Prosecutor filed the application seeking production of the same and to mark it in an appropriate manner. He would rely on the decisions of the Apex Court in **Tomaso Bruno and Another v. State of Uttar Pradesh** [2105 (7) SCC 178] and it was argued that the advancement of information technology and scientific temper must pervade the method of investigation and the electronic evidence which was collected by the investigating officer was relevant to establish the facts. The importance of scientific and electronic evidence was lost sight of by the court below, contends the learned counsel. He would also rely on the decision of a Division bench of this Court in **State of Kerala v. Unni** [2018 (2) KLD 475] to bring home his point that the absence of certification of CDR will not effect its admissibility. According to the learned counsel, one of the accused is an important functionary of the ruling party and it is at his instance that material evidence were suppressed to assist the accused. The learned counsel would also rely on the decision of the Apex Court in **Shafhi Mohammad v. State of Himachal Pradesh** [2018 (2) SCALE 235] and it was argued that if the electronic evidence is authentic and relevant, the same can be admitted subject to the court being satisfied as **Crl.MC.No.4958 of 2019** **4** to its authenticity. It is submitted that the application was filed by the Public Prosecutor and it was when the State refrained from challenging the order of dismissal that the petitioner herein, as the wife of the deceased, took up the mantle and has approached this Court. 6. The learned Additional Director General of Prosecution took a stand that the production of the CDR will not advance the case of the prosecution. According to the ADGP, the CDR were obtained in the year 2011 and though it revealed that the accused were in constant touch prior to and subsequent to the incident, the investigating officer did not obtain a certification under Section 65B of the Indian Evidence Act from the service provider. Now, when the service provider was contacted, they replied that the records are retained only for a period of one year and that they would not be able to certify the same. No purpose would be served in marking the said documents, contends the learned ADGP. 7. I have considered the submissions advanced and have perused the order impugned. 8. Impartial and truthful investigation is imperative for a fair trial. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. The role of the police is to be one for protection of life, liberty and property of citizens and investigation **Crl.MC.No.4958 of 2019** **5** of offence is one of its foremost duties. The aim of investigation is ultimately to search for truth and to bring the offender to book. Needless to say, the prosecution or for that matter the investigating agency is expected to act in an honest and fair manner without hiding anything from the court as well as the accused. 9. In the case on hand, it is evident from the statement dated 16.06.2019 filed by the Detective Inspector that he was called upon to produce properly authenticated copies of thousand pages of CDR from various mobile companies. It is also evident that the learned Sessions Judge issued directions to the officer to produce the CDR before the court below. It also appears that the CDR was produced before the court below on 24.06.2019 and the learned Sessions Judge instructed the officer to produce CDR with certification. Accordingly, he issued a notice under Section 91 of the Cr.P.C. to the nodal officers of concerned mobile service providers. In response, the mobile service providers are alleged to have expressed their inability to produce certification as the original electronic records are kept in their possession only for a period of one year. 10. From the said statement, it is apparent that the CDR is before court. The learned Sessions Judge appears to have taken a very passive view. The court has also taken a stand that issuing orders to the investigating **Crl.MC.No.4958 of 2019** **6** officer at the request of the learned Public Prosecutor is not its job. The learned Sessions Judge ought to have borne in mind that, a Judge, who oversees a sessions trial is not a mere observer or an umpire as held by this Court in **Gopalakrishnan @ Mani v. State of Kerala** [2012 (1) KLD 167]. His Lordship R.Basant, J, as he then was, while speaking for the Division Bench, had occasion to observe as follows: “44. ......We deem it necessary to remind the trial Judges of their real role, duty and mission as part of the criminal justice delivery system. The trial Judge is an inevitable and vital part of the system of criminal justice administration. A system becomes a system only when every member of the system acts to perform its duties to further the common mission or task. The attainment of a crime free society is the mission, dream or goal of any system of administration of criminal justice worth its salt. Every member - the legislator, the investigator, the adjudicator and the correctional facility has to play the complimentary role resting on his shoulders. The most acceptable definition of Justice is that it ensures 'to each what he deserves'. Criminal justice delivery system must ensure punishment to the guilty because that is what the guilty deserves. Identification of the guilty and imposition of punishment on the guilty is the duty of the criminal justice delivery system. Imposition of punishment is justice because the guilty deserves punishment. Such punishment is justice to him and justice to society because society deserves protection from the crime and the criminal. In discharging this duty, there is also the obligation to ensure acquittal of the innocent. The primary duty is of course to ensure punishment of the really guilty. There is a **Crl.MC.No.4958 of 2019** **7** concomitant duty - equally onerous and sublime, to secure exoneration of the innocent. Courts have to discharge this twin duty - of ensuring punishment of the guilty, at the same time, zealously ensuring exoneration of the innocent. 45. The mantle of the trial Judge is that of an unbiased impartial adjudicator. He has to ensure fair trial. Every reasonable opportunity must be given to an indictee to know, understand and controvert the allegation / evidence against him. Every reasonable opportunity must be given to the accused to establish his innocence. It is part of the sublime principles of natural justice or of inalienable human rights that an impartial, unbiased adjudicator must dispassionately after a fair trial pronounce on the guilt or innocence of the indictee. 46. But this is not to say that the trial Judge is a mere observer or umpire. He is and ought to be a disinterested dynamic participant in the trial that goes on before him. He is, to borrow, an oft repeated adage, not to be a blind and mute spectator or umpire in the drama of adversarial duel before him. He must be a dynamic disinterested participant in the trial. We remind trial Judges, the oft repeated imagery, employed in the judicial academies that the trial is a voyage. You have to cross the ocean of untruth, half truths, exaggeration and embellishments and reach the ultimate shores of truth and justice. In the voyage, the captain of the ship, the helmsman, the holder of the rudder is the trial Judge. Counsel for the rival contestants are the oarsmen in the voyage. The duty is on the captain of the voyage to navigate the vessel to the shores of truth and justice. The importance of the trial Judge in the voyage has to be alertly perceived and understood. It has to sink in to the minds of all trial Judges. The trial Judge is not one who has the holy water in his mouth, who cannot spit it or swallow it and hence must remain mute and inactive **Crl.MC.No.4958 of 2019** **8** all through. A trial Judge who does not have the passion to discover truth and do justice is a liability to the system. He denies to himself the rapturous pleasure that can be derived when truth is discovered and justice is dispensed. As part of the criminal justice delivery system, a trial Judge, without commitment, will only belie his mission.” 11. As held above, the primary duty is of course to ensure punishment of the really guilty. There is a concomitant duty to secure exoneration of the innocent. The court was expected to be a dynamic functionary and passionately endeavor to discover the truth. 12. Much discussion is not required to hold that the report of the investigating officer and the order passed by the learned Sessions Judge are conflicting. When the learned Sessions Judge says that there is no reason to direct the investigating officer to produce the records at the instance of the prosecutor, in his statement, the investigating officer asserts that he had filed the CDR before the court and the court had directed him to obtain certification. As rightly submitted by the learned counsel appearing for the petitioner, the manner in which the electronic evidence is to be accepted has been clarified by the Apex Court in **Shafhi Mohammad** (supra) which was followed by this Court in **Unni** (supra). In that view of the matter, the learned Sessions Judge was also not right in holding that the network **Crl.MC.No.4958 of 2019** **9** operators may not be in possession of the CDR . 13. For the aforementioned reasons, I am unable to sustain the order passed by the learned Sessions Judge. The order dated 15.06.2019 in Crl.M.P. No.237 of 2019 in S.C. No.983 of 2017 will stand set aside and the application filed by the petitioner herein will stand allowed. The question of admissibility and relevance of the evidence is left open to be decided by the learned Sessions Judge. This application will stand allowed. **SD/-** ## **RAJA VIJAYARAGHAVAN V.,** ## **JUDGE** avs **Crl.MC.No.4958 of 2019** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE JUDGMENT DATED 4/02/2019 IN OP(CRL) NO.578/2016. ANNEXURE A2 A TRUE COPY OF THE RELEVANT PORTION OF THE FINAL REPORT IN COPY OF CBCID CRIME 1025/CR/2011 (ANGAMALY POLICE STATION CRIME NO.1379/2011. ANNEXURE A3 TRUE COPY OF WP(C) 9197/2019 DATED 14/03/2019 (WITHOUT EXHIBITS). ANNEXURE A4 THE CERTIFIED COPY OF CMP 237/2019 IN SC 983/2017 BEFORE ADDITIONAL SESSIONS COURT NORTH PARAVUR DATED 15/06/2019.** ## **RESPONDENT'S/S EXHIBITS:** **NIL avs //TRUE COPY// P.A TO JUDGE**