Shijil v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 Crl.MC.No. 909 of 2008() -----------------------AGAINST THE ORDER DATED 06/02/2008 IN CRMP.3398,3399 & 3457/07 IN SC.564/2007 of SESSIONS COURT, THRISSUR .................... PETITIONER: PETITIONER/ACCUSED NO.1 ----------------------------------- SHIJIL, S/O.KOZHIPARAMBIL SUBRAMANIAN, RESIDING AT KOORIKUZHI DESOM, KAIPAMANGALAM VILLAGE,THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMBI PUBLIC PROSECUTOR SRI.C.K.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/06/2008, ALONG WITH CRMC NO. 912 OF 2008 AND CRMC NO. 919 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## R.BASANT, J ## -----------------------------------Crl.M.C. Nos.909, 912 & 919 of 2008 ------------------------------------Dated this the 3[rd] day of June, 2008 ## ORDER The common petitioner in these 3 Crl.M.Cs is the 1[st] accused in a Sessions Case pending before the Principal Sessions Court, Trichur and he along with 5 others faces indictment in a prosecution for offences punishable, inter alia, under Section 302 r/w 149 I.P.C. 2. The crux of the allegations in the said Sessions Case is that the petitioner along with 5 other co-accused was member of an unlawful assembly of persons who, in prosecution of their common object, indulged in culpable overt acts resulting in the death of one Shine and injuries to some others. The alleged incident took place at 11.40 p.m on 27.03.07. The F.I.R is seen registered at 1 a.m on 28.03.07 and the petitioner is named as an accused with specific allegations of overt acts in that F.I.R. It is further noted that the said F.I.R had allegedly reached the Magistrate at 9.15 a.m on 28.03.07. Investigation was completed. Final report was filed. Cognizance was taken. The case was committed to the Court of Sessions. Charges were framed. Trial commenced. Crl.M.C. Nos.909, 912 & 919 of 2008 2 3. Five eye witnesses have been examined as Pws 1 to 5; of which, Pws 1, 2 and 5, without any dispute, have supported the case of the prosecution and have deposed as eye witnesses to the occurrence, tendering incriminating evidence against the accused including the petitioner herein. 4. Before completion of the evidence of prosecution witnesses, the petitioner herein, ie. the 1[st] accused, had filed 3 applications. In the first, ie. Crl.M.P.No.3398 of 2007, the petitioner prayed that Pws 1 and 2 who had deposed against him may be subjected to Polygraph Test, Narco Analysis and Brain Mapping, as according to him, they were not speaking truth. In the next, ie. Crl.M.P.No.3399 of 2007, the petitioner offered to subject himself to those tests and prayed that a direction may be issued to subject himself to those tests. In the third, ie. Crl.M.P.No.3457 of 2007, similar request was made to subject PW5 to the above tests. 5. No orders appear to have been passed in those petitions by the learned Sessions Judge at that stage. They were called along with Sessions Case. Prosecution evidence was closed. The accused was called upon to enter on his defence under Section 233 Cr.P.C holding that he was not entitled for an Crl.M.C. Nos.909, 912 & 919 of 2008 3 acquittal under Section 232 Cr.P.C. The accused entered on his defence. Some witnesses were examined and documents were marked also. At that stage, a request was made that these 3 petitions referred above which were pending may be disposed of. The learned Sessions Judge, by the impugned common order, dismissed all the 3 petitions holding that the petitioner is not entitled to maintain those applications. 6. The petitioner claims to be aggrieved by the said common order. The learned counsel for the petitioner first of all contends that the learned Sessions Judge erred in assuming that these petitions are not to be considered as ones filed under Section 233(3) Cr.P.C. It is secondly contended that the learned Judge erred in coming to the conclusion that the prayer in the petition is outside the scope of Section 233(3) Cr.P.C. Thirdly it is contended that the learned Sessions Judge was wrong in taking the view that evidence of Polygraph test, Narco Analysis and Brain Mapping are not admissible as legal evidence in a criminal trial. Fourthly and lastly it is contended that the learned Sessions Judge, at any rate, erred grossly in coming to the conclusion that these petitions are filed only with vexatious intent and for defeating the ends of justice. The learned counsel for the Crl.M.C. Nos.909, 912 & 919 of 2008 4 petitioner, in these circumstances, submits the the impugned common order is liable to be set aside and the prayers made in the 3 petitions deserve to be allowed. 7. The learned Director General of Prosecution has appeared in this case. He opposes the application vehemently. The learned Director General of Prosecution submits that the impugned order is absolutely correct. It is transparent that the attempt of the petitioner, against whom there is formidable evidence adduced-ocular evidence as well as circumstantial evidence, is only attempting to delay and protract the proceedings somehow. The learned Director General of Prosecution supports the order of the learned Sessions Judge. The learned Director General of Prosecution contends that all the 4 grounds urged by the learned counsel for the petitioner are not justified. 8. I have considered all the relevant inputs and the contentions advanced in detail by the counsel. 9. The first contention is that these petitions must have been reckoned as petitions under Section 233(3) Cr.P.C. The learned Sessions Judge erred in not reckoning the said petitions as ones under Section 233(3) Cr.P.C. I find merit in this Crl.M.C. Nos.909, 912 & 919 of 2008 5 contention of the learned counsel for the petitioner. It is true that the petitioner had filed such applications long earlier. Of course, there was no specific application or prayer under Section 173(8) Cr.P.C and the learned Sessions Judge had not chosen to consider these 3 applications at any earlier stage. As they were continuing to be pending before the learned Sessions Judge, the petitioner had, at the stage of Section 233(3) Cr.P.C, pointed out to the learned Sessions Judge that at least at that stage his petitions deserve to be considered. Merely because these applications were filed earlier and before the closure of the prosecution evidence, I am unable to agree that the petitions cannot be considered as petitions under Section 233(3) Cr.P.C. Of course it may have been absolutely proper and correct if they were reckoned and considered earlier as ones filed under Section 173 (8) Cr.P.C. I am satisfied that the learned Sessions Judge must have considered the petitions as ones filed under Section 233(3) Cr.P.C, when the accused made such a request. 10. The second contention is that the prayers in these petitions are beyond the scope of Section 233(3) Cr.P.C. The contention which appears to have found favour with the learned Sessions Judge is that the prayers made are prayers which have Crl.M.C. Nos.909, 912 & 919 of 2008 6 relevance to the conduct of the investigation and that these prayers cannot be reckoned as prayers which are entertainable under Section 233(3) Cr.P.C. If analysed closely, it can be seen that the prayers are made on the foundation that the investigators must have conducted the Polygraph test, Narco Analysis and Brain Mapping tests themselves and must have taken advantage of such scientific methods of investigation for a proper resolution of the crime which they were investigating. Though they were duty bound, according to the petitioner, to conduct those tests in respect of Pws 1, 2, 5 and the petitioner herein, they did not do the same. The petitioner had no earlier opportunity to raise that grievance. The petitioner is therefore obliged at the final stage to press for an order under Section 233 (3) Cr.P.C. This could, of course, have been done at the investigation stage. But the petitioner has no control over the investigating machinery at that stage. It is hence that the petitioner, after commencement of the trial, has made these applications and as they remained without disposal, made final request under Section 233(3) Cr.P.C. to consider the same. It is true that the petitioner could have made the same request before the Magistrate under Section 156 (3) Cr.P.C as explained in Crl.M.C. Nos.909, 912 & 919 of 2008 7 **Sakiri Vasu v. State of U.P** [2008 AIR SCW 309]. It is also true that what the petitioner is calling for is not evidence which is already collected and available, but he is seeking that the powers of the Court under Section 233(3) Cr.P.C may be invoked to secure such evidence at least at the evidence stage. In the sense that what is sought to be summoned is not evidence available already, it may be said that the processes sought to be issued are not for collecting evidence. It is only a prayer to find out whether evidence can be collected and made available before Court. But the petitioner has no other stage at which he can make such a request and in these circumstances it is totally erroneous to assume that the application is outside the purview of Section 233 (3) Cr.P.C, contends the counsel. 11. I find force in this contention of the learned counsel for the petitioner also. Whether evidence is already collected and available or whether such evidence is to be collected after conducting certain tests, it is trite that the accused will be entitled to request the Court to secure such evidence at the defence stage. Precedents galore that a document introduced in evidence can be sought to be sent to the expert and evidence secured at the defence stage. If that be so, I find no reason to come to a Crl.M.C. Nos.909, 912 & 919 of 2008 8 conclusion that these petitions must be reckoned as ones totally outside the scope of Section 233(3) Cr.P.C. It is, of course, true that the Investigating Officers could have in the course of investigation conducted the necessary tests and collected the evidence. It may also be true that the petitioner could have asked for a further investigation under Section 173(8) Cr.P.C or for issue of directions under Section 156(3) Cr.P.C to get these tests conducted to ensure the interests of a proper investigation. But the mere fact that he had not done the same, is certainly no reason to close the doors against him at the stage of Section 233 (3) Cr.P.C. 12. I take the view that not only the evidence which is already available, but also evidence which can be secured only after conduct of scientific tests etc. can also be sought to be summoned under Section 233(3) Cr.P.C. In this view of the matter, I take the view that the conclusion that these petitions cannot be reckoned as ones under Section 233(3) Cr.P.C for the reason that these should have been done at the investigation stage by the police either on their own or at the request of the accused is no reason not to consider the applications as ones under Section 233(3) Cr.P.C. Crl.M.C. Nos.909, 912 & 919 of 2008 9 13. Thirdly it has to be considered whether these pieces of evidence, even if secured, can be introduced in evidence as legally admissible materials. The learned Director General of Prosecution points out that even if these tests were conducted, it cannot be held that the result of these tests can be introduced as legally cognizable and admissible material in the course of trial. The question whether these pieces of evidence can be accepted as legally cognizable and admissible material has not been settled by any binding precedents so far. The matter is receiving the attention of the Supreme Court in a pending matter, it is reported. The learned counsel for the petitioner has cited before me a decision of the Division Bench of the Bombay High Court in **Ramchandra Ram Reddy v. State of Maharashtra** [1 (2205) CCR 355 (DB)] and a decision of a learned Single Judge of the Gujarat High Court reported in **Santokben S.Jadeja v. State of Gujarat** [2008 (2) KLT 398 (Guj.H.C.)]. Those decisions are not authority for the proposition that evidence secured in the Narco Analysis or Brain Mapping are legally admissible in evidence. They have only dealt with the question whether collection of such material in the course of investigation would offend the constitutional protection against self incrimination and whether a Crl.M.C. Nos.909, 912 & 919 of 2008 10 police officer is justified in making a request to the court to give him assistance for conduct of such test. I am not hence adverting to that aspect in any greater detail in these Crl.M.Cs. Be that as it may, I find merit in the contention that the question whether the results of such examination would be legally admissible in evidence is not concluded yet and it remains even today in the doubtful area. Undoubtedly the statements obtained from the petitioner after conduct of the Narco Analysis on him would be inadmissible in evidence if they incriminate him. In so far as the other eye witnesses Pws 1, 2 and 5 are concerned, that may, even if evidence is admitted, only be a relevant input in considering whether their oral evidence can be accepted or not. The stage of development of science and technology on these aspects even now can take one only to a safe conclusion that these steps may be the available pieces of material to properly guide and assist an Investigating Officer. At any rate, it is doubtful whether these materials can be introduced in legal evidence as to doubt or suspect the versions of the witnesses examined on the side of the prosecution. They may have been useful inputs to the Investigating Officer in his attempt to decide whether reliance can be placed on these eye witnesses or not and whether the matter Crl.M.C. Nos.909, 912 & 919 of 2008 11 deserves further probe. At any rate, for the court to consider acceptability of the evidence of Pws 1, 2 and 5, I am of opinion that results of these tests may not be of crucial, legal and probative relevance. 14. Finally a contention has to be considered as to whether this is a fit case where resort to such examination must be permitted at the stage of Section 233(3) Cr.P.C. I must be wary of similar requests being made in every case where the accused wants himself or the witnesses to be subjected to such invasive procedures. The learned Director General of Prosecution, I feel, is justified in contending that, at any rate, the accused and the witnesses can and need be subjected to such tests only in an extraordinary case, even assuming that the court can resort to such exercise at the stage of Section 233(3) Cr.P.C where there is genuine requirement of the assistance of such material. Merely because an accused at the stage of Section 233(3) Cr.P.C makes such a request, such request cannot be accepted. Ordinarily and normally the accused who is making such a request in the course of the trial must be assumed to resort to Section 233(3) Cr.P.C to delay the proceedings and to defeat the ends of justice. The material is not of any crucial and clinching relevance. He has not Crl.M.C. Nos.909, 912 & 919 of 2008 12 made such a request at the stage of investigation or till commencement of trial. The witnesses will turn more suspicious to the system and the prosecution if they were to realise that they will be subjected to such invasive procedures on the mere request of an accused person. Does the totality of the circumstances instill in the mind of the court the need to resort to such an exercise ? If it does not, the learned Director General of Prosecution requests that even assuming that such powers are available with court under Section 233(3) Cr.P.C, such resort may not be made. 15. Pws 1, 2 and 5 have entered appearance before this Court through a counsel. They submit that for the only crime of having witnessed the occurrence, they may not be subjected to further trauma and agony. They submit that it is not necessary to subject them to any such tests. Whether their evidence is acceptable or not can be decided by the learned Sessions Judge, their evidence having already been tested by a searching cross examination by the counsel for the accused. The learned Director General of Prosecution also repeats the same contention and points out that in addition to the direct evidence of the Crl.M.C. Nos.909, 912 & 919 of 2008 13 witnesses, the prosecution is also relying on other pieces of circumstantial and corroborative evidence. 16. The learned counsel for the petitioner points out to the court a circumstance in this case, which according to him is crucial, that some of the co-accused (A3) had in the 313 examination given statements inculpating him and exonerating the petitioner/1[st] accused. The learned counsel for the petitioner submits that that must be reckoned as an extraordinary circumstance in this case which must persuade this Court to invoke the jurisdiction under Section 233(3) Cr.P.C. The learned Director General of Prosecution on the contrary submits that no reliance whatsoever may be placed on this circumstance. The petitioner according to the prosecution is the leader of a goonda gang and the other accused are members of such gang. No such version, as advanced by the 3[rd] accused in the 313 examination, was ever raised in the course of cross examination of witnesses and such a stand taken by the 3[rd] accused can only reveal his unflinching loyalty to the 1[st] accused, his leader. A totally different version from the stand taken in the course of cross examination has been adopted by the 3[rd] accused only for the purpose of helping the petitioner herein to succeed in his present attempt. Crl.M.C. Nos.909, 912 & 919 of 2008 14 17. The learned counsel for the petitioner further points out that the petitioner is in custody from the date of his arrest. Right through the investigation and trial he was in custody and it is idle to suggest that the petitioner is attempting to protract the proceedings. The learned Director General of Prosecution promptly counters this contention with the assertion that the petitioner did not get bail because of his criminal antecedents (he is allegedly involved in as many as 14 major cases, it is pointed out) and the trial was expedited, because the 1[st] accused is in custody. Having come to know of the formidable nature of the evidence against him, the petitioner is only wanting to protract the proceedings, submits the learned Director General of Prosecution. 18. I have to be very cautious. I should not express any opinion which may even remotely suggest that I have formed any opinion on the acceptability of the materials which are available before the trial court. I need only mention that having considered all the relevant inputs available in this case, I am not persuaded now to agree that this is a fit case where the discretion under Section 233 (3) Cr.P.C can or ought to be invoked in favour of the accused/petitioner. Crl.M.C. Nos.909, 912 & 919 of 2008 15 19. I do not want to conclude the issue. If the learned Sessions Judge after considering the entire materials before him before pronouncing judgment feels that any such resort must be made either invoking the powers under Section 233(3) Cr.P.C or under Section 311 Cr.P.C or under Section 173(8) Cr.P.C, such power/discretion of the learned Sessions Judge shall remain. Suffice it to say that I am not persuaded now to agree that the powers under Section 482 Cr.P.C can or need be invoked to interfere with the impugned common order passed by the learned Sessions Judge. I may carefully and cautiously observe that the petitioner's right to assail the impugned order later after judgment is pronounced in the Sessions Case before superior courts shall also remain intact. I choose only to take the view that at the moment and with the available inputs, I am not persuaded to invoke the extraordinary inherent jurisdiction that is available to this Court under Section 482 Cr.P.C. 20. These Crl.M.C are hence dismissed with the above observations. I note that the records in the Sessions Case have all been called for before this Court and they are available. The matter remains at the stage of hearing arguments, it is submitted. There is great need to send back the records to the learned 16 ## Crl.M.C. Nos.909, 912 & 919 of 2008 Sessions Judge forthwith. The Registry shall send back the records by special messenger and the learned Sessions Judge shall proceed to hear and dispose of the Sessions Case as expeditiously as possible. **(R.BASANT, JUDGE)** rtr/-