Crl.MC/1950/2006 of C.JAYACHANDRAN NAIR Vs STATE OF KERALA on 20 March 2001

ORDER

The petitioner in this petition was examined as PW56 onthe side of the prosecution in S.C.No.998/2004 on the file of theAdditional District & Sessions Court (Adhoc-I), Kollam. Thispetition is filed before this court under Section 482 of the Codeof Criminal Procedure with the prayer to expunge theobservations and remarks made against him in the abovementioned judgment passed on 23-3-2006. Crime No.353/2000of Kollam East Police Station was registered against the accusedfor the offence under Sections 120B, 201,364,302 read withSection 34 of the Indian Penal code. Investigation of that casewas completed and charge sheet was laid before the Court ofJudicial First Class Magistrate-II, Kollam. The learned Magistratecommitted the case to the Sessions Court,Kollam and that courtmade over the case for trial and disposal to the Additional District

& Sessions Court(Adhoc-I),Kollam. The case was numbered as S.C.No.998/2004 and after trial, accused 1 and 2 were foundguilty, convicted and sentenced as follows:

“ 1. The accused 1 and 2 are sentenced to undergo life imprisonment under Section 120B(1)IPC, Rigorous imprisonment for a term of 5 years under Section 201IPC and Rigorous imprisonment for a term of 5 yearsunder Section 364 IPC. The sentence ofimprisonment on the above 3 counts shall be allowedto run concurrently.

2. The accused 1 and 2 are sentenced to be hanged by neck till they are dead under Section 302 IPC.”

A copy of that judgment dated 23-3-2006 is produced asAnnexure-I.

Paragraph 61 of the judgment reads as follows:

“61. Before concluding the matter, I like to expressmy displeasure and dissatisfaction on the manner ofinvestigation carried out by the police in the present case. It is already noted that it is a case where theaccused have by themselves fallen into the hands ofthe police shortly after the occurrence of theoffence. It is not a case where the accused wereapprehended in pursuance of the evidence collectedon investigation. I find it appropriate on my part toconvey the following culpable omissions in theprocess of the investigation of the present case.

1. There is a clear reference to the use of amobile phone by the 1[st] accused toconversate with the 2[nd] accused during therelevant period. A mobile phone was seizedfrom the house of occurrence atKumarapuram as per Ext.P9 scene mahazardated 27-4-2000. MOVII camera was alsoseized from that house as per that mahazaron the very same date. They both wereproduced before court as per Ext.P35(3)

property list as item Nos.13 and 14. Noeffort was made during the investigationeither to scan the camera. Aftercommencement of the trial the learnedAddl. Public Prosecutor filed Crl.M.P.No.2165/05 to sent MOVII Camera to the Chiefphotographer, State Police PhotographicBureau, for developing the film if anyfound loaded in it. The prayer was allowedvide order dated 27-6-05 and MOVII(a)series 25 photographs of the accused 1and 2 in the presence of Pws.4,9 and 55were obtained. The order dated 27-6-2005 on Crl.M.P.No.2165/05 was upheld bytheHon'bleHighcourtinCrl.M.C.No.1925/05, preferred from thedefence side. In my view, the omission toexamine the mobile phone and camera by

experts in appropriate time is a culpableomission on the part of the investigatingofficer and it is liable to be enquired into byhigher police authorities.

2. Thereleasedinvolvementof

experts,viz.finger print experts, handwritingand signature experts, etc.is noted as animportant omission in the investigation ofthe case. No expert was called by theinvestigating officer while making the entryinto the houses of occurrence, and also atthe time of recovery of the dead body.

3. Non production of the way bill andreceipt seized as per Ext.P12 seizuremahazar dated 22-4-00 with respect to thevehicle involved in the Crime (KL—4A-6595)will also raised a suspicion on theconduct of the investigating officer.

4. Non production of the negative with

respect to Ext.P29 series(12) photos issuspected as an omission with ulteriormotives to avoid detection of the presenceof PW3(CW4) in the place at the time ofrecovery of the dead body.

5. I suspect correction or substitution of the statements of the witnesses recordedU/s.161 Cr.P.C.in matters involving CW4(PW3).

Hence I propose to sent a copy of this judgmentto the Registrar Subordinate Judiciary of the Hon'bleHigh court to be forwarded to the Director General ofPolice for his information and necessary action on thematters mentioned above”.

2. In the aforementioned paragraph, the learned Additional Sessions Judge has expressed displeasure anddissatisfaction on the manner of investigation carried out in the

case. Further, it is specifically mentioned that no effort wasmade to scan the mobile phone or to detect the presence of usedfilm in the camera. This, the learned Sessions Judge feels is aculpable omission on the part of the investigating officer requiringfurther investigation. The 2[nd] observation is regarding the non-involvement of experts like finger print experts and hand-writingexperts. Non-production of Way bill and receipt seized and listedin the Mahazar, the court raises suspicion against theinvestigating officer. Non-production of negatives with respectto certain photographs was also seen as done with some ulteriormotives and lastly correction or substitution is suspected in the161 statement of PW3. The above observations of the learnedAdditional Sessions Judge is sought to be expunged by this courtafter exercising the inherent jurisdiction under Section 482 ofCr.P.C.

3. Heard the learned counsel appearing for the petitionerand also the learned Public Prosecutor.

4. It is submitted by the learned counsel for the petitioner

that the above observations in paragraph 61 of the judgmentwere without any basis or materials and were totally unwarrantedfor the disposal of the case which caused grave injustice to thepetitioner. According to the learned counsel, the absence of thesaid evidence mentioned in the above observations is not in anyway affected the prosecution case and the same were madewithout hearing the petitioner which is a gross violation of theprinciples of natural justice.

5. It is revealed from Annexure-I that PWs.1 to 57 wereexamined and Exts.P1 to P39 and Mos.I to XI were marked onthe side of the prosecution. DWs.1 to 4 were examined andExts.D1 to D3(a) were marked on the defence side. On the basisof the above evidence, both accused in S.C.No.998/2004 werefound guilty. Accordingly, they were convicted and sentenced asmentioned above after accepting the case of the prosecution.

6. The learned counsel for the petitioners relied on the decision reported inP.Ajayababu v. State of Kerala (2002(2)KLJ 582)= 2002(3)K.L.T.S.N.104 wherein it was held as

follows:

“........ The settled position of law is that beforeany castigating remarks are made by the courtagainst any person, particularly when suchremarks could ensue serious consequences onthe future career of the person concerned, heshould be given an opportunity of being heard inthe matter in respect of the proposed remarksor strictures. Giving of such an opportunity isthe basic requirement and if no opportunity isgiven, the offending remark would be inviolation of the principles of natural justice.”

............ ........” A passage which is likely tomilitate seriously against a party's earninglivelihood and not necessary to the conclusionof the Judge, nor even necessary to hisargument, should be expunged from thejudgment. It is a general principle of highest

importance that a derogatory remark ought not to be made against persons or authoritieswhose conduct comes into consideration unless it is absolutely necessary for the decision of thecase to animadvert on their conduct.”.

7. It is evident from the facts of the instant case thatCrime No.353/2000 was registered at the Kollam East Policestation against accused 1 and 2 and the petitioner herein wasexamined on the side of the prosecution as PW56 who conductedthe preliminary investigation of the case. No notice was issuedby the learned Additional Sessions Judge to the petitioner in thispetition and no opportunity for hearing was given to him beforemaking the observations and the strictures against him asmentioned in paragraph 61 of the judgment. It is true that noappeal has been preferred against the judgment which containsthe above observations and strictures against the petitioner. It istrue that in order to maintain the independence of judiciary it isnecessary that every Judge or Magistrate should have the

Conclusion

freedom to express his opinion in the judgment. But, whileexpressing his opinion, it is relevant for the Judge to considerwhether such expression of opinion thereon going to the extentof commenting or criticizing becomes necessary as a part ofreasoning requisite for arriving at a conclusion necessary fordeciding the main controversy or it becomes necessary for thepurpose of arriving at a decision on the issue involved in thelitigation. It is the settled law that before making anydisparaging remarks by any court against any person, especiallyin the case of witnesses or parties not before him and moreparticularly when such remarks could ensue seriousconsequences on the future career of the person concerned, heshould be given an opportunity of being heard in the matter inrespect of the proposed remarks or strictures. It is revealed fromthe judgment in the present case that no such opportunity isgiven to the petitioner, who is the witness, would definitely be inviolation of the principles of natural justice. Therefore, this Courtby invoking the inherent jurisdiction envisaged under Section 482

of Cr.P.C. can expunge that observation made against him, whichis unwarranted for deciding the offence alleged against theaccused in that case. So, the prayer in this petition is to beallowed.

In the result, Crl.M.C. is allowed, expunging the remarksmade against the petitioner by the learned Additional SessionsJudge,(Adhoc-I),Kollam in paragraph 61 of the judgmentrendered by him on 23-3-2006 in S.C.No.998/2004. Thedirection given by the learned Additional Sessions Judge to thehigher authorities to take action against the petitioner is alsounsustainable and stands set aside.

ks.

M.C. HARI RANIJUDGE