IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 5222 of 2011(C) ------------------------------------ PETITIONER: -------------------- ELSY VARGHESE, W/O. VARGHESE,AGED 40 YEARS, PUNNEDATH MOOLAYIL HOUSE,BRAHMAPURAM, ERNAKULAM DISTRICT. BY ADV. SRI.PAUL K.VARGHESE RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP. BY SECRETARY (HOME DEPARTMENT) GOVERNMENT SECRETARIAT, TRIVANDRUM-01. 2. DIRECTOR GENERAL POLICE(LAW & ORDER) POLICE HEADQUARTERS,TRIVANDRUM-01. 3. ADDITIONAL DIRECTOR OF POLICE, CRIME BRANCH, TRIVANDRUM-01. 4. THE SUPERINTENDENT OF POLICE, ALUVA-683530. 5. THE SUB-INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION, KOTHAMANGALAM ERNAKULAM DISTRICT-686691. 6. SRI. NOBLE, SUB INSPECTOR OF POLICE, KOTHAMANGALAM POLICE STATION-686691. 7. P.K. SIVAN, ASI OF POLICE, KOTHAMANGALAM POLICE STATION-686691. 8. SHIBU, S/O. PAULOSE, PONNEDATHMOOLAYIL MALIPARA, KOTHAMANGALAM-ERNAKULAM DISTRICT-686691. 9. SURESH KUMAR, S/O. KRISHNANKUTTY, OLIKKAZHIL VEEDU, K.B.PARK, KALAMASSERY, ERNAKULAM DISTRICT-686691. BY PUBLIC PROSECUTOR ADV. SMT. M.K.PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SMT THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.5222 of 2011 --------------------------------------- Dated this 05th day of April, 2011 JUDGMENT Petitioner is accused in Crime No.1765 of 2009 of Kothamangalam Police Station (presently, S.T.No.1377 of 2010 of learned Judicial First Class Magistrate Kothamangalam) for offences punishable under Sec. 279, 337 and 338 of the Indian Penal Code. According to the prosecution, petitioner, a lady aged 40 years was driving the car on 03.10.2009 in a rash and negligent manner so as to endanger human life and that car hit two motor bikes causing hurt/grievous hurt to the riders. It is the case of petitioner that she also sustained injury and was taken to the Bascelious Hospital wherefrom intimation was given to the police, a police Constable by name Vijayan obtained the driving license of Shibu, driver of the car and produced the same at the Police Station but the vehicle was not released. There are certain allegations made against the Sub Inspector personally as well. On 07.10.2009 the owner and driver (Shibu) of the car came to the Police Station and requested to release the car but the police stated that they have registered a case against petitioner. Petitioner says that she has been falsely implicated, she is a W.P(C).No.5222 of 2011 -: 2 :- coolie by occupation and does not even know driving and that the car was taken on rent. At the relevant time it was being driven by Shibu, employee of the owner of car. It is also the version of petitioner that she, along with her mentally retarded child aged 9 years, husband and other relatives was going to Malipara, near Kothamangalam for a house warming ceremony. She stated that it was Shibu who was driving the car but, she was falsely implicated. Immediately on learning that she was falsely implicated, she preferred a complaint to the Superintendent of Police, Aluva. She filed W.P(C).No.29235 of 2009 against police harassment and by Ext.P5, judgment the Superintendent of Police, Aluva was asked to look into the complaint. Thereafter nothing transpired but police submitted final report to the Magistrate. Learned counsel submitted that investigation conducted was thoroughly impartial and none of the witnesses were questioned by the police. It is submitted that it is difficult to accept the version of police that petitioner, a lady aged 40 years was travelling in the car alone and petitioner who does not even know driving and does not own a license was driving the car. Learned counsel requested to entrust investigation of the case to the crime Branch or by deputing a special team not below W.P(C).No.5222 of 2011 -: 3 :- the rank of Superintendent of Police. Other reliefs are also sought for. 2. Learned Public Prosecutor submitted that petitioner was all long making herself scarce for interrogation and that investigation revealed that at the relevant time petitioner and Shibu, the driver employed by the owner of car and who is closely related to the petitioner alone were travelling in the car. Learned Public Prosecutor has asserted that the car was being driven by the petitioner and her rash and negligent driving resulted in the accident. 3. I am not going into the question whether petitioner had made herself scarce for interrogation as contended by learned Public Prosecutor or she was very much available as learned counsel for petitioner would plead. Fact remained that petitioner was not questioned by the police. It is also not disputed that Shibu, driver employed by the owner of the car was not questioned. It was required to be ascertained whether there were other persons travelling in the car at the relevant time and if so what is their version as to the incident. Learned counsel for petitioner pointed out that when a 9 year old mentally retarded child was with the petitioner and she taking care of that boy, it is W.P(C).No.5222 of 2011 -: 4 :- unreasonable to think that leaving that boy aside petitioner would drive the car. 4. I am not going into the correctness of the said argument but the matter requires consideration. If there were other persons travelling in the car, fair investigation required the police to question them also. Investigation should rule out possibility of vehicle being driven by any other person as petitioner contends. That has not happened in this case. It would appear that the investigating officer has seen only one side of the picture. 5. Normally, I would not have entertained a petition at the instance of the accused for further investigation for, the accused cannot be allowed to say who should conduct the investigation. But, having regard to the circumstances I have stated above, I am inclined to think that there must be a re-look into the matter notwithstanding that final report has been filed. Resultantly this criminal miscellaneous case is disposed of directing the fourth respondent, Superintendent of Police, Rural, Aluva to direct an officer superior in rank to the Sub Inspector to conduct a thorough investigation into the entire matter having regard to the grievance of petitioner which I have stated above W.P(C).No.5222 of 2011 -: 5 :- and submit final report before the learned Judicial First Class Magistrate, Kothamanagalam. Fourth respondent shall pass necessary orders in that line within a week of receipt of a copy of this judgment which shall be made available by the petitioner. Until submission of report after such investigation, proceeding in S.T.No.1377 of 2010 of the Court of learned Judicial First Class Magistrate, Kothamangalam will stand in abeyance. (THOMAS P JOSEPH, JUDGE) Sbna/-