IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 Crl.Rev.Pet.No. 2272 of 2008() ------------------------------ AGAINST THE ORDER DATED 27/06/2008 IN CMP 2264 2008 IN CC.523/2000 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: ------------------ STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM BY THE DIRECTOR GENERAL OF PROSECUTION SRI. P.G. THAMPI RESPONDENTS: ------------- 1. V.JOSEPH THOMAS IPS FORMERLY WORKING AS COMMANDER GENERAL, HOME GUARDS, CIVIL DEFENCE & FIRE FORCE, NOW RESIDING AT PATTAVAYALIL HOUSE, SRRA-83, SHENOY ROAD, KALOOR, ERNAKULAM. 2. DOMENIC CHAVARA, S/O. ANTONY CHAVARA VEEDU, ARPOOKKARA VILLAGE, KOTTAYAM TALUK KOTTAYAM DISTRICT (DETECTIVE INSPECTOR OF POLICE CBCID, KOTTAYAM. 3. JOHN VARGHESE, S/O. VARGHESE KATTUTHALAKKAL VEEDU, PALLIKKAL EASTKARA THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA (SUB INSEPCTOR OF POLICE, KOOTHATTUKULAM POLICE STATION) CRL.R.P. NO. 2272 OF 2008 -:2:- 4. MURALEEDHARAN, S/O. NARAYANAN CHETTIYAR THEKKETHIL VEEDU, PULIYANOOR VILLAGE MEENACHAL TALUK, KOTTAYAM DISTRICT (PCK 3859) RAMAPURAM POLICE STATION, KOTTAYAM DISTRICT) 5. SUKUMARAN NAIR,S/O.CHELLAPPAN PILLAI, KAVITHA, NETTAYAM,PEROORKADA VILLAGE, THIRUVANANTHAPURAM. 6. RAJENDRAN, S/O. LASSER, KALLUVILA PUTHENVEEDU,KULATHOOR VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM (SUB INSPECTOR OF POLICE, POLICE CONTROL ROOM TVM.CITY) 7. ABDUL BASHEER, S/O.NAINA MUHAMMED KUNNILVILAVEEDU, THACHOTTUKAVU,MARUKIL VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM HC 6182 THIRUVANANTHAPURAM CITY TRAFFIC POLICE STATION) 8. C.RAJAGOPAL, S/O.CHELLAPPAN PILLAI "PADMA" 9/164-1 "O" STREET, JAWAHAR NAGAR SASTHAMANGALAM VILLAGE, THIRUVANANTHAPURAM (DEPUTY SUPERINTENDENT OF POLICE,THIRUVANANTHAPURAM RURAL POLICE NARCOTIC CELL) 9. RETNAKARAN NAIR, S/O. SUKUMARA PILLAI THORANKODE PUTHUVAL PUTHENVEEDU, VATTIYOORKAVU, RANDAMADA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.T.A.SHAJI FOR R8 SRI.B.RAMAN PILLAI. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/07/2008, ALONG WITH CRRP NO. 2308 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 * * * * * * * * * * * * * * * * * * Dated: 15-07-2008 ORDER The first of the revisions is filed by the State and the other revision is filed by the de facto complainant. In both the revisions the order challenged is the very same order dated 27- 6-2008 passed by the Chief Judicial Magistrate, Thiruvananthapuram, in C.M.P. No. 2264 of 2008 in C.C. 523 of 2008. 2. Sr. Advocate Sri. P.G. Thambi, the learned Director General of Prosecutions who is also the Public Prosecutor, High Court of Kerala, made the following submissions before me:- The video capsules, the compact discs and the audio cassettes will have to be read in evidence by playing the same in court or by getting the contents of the cassettes transcribed into writings for a better appreciation and evaluation of those electronic documents. The whole process, if permitted will take only two hours and the Chief Judicial Magistrate was wrong in Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:2:- not allowing the request made by the Special Public Prosecutor in the above case. It was on the request made by Sri. Jacob Punnoos, the Addl. Director General of Police that the State has filed this Revision. 3. Advocate Sri. Shaji Thomas, the learned counsel appearing for the de facto complainant]/petitioner in Crl.R.P. No. 2308 of 2008 made the following submissions before me:- This is a case in which the occurrence took place in the year 1993 and the de facto complainant is even now struggling for justice. This case had a chequered career. The main offenders in this case are high ranking police officers and the initial investigation was one sided and tardy and the de facto complainant (Sabu George) had to approach this Court for changing the investigating agency. A Division Bench of this court had monitored the investigation after entrusting the same with the present investigating officer namely Sri. Jacob Punnoos who had filed 7 interim reports before the Division Bench. The de facto complainant was abducted and brutally manhandled and a false case was fabricated against him consequent on the Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:3:- criminal conspiracy hatched by Sri. Joseph Thomas, I.P.S. the then Additional Director General of Police (A1) and others. During the course of investigation, the de facto complainant had brought to the notice of the Division Bench of this Court about the recording of video and audio cassettes on 6-1-1998 in the house of P.W.2 (Joseph Kuruvinakunnel) where the first accused had visited in the presence of some of the prosecution witnesses including the de facto complainant. During the course of the conversation A1 had confessed his complicity in the occurrence. It was on the directions of the Division Bench of this Court that the investigating officer took custody of the video and audio cassettes from P.W.2. Subsequently, as permitted by the Division Bench the investigating officer had transcribed the contents of the video and audio cassettes into compact discs at Riyan Digital Studio Ernakulam. It was for a better appreciation of those compact discs which are primary evidence that the Special Public Prosecutor filed C.M.P. No. 2264 of 2008. Sec. 65 (B) of the Evidence Act has no application to the said compact discs. The compact discs which are before court are Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:4:- “documents” within the meaning of Sec. 3 of the Evidence Act. In Yusuf Ali v. State of Maharashtra – AIR 1968 SC 147, Rama Reddy v. V.V. Giri - AIR 1971 SC 1162, R.M. Malkhani v. State of Maharashtra – AIR 1973 SC 1571 and Z.B. Bhukhari v. B.R. Mehra – AIR 1975 SC 1788 the Apex Court has held that tape recorder conversation is an admissible piece of evidence provided the voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know the same and the accuracy of what has been recorded is proved by the maker of the record so as to rule out possibilities of tampering with the record and also that the subject matter recorded is relevant according to the rules of relevancy under the Evidence Act. To the same effect is the decision of a learned single judge of this Court in Pootholi Damodaran Nair v. Babu – 2005 (2) KLT 707. 4. Adv. Sri. T.A. Shaji, the learned counsel appearing for the 8th accused made the following submissions before me:- This is a case which the occurrence itself allegedly took place in the year 1993. The charge-sheet was filed on 20-5- Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:5:- 2000. Out of the 54 witnesses, the prosecution has already examined 41 witnesses and the only witness who remains to be examined is Sri. Jacob Punnoos, the investigating officer (CW 54). The prosecution has got marked 69 documents as Exts.P1 to P69. In spite of earnest efforts made by the Chief Judicial Magistrate, Thiruvananthapuram, to expedite the trial, the same could not be concluded due to the dilatory tactics adopted by the de facto complainant who had engaged a private counsel to conduct the prosecution. The only allegation against the 8th accused (C.Rajagopal) is that at the relevant time he who was the Circle Inspector of Fort Police Station, Thiruvananthapuram had verified the investigation conducted by the Assistant Sub Inspector during the initial four days. The 8th accused superannuated from service on 31-3-2008 while working as Assistant Inspector General of Police, Public Grievances, in the Kerala Police Department on attaining the age of 55 after 34 years of blemishless service. He has received as many as 60 rewards/good service entry. Taking note of the outstanding and meritorious service of the 8th accused his name has been included Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:6:- in the list of officers for selection to the I.P.S. promotion. The pendency of C.C. No. 523 of 2000 before the Chief Judicial Magistrate, Thiruvananthapuram will deprive the 8th accused, for ever his chance of promotion. In fact, the 8th accused had filed Criminal M.C. 2345 of 2008 before this court seeking a direction to the Chief Judicial Magistrate to dispose of the case expeditiously and within one month. As per order dated 7-7- 2008, this Court after hearing the learned Public Prosecutor and after calling for a report from the Chief Judicial Magistrate, directed the court below to dispose of the case by the Ist week of August 2008 if possible, or at any rate, on or before 30-08- 2008. It was suppressing the said direction that both the State as well as the de facto complainant have filed the present Revisions. In fact a stay of the trial was also obtained by the State in Crl. R.P. 2272 of 2008. The present revision is filed as part of a ploy to see that A8 is somehow or other prevented from getting selected to the IPS Cadre. 5. Adv. Sri. B. Raman Pillai , the learned counsel appearing for the other accused made the following submissions Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:7:- before me:- The alleged conversation between the first accused in the presence of Pws 1, 2, 22, 24 and 25 took place on 6-1-1998 in the house of P.W.2. Mos 5 to 7 were seized by the Investigating Officer on 24-11-1998. Subsequently, as permitted by this Court by its order dated 17-3-1999 the video capsules and audio cassettes were converted into compact discs from the Riyan Studio at Ernakulam. Right from the beginning, the accused have been disputing the genuineness of the video capsules and the audio cassettes. P.W.22 who is the daughter of P.W.2 is the person who had allegedly videographed the conversation on 6-1-1998. On two of the occasions when they were questioned by the police they had no case that there was such a conversation on 6-1-1998 or that it was recorded by P.W.22. It was only subsequently that P.Ws 2 and 22 came out with such a conversation and tape recording of the same by P.W.22. Even at that time, the video capsules and the audio cassettes were not produced before the investigating officer. Subsequently some time in Nov. 1998 P.W.1 produced the video capsules before the Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:8:- investigating Officer. Some time in March 1999, P.W.2 produced two audio cassettes stating that they contain the conversation recorded in the video capsules. Thereafter on the strength of the order dated 17-3-1999 passed by the Division Bench of this Court the video capsules and the audio cassettes were converted into compact discs at the Riyan Studio, Ernakulam. The video capsules and the audio cassettes were also transcribed at Riyan Studio. However, the transcription was not produced nor a copy given to the accused. No attempt was made to play the video capsules using the adapter produced in court during the examination of P.Ws 1, 2, 22, 24 and 25. So far, no attempt has been made to conduct the voice identification test in relation to first accused and P.Ws 1, 2 , 22 24 and 25. If the video capsules and audio cassettes were to be played when the investigating officer (CW 54) is being examined, no useful purpose will be served since the contents of those questioned documents were never put to any of the concerned witnesses and it will be a Herculean task to re-summon those witnesses at this distance of time. One of the main witnesses Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:9:- (PW25) is no more also. Transcribing the contents of the compact discs, the authenticity of which itself is disputed by the defence, is in the realm of investigation which cannot be permitted to be conducted during the fag-end of the trial. JUDICIAL RESOLUTION 6. After hearing all parties at length, I see considerable force in the submission made by the defence Advocates. The case of the prosecution in C.C. No. 523 of 2000 pending before the Chief Judicial Magistrate, Thiruvananthapuram is that the nine accused persons (of whom 8 are police officers of the rank commencing from a constable to Addl. Director General of Police) in pursuance of the criminal conspiracy hatched by them abducted P.W.1 (Sabu George) the de facto complainant and brutally manhandled him and fabricated false records and foisted a false case against him as Crime No. 20/93 of Fort Police Station, Thiruvananthapuram under Sec. 394 I.P.C. and thereby committed offences punishable under Sections 465, 471, 365, 342, 506(ii) and 323 read with Sec. 109, 120 B and 34 I.P.C. The said occurrence allegedly took place in the year 1993. Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:10:- Consequent on the refusal on the part of the Fort Police to register a crime the de facto complainant had moved this Court and after the direction of this Court the Fort Police registered Crime No. 32 of 1996 against the 9 accused persons for the aforementioned offences. The crime was so registered only after this Court entrusted the investigation with Sri. Jacob Punnoos, IPS whose name figured in the panel of police officers submitted by the State. It is two years after the registration of the crime in the year 1996 that on 6-1-1998 the first accused (V. Joseph Thomas, IPS) who was the then Additional Director General of police is alleged to have confessed to a priest (PW25) from the house of P.W.2 (Joseph Kuruvinakkunnel) in the presence of P.W2, Sabu Goerge (PW1) the de facto complainant, P.W.24 (Jose G. Kuruvinakunnel, first cousin of P.W2) and P.W.22 (Rose Mary, daughter of P.W.2.) The conversation involving the extra judicial confession by A1 is alleged to have been videographed by P.W.22. However, the audio portion in the video casset is claimed to have been weak necessitating separate recording of the audio portion in two audio cassets produced still later. MO2 Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:11:- series are stated to be the four numbers of the video capsules and MO7 series are claimed to be the audio cassets. But the fact remains that when P.Ws 1 and 2 were questioned in March 1998 and subsequently in August 1998 by the present investigating officer they had no whisper about any confession by A1 or any conversation being recorded on 6-1-1998 or the existence of video capsules allegedly recorded by P.W.22. It was only in October 1998 that P.Ws 2 and 22 for the first time revealed about the tape recorded conversation. Even at that time they did not produce the video capsules before the investigating officer. It was some time in the month of November 1998 that the video capsules were produced before the investigating officer. When the investigating officer filed a report before court for sending the MOs to the Forensic Science Laboratory, Thiruvananthapuram. it was opposed by the de facto complainant contending inter alia that since A1 was having a relative of his in the Forensic Science Laboratory, Thiruvanantahpuram there was every likelihood of the video capsules being tampered with. However, the capsules were sent by the Court. But the Forensic Science Laboratory, Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:12:- Thiruvananthapuram returned the same stating that there was no facility in the lab even to play the capsules. It was in March 1999 that P.W.2 produced the two audio cassets alleging that the audio portion in the video capsules was inaudible. It was only then that a special adapter for playing the video capsules was produced before the investigating officer. Subsequently, pursuant to the order passed by this court on 17-3-1999 the video capsules and the audio cassets were converted into compact discs at the Riyan Studio, Ernakulam. It is admitted that the contents of the video capsules and audio cassets were also transcribed at Riyan Studio. But, for reasons best known to the prosecution, the transcript was not produced before the court nor any copy furnished to the accused. The Ist accused had been emphatically disputing the alleged conversation as also the genuineness of the said conversation as well as the alleged videographing of the same as claimed by P.W.22. Still the contents of the video capsules or the audio cassets or even the compact discs into which the contents were allegedly transferred, were never put to PWs 1,2,22, 24 and 25 Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:13:- who were the persons allegedly present in the house of P.W.2 when the so called confession by A1 was made. The trial in the case started in the year 2000 and as on today 41 witnesses have been examined as Pws 1 to 41. The next witness to be examined is the investigating officer Sri. Jacob Punnoos who is the last witness. The testimony of P.Ws 1, 2, 22, 24 and 25 runs into several pages. Their examination and cross-examination were completed long ago. It was when the investigating officer was about to be examined that the private counsel who was permitted to be engaged by the de facto complainant under Sec. 302 Cr.P.C. and who was conducting the prosecution throughout, filed C.M.P. 2264 of 2008 before the court below seeking permission to read in evidence the contents of the video capsules, audio cassets and compact discs by playing the same in court or by deputing a commission for getting the contents transcribed into writings for a better appreciation and evaluation of the contents of the said electronic documents. As rightly contended by the defence, the said request for transcribing the contents of the electronic documents through an outside agency Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:14:- is something in the realm of investigation which should have been done long back and not at the fag end of trial in a manner extremely prejudicial to the accused. Even the transcription effected at Riyan Studio, Ernakulam, pursuant to the orders passed by this Court were not produced before the Court at any point of time. Moreover, the priest (P.W.25) in whose presence the first accused allegedly made the confession from the house of P.W.2 has died after his examination and cross-examination in Court. The contents of the electronic documents were not put to P.Ws.1, 2, 22, 24 and 25. Even if the contents of those electronic documents were to be played in court during the examination of the investigating officer, no useful purpose will be served by the same since the voice identification test of A1 and P.Ws 1, 2, 22, 24 and 25 has not been conducted so far. Unless there is the admitted voice specimens of the above persons particularly A1 before court, it cannot be concluded that the alleged conversation took place between the persons as stated by P.Ws 1, 2 and 22. Moreover, these are all matters which should have been done long prior to 20-5-2000 when the Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:15:- charge sheet was filed before the Court below. Such steps which are in the realm of investigation cannot be allowed to be taken during the fag end of the trial. Investigation cannot be permitted even when the accused is in the dock facing trial. If the request made by the private counsel appearing for the de facto complainant is allowed it will be a glaring instance of the Court allowing the prosecution to fill up the serious lacunae in the investigation. Under these circumstances the learned chief Judicial Magistrate cannot be faulted in dismissing the petition filed by the private counsel appearing for the de facto complainant. I, therefore, uphold the said order. 7. I have strong reasons to suspect that the petition filed before the Chief Judicial Magistrate was with some ulterior motives. First of all, it is not the Public Prosecutor who is conducting the prosecution in C.C. 523 of 2000 before the Chief Judicial Magistrate. The prosecution is conducted by a private counsel engaged by the de facto complainant after obtaining permission from the court under Sec. 302 Cr.P.C. If the petition filed by such private counsel was dismissed, he, or at least the Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:16:- de facto complainant, would have been the person aggrieved by the dismissal of the said petition. That is precisely why the de facto complainant has challenged the impugned order by filing Crl.R.P. 2308 of 2008. But even before that, the Public Prosecutor, High Court of Kerala (Sri. P.G. Thampi) filed Crl.R.P. 2272 of 2008 before this Court on 8-7-2008 and made a special request to move a today motion on that day itself. Accordingly, on 8-7-2008 itself the Revision (Crl.R.P. No. 2272 of 2008) was taken up for admission after lunch. It was admitted and a stay of trial was also obtained for two weeks. In fact, at the instance of the 8th accused (C. Rajagopal) a learned Single Judge of this Court (Justice R. Basant) had after hearing the Public Prosecutor in Crl.M.C. 2345 of 2008 and after taking stock of the inordinate delay in the trial of the case and the apprehension of the 8th accused that he may loose his promotion to the IPS cadre if the trial of the case was allowed to be further protracted, as per order dated 7-7-2008 directed the disposal of the case by the Chief Judicial Magistrate, if possible, by the first week of August, 2008 and at any rate before 30-08-2008. The order impugned in Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:17:- these Revisions was passed on 27-6-2008. The learned Single Judge who disposed of Crl.M.C. 2345 of 2008 filed by A8, had called for a report from the Chief Judicial Magistrate. In the report dated 30-6-2008 of the Chief Judicial Magistrate, the learned Magistrate had mentioned about the dismissal of C.M.P. 2264 of 2008 on 27-6-2008 refusing to transcribe the contents of the audio/video cassets. Still the State had no grievance about the said order on 7-7-2008 when the learned Single Judge disposed of Crl.M.C. 2345 of 2008. Even in the impugned order the learned Magistrate has made mention of the direction passed by this court in Crl.M.C. 2345 of 2008. It was thereafter that the State filed Crl.R.P. No. 2272 of 2008 and obtained a stay of trial. Sri. P.G. Thampi submitted before me that the Revision was filed on the request of Sri. Jacob Punnoos the investigating officer who cannot plead ignorance of the direction passed by the learned Judge in Crl.M.C. No. 2345 of 2008. The irresistible inference can only be that the attempt to further protract the trial is only to see that the 8th accused who stands a good chance of getting I.P.S. cadre is deprived of the same. Who are the Crl. R.P. Nos. 2272 of 2008 and 2308 of 2008 -:18:- persons who played this dirty game by abusing the process of this Court ? Is the Director General of Police aware of such machinations? Is the Government aware of these manipulations ? Or, is it done with the connivance or tacit consent of the higher ups ? 8. This is the second case coming up before me within a span of two weeks in which deep-rooted conspiracy and commission of grave offences are alleged against high ranking police officers. No doubt, the accusations may be true or may not be true. But when functionaries whose primary duty is prevention and detection of crimes and bringing the offenders to justice, themselves turn out to be formidable criminals, Courts cannot remain insensitive to the same on the jaundiced alibi that the “robes” should stay detached and be functionally free from, if not averse to, the stark realities about men and matters even when they come up for judicial resolution before them. It is rank escapism for Courts to remain mute and inert to these sinister designs by