IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 Crl.MC.No. 1238 of 2010() --------------------- CRIME NO. 665 OF 2009 OF KOTTAYAM EAST POLICE STATION, KOTTAYAM PETITIONER(S): --------------- JOHN M.KURIAKOSE S/O.M.C.JOHN, MAILKKATTHU HOUSE, KANJIRATHUMMOODU, PUTHUPALLY VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.TOM JOSE (PADINJAREKARA) RESPONDENT(S): --------------- 1. THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM. 2. THE SUPERINTENDENT OF POLICE, KOTTAYAM. 3. THE CIRCLE INSPECTOR OF POLICE, KOTTAYAM EAST POLICE STATION,KOTTAYAM. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI. KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 1238 of 2010 * * * * * * * * * * * * * * * * * * Dated, this the 7th day of July 2010 ORDER In this petition filed under Section 482 Cr.P.C., the petitioner who is the victim as well as the brother of the de facto complainant (Juby @ John. M. John) in Crime No. 665 of 2009 of Kottayam East Police Station registered for an offence punishable under Section 307 read with Sec. 34 I.P.C. seeks further investigation by a superior officer not below the rank of the Dy.S.P. under the direct control of the Superintendent of Police, Kottayam. 2. The case of the prosecution is that due to previous enmity the first accused M.U. Varghese @ Uthup and his driver Sharan Sasi in prosecution of their common intention to assassinate the petitioner fired three rounds with a firearm at the petitioner at 4 p.m. on 13-10-2009 resulting in the petitioner sustaining grave injuries and thereby the Crl.M.C. No. 1238 of 2010 -:2:- accused committed an offence punishable under Sec. 307 read with Sec. 34 I.P.C. 3. The petitioner who was admitted in the Kottayam Medical College Hospital was subsequently transferred to the Amrita Hospital, Ernakulam due to the gravity of the injuries sustained by him. According to the petitioner, the first accused is a politically influential and financially sound person working as the Group Financial Controller of Al Sarafa Group, Abu Dhabi and is also holding the power-of-attorney of Abdul Rahaman Mohammed Abdul Rahaman, who is the Chief Executive Officer of Al Sarafa Group of Companies, in the United Arab Emirates. 4. The motive alleged behind the aforesaid crime is that the first accused had illicit relationship with Shinu Scaria , the wife of the de facto complainant and the de facto complainant had found out the above relationship through the telephonic conversation between the first accused and the said Shinu Scaria. According to the petitioner, the Crl.M.C. No. 1238 of 2010 -:3:- recorded conversation of the phone call is also available with the de facto complainant and was revealed to the police. But the Circle Inspector of Police, Kottayam East Police Station did not seize the call details of the mobile phone or even the C.D. containing the recorded conversation between the first accused and Shinu Scaria and which are available with the de facto complainant. 5. After the filing of this petition, according to the petitioner, the police merely seized a C.D. containing the recorded conversation between A1 and Shinu Scaria but did not seize the mobile phone containing the original record of the conversation which alone will be the primary evidence in a court of law where as the C.D. constitutes secondary evidence. 6. The C.I. of Police, Kottayam East Police Station has filed a statement detailing the case of the prosecution and stating inter alia as follows:- The owner of the gun (fire arm) which was used by the Crl.M.C. No. 1238 of 2010 -:4:- first accused has also been arrayed as A3. Crime No. 665 of 2009 of Kottayam East Police Station was originally registered for offences punishable under Section 307 read with Sec. 34 I.P.C. Subsequently, Sec. 5 read with Secs. 25 and 29 of Arms Act, 1959 were also added. On the directions of the Superintendent of Police, Kottayam Sec. 3 read with Sec. 25 (1-B) and 5 read with Sec. 27 (1) of the Arms Act were also incorporated. At present the offences are those punishable under Sections 307 and 201 read with Sec. 34 I.P.C. and Sec. 3 read with Sec. 25 (1-B) and Sec. 5 read with Sec. 27 (1), 25 and 29 of Arms Act, 1959. Subsequent to the arrest of A2 Saran Sasi on 16-10-2009 from Kottayam Railway Station , the Innova Car which was used by A1 and A2 to escape from the scene of crime after the incident was seized under a mahazar. 7. With regard to the specific allegation of the petitioner that the failure to seize the mobile phone belonging to Juby @ John .M. John (the de facto complainant) for decoding the call Crl.M.C. No. 1238 of 2010 -:5:- details and the recorded conversation , what is stated in paragraph 13 of the statement is that the conversation which is recorded in the C.D. as a piece of evidence will be produced before Court for establishing the intimacy between the first accused and Shinu Scaria. 8. It is unfortunate that even after the petitioner who is the victim coming out with a definite allegation regarding the failure to seize the mobile phone containing the primary evidence regarding the conversation, no attempt has been made to seize the mobile phone so as to decode the conversation as a piece of primary evidence. Instead, the C.I. of Police was content by seizing the C.D. containing the recorded conversation constituting secondary evidence of the same and that too after the filing of this Crl. M.C. In fact, the said evidence, if proved, will constitute the motive for the attempt on the petitioner's life as it was the petitioner who had revealed the intrigue between the first accused and Shinu Scaria. Crl.M.C. No. 1238 of 2010 -:6:- 9. Having regard to the facts and circumstances of the case, the gravity of the offence and the clout and influence weilded by A1 , I am of the view that this matter should be probed more deeply by a superior officer of unquestionable integrity and investigation skills. Accordingly, the investigation of Crime No. 665 of 2009 of Kottayam East Police Station shall be handed over to the Dy.S.P. Kottayam who shall conduct further investigation of the case under the supervision of the Superintendent of Police, Kottayam. After conducting a detailed investigation without leaving no stone unturned, the Dy.S. P., Kottayam shall file a final report before the Magistrate concerned expeditiously. This Crl. M.C. is allowed as above. V. RAMKUMAR, (JUDGE) ani. Crl.M.C. No. 1238 of 2010 -:7:-