IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).NO. 4944 OF 2011(P) --------------------------------------- PETITIONER(S): ----------------------- 1. PRASANTH, AGD 37 YEARS, S/O.DEVARAJAN, T.C.3/627, ATTIPRA HOUSE, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. V.PRASANNA, T.C.3/627, ATTIPRA HOUSE, ATTIPRA VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.MADHUSOODHANAN NAIR SRI.K.K.SETHUKUMAR SRI.K.N.RADHAKRISHNAN(THIRUVALLA) RESPONDENT(S): -------------------------- 1. DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 2. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY. 3. ASSISTANT COMMISSIONER OF POLICE, NARCOTIC CELL, THIRUVANANTHAPURAM CITY. 4. CIRCLE INSPECTOR OF POLICE, PETTA POLICE STATION, THIRUVANANTHAPURAM. 5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVRNMENT, HOME DEPARTMENT, GOVERNMNT SECRETARIAT, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SMT. M.K. PUSHAPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.4944 of 2011 ==================================== Dated this the 3rd day of March, 2011 J U D G M E N T First petitioner is the 10th accused in Crime No.51 of Petta Police Station, Thiruvananthapuram and S.C. No.1540 of 2009 of the court of learned Additional Sessions Judge-II, Thiruvananthapuram for offences punishable under Sections 120B, 143, 147, 148, 148, 324, 307 and 302 read with Section 149 of the Penal Code, Sections 3 and 5 of the Explosives and Substance Act and Section 27 of the Arms Act. Second petitioner is the mother of first petitioner. She filed Ext.P1, representation before the Home Secretary, Government of Kerala, Thiruvananthapuram stating that respondent 4, the Circle Inspector who is investigating the case is adopting a partisan attitude in the matter attempting to somehow implicate the first petitioner in the incident and for the said purpose tutored certain witnesses and recorded their statement. It is stated that documents prepared by the 4th respondent would show the illegal interference made by him and the Assistant Sub Inspector in the course of investigation and with a view to somehow implicate the first petitioner in the crime and W.P(C) No.4944 of 2011 -: 2 :- thereby ruin his career for ever. She alleged that the only aim of the Investigating Officer is to put first petitioner in custody and project him in the Society as a criminal. She therefore requested that investigation may be conducted by some higher officials in the State Police Department to prove innocence of the first petitioner. Grievance of petitioners is that in spite of the Director General of Police (for short, “the DGP”) passing an order on 26.10.2007 on Ext.P1 directing that the Assistant Commissioner, Narcotic Cell Thiruvananthapuram City shall take up the investigation, verify the investigation conducted so far and ensure proper disposal purely on merits of the matter and the Assistant Commissioner was directed to confirm the action taken in the mater, the 4th respondent continued investigation disregarding the said order of the DGP and submitted Ext.P2, final report implicating the first petitioner also in the alleged incident. Learned counsel submitted that investigation conducted is unfair and partial so far as first petitioner is concerned. Further submission is that Ext.P3, statement of a witness was got recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure (for short, “the Code”) on 09.05.2007 as if it is a confession statement. Petitioners have produced Ext.P4, W.P(C) No.4944 of 2011 -: 3 :- affidavit of the said witness stating that he was compelled to give a statement like Ext.P3. Reliance is also placed on Ext.P5, statement of the said witness said to be recorded under Sec.161 of the Code to show that first petitioner is not involved in the incident. In the circumstances it is prayed that a direction for reinvestigation of the case by a higher authority may be issued. Learned counsel contended that it is the fundamental right of the first petitioner to have a fair investigation into his alleged involvement in the matter and particularly when it involves serious offences. Learned counsel submitted that even going by Exts.P3 and P5, involvement of the first petitioner is not disclosed. Learned Public Prosecutor submitted that there was no order passed by the DGP but there was only an endorsement on Ext.P1 and pursuant to that, the Assistant Commissioner, Narcotic Cell, Thiruvananthapuram City verified investigation conducted by the 4th respondent, found that investigation has proceeded in the correct line and that matter was reported to the DGP with a statement that in the circumstances it is not necessary to hand over investigation to any other Officer. 2. I find from Ext.P1, representation made by the second petitioner to the Home Secretary an endorsement made by the W.P(C) No.4944 of 2011 -: 4 :- DGP on 26.10.2007 which is to the effect I have stated above. I am not going into the question whether it is merely an endorsement or an order passed by the DGP. The endorsement or order as the case may be the Assistant Commissioner, Narcotic Cell, Thiruvananthapuram City is to take up investigation, and verify the investigation conducted so far and ensure proper disposal purely on merits of the matter. Assuming that the said direction was not complied by the Assistant Commissioner or the 4th respondent I am not inclined to think that for the said reason the final report submitted by the Circle Inspector under Sec.173 (2) of the Code suffered from any illegality or irregularity. If the order passed by the GDP is not complied it is a different matter and it is for the Department concerned to take appropriate action against the erring Officer. The court is concerned with the legality and regularity of the final report submitted under Sec.173(2) of the Code by an Officer who is competent to investigate into the offences under Chapter XII of the Code. Hence assuming that the direction, order or endorsement as the case may be made by the DGP on 26.10.2007 is not complied I am unable to accept the argument that for the said reason the final report submitted by a competent Officer should go and there should be a W.P(C) No.4944 of 2011 -: 5 :- reinvestigation of the matter. Along with that I also must bear in mind the submission made by the Public Prosecutor that the Assistant Commissioner, Narcotic Cell had verified the investigation and reported to the DGP that the investigation is proceeding in the correct line and change of Investigating Officer is not required. At any rate, the alleged impropriety or partiality if any in the 4th respondent continuing the investigation even after the direction, order or endorsement as the case may be of the DGP is a matter which the first petitioner is free to bring to the notice of the learned Sessions Judge in the course of trial of the case. 3. Another ground urged is that the first petitioner is falsely implicated in the case by the 4th respondent for reasons known to him. According to the learned counsel the first petitioner has a fundamental right to have a fair investigation of the case. There could be no doubt on the principle stated by the learned counsel. Question is whether reinvestigation is required at the instance of the first petitioner who is one of the accused in the case. Exhibit P3 is the statement recorded by the learned Magistrate under Section 164 of the Code. Whether that statement is recorded in accordance with the law is a matter W.P(C) No.4944 of 2011 -: 6 :- which the trial court has to decide. I am not impressed by the argument of learned counsel that in the light of Ext.P5, affidavit of the witness concerned, Ext.P3, statement recorded by the learned Magistrate must be given a goby. It is open to the witness to give appropriate evidence in court as to matters within his knowledge. Having regard to the facts and circumstances stated above I am not inclined to think that reinvestigation of the case is required as prayed for by the petitioners. 4. Next contention is that even the materials on record do not show involvement of the first petitioner in the alleged incident. That is a matter which the first petitioner could urge before the learned Sessions Judge at the stage of framing charge if that stage is not over. Writ Petition is dismissed with the above observation. THOMAS P. JOSEPH, JUDGE. vsv