IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 WP(C).No. 1100 of 2011(J) ------------------------- CRIME NO.582 OF 2010 OF PANANGAD POLICE STATION PETITIONER(S): --------------- A.N.SANJEEVAN,AGED 43, S/O.NARAYANAN,AMBELIPADAM VEEDU, AMBELIPADAM ROAD, VYTTILA,COCHIN-682019 BY ADV. SRI.JOHNSON MANAYANI SRI.BENHUR JOSEPH MANAYANI RESPONDENT(S): --------------- 1. SIBY THOMAS,SUB INSPECTOR OF POLICE, (UNDER SUSPENSION)PANANGAD POLICE STATION, PANANGAD P.O.,ERNAKULAM DISTRICT,PIN-680665 2. STATE OF KERALA, REP.BY ITS SECRETARY TO HOME AFFAIRS, SECRETARIAT,TRIVANDRUM-695001 3. DIRECTOR GENERAL OF POLICE VYLLAYAMBALAM,TRIVANDRUM-695001 4. INSPECTOR GENERAL OF POLICE (HQ)TRIVANDRUM-695001 5. CITY POLICE COMMISSIONER, COCHIN CITY,COCHIN-682031 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P(C). No.1100 of 2011 -------------------------------------- Dated this the 25th day of March, 2011. JUDGMENT Petitioner is accused No.3 in Crime No.582 of 2010 of Panangad Police Station for offences punishable under Sections 332 of the Indian Penal Code (for short, “the IPC”) and Section 3(2) of the Prevention of Damage of Public Property Act. Case is that on 16.04.2010 at about 11.50 a.m. a K.S.R.T.C. bus was involved in an accident at Vyttila, the local people including petitioner who gathered there assaulted driver and damaged the bus. It is alleged that assailants obstructed the driver of the K.S.R.T.C. bus from discharging his official duty. According to the petitioner, he is a known social activist of the area engaged in various social and charitable activities and he has been falsely implicated by the then Sub Inspector, Panangad who was enmical towards him for various reasons. According to the petitioner, that Sub Inspector was later suspended from service. It is the contention of petitioner that at the time the alleged incident occurred he was not at Vyttila, instead was engaged in distributing food at Little Flower Church, Elamkulam. Learned counsel submitted that the allegations against petitioner are prima facie false, mala fide and intended to falsely implicate petitioner and hence this Court may invoke its power under Section 482 of the Code of Criminal Procedure (for short, “the Code”). It is also submitted by the learned counsel that regarding the false implication of petitioner various complaints were made to the superior police WP(C) No.1100/2011 2 authorities but, no enquiry was conducted in that regard. Learned Public Prosecutor submitted that on the complaint alleging false implication of petitioner, the then Circle Inspector conducted an enquiry and the enquiry revealed that allegation is not correct. It is submitted by learned Public Prosecutor that the final report is already filed in Crime No.582 of 2010. 2. Learned counsel points out that when the defacto complainant gave statement to the Police on 16.04.2010 at about 7.30 p.m. (alleged incident was on the same day at 11.50 a.m.) he was not able to mention the names of the assailants. But the very next day a report is filed as if the defacto complainant had mentioned the name of the said three persons and the petitioner. Learned counsel has invited my attention to Ext.P3, remand report submitted by the Sub Inspector before the learned Additional Chief Judicial Magistrate, Ernakulam where the name and address of three accused as accused 2 to 4 (petitioner is arrayed as accused No.3) are mentioned but, there is no mention about accused No.1. Learned Public Prosecutor in answer would say that on the same day the defacto complainant had identified petitioner also. I am not going into that controversy in this proceeding in view of the order I propose to pass. 3. As against the version of prosecution that petitioner is involved in the incident (notwithstanding that in the FIR the defacto complainant referred only to three persons as involved in the incident) petitioner has a case that he was not even present at the place of occurrence at the relevant time and he was engaged in distribution of free food at Little Flower Church, Elamkulam. He WP(C) No.1100/2011 3 produced Ext.P2, certificate allegedly issued from the said Church which is to the effect that petitioner was engaged in distributing free food in that Church on 16.04.2010 from 10 a.m. to 2.30 p.m. Exts.P4 to P6 are various complaints/representations made to the superior police authorities referring to the alleged false implication of petitioner in the incident. Ext.P9 is yet another complaint submitted by wife of petitioner to the Circle Inspector, Ernakulam Town South Police Station where also it is stated that the then Sub Inspector falsely implicated the petitioner in the incident and illegally arrested him on 17.04.2010 at about 11.30 a.m.. There are also certain allegations in Ext.P9 concerning the then Sub Inspector and his alleged enmity towards the petitioner. Ext.P10 is a complaint submitted by the petitioner to the Secretary, Home Department where also the same grievance is aired. 4. Though the learned Public Prosecutor submitted that on the said complaints the Circle Inspector has conducted an enquiry, it would appear and to say the least, neither petitioner nor the Priest who issued Ext.P2, certificate (stating about the presence of petitioner at Little Flower Church, Elamkulam) were questioned either in connection with the enquiry relating to the complaints preferred against the Sub Inspector or while investigating Crime No.582 of 2010. The Officer who conducted enquiry into the complaints had to enquire with petitioner and the Priest who issued Ext.P2, certificate and other persons who were capable of giving information regarding the alleged presence of the petitioner at the Church at the relevant time. The Officer who investigated the case also had a responsibility to look into that matter. If petitioner claimed that WP(C) No.1100/2011 4 he was elsewhere at the relevant time, the Investigating Officer had the responsibility to look into the matter and rule out the false implication of petitioner, if any. On hearing learned counsel for petitioner and the learned Public Prosecutor and going through the records I am not impressed by the enquiry said to be conducted by the Circle Inspector regarding the complaints made against the Sub Inspector as regards alleged false implication of the petitioner. 5. An accused in the case cannot select the persons who is to investigate the case against him. But, it is not as if in situations of this nature this Court is precluded from directing proper investigation, if necessary by another officer. Even if the final report is already filed, this Court has the power to interfere in the matter and direct a further investigation. Having regard to the rival contentions made by the parties and the circumstances stated above, I am inclined to think that an Officer senior in rank to the Sub Inspector has to conduct further investigation looking into all aspects of the matter including the claim of petitioner that he was not present at the scene of occurrence at the relevant time. Since the learned Public Prosecutor submitted that the Circle Inspector who already conducted enquiry on the complaints is transferred and another Officer has taken charge, there is nothing wrong in the present incumbent in the Office of Circle Inspector conducting further investigation. But which Officer has to conduct further investigation is a matter which the Commissioner of Police, Kochi shall decide. Resultantly this petition is disposed of in the following lines: WP(C) No.1100/2011 5 i. It is directed that further investigation shall be conducted in Crime No.582 of 2010 of Panangad Police Station by an Officer senior in rank to the Sub Inspector, Panangad as shall be appointed by the Commissioner of Police, Kochi. Needless to say that the Officer who is being entrusted with the further investigation will look into all aspects of the matter including the claim of petitioner. ii. The Commissioner of Police, Kochi is directed to issue necessary orders entrusting further investigation to an Officer senior in rank to the Sub Inspector, within two weeks from the date of receipt of a copy of this judgment which shall be made available to that Officer by the petitioner. Iii. I make it clear that I have not expressed any view either way on the version of petitioner regarding the incident and as to his alleged involvement in that incident. iv. Until submission of further report, further proceeding against petitioner in the court of learned Additional Chief Judicial Magistrate, Ernakulam pursuant to the final report already filed in Crime No.582 of 2010 of Panangad Police Station will stand in abeyance. THOMAS P.JOSEPH, Judge. cks