IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.MC.No. 1447 of 2006 --------------------------------------- SC.303/2004 of ADDL.DISTRICT & SESSIONS COURT (FAST TRACK COURT NO.II) , MANJERI CP.27/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... PETITIONER/PW8: ---------------------------- B.SOMASEKHARAN UNNITHAN, AGED 54 YEARS, S/O.BHASKARA PILLAI, DEPUTY SUPERINTENDENT OF POLICE, KAYAMKULAM, ALAPPUZHA DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT/STATE: ---------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. KOCHI 31. PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1447 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September 2009 ORDER The investigating officer in Crime No.650/02 of Nilambur Police Station has filed this petition under Section 482 of the Code of Criminal Procedure seeking to expunge the remarks made by the Additional Sessions Judge (Fast Track II) Manjeri in S.C.303/04. 2. Two persons were prosecuted by the police in the crime referred to above for the offences punishable under Sections 376, 342, 109, 506(i) read with Section 34 IPC. The gravamen of the charge was that the accused had enticed away PW3, the prosecutrix, one of the wives of accused No.1 and taken her to a rented house at Nilambur and raped her. 3. When the case came up for trial the husband of the prosecutrix, who was arraigned as accused No.1 was reportedly absconding. Therefore, only accused No.2 faced trial. 4. Prosecution examined PWs1 to 8. Exts.P1 to P8 were marked on the side of the prosecution. Exts.D1 to D5 were marked on the side of the defence. The learned Judge, after evaluating his oral and documentary evidence available on record, found that the prosecution had failed to substantiate the charge against the accused and accordingly acquitted him. While doing so, the learned Single Judge, made certain observations Crl.M.C.No.1447 OF 2006 :: 2 :: against the petitioner who was examined as PW8 in the case. The above remarks/observations made by the learned Judge are assailed in this petition. 5. Learned counsel for the petitioner invites my attention to Paragraph 16 of the judgment. It is true that most of the observations or remarks made by the learned Judge appear to be totally unwarranted and uncharitable. 6. It appears that PW3, prosecutrix, had a case that apart from the two accused who were charge sheeted, 11 others had also raped her in the course of her stay in the rented house at Nilambur. In the complaint given by PW3 before the police, she had stated that 11 identifiable persons apart from the two accused had raped her. But in the course of investigation, the prosecutrix had given a statement before the Magistrate under Section 164 of the Code of Criminal Procedure stating that only the two accused had raped her and none else. PW8, the investigating officer (petitioner), when he was examined in the case deposed that he had carried on with the investigation, after getting a copy of the statement given by the prosecutrix before the Magistrate and filed the final report after questioning all the witnesses. In the course of investigation, he could not gather any material to implicate the other so called “identifiable persons”. Crl.M.C.No.1447 OF 2006 :: 3 :: 7. However, when the prosecutrix was examined before the court she deposed that she was constrained to give the statement under Section 164 of the Code since she was paid a sum of Rs.1,00,000/- by one advocate. She had a further case that the statement given by her before the Magistrate was false and that she stated so because she was paid money at the behest of the accused. 8. The learned Sessions Judge made the offending remarks and observations against the petitioner on the assumption that it was only because of the lapse on the part of the petitioner that he had failed to implicate the other “eleven persons” as accused. Learned Sessions Judge proceeded to observe further that accused No.2 ought to have been made a witness and not an accused in the case. According to the learned Judge, accused No.2 would have helped the investigating officer to identify the other eleven persons, if the petitioner had conducted a competent proper investigation. According to the learned Judge, the action of the investigating officer in taking the prosecutrix before the learned Magistrate to record her statement under Section 164 of the Code was “clothed with some ill motives”. I fail to understand as to why the learned Sessions Judge should have allowed his imagination to run wild in the absence of any material to show that the investigating officer had in any way misused his power in the matter of investigation. More Crl.M.C.No.1447 OF 2006 :: 4 :: importantly, the learned Sessions Judge has proceeded to make the unwarranted observations against the petitioner without affording any opportunity to him. It is trite that the court should refrain from making any observation against an investigating officer in a criminal case, if it is not absolutely warranted in the facts and circumstances of the case. Even if the court wants to do so, it has to be done with circumspection and caution and that too only if there are sufficient materials before it to show that the officer was lax in discharging his duties. 9. Having carefully perused the remarks made by the learned Sessions Judge in paragraph 16 of the judgment in S.C.303/2004 on the file of the Additional Sessions Court (Fast Track Court No.II), Manjeri, I am satisfied that those remarks are totally unwarranted. Therefore, those remarks are expunged. Crl.M.C. is allowed. (A.K.BASHEER, JUDGE) jes