CENTRAL BUREAU OF INVESTIGATION Vs. JITHA KUMAR

JUDGEMENT

(1.) The above petition has been filed under Section 482 of the Code of Criminal Procedure, for short, the 'Code' to quash Annexure-A2 charge framed by the learned Sessions Judge, Fast Track III, Thiruvananthapuram in S.C. No. 1542 of 2006 and to order de novo trial in the case on the basis of the report filed in R.C. 10/S/07/CBI/ SCB/Chennai.

(2.) Brief facts necessary for disposal of the petition can be summed up thus: Petitioner is the Central Bureau of Investigation, for short, the 'C.B.I', which was entrusted with the investigation of a crime, Crime No.704 of 2005 of Fort Police Station, Thiruvananthapuram involving the death of one Udayakumar allegedly on account of police torture while in custody at the Crl. M.C. No. 4957/2010 2 above police station. C.B.I was entrusted with the investigation by order of this Court in a writ petition filed by the mother of the victim at a stage when trial against three accused persons on the basis of a report filed after completion of the investigation by the Crime Branch was in progress before the Sessions Judge with the case numbered as S.C.No.1542 of 2006. Two crimes registered as Crime Nos. 703 of 2005 and 704 of 2005 of Fort Police station have bearing over the death of Udayakumar, the investigation of which was later conducted by the C.B.I. Initially, local police conducted the investigation over such crimes, but, later on, it was taken over by the Crime Branch Crime Investigation Department. Udayakumar, who was proceeded with another in Crime No.703 of 2005 under Section 41(1)(d) and 102 of the Code had developed some bodily distress while in custody and later after taken to hospital he was declared dead was the basis to register Crime No.704 of 2005 under Section 174 of the Code. However, investigation by the local police and, later, by the CBCID coming to a conclusion that the death of Crl. M.C. No. 4957/2010 3 Udayakumar was on account of torture in police custody, three police personnel were charge sheeted in Crime No. 704 of 2005 for the offences punishable under Sections 323, 331, 348 and 302 read with Section 34 of the Indian Penal Code. After committal proceedings, the case against those accused was numbered as S.C. No. 1542 of 2006 on the file of the Additional Sessions Judge, Fast Track Court III, Thiruvananthapuram. The accused in the case pleading not guilty, the trial proceeded, and 34 witnesses on the side of the prosecution were examined and some of them including police officials turned hostile. Special Public prosecutor appointed in the case thereupon moved an application for further investigation in the case. The mother of the victim also approached this Court with a writ petition for investigation by the C.B.I. This Court vide judgment dated 20.09.2007 ordered for further investigation of the case by the C.B.I. Accordingly, petitioner C.B.I took over the investigation of both the crimes, Crime Nos.703 and 704 of 2005 of Fort Police Station, Thiruvananthapuram, re-registering the crimes as Crl. M.C. No. 4957/2010 4 R.C. 5/S/08 /CBI/SCB/ Chennai and R.C. 10/S/07/CBI/SCB/Chennai respectively. After further investigation, arriving at the conclusion that Udayakumar had a homicidal death on account of torture while in custody by three police personnels, A1 to A3, and that, after his death fabrication and falsification of records were made to screen the offenders from legal punishment, in which, senior police officials were also involved, and, accordingly, Crime No. 703 of 2005 was falsely registered at the Station, C.B.I filed supplementary charge sheet against the accused, 14 in number, imputing offences under Sections 323, 331, 348 and 302 read with Section 34 of the Indian Penal Code and Sections 120-B read with Sections 201, 116 and 193 of the Indian Penal Code against A1 to A3, and offences punishable under Section 120-B read with Sections 331, 348, 302, 116 and 193 of the Indian Penal Code against A4 to A14 in the Crime numbered as R.C.10/S/07/CBI/ SCB/Chennai which arose form Crime No.704 of 2005 of Fort Police Station. A separate charge was also filed against 11 accused persons, who included some arrayed as accused in the other case, for offences punishable under Section 120-B read with Sections 466, 474, 193, 167 and 201 of the Indian Penal Code in R.C. 5/S/08/CBI/SCB/Chennai which arose from Crime No. 703 of 2005 of Fort Police Station, Thiruvananthapuram.

(3.) Though Crime No.703 of 2005 had been initially registered against the victim and another by the local police, after investigation, the C.B.I came to the conclusion that fabrication and falsification of records were made in registering of that crime to screen the offenders who caused the homicidal death of the victim, and accordingly, the aforesaid offences were imputed against the accused named in the report filed. During the course of investigation of the crime, A5 to A12 in R.C. 10/S/07/CBI/SCB/ Chennai arising from Crime No.704 of 2005 had revealed true facts though they had previously deposed falsehood in the trial of the case, according to the C.B.I. The aforesaid accused were taken as approvers and their evidence Crl. M.C.No. 4957/2010 6 collected in the approver proceedings, according to the C.B.I, has strengthened its case. Evidence given by such accused persons, who have been taken as approvers are totally opposite to the depositions which they had given as witnesses in the previous trial. 161 statements recorded from them during the investigation previously conducted by the local police and C.B.C.I.D and also the evidence given by those persons as witnesses in the previous trial, which are in conflict with and opposing to the evidence given by them in the approver proceedings by them, are to be eschewed from consideration and a de novo trial in S.C.No.1542 of 2006 before the Sessions Court, Fast Track-III, Thiruvananthapuram quashing Annexure-A2 charge framed by that court previously against some of the accused in that case, A1 to A3, has to be ordered by this Court invoking its inherent powers under Section 482 of the Code, is the case of the investigating agency, the C.B.I.