V. B. UNNITHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The order dtd. 24/4/2019 in Crl.M.P.No.56/2018 in S.C.No.1357/2013 on the files of the Court of the Special Judge (SPE/CBI), Thiruvananthapuram, is under challenge in these revisions. By the aforesaid order, the learned Special Judge had discharged the fifth accused in the said case under Sec. 227 of the Code of Criminal Procedure, 1973 (in short, 'Cr.PC'). Crl.R.P.No.933/2019 is filed by the de facto complainant, and Crl.R.P.No.476/2021 by the investigating agency (CBI). Crl.R.P.No.505/2021 is filed by a third party who claims to be a senior journalist residing at Kollam.

(2.) The facts of the case, in conspectus, are as follows: The fourth and fifth accused in S.C.No.1357/2013 are Police Officers of Kerala Police of the rank Dy.SPs, under suspension. One Mr V. Babu Unnithan, staff reporter of Mathrubhumi Daily, Kollam, was a thorn in the eye of some Police Officers since he used to expose their nefarious activities. He had published news on 12/9/2008 regarding the encroachment of lake by Police Officials, including the fourth accused Dy.SP. Santhosh Nair, who was Circle Inspector during that time. On 13/10/2009, the de facto complainant published another news item in Mathrubhumi daily regarding the licentious behaviour of the fourth accused and two other Police officers at Government Guest House, Kollam, in the night of 11/10/2009, along with some cine/serial actresses and Abkari Contractors, leading to the transfer of the fourth accused to northern Kerala. The fourth accused was nurturing enmity with the de facto complainant due to the above reason. The fifth accused, Dy.SP. Abdul Rasheed,who was the batchmate of the fourth accused, had gone for a family tour to Goa along with the fourth accused and one Santhosh Kumar @ Container Santhosh, an approver turned accused in S.C.No.1357/2013, from 25/12/2010 to 27/12/2010. During that time, the fourth and fifth accused had conspired with the above said Container Santhosh, who was having close links with goons and hardcore criminals, for inflicting bodily harm upon the de facto complainant. While returning from Goa on 27/12/2010 by Rajdhani Express, the fifth accused had pulled the chain of the train at Kollam and caused it to stop there, since the said train had no stop at Kollam. This resulted in altercations between the fifth accused and the Locopilot at the time when the fifth accused deboarded the train at Kollam along with his family. The de facto complainant published the above highhanded act of the fifth accused in Mathrubhumi daily dtd. 2/1/2011. Due to the above reason, the fifth accused also wanted to take avenge upon the de facto complainant by causing bodily harm to him. Accordingly, the accused Nos.4 & 5 persistently compelled the approver Container Santhosh to make use of his connections with goondas and hardcore criminals to mount severe physical assault upon the de facto complainant. Container Santhosh assigned the above task upon one Sreejith @ Rajesh @ Happy Rajesh, a person actively involved in criminal activities. As a consequence of the above criminal conspiracy, the de facto complainant was attacked with deadly weapons at a place called Sasthamcotta in Kollam District by about eight persons at 9:45 p.m. on 16/4/2011 leading to serious injuries including multiple fractures throughout his body. Though the Sasthamcotta Police registered Crime No.441/2011 in connection with the said incident, the investigation was soon taken over by the CBCID, Kollam, where the fifth accused was working as Dy.SP. At a time when the needle of suspicion was turning towards Dy.SP. Santhosh Nair (A4), Happy Rajesh and Container Santhosh, the dead body of Happy Rajesh was found in his auto rickshaw on 28/4/2011 at Kollam. Soon, accused Nos.1 to 3 who had attacked the de facto complainant, were arrested by the CBCID team, where the fifth accused was also working. As the accused Nos.1 to 3 made disclosures on interrogation about the involvement of Container Santhosh, the investigating team started tracking him. While so, Container Santhosh surrendered before the Judicial First Class Magistrate Court, Thiruvalla, on 17/5/2011, and he was remanded to judicial custody. Soon the fourth accused was arrested, since the investigation revealed that it was he who executed the crime by availing the services of late Happy Rajesh and accused Nos.1 to 3 through Container Santhosh. During the transit of Container Santhosh in connection with the procedures of investigation, he proclaimed that in addition to the fourth accused, the fifth accused was also there behind the attack upon the de facto complainant. This led to widespread demand from the Journalists' Community to handover the case to CBI. Accordingly, the investigation was taken over by the CBI as per G.O.No.164/2011/Home dtd. 25/7/2011. Thereafter the fifth accused was arrested, and steps were taken for making Container Santhosh an approver. On the basis of the application submitted by the Investigating Officer, the learned Chief Judicial Magistrate, Ernakulam, tendered pardon to Container Santhosh and passed the order on 7/5/2012 directing the examination of Container Santhosh as a prosecution witness. After the completion of the investigation, the Additional Superintendent of Police, CBI, SCB, Chennai, filed a final report before the Chief Judicial Magistrate Court, Ernakulam, on 3/7/2012 against accused Nos.1 to 5 with Container Santhosh as an approver. Later on, the Deputy Superintendent of Police, SCB, CBI, SPE, conducted further investigation in the case and filed a supplementary final report on 7/11/2017 arraigning one more person as sixth accused, and brought on record two other approvers. In the above supplementary final report, the Investigating Officer stated that the approver Container Santhosh had not made full and true disclosures while giving statement under Ss. 164(1) & 306(4) Cr.PC, and hence, a petition was filed before this Court to quash the pardon granted to him. It was further stated thereunder that the aforesaid petition was disposed of by this Court with the observation that it is a matter to be dealt with by the Trial Court in accordance with law. It is thereafter that the fifth accused filed Crl.M.P.No.56/2018 before the learned Special Judge, seeking discharge under Sec. 227 Cr.PC.

(3.) The learned Special Judge, in the impugned order, found that there was absolutely no material other than the statements of approver Container Santhosh, to proceed against the fifth accused in connection with the accusations levelled against him. It was further observed by the learned Special Judge that the statement of approver Container Santhosh cannot be relied on for framing charges against the fifth accused since the investigating agency itself had disowned him and found that he had given false and fabricated statements. After dealing with the statements of other witnesses which the prosecution cited as CW8, CW38, CW61, CW74 & CW157, the learned Special Judge held that there is absolutely nothing in those statements to proceed against the fifth accused in connection with the crime involved in that case. The learned Special Judge also adverted to the statements of CW50, CW52 & CW154 to conclude that approver Container Santhosh wanted to falsely implicate the fifth accused in the crime since he did not budge to the pressure exerted by the fourth accused and Container Santhosh to exculpate them at the initial stages of investigation while the CBCID was investigating the case. The statements of CW85 & CW132, the Superintendent and Deputy Superintendent of Police, respectively, of CBCID, Kollam, are referred by the learned Special Judge to hold that the accused Nos.1 to 3 were actually nabbed by the fifth accused, and that he had been impartially associated with the investigation in this case at the request of the IG concerned, who was supervising the investigation. It is on the basis of the aforesaid observations that the learned Special Judge allowed the application of the fifth accused and discharged him.