J PRABHATHIAMMA Vs. STATE OF KERALA

JUDGEMENT

(1.) EXPRESSING doubts regarding the correctness of dicta laid down by the division Bench in Antony Scaria v. State of kerala (2001 (2) KLT 93 : (2002 Cri LJ 334)and by the single Bench in Vijayakumar v. Kamarudhin (1999 (1) KLT 184) : (1999 Cri lj 1294) that further investigation under section 173 (8) of the Code of Criminal Procedure can be conducted only by the very same agency which conducted the earlier investigation, a learned single Judge of this court referred this matter for authoritative pronouncement by a Full Bench. According to the learned single Judge, the above view is opposed to the decision of the Apex Court and other Division Bench decisions. Another incidental question was whether further investigation can be ordered by the Court after commencement of trial on the basis of charge sheet (final report) already accepted and charges framed by the Court. Power of the Court to refer the matter to CBI under the Delhi Special Police Establishment Act, 1946 is also an incidental question to be answered in the reference. As held by this court in Babu Premarajan v. Superintendent of Police (2000 (3) KLT 177 : (AIR 2000 ker 417) (FB) and Peter v. Sara (2006 (4)KLT 219) : (AIR 2007 SC 81) (FB) even though Chief Justice under Section 6 of the high Court Act has got power to place any matter to the Full Bench, under Section 3, single Bench can refer the matter only to a division Bench. Section 3 of the High Court provides as follows :

(2.) THE petitioner in W. P. (C) No. 24258 of 2007 is the mother of one Udayakumar who is said to have been brutally manhandled and killed while in police custody on 27-9-2005 by three police personnel attached to the Fort Police Station, Thiruvananthapuram. The said Udayakumar was allegedly tortured using iron rod, G. I. pipe etc. and at 10-20 p. m. when he was removed to the Medical College Hospital from the Fort police Station he was pronounced dead at 11-30 p. m. In this writ petition filed consequent on the important witnesses to the prosecution turning hostile during the trial of the case before the III Additional Sessions court (Fast Track - III), Thiruvanan-thapuram in S. C. No. 1542 of 2006, the mother of the deceased Udayakumar seeks a direction for further investigation by the central Bureau of Investigation besides a direction to remove from service those police constables who turned hostile to the prosecution during trial and also a direction to the trial Court to take action against them for perjury. Newly added fourth accused who was arrayed as accused by the trial Court invoking powers under Section 319 filed Crl. R. P. No. 2902 of 2007 challenging the order made by the trial Court invoking Section 319, Cr. P. C. The challenge is that the answers given by the revision petitioner as a prosecution witness cannot be used against him for any purpose except for prosecuting him for perjury in view of section 132 of the Evidence Act as interpreted in Gangadharan v. S. I. of Police (1989 (2) KLT 448) : (1989 Cri LJ 2455 ).

(3.) CHRONOLOGICAL order of the facts leading to this writ petition and Crl. , R. P. are as follows : 27-9-2005 : Deceased Udayakumar along with C. W. I (Suresh Kumar alias Mani)was taken into custody at 1. 30 p. m. by accused Nos. 1 and 2 namely jithakumar and Sreekumar both of whom were police constables attached to the Fort Police Station, Thiruv-ananthapuram in the Crime Squad under C. W. 23 (Circle Inspector. Fort Police Station ). From about 2 p. m. onwards C. W. 1 and udayakumar are said to have been brutally tortured by A1 to A3 all of whom were police constables attached to the fort Police Station. At 8 p. m. Crime No. 703 of 2005 was registered against Udayakumar and c. W. I (Suresh Kumar alias Mani)under Section 41 (l) (d) Cr. P. C. At 10. 20 p. m. on the same day udayakumar was removed to the Medical college Hospital, Thiruvanan-thapuram from the cell of Fort Police Station. At 11. 30 p. m. Udayakumar was pronounced dead by the Doctor at the Medical college Hospital, Thiruvananthapuram. Crime No. 704 of 2005 was registered by the Fort Police Station under the caption "unnatural death" under Sec. 174, cr. P. C. with regard to the death of Udayakumar. 28-9-2005 : Investigation of Crime No. 704 of 2005 was entrusted with C. W. 49 (P. Prabha), Assistant Commissioner, Narcotic Cell, thiruvananthapuram City. 30-9-2005 : A report was sent to J. F. C. M. II, Thiruvananthapuram incorporating sec. 302 read with Sec. 34, IPC in the above crime. 2-10-2005 : C. W. 49 prepared the scene mahazar. 3-10-2005 : Accused Nos. 1 and 2 who are police constables were arrested. 4-10-2005 : 3rd accused who is also a police constable in the Fort Police Station was arrested. 5-10-2005 : Investigation of the case was transferred to C. B. C. I. D. 13-2-2006 : Final report under Sec. 173 (2)Cr. P. C. was filed by C. W. 55 (K. B. Balachandran) Police Superintendent, c. B. C. I. D. (Special Investigation Group-I), Thiruvananthapuram before the j. F. C. M.-II, Thiruvananthapuram. As per the final report, the prosecution has proposed to examine 55 charge witnesses (CWs), 55 documents including prosecution sanction pertaining to the accused and 33 material objects. The final report is to the following effect :-Accused Nos. 1 to 3 (Jithakumarsreekumar and Soman)were police constables working under C. W. 23 (E. K. Sabu) Circle Inspector of Fort Police Station who was heading the Crime Squad constituted for apprehending culprits involved in theft cases. Deceased udayakumar of Manakkad Village and. his friend C. W. 1 (Suresh Kumar) were detected by accused Nos. 1 and 2 at sreekandeswaram Park in Vanchiyoor village within the limits of the Fort police Station on 27-9-2005. Since sureshkumar was a person involved in theft cases and also since deceased udayakumar was found having in his possession a sum of Rs. 4020/- accused nos. 1 and 2 suspecting that the money in the possession of deceased udayakumar was stolen money, took udayakumar and Suresh into custody at 1. 30 p. m. and brought them to the fort Police Station in an autorickshaw driven by C. W. 4 (Shibu Kumar ). They were then taken to the room in the office of C. W. 23 (E. K. Sabu) Circle inspector of Police, Fort Police Station by about 2 p. m. C. W. 1 (Suresh Kumar) was beat and fisted by accused Nos. 1 to 3 who thereby committed an offence punishable under Section 323 read with Sec. 34, IPC. Udayakumar was thereafter interrogated with regard to the possession of currency notes found on his person. He was subjected to brutal torture. In order to extort a confession from udayakumar, accused Nos. 1 to 3, in furtherance of the common intention to voluntarily cause grievous hurt to udayakumar, subjected him to corporal torture which was forbidden by law. He was made to lie on his back on a bench and repeatedly bastinadoed on the soles of his feet with a cane. Thereafter a G. I. pipe was forcefully rolled down his thighs resulting in the crushing and separation of his thigh muscles and flesh and the accused have thereby committed an offence punishable under sec. 331 read with Sec. 34, IPC. Since the aforesaid acts of cruelty were committed by the accused with the intention and knowledge that the said acts were likely to cause the death of udayakumar and as a result of the inhuman atrocities meted out to him, udayakumar suffered massive hemorrhage inside his heart and succumbed to the same at 11. 30 p. m. in the medical College Hospital, Thiruvananthapuram, the accused have thereby committed the offence of murder punishable under Sec. 302 read with Sec. 34, IPC. 27-10-2006 : Government of Kerala appointed sri. K. K. Vijayan as the Special public Prosecutor to conduct the prosecution in the case which by then stood, committed to the Sessions Court, thiruvananthapuram and made over to the Addl. Sessions Court (Fast Track-Ill) , Thiruvananthapuram. 25-11-2006 : The Special Public Prosecutor filed his memo of appearance before the trial Court and the case was scheduled for examination of witnesses from 1 -3-2007 onwards. 1-3-2007 : C. W. I (Suresh Kumar)was absent and the case was adjourned to 2-3-2007. 2-3-2007 : C. W. 1 was absent and his examination was adjourned to 12-3-2007. 12-3-2007 : Case was re-scheduled for examination of the prosecution witnesses from 2-5-2007 onwards. 2-5-2007 : The case was again re-scheduled to 2-7-2007 due to the illness of the counsel appearing for the 3rd accused. 15-6-2007 : Crime No. 703/2006 registered against the deceased and C. W. 1 was referred by the Fort Police thereby indicating that a false case was registered against the deceased and C. W. 1. 2-7-2007 : C. W. 1 was again absent and warrant was issued for securing his presence and the case was adjourned to 3-7-2007. 3-7-2007 : C. W. 1 who was arrested and produced before Court, was examined as P. W. 1. He turned hostile to the prosecution. (The Special Public Prosecutor had filed a report before the trial Court to the effect that P. W. 1 was won over by the accused police officers and requesting for further investigation ). 4-7-2007 : C. Ws. 8, 9 and 12 examined as P. Ws. 3 to 5. 5-7-2007 : C. Ws. 14 and 10 examined as P. Ws. 6 and 7. 6-7-2007 : C. Ws. 26, 29, 30, 13 examined as P. Ws. 8 to 11. C. W. 13 who was examined as P. W. 11 (Raveendran Nair)was the Crime Bureau S. I. of Fort Police Station at the relevant time. Even though there were documents in Crime no. 703 of 2005 to indicate that P. W. 11 was the officer who recorded the arrest of the deceased and C. W. 1 and that he had questioned the deceased this witness turned hostile to the prosecution by deposing that he did not record arrest and that it was Al to A3 who arrested them and produced them before him. 7-7-2007 : C. Ws. 37, 32 and 33 examined as P. Ws. 12 to 14. 9-7-2007 : C. Ws. 23 and 48 examined as p. Ws. 15 and 16. 10-7-2007 : C. Ws. 15, 17, 16, 51 and 19 examined as P. Ws. 17 to 21. 11-7-2007 : C. Ws. 21 and 22 examined as p. Ws. 22 and 23. 12-7-2007 : C. Ws. 31, 34, 35, 36, 24, 25, 27 and 28 examined as P. Ws. 24 to 31. 13-7-2007 : C. Ws. 38, 42 and 7 examined as P. Ws. 32 to 34. 18-7-2007 : i) Crl. M. P. 1964/07 filed by the Special Public Prosecutor seeking permission to conduct further investigation in crime Nos. 703/05 and 704 of 2005. ii) P. W. 11 Raveendran Nair (C. W. 13) was arrayed as A4 in the case by the trial Court which passed a separate order by invoking sec. 319, Cr. P. C. iii) Further examination of witnesses stopped. 24-7-2007 : i) Newly added A4 applied for time through his counsel. ii) Crl. M. P. 1969/07 filed by Special public Prosecutor heard by the trial Judge. iii) Report of Investigation officer seeking permission to conduct further investigation filed.