PRABHAVATHIAMMA 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) and by the single Bench in Vijayakumar v. Kamarudhin (1999 (1) KLT 184) that further investigation under S.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 C.B.I, 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 (F.B)) and Peter v. Sara (2006 (4) KLT 219 (F.B.) even though Chief Justice under S.6 of the High Court Act has got power to place any matter to the Full Bench, under S.3, Single Bench can refer the matter only to a Division Bench. S.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), Thiruvananthapuram 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 S.319 filed Crl. R.P. No.2902 of 2007 challenging the order made by the Trial Court invoking S.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 S.132 of the Evidence Act as interpreted in Gangadharan v. S.I. of Police (1989 (2) KLT 448).

(3.) S.173(8) of the Code of Criminal Procedure reads as follows: