need rullings IO and informant same recovery of arms
Querist :
Anonymous
(Querist) 29 July 2011
This query is : Resolved
Ld. experts
I need rulings in the matter of inwhich Investigation officer and informant is a same person and he himself recovered arms from my client as alleaged.
plz help me.
THANKACHAN V P
(Expert) 30 July 2011
1998 (1) KLT 686
S. Marimuthu, J.
Xavier v. State of Kerala
Crl.M.C.No. 117 of 1997.
Decided on 27th March, 1998.
Criminal Trial - Complainant himself a Police Official and he himself conducting the investigation - Not proper - Investigation should have been conducted by a higher Official - Criminal P.C. 1973, Ss. 154, 155, 161 & 162.
@page-KLT687#
A case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous informations recorded under Ss. 154 or l55 Crl. P.C. and previous statement of the witness, being a police officer, complainant recorded, under S. 161 Cr. P.C., enjoined in S. 145 and 157of the Indian Evidence Act and proviso of S. 162 Cr. P.C. (para. 2)
ORDER
S. Marimuthu, J.
This Crl. Miscellaneous case is directed against the order delivered by the Sessions Judge, Alappuzha in Crl. Revision Petition No. 119/1955, which arose challenging the confirmed conviction and sentence rendered by the Assistant Sessions Judge, Sherthallai in Criminal Appeal No. 13/1993. The present petitioner as accused was found guilty under S. 51 (a) of Kerala Police Act by the Judicial Magistrate, Sherthallai in S.T. No. 170/1991.
2. The present petitioner, according to the prosecution, behaved in a disorderly manner, uttering rubbish language and obstructed the traffic on the night of 17.12.1991, being in a drunken mood at Champakattu mukku, where on that night a festival was going on. PW1, the Assistant Sub-Inspector of Police attached to Arthungal Police Station, arrested the accused in the presence of a Police Constable examined as PW. 2, took the accused to the police station where Ext. P1 complaint was written by PW1 himself. Thereafter, the accused petitioner was sent to PW3 for medical examination. PW3, on examination found the petitioner/accused that he had consumed alchohol. PW3, to that effect has issued Ext. P2 certificate. PW4 was examined for the purpose of corroborating the evidence of PW1 and PW2. The entire investigation in this case was conducted by PW1, who, after the completion of the investigation laid the charge sheet before the Trial Magistrate. The Trial Magistrate, on examining the evidence let in by the prosecution, since the accused petitioner denied the charge, found the petitioner guilty under S. 51 (a) of the Kerala Police Act and sentenced him to undergo simple imprisonment for a period of thirty days and also to pay a fine of Rs. 200/-. The above conviction and sentence, as I have pointed out above, were confirmed by the Assistant Sessions Judge and the Criminal Revision filed against it was also dismissed. Now, the only point that arises for consideration before me is whether PW1, being the complainant can be an investigating officer throughout and whether he can file the final
@page-KLT688#
report. In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official. A complainant being a police officer cannot be an Investigating Officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating, the previous informations recorded under Ss. 154 or 155 Crl. P.C. and previous statement of the witness, being a police officer, complaint recorded, under S. 161 Cr. P.C. enjoined in S. 145 and 157 of the Indian Evidence Act and proviso of S. 162 Cr.P.C. In the instant case, before me, PW1 is an Assistant Sub Inspector of Police, and I understand from the Public Prosecutor as well as from the Counsel for the petitioner that the particular Police Station has got a Sub Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub Inspector of Police or any other Police Officer above the rank of PW1. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law. Therefore, on that score itself, the petitioner is entitled to get an order of acquittal. In view of my above conclusion on the footing of position of law, this is a fit case, which has to be allowed by acquitting the petitioner.
3. In the result, the Crl. M.C. is allowed by setting aside the judgments and order of all the three Courts below. Ultimately, the accused/petitioner stands acquitted. The fine amount, if already paid by the petitioner will be refunded to him.
WHATSAPP 91-8075113965
(Expert) 30 July 2011
hi thankachan vakil,
First of all, i would like to thank for your effort.
But, i am sorry to inform you that the citation "1998 (1) KLT 686 "
S. Marimuthu, J.
Xavier v. State of Kerala
Crl.M.C.No. 117 of 1997.
Decided on 27th March, 1998, has been over ruled......!
please see the following ruling .
G. Subhash, Son Of Gopala Pillai, ... vs State Of Kerala, Represented By ... on 25 July, 2002
Author: G Sasidharan
Bench: G Sasidharan
ORDER
G. Sasidharan, J.
1. Petitioners are the accused in C.C.56/2001 on the file of the Judicial Magistrate of the First Class, Paravoor and this petition is filed for quashing the first information report registered in the crime and also the charge sheet submitted in Court. The allegation is that on 12-3-1999 the petitioners conducted fire works in Puttungal Bhagvathi Temple at about 8.30 p.m. ignoring the objections raised by the police who were there in the temple premises and thereby committed offences under Sections 9-B(1)(b) of the Explosives Act and Section 353 of the Indian Penal Code.
2. The first petitioner is the President of Paravoor Pattungal Devaswom Karayogam and the other petitioner are Office bearers of the Karayogam which manages the affairs of the temple. Now the temple is being managed by the Official Receiver appointed by the District Court, Kollam. There was a suit regarding the administration of this temple and the Supreme Court in Civil Appeal held that the temple has to be managed by the Nair Groups of the four karas. The dispute was mainly between the Nair Karakkars and people belonging to other communication among Hindus. In 1997 an original petition was filed in this Court by petitioners 1 and 2 and another person by name Parameswaran Pillai for prohibiting fire works being conducted by the Secretary of Meena Bharani Utsavaghosha Committee and that original petition was allowed with a direction to the District Collector, Kollam to take appropriate and suitable action for the contravention of any of the provisions of the Explosive Act.
3. According to the petitioners, they are falsely implicated in the crime at the instance of the members of the rival group. The petitioners would contend that their names were not in the first information report and they were made accused only in the final report filed in Court. It is not necessary that the names of all persons, who committed the offences, have to be there in the first information report. The first information report is prepared at the time of registering the crime on the basis of the information received regarding the commission of the offence and it is quite probable that during investigation the names of the persons, who committed the offence, would be revealed. As and when the investigating agency gets materials to show that a particular person committed the offence usually report is sent to Court giving the name and address of the person who committed the offence. There is nothing wrong in mentioning in the final report the names of persons as accused whose names were not there in the first information report. Final report cannot be said to be illegal for the reason that the persons mentioned in the final report as accused are not mentioned in the first information report as accused.
4. The petitioners would say that since the temple was being managed by the official receiver appointed by the District Court, Kollam he would have been the informant regarding the commission of the offence or at least he would have been made a witness. The fact that there is an official receiver to manage the affairs of the temple would not indicate that he has to be there in the temple at the time when the fire work is displayed and he has to be a witness to the incident. It is also not necessary that crime has to be registered on the basis of the information given by the official receiver regarding the commission of the offence. There is not merit in the contention of the petitioners that registering a crime without there being information given by the official receiver and filing final report without making the official receiver as a witness are illegal.
5. The main ground taken up by the petitioners is that the Sub Inspector of Police, Paravoor Police Station, who detected the offence, conducted the investigation of the crime and filed final report and hence the entire proceedings during the course of investigation have to be held to be illegal and hence final report has to be quashed. In the first information the statement is that on 12-3-1999 when the petitioners tried to display fire works in the southern compound of the temple police party objected doing that and in spite of that, the petitioners displayed fire works. There is also statement that display of fire work was done by the petitioners against the direction given by this Court and the District Collector. First information report was prepared by the Sub Inspector of Police, Paravoor. The submission made by the learned counsel appearing for the petitioners is that since the commission of the offence was detected by the Sub Inspector of Police, Paravoor some other officer would have conducted the investigation of the crime. Learned counsel appearing for the petitioners pointed out the decision of the Supreme Court in Megha Singh v. State of Haryana (AIR 1995 SC 2339) in which it was observed that the police officer, who was the complainant, should not have proceeded with the investigation of the crime. The Supreme Court said that the practice of the complainant carrying out the investigation of the crime should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. The argument advanced on the basis of the above decision of the Supreme Court is that since the investigation was conducted by the complainant officer himself the investigation and the filing of the final report were improper and illegal and hence the proceedings have to be quashed.
6. In Kader v. State of Kerala (2001 [2] KLT 407) a Division Bench of this Court held that unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice being caused even if the officer who detected the commission of the offence conducted the investigation of the crime. It was also held by this Court in the above decision that the fact that the detecting officer himself conducts investigation of the crime of files final reports in Court will not, in any way, vitiate the proceedings under the N.D.P.S.Act in the absence of proof of specific prejudice being caused to the accused.
7. A learned Judge of this Court in Naushad v. State of Kerala (2000 [1] KLT 785) held that when the complainant and the investigating officer are one and the same person the investigation conducted cannot be said to be a fair and proper investigation. The Division Bench in the decision in Kader's case (supra) overruled the decision of the learned Judge in Naushad's case. Earlier to Naushad's case, the very same learned Judge rendered a decision in Xavier v. State of Kerala (1998 [1] KLT 686) in which also the view taken was that when the complainant himself is a police officer, conducting investigation by the same police officer is improper. The Division Bench held that the decision Xavier's case does not lay down correct law as there is no question of separate investigating officer in a crime in which the allegation is that the offence under Section 51(a) of the Kerala Police Act is committed. A reading of the decision of the Division Bench referred to above would go to show that the question which was considered there was whether the investigation conducted by a police officer who detected the commission of the offence under N.D.P.S.Act was improper. The Division Bench said that conducting of investigation by the complainant police officer in a case under the N.D.P.S.Act cannot be said to be improper or illegal for the reason that main part of the investigation will be over even at the time when the commission of the offence is detected and what would remain will be only sending samples for chemical analysis, obtaining the report of the chemical analysis and sending a final report to Court. The Division Bench observed that in such circumstances there is no likelihood of any prejudice being caused to the accused. What has to be understood from the decision of the Division Bench is that there is no hard and fast rule that the complainant police officer should not conduct the investigation of the crime. It is true that the Division Bench took not account the fact that there may be cases in which at the time of detection of the crime as in the case of offences under the N.D.P.S.Act collection of the materials has to be made and for that reason conducting of the investigation by the detecting officer cannot be said to be improper when there is no likelihood of any prejudice being caused to the accused.
8. In Megha Singh v. State of Haryana (AIR 1995 SC 2339) the appellant was tried under Section 6(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 and Section 25 of the Arms Act. In that case, the accused on seeing the police party tried to go away and the police party became suspicious and the accused was intercepted and the Head Constable searched the person of the accused and on search a country made pistol and three live cartridges were recovered. The accused was not having any valid licence to possess the arm. After recovery of the pistol and cartridges those were seized on preparing a recovery memo and were sent to the police station. That was a case in which the prosecution case was sought to be proved by the evidence of the Head Constable and another police officer and no independent witness was examined in support of prosecution case. The Supreme Court, after considering the facts and circumstances of the case and also the evidence available, found that there was discrepancy in the depositions of P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. The Supreme Court was considering the appeal filed against the order of conviction and sentence. The Supreme Court, on appreciating the evidence and considering the facts and circumstances of the case, found that the evidence of the witnesses would not show that the accused committed the offence and thereafter noted the fact that the Head Constable who gave evidence as P.W.3 arrested the accused and on search being conducted by him recovered a pistol and cartridges from the accused and it was on his complaint that the formal first information report was lodged and the case was initiated. Then the Supreme Court made an observation that the Head Constable being complainant should not have proceeded with the investigation of the case. The further observation made by the Supreme Court was that such practice should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. The Supreme Court did not say that such investigation conducted will be illegal and for that reason the conviction of an accused in a case has to be set aside. The appeal was allowed by the Supreme Court and the conviction was set aside for the reason that there was no evidence for showing that the accused committed the offence. On the basis of the observation made by the Supreme Court in the above decision it cannot be said that the investigation conducted in a crime and filing of final report are vitiated for the mere reason that the police officer who detected the commission of the offence conducted the investigation of the crime. In appreciating the evidence in a criminal case if the investigation was conducted by the police officer, who is the complainant, that fact also can be taken into account by the Court to ascertain whether as a result of that any prejudice was caused to the accused. If it is seen that no prejudice is caused to the accused as a result of the detecting officer himself conducting the investigation, that fact itself will not be a ground for quashing the proceedings. In this case the fact that the Sub Inspector of Police, Paravoor who was present along with the other police officers at the place where the occurrence took place conducted the investigation of the crime after registering the crime cannot be taken as a ground for quashing the first information report and the final report. This petition is hence dismissed.
===========================================
SALIL KUMAR.P
ADVOCATE
THALASSERY-1
THANKACHAN V P
(Expert) 30 July 2011
Thanks Salil for bringing it my notice.But I think it is not fully over ruled .
The Division Bench held that the decision Xavier's case does not lay down correct law as there is no question of separate investigating officer in a crime in which the allegation is that the offence under Section 51(a) of the Kerala Police Act is committed. A reading of the decision of the Division Bench referred to above would go to show that the question which was considered there was whether the investigation conducted by a police officer who detected the commission of the offence under N.D.P.S.Act was improper. The Division Bench said that conducting of investigation by the complainant police officer in a case under the N.D.P.S.Act cannot be said to be improper or illegal for the reason that main part of the investigation will be over even at the time when the commission of the offence is detected and what would remain will be only sending samples for chemical analysis, obtaining the report of the chemical analysis and sending a final report to Court. The Division Bench observed that in such circumstances there is no likelihood of any prejudice being caused to the accused. What has to be understood from the decision of the Division Bench is that there is no hard and fast rule that the complainant police officer should not conduct the investigation of the crime. It is true that the Division Bench took not account the fact that there may be cases in which at the time of detection of the crime as in the case of offences under the N.D.P.S.Act collection of the materials has to be made and for that reason conducting of the investigation by the detecting officer cannot be said to be improper when there is no likelihood of any prejudice being caused to the accused.
