Kerala High Court
Visakhmon vs The Director General Of Police on 24 February, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 24TH DAY OF FEBRUARY 2020 / 5TH PHALGUNA, 1941
WA.No.288 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 12551/2019(T) OF HIGH COURT
OF KERALA
APPELLANT/PETITIONER:
VISAKHMON
AGED 25 YEARS
S/O. SUJITHKUMAR,'VISAKHAM', SAKTHIKULANGARA P.O.,
KOLLAM-691 581
BY ADV. SRI.SHABU SREEDHARAN
RESPONDENTS/RESPONDENTS:
1 THE DIRECTOR GENERAL OF POLICE
POLICE HEADQUARTERS, VAZHUTHAKKAD P.O.,
THIRUVANANTHAPURAM-695 014
2 THE EXCISE COMMISSIONER,
KERALA EXCISE HEADQUARTERS, NANDAVANAM,
THIRUVANANTHAPURAM-695 033
3 P.A SAHADULLA
FORMER EXCISE INSPECTOR,
EXCISE RANGE OFFICE, KARUNAGAPPALLY,KOLLAM-690 544
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
24.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.288 OF 2020 2
(C.R.)
JUDGMENT
Dated this the 24th day of February, 2020 S.Manikumar, CJ Instant writ appeal is filed against the judgment passed by a learned Single Judge of this Court dated 06.01.2020 in W.P.(C) No.12551 of 2019. The reliefs sought for in the writ petition are as under:
"1. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to transfer the investigation in crime no.1/2018 of Karunagappally Excise Range, Kollam District to the police under the 1st respondent.
2. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1 st respondent to appoint a superior police officer not below the rank of SP to conduct reinvestigation/further investigation in crime no.1/2018 of Karunagappally Excise Range, Kollam District."
2. Short facts leading to the appeal are as follows:
"W.P.(C) No.12551 of 2019 is filed seeking to direct the 2nd respondent - the Excise Commissioner, Thiruvananthapuram, to transfer investigation in Crime No.1/2018 of Karunagappally Excise Range, Kollam District to the police under the 1st respondent- the Director General W.A.No.288 OF 2020 3 of Police, and also seeking consequent reliefs. When the writ petition came up for hearing on 06.01.2020, appellant pressed for the reliefs sought in the writ petition. But, without properly considering the facts and circumstances of the case, writ court dismissed the same. Being aggrieved and totally dissatisfied with the said judgment, the appellant has preferred this writ appeal before this Court at this stage seeking appropriate reliefs."
3. After considering the rival submissions and taking note of the decisions in Narmada Bai v. State of Gujarat [AIR 2011 SC 1804], Sanjiv Rajendra Bhatt v. Union of India [(2016) 1 SCC 1], Central Bureau of Investigation v. Rajesh Gandhi [AIR 1997 SC 93] and Romila Thapar v. Union of India [AIR 2018 SC 4683], writ court, dismissed the writ petition on 06.01.2020, by observing thus:
"10. The accused can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, the accused can avail the appropriate remedies permissible under law such as seeking bail. During the trial of the case, the accused can opt for the remedy of discharge at the appropriate stage. He can also opt for quashing of the criminal case, if there is no legal evidence whatsoever, to indicate his complicity in the commission of the offence.W.A.No.288 OF 2020 4
11. Merely because the person arraigned as an accused feels that he has been falsely implicated, he cannot seek direction for the police to conduct the investigation from his defence point of view also. Investigation of a crime is the exclusive domain of the investigating officer. It is true that free and fair investigation is the fundamental right of the accused as guaranteed under Article 21 of the Constitution of India. However, the courts have only limited power to interfere with the investigation of a case. The court cannot issue directions to the investigating officer to investigate the case from a particular point of view.
12. In the light of the principles mentioned above, the prayer made by the petitioner, who is an accused in the case, for further investigation/re-investigation of the case by an agency/officer of his choice, cannot be granted.
13. Moreover, this Court also takes note of the submission made by the learned Public Prosecutor that, on enquiry made by the superior officers of the Excise Department with regard to the allegations raised by the petitioner regarding his false implication in the case, it has been found that there is no substance in his complaint in that regard.
14. In the aforesaid circumstances, none of the prayers made in the writ petition can be allowed. The writ petition is liable to be dismissed."
4. Being aggrieved, instant writ appeal is filed on the following grounds:
W.A.No.288 OF 2020 5
"A. The impugned judgment passed by the learned Single Judge is highly incorrect, improper, opposed to law and contrary to the facts and circumstances of the case.
B. From the very beginning of the incident onwards, the appellant took all efforts to convince the people gathered there at the house in Venkekkara, the people gathered there at the place near Edappallykkotta, the learned Magistrate at Karunagappally and also the learned Sessions Judge, Kollam. On getting convinced of a prima facie case in the matter, the learned Sessions Judge was pleased to grant bail within a short period of his custody.
C. What the appellant wants is to get proved his innocence at the earliest and also to get punished the excise officials responsible for his false implication in a case like this, the resultant judicial custody, the criminal assault upon him, the resultant health problems faced by him and the loss of reputation for ever.
D. The falsity of the case of the excise will come out simply by examining the CCTV footage and the tower location of the mobile phone of the appellant, that of the witnesses and excise officials concerned. According to the excise, the appellant with the scooter containing ganja was found at 11.25 AM on 5.1.2018 at a place near Edappallykkotta. But, at that time, he was in his house preparing to go to the house of his mother's sister at Venkekkara. The evidence of tower location W.A.No.288 OF 2020 6 will prove the said fact. The scooter was actually ridden to the said place near Edappallykkotta by the above said excise official. The evidence of CCTV footage will prove the said fact.
E. It is very much necessary for the appellant to have a re- investigation/further investigation in Crime No.1/2018 of Excise Range, Karunagappally by another agency since the Asst. Excise Commissioner has taken a stand fully supporting the acts of the 3rd respondent and also since the Excise Vigilance Officer engaged by the 2 nd respondent has not taken any effective steps based on the Exhibit-P6 complaint.
F. In order to bring to light the real facts, the investigation of the above case is to be handed over to a superior police officer coming under the 1 st respondent at the earliest. Otherwise, the present investigating officer will submit a final report in a similar line as put up by the 3rd respondent and in such an event, the totally innocent appellant will have to face the ordeal of trial to prove his innocence.
G. According to the learned single judge, free and fair investigation is the fundamental right of the accused as guaranteed under Article 21 of the Constitution of India. As such, the courts have the duty to see that free and fair investigation is being done in a case like this especially when the accused has been agitating against his false implication in the case by creating dramas and by fabricating evidence, that too from the very initial W.A.No.288 OF 2020 7 stage itself. It is highly paradoxical on the part of the learned single judge in saying that the courts have only limited power to interfere with the investigation of a case. The appellant has not sought any relief so as to direct the investigating officer to investigate case from a particular point of view. There is no merit in the observation of the learned single judge that the court cannot issue directions to the investigating officer to investigate case from a particular point of view.
H. The case of the appellant that he has been falsely implicated is not his mere feeling, but the real fact. He has come up for a free and fair investigation to bring out the truth and not for getting conducted the investigation from his defence point of view. The power of an investigating officer is not unfettered and the courts are empowered to exercise judicial review upon it. The observations to the contrary made by the learned single judge cannot be sustained in law. Moreover, it is pertinent to note at this juncture that the grievance of the appellant is mainly against the detecting officer and not against the investigating officer.
I. The appellant has come up with the writ petition deeply aggrieved with his false implication and seeking free and fair investigation to get established his innocence in the case at the earliest possible opportunity. This Hon'ble Court is the proper forum and the writ petition is the proper remedy for the same during the W.A.No.288 OF 2020 8 investigation. What the learned single judge observed about the remedies at different stages during the investigation as well as the trial of the case are devoid of any merit.
J. The appellant is aggrieved by the act of the excise officers, the detecting officer who falsely implicated him in the case and also his superiors who blindly fortified him. In such a situation, he has been constrained to pray for an investigation by the police. There is no logic or reasoning in the learned single judge treating the same as his choice.
K. The learned single judge went wrong in totally relying on the statement filed by the investigating officer and the submission made by the learned public prosecutor regarding the enquiry report of the superior officers of the excise department for rejecting the legitimate request of the appellant for further investigation/re- investigation of the case by the police.
L. The learned single judge ought to have granted the reliefs sought in the writ petition.
M. The Hon'ble Court may be kind enough to interfere in the matter in the interest of justice. Otherwise, the appellant will have to suffer irreparable heavy loss and severe legal injury."
5. At this juncture, it is relevant to extract the statement of the Investigating Officer, filed before the writ court: W.A.No.288 OF 2020 9
"It is submitted that the statement is being filed by the investigation officer R. Bijukumar, Circle Inspector of Excise,Karunagappally in Cr. No. 01/2018 of Excise Range Office,Karunagappally on behalf of the second respondent, as he is duly authorized by the second respondent, the Commissioner of Excise pursuant to the direction of this Honourable Court in the above case.
The prayers in the writ petition are not maintainable either on law or facts.
On 05/01/2018, at about 12.Noon, Sri. P.A.Sahadulla, Excise Inspector, Excise Range Office, Karunagappally and party detected an NDPS case from Pooroorkkara in Panmana village in Karunagappally Taluk, while on Patrolling and checking vehicles, seized 2 Kilo gram of Ganja in KL 02 BC 3076 Honda Scooter and arrested VishakhMon as first accused from the spot. Samples were collected; thondy articles were properly sealed and labeled. After preparing mahazar and other records, party reached the Second spot as per the confession statement of the first accused Visakhmon. The second spot was the rented house of second accused Rakhi Latha owned by Santhosh, S/o. Chandra sekharan Pillai, Santhosh Bhavan, Mathilil, Thrikkadavoor Village, Kollam Taluk, from where the Excise Inspector and party seized 3 Kilo gram Ganja and arrested Rakhilatha as Second accused at 2.40 PM. The second accused is the elder sister of the first accused's mother. After collection of Samples,thondy articles were properly sealed and labeled and taken into excise custody. After preparing mahazar and other records, party reached the office with the first and second accused, thondy articles and W.A.No.288 OF 2020 10 case records. This case was registered at Excise Range Office, Karunagappally as NDPS Crime No. 01/2018 U/s 20(b)(ii)B of NDPS Act 1985. After conducting a detailed medical checkup both the accused along with thondy articles and case records were produced before the Hon'ble court. The accused were remanded into judicial custody and presently both the accused are on bail, granted by the honourable court.
The second accused Rakhilatha and her husband Stephan are frequent NDPS offenders. The first accused, being the close relative of this couple, was a close associate in their ganja sale. The first accused become the main partner of the second accused after her husband's judicial custody in another NDPS case while detecting this case. As the couple was habitual offenders in NDPS cases, they both were under the close surveillance of the enforcement authorities. So they started using the first accused for the transaction of ganja to other ganja sellers at various places and this was the first instance in which the first accused was caught.
Presently this case is under the investigation of Excise Circle Inspector, Karunagappally and it is reaching at its final stage now. After detection of this case, the first accused raised many complaints against the detecting team. The first complaint was enquired by the Assistant Excise commissioner Kollam and he reported this complaint as worthless. Another complaint was forwarded to the Excise Commissioner and was enquired by the Excise Vigilance officer who was also found this complaint as baseless. Both the officers conducted enquiry on the W.A.No.288 OF 2020 11 complaints are superior to the present investigating officer and the vigilance officer is equivalent to the rank of Superintendent of Police. Since the findings of both the officers investigated the complaints are not in his favor, this application before the honourable court is seems to be anther attempt by the accused to delay the investigation process, which is at its final stage.
The First accused Visakhmon filed another petition before the honourable Human Rights Commission of Kerala and the Commission dismissed the petition finding it as baseless.
More over the frequent questioning and enquiries conducted by the officials causes tremendous mental pressure on the detecting team and such practices may act as a demoralizing factor on the officials of the department who performs selflessly for such seizure.
The enquiry conducted so far and the statements recorded from the public witnesses reveals that, the accused Visakh Mon has a major role in transporting and distribution of Ganja in Karunagappally area. Investigation of this case is at its final stage and almost completed. Hence it is humbly reported before the honourable court that the present investigation is going on in a very professional and speedy manner and will be completed soon. Changing of the investigating officer is not at all necessary at this stage. The Excise Department is a small department and have a very few in number of officers of the rank equivalent to Superintendent of Police. It always not practical to entrust them with the enquiries of cases demanded by the accused, as they all are engaged with W.A.No.288 OF 2020 12 many other responsibilities entrusted upon them. More over such practices will badly affect the morality of officers who carry out their duties with great dedication to eradicate the drug mafia trying to spread over the state.
There is no necessity in entrusting the enquiry of this case to a higher officer, which will only delay the process of filing the complaint report before the Honourable Court, which is the aim of the petitioner. Hence I humbly request that, the honourable court may kindly dismiss the writ petition filed by the accused.
Bijukumar.R 23rd September 2019 Circle inspector of Excise Karunagappally"
6. Let us have a cursory look on the decisions considered by the writ court, with reference to the reliefs sought for.
"8. In Narmada Bai v. State of Gujarat: AIR 2011 SC 1804, the Hon'ble Supreme Court held as follows:
"It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them"
9. The accused has no right with reference to the manner of investigation or mode of prosecution (See Sanjiv Rajendra Bhatt v. Union of India : (2016) 1 SCC 1). The accused cannot have a say in who should investigate the W.A.No.288 OF 2020 13 offences he is charged with (See Central Bureau of Investigation v. Rajesh Gandhi :
AIR 1997 SC 93). The accused cannot ask for changing the investigating agency or to do investigation in a particular manner (See Romila Thapper v. Union of India : AIR 2018 SC 4683)."
7. Sum and substance of the argument advanced by learned counsel for the appellant is that criminal case has been falsely registered. Falsity of the case will come to light if CCTV footage is examined. Tower location of the mobile of the appellant, the witnesses and excise officials are examined. If the very same investigating officer is allowed to proceed, the investigation would be farce, resulting in violation of Article 21 of the Constitution of India. The above contentions have been considered and adverted to by the writ court, at paragraphs 10 to 13 of the judgment in W.P. (C) No.12551/2019 dated 06.01.2020. That apart, writ court has also taken note of the submission made by the learned Public Prosecutor that an enquiry has been conducted by the superior officers on the complaint of the appellant, that a false case has been registered, and that, the enquiry by the superior officers revealed that there is no substance in the said allegation. Fact of W.A.No.288 OF 2020 14 false registration is disputed. If there is dispute in facts, which requires evidence, writ court is not the proper forum. Reference can be made to few decisions.
"(a) In Arya Vyasa Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad and Ors. reported in (1976) 1 SCC 292, the view taken by the High Court that disputed questions of fact are to be left open to be decided before the Civil Court was upheld by the Hon'ble Supreme Court.
(b) In the decision reported in (2003) 4 SCC 317 (Rourkela Shramik Sangh v. Steel Authority of India Ltd. and Anr.), it is held that the disputed questions of fact could not be entertained in the writ proceedings. In paragraph 19, the Hon'ble Supreme Court held as follows:
"19. The question as to whether the workmen concerned had been continuously working for a period of ten years so as to enable them to derive benefit of the judgment of this Court in R.K. Panda case (1994) 5 SCC 304 was essentially a question of fact...."
In paragraph 22, the Hon'ble Apex Court further held as follows:
"22. ...a disputed question of fact normally would not be entertained in a writ proceeding. This aspect of the matter has also been considered by a Constitution Bench of this Court in Steel Authority of India Ltd. v. National Union Waterfront Workers [(2001) 7 SCC 1]...."W.A.No.288 OF 2020 15
"(c) In Himmat Singh v. State of Haryana and Ors. reported in (2006) 9 SCC 256, the Hon'ble Supreme Court held that,-
"the statement of the appellant or the 5 th respondent was correct or not could not ordinarily be tested in writ proceedings and it is well known that in writ petition ordinarily such a disputed question of fact could not be entertained."
(d) In Food Corporation of India v. Harmesh Chand reported in (2007) 7 MLJ 687, the Hon'ble Supreme Court held as follows:
"Since the facts were seriously disputed by the appellant and no factual finding could be recorded without consideration of evidence adduced by the parties, it was not an appropriate case in which the High Court ought to have exercised its writ jurisdiction. The parties could have approached a civil court of competent jurisdiction to adjudicate the matter."
(e) In D. L. F. Housing Construction (P) Ltd. v. Delhi Municipal Corpn. reported in (1976) 3 SCC 160, the Hon'ble Supreme Court held thus:
"18. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The rights course of the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark W.A.No.288 OF 2020 16 upon a determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The appellants may if so advised, seek their remedy by a regular suit."
8. That apart, appellant being an accused has no right to seek for change of investigating officer. Giving our due consideration to the facts and circumstances of the case, and in the light of the above said decisions, we are of the view that, there is no error in the impugned judgment, warranting interference.
Writ appeal is, therefore, dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
shg JUDGE