Kerala High Court
T.K.Sajeevan vs State Of Kerala on 27 February, 2020
Equivalent citations: AIRONLINE 2020 KER 994
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941
Crl.MC.No.803 OF 2020(A)
AGAINST THE ORDER/JUDGMENT IN CC 38/2012 DATED 24-01-2020 OF
ENQUIRY COMMISSIONER& SPECIAL JUDGE,THRISSUR
CRIME NO.20/2009 OF VACB, THRISSUR , Thrissur
PETITIONERS/ACCUSED 1 & 2:
1 T.K.SAJEEVAN, AGED 58 YEARS
S/O.KRISHNAN, THASHNATH HOUSE,
CHENTRAPPENNI, THRISSUR.
2 T.K.RAJEEVAN, AGED 59 YEARS
S/O..KRISHNAN, THASHNATH HOUSE,
CHENTRAPPENNI, THRISSUR.
BY ADVS.
SRI.S.RAJEEV
SRI.N.K.UNNIKRISHNAN
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
SRI.N.U.HARIKRISHNA
RESPONDENT/STATE/DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031
CRIME NO.VC20/2009TSR OF VACB, THRISSUR).
R2 BY ADV. SRI.MANUEL KACHIRAMATTAM
R2 BY ADV. SMT.MERRY GEORGE
OTHER PRESENT:
SPL.PP SRI.A RAJESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-02-
2020, THE COURT ON 27-02-2020 PASSED THE FOLLOWING:
Crl.M.C.803/2020
2
ORDER
Petitioners stand arrayed as accused Nos.1 and 2 in C.C.No.38 of 2012 of Enquiry Commissioner and Special Judge, Thrissur for offences punishable under sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and Sections 468, 471 and 120B of the Indian Penal Code.
2. Facts of the case as is discernible from the records are as follows:
First petitioner was the licensee of a bar and restaurant, which was run by a partnership firm. One of the partners died in the year 2004 and for reconstitution of the partnership, petitioners allegedly forged a declaration dated 30.09.2004 and produced it before the Excise authorities to evidence that the legal heirs of the deceased partner have no objection in reconstituting the partnership firm, excluding them from the partnership. The further allegation was that, this was done in connivance with the Assistant Excise Commissioner and Circle Inspector of Excise. A complaint was laid by the wife of the deceased partner, which led to the registration of a crime. After investigation, final report was laid for the offences alleged above. The case was taken on file as C.C.No.38 of 2012. Thereafter, matter was posted for trial, pursuant to the direction issued by the Supreme Court for an expeditious disposal of the case preferably within six months. It is stated that, 15 witnesses were Crl.M.C.803/2020 3 examined as PWs.1 to 15. DySP who conducted the preliminary enquiry was examined as PW16 and he was cross examined in part. In the meanwhile, on 18.01.2020, a petition was submitted by the prosecutor-in- charge invoking section 91 Cr.P.C. to cause production of the re-enquiry file relating to V.E.05/2006/TSR conducted by PW16. An objection was filed by the petitioners before the trial court objecting to the marking of the above document. It was allowed by Annexure-A4 order which is under challenge in the proceeding.
3. Heard the learned counsel for the petitioners and the learned Public Prosecutor. The defacto complainant filed Crl.M.A.No.3 of 2020 seeking permission to get herself impleaded. Without impleading her, the defacto complainant was heard on merits, in extenso.
4. The application filed under section 91 Cr.P.C stated that, the purpose of examination of PW16 was to prove the materials collected during enquiry including the collection of specimen signatures and handwriting of PW1. In the course of examination of PW16, he is stated to have given evidence against the documentary evidence. While filing the final report, requisition of PW16 for forwarding the disputed document along with the specimen document and standard documents for examination were not incorporated in the final report. Further, original enquiry report was also not produced. Hence, the prosecution requested to cause production of re-enquiry file No.VE 5/2006 TSR for marking the standard requisition form for collection of materials for forwarding to the Crl.M.C.803/2020 4 FSL, the signed statement of the defacto complainant and the accused and the report.
5. A detailed objection was filed by the accused contending that the petition under section 91 Cr.P.C. was not sustainable for production and marking of documents. It was contended that, it was highly belated and was filed after the defence was disclosed and after the examination of all crucial witnesses. It was contended that, the belated application was only intended to fill up the lacuna. Yet another contention was that, enquiry file has no relevance in the prosecution and the offence should be independently established in the trial. It was further contended that the file which was sought to be introduced in evidence contained totally inadmissible documents, including the signed statement of the complainant and the accused and hence, it was hit by section 162 Cr.P.C. Inadmissible documents were sought to be introduced by an indirect method. It was contended that, enquiry report was based on signed statements of the witnesses and the accused and consequently, the enquiry report itself was inadmissible. The accused contended that admission of the above document would prejudice the accused.
6. There is no doubt that the application was highly belated. It was sought to be introduced only after the DySP who conducted the re- enquiry was examined. Normally, this should not have happened considering the nature of allegations, when the Assistant Excise Commissioner and the CI were facing trial along with other accused. Crl.M.C.803/2020 5 Even when, PW16 was put in the box, this was not noticed by the prosecution. It seems that the production of enquiry report is sought on the basis of the decision reported in Thankamma v. State of Kerala (2016(1) KHC 366) wherein, it was held that, when the FIR was based on an enquiry report, enquiry report will have to be produced and established. To that extent, prosecution seems to be justified in asking for production of the enquiry report. Though extensive arguments were advanced by both sides as to whether Section 91 Cr.P.C was the correct legal provision or section 311 Cr.P.C or some other provisions, I do not propose to venture a detailed analysis of it. Suffice to hold that, laches, if any, on the part of prosecution shall not stand in the way of rendering substantial justice. The inconvenience, if any, that may be caused to the accused can be overcome by providing an effective opportunity to cross examine.
7. While considering the question of delay in preparing the application, the question whether documents are absolutely essential for the due adjudication of the allegation against the accused should also be considered. It was contended that the forwarding note was not admissible in evidence and evidence gathered at the time of enquiry were forwarded directly to the FSL. Definitely, the legality, reliability and the evidentiary value of the above document can be considered at the time of hearing. Suffice to hold that, since the crucial allegation is stated to be the forgery of a document, the production of the forwarding note by which specimen Crl.M.C.803/2020 6 signature and handwriting were forwarded to the expert becomes relevant.
8. Though it was vehemently contended that production of the above document may prejudice the accused, I do not find any substance in the above contention. Annexure-A1 is the final report. It shows that during the course of enquiry, documents were seized and forwarded to the FSL. Report was received thereafter. The witness memorandum in Annexure-A1 shows that, PW16 was sought to be examined to prove, interalia, the seizure of questioned documents and procuring of admitted handwriting, sample writings and signature of the complainant. This clearly shows that, accused were aware of the above fact and had sufficient notice regarding the seizure of the documents and forwarding of it to the FSL. Hence, accused were aware of the existence of the above documents. Definitely, defence has been set up on the basis of the final report. Having considered this, I am not inclined to accept the contention that belated production of documents may cause prejudice to the accused.
9. It is now submitted that entire enquiry file has been placed before the Court pursuant to the order of the Court. No doubt, the admissibility of such signed statements taken in enquiry, is yet to be decided. However, the question whether the bar under section 162 Cr.P.C would apply in this case, being recorded as a part of enquiry and not as part of investigation is still debatable. At present there is nothing to show Crl.M.C.803/2020 7 that such statements are admissible in evidence. Till the question of evidentiary value of such documents and whether it will fall within the non-admissible category of documents under Evidence Act and Cr.P.C is determined, bringing on record of such signed statements is likely to cause prejudice to the accused. It is true that, trial court has mentioned that admissibility of the documents would be considered at the appropriate stage. However, even placing on record the documents whose admissibility is still not determined especially in the light of specific bar against such documents obtained in the course of investigation under section 162 Cr.P.C is not proper and cannot be appreciated. However, there are other documents which do not prima facie fall within the category of such documents. Further, if PW16 has tendered evidence contrary to the records, it is the duty of the prosecution to rectify it. To that limited extent, I am inclined to accept the contention of the prosecution.
10. Having considered these facts, I feel that impugned order is liable to be modified. The production of the entire file which includes statements stated to be hit by the provisions of Cr.P.C and evidence may not be justified and will not be in consonance with the prayer made in the application. Accordingly, Court below shall return the above file to the prosecutor. Thereafter, prosecutor shall cause the production of the enquiry report and the standard requisition form for forwarding specimen document and standard documents for forensic examination, separately. Crl.M.C.803/2020 8 The prosecution will be permitted to examine PW16 for the limited purpose of marking such documents and for the limited purpose of clarifying any ambiguity in the evidence of PW16 as mentioned in Annexure-A1 application. The enquiry file of the investigating officer can be permitted to be used by the witness to refresh his memory, if required, subject to the limitations under section 172 Cr.P.C.
Impugned order will stand modified to the above extent. Court below shall proceed with the trial and complete it as expeditiously as possible in compliance with direction of Supreme Court. Crl.M.C is disposed of with the above direction.
Sd/-
SUNIL THOMAS
Sbna JUDGE
Crl.M.C.803/2020
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APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE I TRUE COPY OF THE FINAL REPORT IN CRIME
NO.VC20/20096TSR OF VACB, THRISSUR.
ANNEXURE II TRUE COPY OF THE PETITION SUBMITTED BY THE
PROSECUTOR DATED 18.01.2020 AS
CRL.M.P.NO.93/2020.
ANNEXURE III TRUE COPY OF THE OBJECTION SUBMITTED BY THE
PETITIONERS HEREIN.
ANNEXURE IV CERTIFIED COPY OF THE ORDER DATED
24.01.2020 IN CMP.NO.93/2020 IN CC
NO.38/2012 PASSED BY THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE, THRISSUR.
ANNEXURE V TRUE COPY OF THE PRIVATE COMPLAINT FILED BY
MURUGAR SELVI BEFORE THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE (VIGILANCE &
ANTI-CORRUPTION), THRISSUR.
ANNEXURE VI TRUE CERTIFIED COPY OF THE DEPOSITION OF
PW16 IN CC NO.38/2012 ON THE FILE OF THE
ENQUIRY COMMISSIONER AND SPECIAL
JUDGE(VIGILANCE & ANTI-CORRUPTION),
THRISSUR.