Kerala High Court
Valsala vs State Of Kerala on 28 March, 2012
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934
WP(C).No. 26296 of 2012 (J)
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PETITIONER(S):
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VALSALA, AGED 51 YEARS
W/O.DAMODARAN (LATE), AGED 51 YEARS
VELUTHEDATHODI HOUSE, CHERATTUKUZHI, ERANADU TALUK
MALAPPURAM DISTRICT.
BY ADVS.SRI.P.VENUGOPAL
SRI.M.REVIKRISHNAN
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT
HOME DEPARTMENT, GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM - 695 001.
2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS
THIRUVANANTHAPURAM - 695 001.
3. THE DEPUTY SUPERINTENDENT OF POLICE,
MALAPPURAM- 676 505.
BY ADV. GOVERNMENT PLEADER SMT.SEENA RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-03-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.C.26296/12
APPENDIX
PETITIONER'S EXHIBITS:
P1:TRUE COPY OF THE FIR IN CRIME NO.209/2012 OF MALAPPURAM POLICE
STATION.
P2:TRUE COPY OF THE FIRST INFORMATION STATEMENT LODGED BY THE
PETITIONER BEFORE THE MALAPPURAM POLICE DATED 28.3.2012 IN CRIME
NO.209/2012.
P3:TRUE COPY OF THE REPORT DATED 3.4.2012 SUBMITTED BY THE ADDITIONAL
SUB INSPECTOR OF POLICE, MALAPPURAM POLICE STATION BEFOROE THE
JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM.
P4:TRUE COPY OF THE REPRESENTATION DATED 10.10.2012 PREFERRED BY THE
PETITIONER BEFORE THE 2ND RESPONDENT WITH COPY TO THE
SUPERINTENDENT OF POLICE, WITH POSTAL RECEIPTS.
RESPONDENTS' EXHIBITS: NIL
//TRUE COPY//
P.A.TO JUDGE
C.T.RAVIKUMAR, J.
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W.P.(C)No.26296 of 2012
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Dated 20th March, 2013
JUDGMENT
The petitioner is the defacto complainant in Crime No.209 of 2012 of Malappuram Police Station. The daughter of the petitioner attempted to commit suicide at her paternal home on 19.3.2012 and later, breathed her last on 3.4.2012 at Kozhikode Medical College. The marriage of the defacto complainant's daughter Nimisha with Shyju was solemnized on 14.9.2011. After the attempt to commit suicide and the consequent hospitalisation of Nimisha Crime No. 209 of 2012 was registered at Malappuram Police Station under Section 498-A read with Section 34 of the Indian Penal Code. After the death of Nimisha the offence was altered to one under Section 304B read with Section 34 of the Indian Penal Code. Apart from the husband of Nimisha, his parents and sister were also arraigned as accused. Ext.P3 report altering the offence accordingly, dated 3.4.2012 was then, filed before the Court of Judicial First Class Magistrate, Malappuram. Thereafter, the petitioner submitted Ext.P4 representation dated 10.10.2012 before the second respondent, the Director General of Police stating that the investigation was not proceeding in the right direction and therefore sought to hand over the investigation in that crime with a superior officer to the third respondent who is having impeccable credentials and proven track WP(C).No.26296/2012 2 record. It is essentially the non-feasance on Ext.P4 representation that constrained the petitioner to file this petition with the prayer to issue a writ of mandamus commanding the second respondent to hand over the investigation in Crime No.209 of 2012 of Malappuram Police Station from the third respondent to an officer who is having impeccable credentials and proven track record of Crime Branch Wing of the Kerala Police (CBCID, Malappuram) equal or superior in rank to the third respondent. On 30.1.2013 this Court passed an order in this writ petition. It is evident from the said order that prior to that this Court directed the third respondent, the Investigating Officer in the aforesaid crime, to be present before this Court along with the Case Diary and other records. After perusing the Case Diary this Court noticed the fact that the mobile phone used by the victim Nimisha was forwarded to the State Forensic Science Laboratory on 6.4.2012 and repeated reminders were sent thereafter, with a view to get a report thereon. This Court also took note of the submission made by the Investigating Officer that he had personally visited FSL's office on 28.06.2012 for getting the details of incoming and outgoing calls during the period from 14.9.2011 to 20.3.2012. The learned Public Prosecutor then, made a submission before the Court that the Forensic Science Laboratory would normally comply with the request for reports only in terms of priority. Thereupon, this Court took note of the fact that for appropriate WP(C).No.26296/2012 3 investigation in the matter the call details as well as e-mail details are essential and consequently, directed the Director of Forensic Science Laboratory, Thiruvananthapuram to give top priority to the request made by the third respondent herein, the Investigating Officer in the aforesaid crime. It is further directed that, in the said circumstances, a report shall be communicated to the Investigating Officer within a period of three weeks.
2. When this matter is taken up for consideration today, the learned Public Prosecutor submitted that in compliance with the directions of this Court in the order dated 30.1.2013 priority was given to the request made by the Investigating Officer in the aforementioned crime and the items which were forwarded for analysis were carefully and forensically examined with scientific aids at the State Forensic Science Laboratory and the results of the examination in the form of a report was already forwarded to the third respondent, the Investigating Officer. Thus, it is obvious that the only impediment for a proper investigation in the aforesaid crime has now, been averted. The learned counsel for the petitioner contended that the action on the part of the third respondent in forwarding those materials for analysis by the Forensic Science Laboratory is nothing but an over-enthusiasm from his part and in the light of the statutory provisions under Section 113 of the WP(C).No.26296/2012 4 Evidence Act he was not justified in that action. In short, the contention of the petitioner is that it is a matter wherein taking note of the aforesaid actions on the part of the third respondent the investigation in the crime has to be directed to be handed over to some other officer as has been requested vide Ext.P4. I am afraid I cannot accept the said contentions for the simple reason that even while passing the order dated 30.1.2013 this Court was fully astute to the effect that the Investigating Officer had called for a report from the Forensic Science Laboratory after examining the mobile phone used by the victim Nimisha and such other materials viz., the messages, e-mails etc. That apart it is evident from the order dated 30.1.2013 that this Court directed the Director of Forensic Science Laboratory, Thiruvananthapuram to give top priority to the request made by the Investigating Officer in the aforesaid crime viz., the third respondent herein, in terms of the letters referred to in the order dated 6.4.2012, 2.6.2012 etc. and to furnish a report to the Investigating Officer. Evidently, such an order was passed on 30.1.2013 after hearing the learned counsel for the petitioner and also the learned Public Prosecutor. That apart, what has been done in this case by the Director of Forensic Science Laboratory is only forwarding of a report in compliance with the direction of this Court to the third respondent, the Investigating Officer. There cannot be little doubt with respect to the position of law that investigation of a crime falls within the province of WP(C).No.26296/2012 5 the investigating agency and this Court will not be justified in giving any direction with respect to the manner in which the investigation is to be conducted. There is no dispute with respect to the fact that shortly after the attempt of Nimisha to commit suicide on 19.3.2012 a crime was registered alleging commission of offence under section 498-A read with Section 34 IPC against her husband, his parents and sister and later, on her death it was altered to one for commission of an offence under Section 304B read with Section 34 I.P.C.. When a crime has been registered it is for the investigating agency to conduct the investigation and once an investigation is conducted it is its bounden duty to file a report under Section 173 Cr.P.C. before the competent court. In this case, it is evident that the delay had occurred solely due to the non- receipt of the FSL report. When this Court in the order dated 30.1.2012 made an observation that for the investigation in the matter call details, the details of message as well as e-mails are required and in fact, the order dated 30.1.2013 was passed by this Court after forming such an opinion that too, after perusing the case Diary and after hearing the learned counsel for the petitioner and the learned Public Prosecutor, I will not be justified in making any further observation in the matter. The learned counsel for the petitioner in the said circumstances submitted that liberty may be given to the petitioner to raise such contentions, if such occasion arises in future. But, it is a fact that in this case, after WP(C).No.26296/2012 6 registering the crime the investigation is still going on and the third respondent, the Investigating Officer, is yet to lay the final report in the said crime. In such circumstances, this Court will not be justified in making any observation with respect to the legality or otherwise of the action in seeking a report from the State Forensic Science Laboratory especially in the light of the order dated 30.1.2013 passed by this Court. However, if any legally sustainable contentions are to be raised when once the final report is laid for redressing any genuine grievances, the petitioner will be at liberty to work out his remedies, in accordance with law.
In the above circumstances, without making any further observation, this writ petition is disposed of directing the third respondent to complete the investigation in Crime No.209 of 2012 of Malappuram Police Station expeditiously and to file a final report, in accordance with law, before the competent court.
Sd/-
C.T.RAVIKUMAR Judge TKS