Kerala High Court
Sarmakani,S/O. Mariyappan vs State Of Kerala on 14 September, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
Tuesday, the 14th day of September 2021 / 23rd Bhadra, 1943
CRL.A NO. 2027 OF 2004
SC 17/2003 OF V ADDL. SESSIONS COURT, ERNAKULAM.
APPELLANTS/ACCUSED 1 TO 5:
1. SARMAKANI, S/O. MARIYAPPAN, DOOR NO.47, CHEMBAKAT ROAD, KANIYAN
COLONY, SIVAKASI, KAMARAJ DISTRICT.
2. YESUDAS S/O.DHANARAJ, DOOR.NO.45, K.K.NAGAR, THIRUTHUNKAL P.O.
SIVAKASI.
3. SAMBATH, S/O.PURUSHOTHAMA, DOOR NO.48, XIIA, K.K.NAGAR ROAD,
PURANIMEDU, SIVAKASI.
4. AROGYADAS, S/O. A.ROGYASWAMI, DOOR NO.3, K.K.NAGAR, THIRUTHANGAL,
SIVAKASI VILLAGE, KAMARAJ DIST.
5. GOPI, S/O.KANNAMMA, MUTHUVILPURAM, KAMARAJ COLONY, TAMIL NADU DIST.
RESPONDENTS/COMPLAINANT & ACCUSED 6 TO 12:
1. STATE OF KERALA, REPRESENTED BY STATE PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2. DETECTIVE INSPECTOR, C.B.C.I.D.(C.F.S), ERNAKULAM, CRIME NO. 83/1990
OF HILLS PALACE, POLICE STATION.[DELETED]
3. THOMAS, S/O.AUGUSTINE, VARIKODU VEEDU, KARIMANNOOR VILLAGE,
THODUPUZHA, IDUKKI. [DELETED]
4. JOHNSON JOHNI, S/O. AUGUSTINE, VARIKODU VEEDU, KARIMANNOOR VILLAGE,
THODUPUZHA, IDUKKI. [DELETED]
5. BENNI, S/O. JOSEPH KUZHIPPILLIL VEEDU, THANKAMANI KAR, KARIMANNOR
VILLAGE. [DELETED]
6. SURESH, S/O. KUNJUMON, CHEMBIL VEEDU, ALLAPRA KARA, VENGOLA VILLAGE.
[DELETED]
7. HARI @ ARTIST HARI, S/O. KUNJAN, NIVARTHIL VEEDU, THURAVOOR KARA,
THURAVOOR VILLAGE. [DELETED]
8. SUKUMARAN NAIR, S/O. GOPALA PILLAI, ESSAR INDUSTRIES, KUNNATHOOR
KARA, KUNNAYHOOR VILLAGE. [DELETED]
9. SOMAN PILLA, S/O. RAMAKRISHNA PILLA, KALIYIKKAL VEEDU,
KOLLAMPILLYMURI KARA, OCHIRA PANCHAYATH, OCHIRA VILLAGE.[DELETED]
[RESPONDENTS 2 TO 9 DELETED VIDE ORDER DATED 18/08/2011 IN
CRL.MA.6014/11 IN CRL.A 2027/2004.]
This Criminal appeal having come up for orders on 14.09.2021, upon
perusing the appeal and this Court's judgment daed 27/05/2020 and this
Court's order dated 11/08/2021 and report of State Police Chief dated
12.07.2021, 02/09/2021 and upon hearing the arguments of SRI. T.M. RAMAN
KARTHA, Advocate for appellants and PUBLIC PROSECUTOR, for the respondent
, the court on the same day passed the following:
P.V.KUNHIKRISHNAN, J.
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Criminal Appeal No.2027 of 2004
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Dated this the 14th day of September, 2021
ORDER
This Court, while disposing Criminal Appeal No.2027 of 2004 and other connected cases, issued certain directions to the State Police Chief. Above criminal appeals were filed by the accused in a counterfeit note case. It will be better to extract the relevant portion of the directions in the above judgment:
"19. Before concluding I have to mention the sorry state of affairs in this case. I think the Director General of Police should conduct an enquiry regarding the investigation in this case by a senior officer of the Police Department. After reading the evidence and documents produced in this case by the prosecution, I doubt an unholy relationship of the accused in this case, with the Police Officers who detected the case and who investigated the case. Following are some of the doubts created in my mind.
(1) PW19 and PW20 are getting definite information regarding the possession of counterfeit notes and the printing of counterfeit notes in building No. XXX/750 of Cochin Corporation. Section 104 of the Cr.PC states that, at the time of search, respectable and Criminal Appeal No.2027/2004 2 independent witnesses should be there. The officer is going for search with an accused who is involved in a murder case and a tea seller in the Police Station.
(2) The alleged seizure in this case was on 21.03.1990. As far as counterfeit notes are concerned, seizure, arrest and an expert opinion regarding the alleged counterfeit note are the main points to be investigated. In this case, the seizure was effected on 21.03.1990.
The expert opinion regarding the counterfeit note were obtained before 1995. The Final Report was filed after about 5 years from that date. Absolutely no explanation for the prosecution for the delay in submitting the Final Report. It is a fact that, witnesses in the case may not be able to identify the accused and remember the facts, if there is a long delay in submitting charge sheet. I doubt a criminal intend on the part of the officials to delay the investigation and to submit final report in this case. Prima facie, according to me, the investigating officer, delayed the investigation and submitted the final report after 10 years, only to help the accused to see that, the witnesses will not identify the accused if there is delay and the accused can escape in such situation. That exactly happened in this case. All the witnesses were Criminal Appeal No.2027/2004 3 not able to identify the accused and therefore the entire prosecution case collapsed.
(3).PW21 is the detecting Inspector, Crime Branch. Crime Branch is a wing which investigates important cases in the State. PW21 deposed before the Court that he didn't see the presence of the accused at the place of seizure, whereas, PW19 and PW20, the detecting Officers deposed before the Court that, accused Nos. 1 - 7 were present at the place of occurrence. PW21, the Police Officer was declared hostile to the Prosecution by the Public Prosecutor. An enquiry on this aspect is necessary. PW21 deposed before the Court, after his retirement. It is the duty of the Director General of Police to see that the retired officers from the Police Department give proper evidence in the respective cases in which investigation is conducted by such retired officers. In this case, PW21 is giving evidence after his retirement from service. I doubt that the deposition of PW21 about the absence of accused Nos. 1 - 7 at the place of seizure, which is against Ext.P1 seizure, is because of some unholy relationship between PW21 and the accused in this case.
(4).There cannot be any thinking to the officers of the Police Department that, after retirement, they can depose before the Court Criminal Appeal No.2027/2004 4 about a case anything and even against the Prosecution case, which they themselves witnessed or investigated. A mechanism to protect the criminal investigation system is necessary.
20. The Court cannot be a silent spectator in these situations. From the facts stated above, I think there is a chance for an unholy relationship between the Police Officers and the accused in this case. I am not making any further opinion about this, because it is a matter to be enquired by a senior Police Officer. If this attitude is continued, the criminal jurisprudence will not reach anywhere. It is to be noted that, the accused in these cases were alleged to be found in possession of counterfeit notes and machinery for printing counterfeit notes. According to the Prosecution, seizure of counterfeit is worth about 75 lakhs. It is also to be noted that, machineries for printing the counterfeit notes are also seized. In such situations, the Police Officer, himself turning hostile to the Prosecution, will create doubt to the Court. That is why, I started this Judgment with the sentence, "Something is rotten in the State of Denmark". I don't want to make any further comments on this. Untrammeled by any observations in this judgment, the Director General of Police, State of Kerala will depute a Senior Officer to conduct an enquiry regarding the investigation and submission of Final Report in this case. In the enquiry, if any criminal Criminal Appeal No.2027/2004 5 offence is made out, a case should be registered and investigated in accordance to law. The Director General of Police should submit an action taken report before the Registrar General of this Court within 6 months from the date of receipt of a copy of this judgment."
2. Based on the direction from this Court, the State Police Chief conducted an enquiry through Smt.Harshita Attaluri IPS, Inspector General of Police, South Zone. The report of the enquiry officer dated 27.04.2021 was submitted before this Court by the State Police Chief as per letter dated 12.07.2021. When this report came up for consideration, this Court was not satisfied about the same as far as point referred in Para 19(4) of the judgement in the appeal and hence passed the following order on 11.08.2021:
"The report dated 12/07/2021 submitted is not conclusive. The State Police Chief will file a detailed report specifically covering the point mentioned by this Court in paragraph No.19(4). The above report should be filed within three months. Once the report is received, the Registry will post this case. Registry will send a copy of this order to the State Police Chief."
After the above order, the State Police Chief submitted a detailed report on 02.09.2021. Registry placed the report Criminal Appeal No.2027/2004 6 before this court.
3. I perused the report dated 02.09.2021. This Court, in the order dated 11.08.2021, was concerned mainly about the point mentioned in paragraph No.19(4) of the judgment in the criminal appeal. The State Police Chief stated that there is no specific legal provision where a punishment is provided to a retired police officer for deposing against the prosecution after retirement. It is also stated that there are legal constraints for the State Police Chief to ensure that the retired police officers give proper evidence in the respective cases in which investigation is conducted by retired police officers. It is also stated in the report that the conduct of retired police officer is not covered by the provisions of the Kerala Police Act, 2011. The State Police Chief also submitted that as per Rule 6(1) of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, disciplinary inquiry can be initiated only against a member of the service and not against a retired employee.
4. It is also stated in the report that the tendency of witnesses turning hostile is due to various factors like fear of deposing against the accused/delinquent or political pressure Criminal Appeal No.2027/2004 7 or pressure of other family members or other sociological factors. It is also stated in the report that it is possible that witnesses are corrupted with monetary considerations.
According to the State Police Chief, there also may be reasons like threat or intimidation, inducement by various means, protracted trials, hassles faced by witnesses during investigation and trial. In the report it is also stated that it is intended to take up the matter with the Government for the enactment of appropriate legislation in this regard so as to ensure the protection of the criminal investigation system and to provide for punishment to a retired officer who turns hostile to the prosecution after his retirement. The State Police Chief submitted that the another issue has already been reported to the Government vide Office Letter No.T3-93444/2020/PHQ dated 01.09.2021.
5. According to me, the State Government has to consider this matter very seriously. According to the State Police Chief, there is no law in force to take action against a retired officer who is going against the prosecution in a criminal case. This cannot go on like this. The State Police Chief even apprehends that there are chances for the retired Criminal Appeal No.2027/2004 8 officers to give evidence against the prosecution because of political pressure, pressure of other family members and even because of corruption with monetary consideration. According to the State Police Chief, there is a lacuna in the law to take action against these erring police officials. According to me, this is a matter which is to be addressed by the State government with appropriate legislation in accordance to law.
If necessary, the State Government will constitute a committee with legal experts to study this issue before going for Legislation. Therefore, there can be a direction to the Registry to forward this order to the Chief Secretary, State of Kerala, for appropriate action in the light of the report dated 02.09.2021 of the State Police Chief and also in the light of the Office Letter No.T3-93444/2020/PHQ dated 01.09.2021 of the State Police Chief.
Therefore, this proceedings is closed in the following manner:
1. The report dated 12.07.2021 and 02.09.2021 of the DGP & State Police Chief, Kerala, is recorded.
2. The Registry is directed to forward a copy of Criminal Appeal No.2027/2004 9 this order to the Chief Secretary, State of Kerala, for taking appropriate action in accordance to law including appropriate legislation, in the light of the report dated 02.09.2021 of DGP & State Police Chief, Kerala and his Office Letter No.T3-93444/2020/PHQ dated 01.09.2021.
3. The State Government will constitute a committee with legal experts to study this issue, if necessary, to address the situation narrated by the State Police Chief in his report dated 02.09.2021.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
14-09-2021 /True Copy/ Assistant Registrar