Kerala High Court
Sarmakani,S/O. Mariyappan vs State Of Kerala on 14 September, 2021
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.
------------------------------
Criminal Appeal No.2027 of 2004
----------------------------------------------
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
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
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
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
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
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
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
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
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
