Gilbert vs State Police Chief, Police ...
2023 Latest Caselaw 14 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
        THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
 FRIDAY, THE 6TH DAY OF JANUARY 2023 / 16TH POUSHA, 1944
                      WP(CRL.) NO. 1233 OF 2022
 CC 4141/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III,
                      NEYYATTINKARA (TEMPORARY)
PETITIONER

            GILBERT
            AGED 47 YEARS, S/O NJANADAS, DOOR NO.2/57,
            ALAMKALAPUTHANVEEDU,
            MALAYADI (KALIYIL) VILLAGE, VILAVANKODE TALUK,
            KANYAKUMARI DISTRICT, TAMILNADU, PIN - 629101
            BY ADV LATHEESH SEBASTIAN


RESPONDENTS

    1       STATE POLICE CHIEF, POLICE HEADQUARTERS
            VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN - 695014
    2       DISTRICT POLICE CHIEF
            THIRUVANANTHAPURAM RURAL DISTRICT POLICE,
            THAICAUD P.O., THIRUVANANTHAPURAM, PIN - 695014
    3       DEPUTY SUPERINTENDENT OF POLICE
            NEYYATTINKARA, THIRUVANANTHAPURAM, PIN - 695121
    4       STATION HOUSE OFFICER, VELLARADA POLICE STATION
            VELLARADA, THIRUVANANTHAPURAM DISTRICT, PIN -
            695505
            BY     GOVERNMENT PLEADER SEENA C-PP


     THIS    WRIT     PETITION    (CRIMINAL)   HAVING    COME   UP   FOR
ADMISSION     ON    06.01.2023,    THE     COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 WP(Crl).1233/2022
                                          2


                        ZIYAD RAHMAN A.A., J.
                           -------------------------
                        W.P.(Crl).1233 of 2022
                        -------------------------------
                    Dated : 6th day of January, 2023


                               JUDGMENT

1. The petitioner is the accused in Crime No.487 of 2022 of

Vellarada police station, which was registered for offences

punishable under Sections 279 and 304A of the Indian

Penal Code. The aforesaid case is now pending as

C.C.4141 of 2022 before the Judicial First Class Magistrate

Court-III, Neyyattinkara.

2. The prosecution case is that, on 12.06.2022 at about

12.00 pm, while the petitioner was driving a bus owned by

the Tamil Nadu State Transport Corporation (TNSTC), the

aforesaid vehicle hit against a motorcycle coming from the

opposite side and thereby, the rider of the motorcycle

sustained injuries, consequent to which he died. Ext.P1 is

the FIR registered in the said case, and after completing

the investigation, Ext.P3 final report was submitted by the

police. This writ petition is filed by the petitioner, seeking

a direction to respondents 1 to 3 to conduct further

investigation in the matter through the Crime Branch Wing WP(Crl).1233/2022

of the State Police or any other specialised agency or by a

superior Officer in the rank of Deputy Superintendent of

Police.

3. Heard Sri.Latheesh Sebastian, the learned counsel

appearing for the petitioner and the learned Senior

Government Pleader appearing for the State.

4. The learned counsel for the petitioner contends that the

police submitted Ext.P3 final report without conducting a

proper investigation. The aforesaid contention of the

petitioner is by mainly relying upon the contents of Ext.P2

scene mahazar. It is pointed out that the accident occurred

on the road lying North-South direction, and the petitioner

was driving his vehicle from South to North. The width of

the road was 9.10 metres, and the spot of the accident

was shown as 1.84 cms towards the east from the western

tar end of the road. By relying on the same, it is

contended that going by the same, the vehicle of the

petitioner was on its right side, and therefore, no

negligence against the petitioner could be attributed. It is

also pointed out that, highlighting the grievance, he had

submitted Ext.P4 representation before the 2 nd

respondent, which evoked no response.

WP(Crl).1233/2022

5. On the other hand, the learned Government Pleader would

point out that a proper investigation was conducted in the

matter, and Ext.P3 final report was submitted thereafter.

The learned Government Pleader also brought the

attention of this Court to the statement of witnesses

recorded under Section 161 Cr.P.C.

6. After considering all the relevant aspects, I am of the view

that the prayer sought by the petitioner cannot be

considered. This is mainly because the only material

based on which the petitioner is seeking relief is the place

of the accident as recorded in Ext.P2 scene mahazar. It is

true that going by the same, the petitioner was driving the

vehicle through the left side of the road. However, the

circumstances under which the accident occurred cannot

be decided on the basis of the scene mahazar alone. The

question of negligence on the part of the petitioner is a

matter which is to be determined based on the other

materials.

7. In this case, as rightly pointed out by the learned Public

Prosecutor, CWs 2 to 4 were cited as occurrence witnesses

and all of them had stated about the negligence on the

part of the petitioner herein in driving the said vehicle.

The petitioner pointed out that it is not very clear from the WP(Crl).1233/2022

statement of the said witnesses as to whether they have

actually witnessed the accident. However, after carefully

going through the contents of the aforesaid statement, I

am not inclined to accept the same.

8. The prayer sought by the petitioner is to conduct a further

investigation into the matter under Section 173(8) of

Cr.P.C. The statutory stipulation contained in Sub-section

(8) of Section 173 of Cr.P.C regarding the powers vested

upon the Investigating Officer to conduct a further

investigation is to the effect that, in case the police officer

obtains further evidence, oral or documentary, the said

power can be invoked. In this case, the contention of the

learned counsel for the petitioner is only based on the

contents of the scene mahazar, and I am of the view that,

from the contents of the same, no such circumstances as

contemplated under Sub-section (8) of Section 173 can be

inferred to justify a further investigation in the matter.

Moreover, the petitioner is an accused who does not have

any vested interest in seeking an order of further

investigation. The further investigation is a matter which

comes within the powers of the Investigating Officer, and

the petitioner cannot insist for a further investigation as of

right, when the final report implicates him for the offence. WP(Crl).1233/2022

In such circumstances, I am of the view that the

contentions raised by the petitioner are not legally

sustainable, and therefore, I am not inclined to entertain

this Writ Petition. Accordingly, it is dismissed without

prejudice to the other rights of the petitioner. It is clarified

that all the observations in this Writ petition were made

only to determine whether any further investigation, in

this case, is required or not, and the same shall not affect

the merits of the contentions of the petitioner while he is

facing the trial.

Sd/-

ZIYAD RAHMAN A.A, Judge

Mrcs/7.1.2023 WP(Crl).1233/2022

APPENDIX OF WP(CRL.) 1233/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE FIR IN CRIME NO.

487/2022 OF VELLARADA POLICE STATION Exhibit P2 TRUE COPY OF THE SCENE MAHASSER PREPARED BY THE 4TH RESPONDENT IN CRIME NO. 487/2022 OF VELLARADA POLICE STATION Exhibit P3 TRUE COPY OF THE FINAL REPORT FILED BY THE 4TH RESPONDENT IN CRIME NO.

487/2022 OF VELLARADA POLICE STATION Exhibit P4 TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DATED 11.07.2022 SUBMITTED TO THE 2ND RESPONDENT