Rahul vs State Of Kerala
2023 Latest Caselaw 9479 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
                   CRL.MC NO. 7040 OF 2023
  AGAINST THE ORDER/JUDGMENT CC 8/2023 OF CHIEF JUDICIAL
MAGISTRATE ,THIRUVANANTHAPURAM/ SPECIAL COURT FOR TRIAL OF
                          CYBER CRIME
PETITIONER/S:
    1     RAHUL, AGED 32 YEARS
          S/O. VIJAYA RAGHAVAN, CHARAYANGATTU METHIL VEEDU,
          KAVIL P.O., III RD WARD, NADUVANNOOR VILLAGE,
          KOZHIKODE DISTRICT, PIN - 673614
    2     PRANAV PRAMOD, AGED 23 YEARS
          S/O. A.N. PRAMOD, ATHIKALAM, KUMARAKOM SOUTH,
          VAIKKOM, KOTTAYAM, PIN - 686563
          BY ADVS.
          C.V.MANUVILSAN
          NAEEM IBRAHIM
          O.A.ANJU
          VRINDA LAKSHMANAN
RESPONDENT/S:
    1     STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
          OF KERALA, ERNAKULAM, PIN - 682031
    2     STATION HOUSE OFFICER
          MUSEUM POLICE STATION, THIRUVANANTHAPURAM CITY,
          PIN - 695033
    3     JIJU KUMAR P.D.
          (AGE AND FATHER'S NAME NOT KNOWN TO THE
          PETITIONERS), COMPLAINANT, SUB INSPECTOR OF
          POLICE, MUSEUM POLICE STATION,
          THIRUVANANTHAPURAM, PIN - 695033
OTHER PRESENT:
          SEENA.C PP
     THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
05.09.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                        -2-
Crl.M.C No. 7040 of 2023



                               P.V.KUNHIKRISHNAN, J.
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                                Crl.M.C No. 7040 of 2023
                           =============================================================

                   Dated this the 5th day of September, 2023

                                                 ORDER

This Crl.M.C is filed with following prayers:

"i. To quash all further proceedings in CC No. 8/2023 pending on the files of learned CJM, Thiruvananthapuram, in Crime No. 1210 of 2022 of Thiruvananthapuram city Police station against the Petitioner herein together with ANNEXURE A1 FIR ANNEXURE A2 FIS and ANNEXURE A3 Final Report in Crime No. 1210/2022 of Thiruvananthapuram city Police station and acquit the Petitioners, as honorary acquittal from the said crime, to secure ends of justice and also to prevent abuse of process of the Court.

ii. Pass such any other order, direction or reliefs as this Hon'ble Court may deem fit in the interest of justice, equity and good conscience." (sic)

2. The main ground to quash the proceedings is that the 3 rd

herein was the de-facto complainant and the 1 st informant and he

himself registered Annexure A1 FIR on the basis of Annexure A2 FIS

and thereafter he conducted the investigation and submitted Annexure

A3 final report. The second point raised by the petitioner is that there

are only two accused arrayed in the charge sheet and the offence under

Crl.M.C No. 7040 of 2023

Section 143, 147 and 149 will not attract because minimum of five

persons are necessary to attract the offences under Section 143 and

147. It is also submitted that there is no allegation of common

intention also to connect the allegation of the alleged act committed

by the petitioners in the FIR and final report.

3. Heard counsel for the petitioner and the Public Prosecutor.

4. This Court considered the above contentions. The

question regarding the de fact complainant himself investigated the

case is considered by a larger bench of Apex Court in Mukesh Singh

v. State (Narcotic Branch of Delhi) [2020 (5) KHC 1(SC)]. The

relevant portion of the above judgment is extracted hereunder :

"11. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. As held by this Court in the case of Ram Chandra (supra) the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each

Crl.M.C No. 7040 of 2023

case [See Vipan Kumar Jain (supra)]. At this stage, it is required to be noted and as observed hereinabove, NDPS Act is a Special Act with the special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. Therefore, considering the NDPS Act being a special Act with special procedure to be followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal. Similarly, even with respect to offences under the IPC, as observed hereinabove, there is no specific bar against the informant/complainant investigating the case. Only in a case where the accused has been able to establish and prove the bias and/or unfair investigation by the informant-cum- investigator and the case of the prosecution is merely based upon the deposition of the informant-cum-investigator, meaning thereby prosecution does not rely upon other witnesses, more particularly the independent witnesses, in that case, where the complainant himself had conducted the investigation, such aspect of the matter can certainly be given due weightage while assessing the evidence on record.

Therefore, as rightly observed by this Court in the case of Bhaskar Ramappa Madar (supra), the matter has to be decided on a case to case basis without any universal

Crl.M.C No. 7040 of 2023

generalisation. As rightly held by this Court in the case of V. Jayapaul (supra), there is no bar against the informant police officer to investigate the case. As rightly observed, if at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer the question of bias would depend on the facts and circumstances of each case and therefore it is not proper to lay down a broad and unqualified proposition that in every case where the police officer who registered the case by lodging the first information, conducts the investigation that itself had caused prejudice to the accused and thereby it vitiates the entire prosecution case and the accused is entitled to acquittal."

5. In the light of the above dictum, I am of the considered

opinion that the point raised by the petitioner is to be raised before the

Trial court at the appropriate stage and the trial court has to decide

whether there is any prejudice caused to the petitioner because the de

facto complainant himself investigated the case. As far as the second

contention of the petitioner to the effect that Sections 143 and 147 IPC

will not attract is concerned, I don't want to make any observation

about the same. But it is relevant to note that in the final report itself

it is stated that the accused two in number and ten identifiable persons

committed the offence. Whether that is enough to attract Section 143

and 147 IPC is a matter to be decided by the trial court at the

Crl.M.C No. 7040 of 2023

appropriate stage. The petitioner is free to agitate that contention

before the trial court and this Court need not interfere with the final

report at this stage.

Therefore, granting liberty to raise all the contentions raised in

this Crl.M.C before the trial court at the appropriate stage, this

Crl.M.C. is dismissed.

sd/-

P.V.KUNHIKRISHNAN JUDGE das

Crl.M.C No. 7040 of 2023

APPENDIX OF CRL.MC 7040/2023

PETITIONER ANNEXURES Annexure A1 A CERTIFIED COPY OF THE FIR IN CRIME NO. 1210 OF 2022 OF MUSEUM POLICE STATION OF THIRUVANANTHAPURAM Annexure A2 A CERTIFIED COPY OF THE FIS IN CRIME NO. 1210 OF 2022 OF MUSEUM POLICE STATION OF THIRUVANANTHAPURAM Annexure A3 A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 1210 OF 2022 SUBMITTED BY THE FIRST INFORMANT OF MUSEUM POLICE STATION OF THIRUVANANTHAPURAM Annexure A4 A TRUE PHOTOCOPY OF THE DELEGATE PASS ISSUED BY THE IFFK TO THE 1ST PETITIONER Annexure A5 A TRUE PHOTOCOPY OF THE DELEGATE PASS ISSUED BY THE IFFK TO THE 2ND PETITIONER Annexure A6 THE COVER PAGE OF THE FESTIVAL BOOK RECEIVED BY THE PETITIONERS FROM IFFK