T.Pandi vs The Station House Officer
2021 Latest Caselaw 5713 Mad

                                                        Crl.O.P.No.28701 of 2019

         IN THE HIGH COURT OF JUDICATURE AT MADRAS
                              Dated : 04.03.2021
                                   Coram
    THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
                          Crl.O.P.No.28701 of 2019
                       and Crl.M.P.No.15294 of 2019
1. T.Pandi
2. R.S.Parthasarathi
                                                                ...Petitioners
                                   Versus
The Station House Officer,
Virinchipuram Police Station,
Virinchipuram, Vellore District.
Crime No.227 of 2018
                                                               ...Respondent

      This Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code praying to call for the records pertaining to Judgment in
SC.No.105 of 2019 dated 30.09.2019 on the file of the Additional District
court (FTC) at Vellore and be pleased to Expunge the adverse remarks made
as against the petitioners in paragraphs 46 to 52 of the Judgment in
S.C.No.105 of 2019 dated 30.09.2019 on the file of the Additional District
court (FTC) at Vellore.
            For Petitioners            :     Mr.Himavath
                                             For Mr.M.Subash Pandiyan
            For Respondent             :     Mr.C.Raghavan
                                             Government Advocate
                                             (Crl. Side)


1
                                                          Crl.O.P.No.28701 of 2019



                                ORDER

This petition has been filed seeking to expunge the adverse remarks

made against the petitioner at paragraph Nos.46 to 52 of the judgment that

was rendered in SC.No.105 of 2019, dated 30.09.2019 by the Additional

District Court (FTC) at Vellore.

2. The first petitioner, who was the Station House Officer received an

information on 06.07.2018 from CMC, Vellore regarding a crime and the

consequent injury sustained by the deceased and two others. The first

petitioner went to the hospital and took the statement of the complainant,

who was one of the injured person in this case. Based on the statement, the

first petitioner registered an FIR in Crime No.227 of 2019 dated 06.07.2018

for the offences under Section 302, 323 & 324 of IPC against two named

accused persons.

3. The second respondent took up the investigation from where it was

left by the first petitioner and on conclusion of investigation, a final report

was laid after obtaining the opinion of the Deputy Director of Prosecution.

Crl.O.P.No.28701 of 2019

Based on the final report, charges were framed by the concerned Court and

the accused persons underwent trial .

4. The trial Court based on the facts and circumstances of the case

and on appreciation of evidence, proceeded to convict the first accused for

the offences under Section 304(ii) and 326 of IPC and the second accused

was acquitted from all the charges.

5. The trial Court on the verge of completion of the judgment

proceeded to make certain adverse remarks against both the petitioners from

paragraph Nos.46 to 52 of the judgment. Aggrieved by the same, the present

petition has been filed before this Court.

6. Heard Mr.M.Himavanth, learned counsel for the petitioners and

Mr.C.Raghavan, learned Government Advocate (Crl. Side), appearing on

behalf of the respondent.

7. In the present case, the first petitioner had registered the FIR based

Crl.O.P.No.28701 of 2019

on the statement given by one of the injured person and the first petitioner

was examined as PW21. The second petitioner had conducted the

investigation and had recorded the statement of the witnesses and the final

report was laid before the Court below only after getting the opinion of the

Deputy Director of Prosecution. This opinion was in fact marked as a

document Ex.P27. The second petitioner was examined as PW25 in this

case.

8. The Court below has proceeded to make certain adverse remarks

against the petitioners only based on the acquittal of the second accused in

this case. While the Court below acquitted A2 from all the charges, the

Court had merely said that there are no materials to sustain the charges

against the second accused. However, the Court below has chosen to make

adverse remarks against the petitioners to the extent that directions were

given to take action against the petitioners by the Human Rights

Commission, State Legal Service Authority and also by the Superintendent

of Police.

Crl.O.P.No.28701 of 2019

9. It is now well settled law that if any acquittal is as a result of a

defective investigation, a finding can be recorded to that effect and

departmental action can be directed against the concerned investigation

officer. Useful reference can be made to the judgment of the Hon'ble

Supreme Court in State of Gujarat Vs. Krishna bhai reported in 2014 (5)

SCC 108.

10. In the present case, there were two accused persons and the Court

below has found that the materials that were collected against A1 was

sufficient to convict him for offences under Section 304(ii) and 326 of IPC.

The second accused was acquitted on the ground that there were no

sufficient materials against him. An investigation cannot be effective as

against one accused person and ineffective as against another, since the

materials collected by the Investigating Officer is common for both the

accused persons. Therefore, this case cannot be brought under the category

of defective investigation.

Crl.O.P.No.28701 of 2019

11. If the trial Court had found that there are certain compelling

reasons to order for further enquiry or action against the petitioners, the

petitioners should have been given an opportunity of being heard before the

disparaging remarks were made against the petitioners. The law on this

issue is well settled and useful reference can be made to the judgment of

the Hon'ble Supreme Court in State Of West Bengal And Others vs Babu

Chakraborty reported in 2004 (12) SCC 201. The Hon'ble Supreme Court,

after taking into consideration, all the earlier judgments had categorically

held that any Court should afford an opportunity of hearing an Investigating

Officer before any harsh or disparaging remarks are made in the judgment.

The only exception that was carved out was in cases where such harsh and

disparaging remarks is really necessary to arrive at a decision.

12. In the present case, the remarks that have been made by the trial

Court had nothing to do with the decision that was arrived at in this case.

After arriving at a decision, the trial Court proceeded to pass extremely

disparaging remarks against the petitioners without giving them an

opportunity. This procedure adopted by the trial Court runs contrary to the

Crl.O.P.No.28701 of 2019

settled position of law and therefore, the same requires the interference of

this Court.

13. In the result, the disparaging/adverse remarks made against the

petitioners in paragraphs 46 to 52 of the judgment rendered in SC.No.105 of

2019 by the Additional District Court (FTC) Vellore, is hereby expunged

and this Criminal Original Petition accordingly allowed. Consequently,

connected miscellaneous petition is closed.

04.03.2021 Index : Yes/No Speaking Order (or) Non-Speaking Order rli

To

1. The Station House Officer, Virinchipuram Police Station, Virinchipuram, Vellore District.

2. The Additional District Court (FTC) at Vellore

3. The Public Prosecutor, High Court of Madras.

Crl.O.P.No.28701 of 2019

N.ANAND VENKATESH, J.,

rli

Crl.O.P.No.28701 of 2019 and Crl.M.P.No.15294 of 2019

04.03.2021