Sabu George v. State of Kerala — 1999 DIGILAW 321 (KER)

Judgment :- S. Sankarasubban, J. The Petitioner in the above Original Petition - Sabu George - is a complainant in Crime No. 32/96 of Fort Police Station, Thiruvananthapuram. The complaint is that he was brutally manhandled and falsely made an accused in a fabricated case by some police officials of the State. The accused, in the complaint, included the present Additional Director General of Police, The Sub Inspector of Police, Pala, Circle Inspector of Police, Pala, Additional Sub Inspector of Police. Fort Police Station, Circle Inspector of Police, Fort Police Station and some other persons. When the police refused to register the case and investigate into the matter, the petitioner filed O.P. 10412/1995 for a direction to register the case and investigate his complaint. By judgment dated 11.12.1995, the Original Petition was allowed. The judgment directed the police to register a case and investigate into the complaint. Thereafter an F.I.R. was registered against the police officials and others for offences under Ss.120(B), 506,363, 323,465 and 34 of Indian Penal Code. The first accused in the Crime-Joseph Thomas - filed Writ Appeal against the above judgment as W.A. No. 148/1996. Writ Appeal was dismissed by judgment dated 11.12.1997. It directed the investigating officials to conclude the enquiry within a period of three months from the date of receipt of a copy of the judgment. 2. According to the petitioner, in compliance with the judgment, the second respondent, viz., the Director General of Police, by order dated 23.12.1997 authorised the third respondent - Sri. Chandrasekharan IPS, Deputy Inspector General of Police, Thiruvananthapuram Range - to investigate the case. The third respondent appointed the 4th respondent - Sri. Reghupathy, Deputy Superintendent of Police, Crime Detachment Centre, Thiruvananthapuram City - as officer to conduct the investigation and to assist him. According to the petitioner, the first accused and others made all attempts to thwart the investigation. But, the 4th respondent started the investigation, recorded the statement of the petitioner and 30 other persons. The petitioner submits that the 4th respondent submitted a detailed report, on the basis of the evidence led in the case, with a finding that the accused had committed the offences. In the meanwhile the time limit expired and, therefore, the third respondent sought extension of time for completing the investigation. The petitioner submits that the 4th respondent submitted a detailed report, on the basis of the evidence led in the case, with a finding that the accused had committed the offences. In the meanwhile the time limit expired and, therefore, the third respondent sought extension of time for completing the investigation. The petitioner further submits that the third respondent directed the 4th respondent to stop further investigation and appointed another person, by name Hithapalan Nair, Dy. S.P., to conduct the investigation afresh. According to the petitioner, all on a sudden the pattern and style of investigation changed. The witnesses were threatened of dire consequences if they give evidence against the accused. The petitioner was aggrieved by the conduct of the third respondent in suddenly changing the investigating officer. According to the petitioner, he lost all confidence in third respondent and he will not get a fair and impartial investigation in the case. Hence, he approached this Court for a writ of mandamus commanding the second respondent to personally conduct the investigation in Crime No. 32/96 and for other consequential reliefs. 3. After the filing of the Original Petition the petitioner filed C.M.P.21327/1998. After admitting the Original Petition, by order dated 5.6.1998 this Court directed the Government Pleader to produce all records including the 161 statements recorded by the 4th respondent and the preliminary report submitted by him for perusal of the Court. C.M.P. 21327/1998 was filed to bring to the notice of the Court that the third respondent had filed Ext. P13 Refer Report with regard to Crime No. 32/96. Through the above C.M.P. the petitioner brought to the notice of the Court the impropriety with which the third respondent acted in filing a Refer Report when the entire matter is before this Court. Hence, the petitioner prayed for taking appropriate action against the third respondent and others. That C.M.P. was disposed of by order dated 23.7.1998. After tracing the entire history of the case and after referring to various aspects, this Court found that the Refer Report was filed in haste. By the above said order, this Court directed the third respondent to withdraw the Refer Report from the Chief Judicial Magistrate Court, Thiruvananthapuram. That C.M.P. was disposed of by order dated 23.7.1998. After tracing the entire history of the case and after referring to various aspects, this Court found that the Refer Report was filed in haste. By the above said order, this Court directed the third respondent to withdraw the Refer Report from the Chief Judicial Magistrate Court, Thiruvananthapuram. Since it was found that the investigation by the third respondent will not be of any help, this Court directed the petitioner as well as the respondents to file a panel containing the names of the investigating officers. From the panel, this Court chose Sri. Jacob Punnoose, Inspector General of Police, for the purpose of investigation. Hence, by the above order this Court directed Sri. Jacob Punnoose to conduct the investigation. Accordingly, Sri. Jacob Punnoose started investigation. 4, Sri. Jacob Punnoose has filed seven reports before this Court, which highlight important findings on each report. The first report is dated 12.9.1998. Inparagraph4 of the above report, the investigating officer has stated thus: "The investigation conducted so far has disclosed the following beyond reasonable doubt: (a) Police had falsely implicated Sri. Sabu George, the petitioner in O.P.No. 10100/98, as an accused in the case of alleged robbery registered as Cr. No. 20/93 of Fort Police Station. (b) Police have knowingly fabricated false evidence to deliberately implicate the said Sabu Goerge as accused in the above crime. (c) Most of the documents prepared or claimed as recovered by the police for the purpose of preferring a charge sheet against Shri. Sabu George accusing him of robbery are either false or forged." Further, in paragraph 6, it is stated thus: "The investigation during the past 11/2 months and analysis of evidence collected so far have established that several offences under the IPC have been committed against him in a planned, concerted and premeditated manner". 5. The second report is dated 3.12.1998. In paragraphs 5 and 6 of the report, it is stated thus:-"In addition to the progress reported earlier, the statements of 15 more persons have been recorded and further statements of some more persons recorded. Mahazars were prepared regarding the residence of Sabu George (the petitioner) and former residence of Sri. Dominic Chavara, former C.I., Palai. More documents throwing light on the incidental question have been obtained 6. Mahazars were prepared regarding the residence of Sabu George (the petitioner) and former residence of Sri. Dominic Chavara, former C.I., Palai. More documents throwing light on the incidental question have been obtained 6. The gold chain which was allegedly robbed in Cr.No. 20/93 of Fort P.S. was got summoned back by the Court from the person in whose custody it had been entrusted and the said chain has been sent to the Forensic Science Laboratory for expert opinion". In paragraph 8 it is stated as follows: "During the questioning of one witness earlier the said witness had stated that the witness had audio/video recordings of the conversation which had allegedly taken place at the house of Jose Kuruvinakunnel, among the said Jose Kuruvinakunnel, another Jose G. Kuruvinakunnel, Rev. Fr. John Kacharamattam, Sri. V. Joseph Thomas, I.P.S.,etc. during which facts in issue in the present case had been discussed. Video capsules purporting to be part of the said recording were produced by Jose Kuruvinakunnel on 24.11.1998 and the same were seized as per the mahazar. A report has been filed before the Court to send the same to the F.S.L. to get the recorded conversation transcribed officially so that the said matter can be brought into evidence if it is found relevant to the facts in issue". 6. The next report was filed on 3.2.1999. In paragraph 1, it is stated thus: "Isubmitthatthevideocapsulesreferredtoinpara8andparallofmyreportdated3.12.98 were sent to the Forensic Science Laboratory for transcription through the Court. The same has been returned by the Forensic Science Laboratory to the Court on the plea that the Forensic Science Laboratory has got facility only to play the normal type of video cassettes and that they do not have the facilities to play video tape capsules involved in this case". The report further wanted a suitable agency to be identified for this purpose. 7. The next report is filed on 6.4.1999. In paragraph 3 of the report, it is stated that the video tapes were taken to Riyan Digital Technics as directed by this Court. It was found that there were satisfactory facilities for the purpose of transcribing both the video capsules as well as the audio cassettes and again to video and audio compact discs. This work was done there and the CDs were forwarded back to the C.J.M. Court, Thiruvananthapuram. It was found that there were satisfactory facilities for the purpose of transcribing both the video capsules as well as the audio cassettes and again to video and audio compact discs. This work was done there and the CDs were forwarded back to the C.J.M. Court, Thiruvananthapuram. In paragraph 6 of the same report, it is stated thus: "From the playing of the cassettes at the time of transcription in the studio, it is understood that Sri. Joseph Thomas had gone to Sri. Jose KuruvinakunneI(Kuruvachan)'s house along with a Priest and another person. In the house there was prolonged conversation lasting several hours, mainly between Sri. Jose Kuruvinakunnel (Kuruvachan) and Sri. Joseph Thomas. The original incident well as the further developments of the case being currently investigated by me were discussed during the conversation. It appears that Sri. Joseph Thomas had gone there to negotiate and request for a compromise in this case as well as in other related matters." 8. Thereafter, Sri. Jacob Punnoose filed the 5th report dated 29.4.1999. Paragraph 6 of the report is important. In paragraph 5, the officer has stated that on 14.4.1999 he proceeded to Kottayam and reached Pala on 15.4.1999 and he questioned six witnesses. Then in paragraph 6 it is stated thus:- "From the statements of these witnesses it is clear that on the 6th of January 1998 there was a conversation in the house of Jose Kuruvinakunnel (Kuruvachan) lasting from 10.30 A.M. to around 6P.M. All these witnesses have stated, after hearing the audio record of parts of the said conversation, that what they have heard was a true recording of the parts of the conversation." Further, in paragraph 7, the following statements appear: "From the statements of the witnesses it appears that Sri. Joseph Thomas practically admitted many of the allegations in Cr.No. 32/96; that he apologised; that he offered to give compensation; that he wanted to save Rajagopalan (CI) and Sukumaran Nair (SI) and constables who are accused in this case...". In paragraph 8, the investigating officer states as follows: "On listening to the CDs while questioning the witnesses, I have found that most of the parts of the conversation material to this case are virtually part of a dialogue between Kuruvachan and Sri. Joseph Thomas. The others speak only very rarely. In paragraph 8, the investigating officer states as follows: "On listening to the CDs while questioning the witnesses, I have found that most of the parts of the conversation material to this case are virtually part of a dialogue between Kuruvachan and Sri. Joseph Thomas. The others speak only very rarely. Hence I consider it essential for my own knowledgeable satisfaction that every sentence in the recording is specifically verified and explained by the prime participating witness, namely Sri. Jose Kuruvinakunnel (Kuruvachan) and also that for the purpose of investigation, a written record is made of those material parts of the conversation in which Sri. Joseph Thomas is said to have made admissions." Thereafter in paragraph 10, the report states thus : "From the evidence collected so far, it appears that there is sufficient ground to believe that Sri. Joseph Thomas made some admissions with regard to the incident during the conversation." Therefore, the officer wanted to question Joseph Thomas with specific reference to the specific words in particular and the conversation in general, the authenticity of the record and the incidents having direct bearing in the case which are referred to in the recording. 9. The next report is dated 22.5.1999. In paragraph 4, the officer gives the comments and admissions made by Joseph Thomas, which is as follows: "(a) It. was under his instruction that the other accused started their action. (b) Sri. Joseph Thomas assumes the responsibility either directly or indirectly for the sufferings inflicted on Sabu George. (c) Sri. Joseph Thomas offers to compensate in monetary terms for the damage done in the actions. (d) Sri. Joseph Thomas admits that all that was intended was to give a little harassment and not to assault. (e) Sri. Joseph Thomas says that the other accused like Rajagopalan and Sukumaran Nair are repeatedly contacting the house of Sri. Joseph Thomas because they are in trouble. (f) Sri. Joseph Thomas requested Jose Kuruvinakunnel (Kuruvachan) that pressure should taken off him and that everybody should be freed from the case". In paragraph 5 it is stated thus: "Therefore, in the light of the above admissions, as an investigating officer I have to provisionally consider that the action of the police in foisting a false case against Sri. Sabu George was done at the instance of Sri. Joseph Thomas, if the admissions in the video capsules are genuine and if Sri. In paragraph 5 it is stated thus: "Therefore, in the light of the above admissions, as an investigating officer I have to provisionally consider that the action of the police in foisting a false case against Sri. Sabu George was done at the instance of Sri. Joseph Thomas, if the admissions in the video capsules are genuine and if Sri. Joseph Thomas had in fact spoken the words heard in the tape as those of Sri. Joseph Thomas. Since there was prima facie ground to suspect hi s complicity in this matter, I questioned Sri. Joseph Thomas on 17.5.99 at ernakulam". In paragraph 6, the officer gives a summary of the statements given by Joseph Thomas. Joseph Thomas admits his going to Pala and meeting Jose Kuruvinakunnel. He states that he went for Pala for compromising some civil cases filed by Jose Kuruvinakunnel and he was tricked into making a long conversation. The entire talk was with regard to civil cases and not about Sabu George's case. In paragraph 7, the investigating officer takes the view that a voice identification test has to be conducted to identify as to whether the voice in the tape was that of Joseph Thomas and a competent agency has to be found for this purpose. It is thereafter submitted that the voice identification test can be conducted only in an Institute at Mysore and will take six months to complete the test. 10. Final report was filed on 14.6.1999. In this report, the investigating officer has stated that he has done everything possible to expedite the investigation. He had questioned more than fifty persons at different locations in the State of Kerala. Several thousand pages of voluminous documents have been perused. In paragraph 7, he has stated the following: 7. The investigation has disclosed the following beyond reasonable doubt: a) Police had falsely implicated Sri. Sabu George, the petitioner in O.P.No. 10100/98, as an accused in the case of alleged robbery registered as Cr.No. 20/93 of Fort Police Station. b) Police have knowingly fabricated false evidence to deliberately implicate the said Sabu George as accused in the above crime. c) Most of the documents prepared or claimed as recovered by the police for the purpose of preferring a charge sheet against Sri.Sabu George accusing him of robbery are either false or forged. d) Sri. Sabu George was assaulted while in custody. c) Most of the documents prepared or claimed as recovered by the police for the purpose of preferring a charge sheet against Sri.Sabu George accusing him of robbery are either false or forged. d) Sri. Sabu George was assaulted while in custody. e) Offences have been committed against Sri. Sabu George, in a planned, concerted and premeditated manner". Further, the investigating officer states, the detailed analysis of evidence is given in the Case Diary dated 14.6.1999. Paragraph 9 unequivocally states the complicity of the seven accused mentioned therein. That does not take Joseph Thomas. 11. From paragraph 10 onwards the report deals with the evidence against Joseph Thomas. The investigating officer states, there is prima facie reason to believe the involvement of Joseph Thomas in the case. But, it is further stated that it was not possible at this distance of time to exactly reconstruct the manner in which he could have wielded influence to trap Sabu George. In paragraph 11, the officer states that the incident could not have happened without some conspiracy or other. The investigating officer is definite when he states in paragraph 12 that on 6.1.1998 there was a conversation in the house of Jose Kuruvinakunnel (Kuruvachan) lasting from 10.30 A.M. to 6.00 P.M. From the statement of witnesses who stated that the record of the conversation which they heard from the CDs is genuine, it appears that Sri. Joseph Thomas practically admitted many allegations in Crime No. 32/1996. The officer also reiterates his earlier statement that the recording appears to be prima facie genuine. In paragraph 13, the comments and admissions made by Sri. Joseph Thomas are stated. It is further stated in paragraph 16 that reliable evidence is available in the form of audio record provided they are genuine. While there are oral statements to the effect that they are genuine, it is necessary that such oral evidence is reinforced by scientific evidence. Finally in paragraph 19, the officer states as follows: "It is submitted" that if the voice identification test confirms that Sri. Joseph Thomas has indeed spoken the admissions now found in the tape and that the recording is genuine, then there is sufficient corroborative and reliable scientific evidence to charge sheet the case against him based on his own admissions in the audio record. Joseph Thomas has indeed spoken the admissions now found in the tape and that the recording is genuine, then there is sufficient corroborative and reliable scientific evidence to charge sheet the case against him based on his own admissions in the audio record. I most respectfully submit that, since the agency concerned has reported that they can find out whether there is a forgery and that they can identify the voices scientifically, waiting for a proper analysis is only beneficial to the success and truthfulness of the investigation". 12. The petitioner in the Original Petition has filed objections to the final report. In paragraph 7 of the objection, it is stated that in the final report also it is categorically stated that there is prima facie reason to believe the involvement of the first accused in the offence. According to the petitioner, it is not necessary to get a secondary evidence. In paragraph 9, it is stated that as per the decisions of the Supreme Court investigation should be confined to the question whether a prima facie case to go to the trial was made out or not, whereas the trial court will have to dispose of the case solely on the basis of the evidence to be adduced during the trial. In paragraph 18 of the objection, it is stated that from the seven reports already produced, it can be seen that there are sufficient and reasonable grounds by way of primary evidence against the first accused. 13. We have perused the above reports. The incident is alleged to have happened in 1993 and the First Information Report was lodged on 18.1.1996. The petitioner has been trying to see that his complaint is properly investigated. It is also important to note that the accused in the case are mostly officials of the State Police, including the Additional Director General of Police. As early as on 11.12.1995, a learned Single Judge of this Court directed investigation. From 1993 to 1995, there was no investigation. It was only after the judgment of the learned Single Judge that the investigation started. Thereafter, there was a lull in the investigation during the period when W. A. No. 148/1996 was pending. That was disposed of on 11.12.1997. From 1993 to 1995, there was no investigation. It was only after the judgment of the learned Single Judge that the investigation started. Thereafter, there was a lull in the investigation during the period when W. A. No. 148/1996 was pending. That was disposed of on 11.12.1997. It can also be seen from the facts that in spite of the voluminous evidence collected during the investigation monitored under the supervision of this Court, the third respondent had earlier filed a Refer Report hurriedly. This showed a lack of willingness on the part of the respondents to conduct a proper enquiry, obviously because high ranking officials are involved. In this context, we are happy to note that Sri. Jacob Punnoose had conducted a very impartial investigation and has with great integrity and fearlessness collected evidence during investigation. His report confirms the complicity of all other accused excepting Sri. Joseph Thomas. So far as Joseph Thomas is concerned, even according to the investigating officer, the evidence collected as well as the circumstances strongly indicate the participation of Sri. Joseph Thomas in the conspiracy. He also listened the audio cassettes. But, according to the investigating officer, a voice identification test is necessary to confirm the genuineness of the audio cassettes. 14. We know that the Original Petition was filed for a proper investigation into Crime No. 32/96 of Fort Police Station, Thiruvananthapuram. The learned counsel for the petitioner would contend that on the basis of the reports and on the basis of the evidence collected so far, a prima-facie case has been established to take cognizance against all the accused. On the other hand, learned Government Pleader submitted that so far as the first accused is concerned, a further investigation is necessary to confirm the genuineness of the audio cassettes. Learned counsel for the petitioner relied on the decision in Rupan Deal Bajaj v. K.P.S. Gill, AIR 1996 SC 309, in which case the Supreme Court itself went through the evidence and directed the Magistrate to take cognizance under S.190(1)(b) of the Code of Criminal Procedure. On the other hand, learned Government Pleader submitted that Gill's case can be distinguished because that proceedings arose on the quashing of the complaint. He further argued that even though Courts can monitor the investigation, investigation is a duty of police. On the other hand, learned Government Pleader submitted that Gill's case can be distinguished because that proceedings arose on the quashing of the complaint. He further argued that even though Courts can monitor the investigation, investigation is a duty of police. The learned Government Pleader also cited many decisions to show that the Courts will not merely interfere with the investigation. As was held in State of West Bengal v. Sampet Lai, AIR 1985 SC 195, there is a residuary jurisdiction vested with the Court to give appropriate directions. After perusing the reports, we are of the view that further investigation is not necessary in the present case. We direct the investigating officer to submit the reports along with other items of evidence and Case Diary before the Chief Judicial Magistrate, Thiruvananthapuram, where Crime No. 32/1996 is pending. The Chief Judicial Magistrate may go through the reports, Case Diary and other evidence and take a decision as to whether cognizance can be taken on the basis of the existing materials or further investigation is necessary. The investigating officer shall submit the papers before the Chief Judicial Magistrate within a period of two weeks from today and the Chief Judicial Magistrate shall take a decision on this within two weeks thereafter and communicate the decision taken to this Court immediately. The Original Petition is allowed. Send a copy of this judgment to the Chief Judicial Magistrate, Thiruvananthapuram.