(2012) 258 KLR 947 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934 Crl.MC.No. 2079 of 2012 (D) --------------------------------------- [AGAINST THE ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE, NEDUMKANDAM, DATED 31/05/2012 IN CRL.M.P.NO.2605/2012 IN CRIME NO.65/1983 OF SANTHANPARA POLICE STATION] ............ PETITIONER/ACCUSED: ---------------------------------- M.M. MANI S/O.LATE MADHAVAN, DISTRICT SECRETARY OF C P I(M), DISTRICT PARTY OFFICE, CHERUTHONI, IDUKKI DISTRICT. BY SRI.M.K.DAMODARAN, SENIOR ADVOCATE, ADVS. SRI.SOJAN MICHEAL, SRI.GILBERT GEORGE CORREYA, SMT.O.V.BINDU, SRI.NISHIL.P.S, SRI.J.VIMAL. RESPONDENTS/COMPLAINANTS: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682031. 2. DEPUTY SUPERINTENDENT OF POLICE, MUNNAR, IDUKKI DISTRICT. 3. SUPERINTENDENT OF POLICE, SPECIAL INVESTIGATION TEAM, CAMP AT OFFICE OF THE DEPUTY SUPERINTENDEN OF POLICE, THODUPUZHA. 4. S.H.O.SANTHANPARA POLICE STATION, IDUKKI DISTRICT-685 619. BY DIRECTOR GENERAL OF PROSECUTION SRI. ASAF ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18-06-2012, ALONG WITH CRL.M.C. NOS. 2080/2012 & 2081/2012, THE COURT ON 28/06/2012 PASSED THE FOLLOWING: CRL.M.C. NO.2079/2012-D: APPENDIX PETITIONER'S ANNEXURES:
RESPONDENTS' ANNEXURES: //TRUE COPY// P.S. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. "C.R." ----------------------------------------------- Crl.M.C.No.2079, 2080 & 2081 of 2012 ----------------------------------------------- Dated this the 28th day of June, 2012 Head Note:- Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 302, 109 and 118 - Political Murder - Right to dissent guaranteed in a republic governed by democracy if met with brutal force, and the dissenter is annihilated, whether it be as a retaliatory measure on the attacks made on one's party men or group, and if it is not checked, then, it will sound the death knell of democracy. O R D E R Common petitioner in the above three petitions, all of them filed under Section 482 of the Code of Criminal Procedure {for short "the Code"}, is the District Secretary of a recognised political party viz., Communist Party of India (Marxist) {for short "CPI(M)}. A speech delivered by the petitioner in a public meeting organised by the aforesaid party at Manacaud, Thodupuzha on 25.5.2012 has led to the registration of Crime No.1196/12 for offences punishable under Sections 302, 109 and 118 of the Indian Penal Code against him. A copy of the video CD of his speech was received by the police and, after viewing it, the above crime was suo motu registered by the Sub Inspector of Police, Thodupuzha. Viewing of the CD disclosed that the petitioner in his speech had divulged information of his complicity in the commission of a series of murders of political activists which had taken place in the district from 1982 onwards, is the basis for the registration of the crime. 2. Annexure I in Crl.M.C.No.2081/12 is a copy of the FIR registered in the above crime. The aforesaid Crl.M.C has been filed by the petitioner to quash Annexure A1 FIR under Section 482 of the Code. 3. Pursuant to registration of Annexure A1 FIR, the Superintendent of Police, Idukki moved applications, separately, in four crime cases previously registered over the murders of four activists of congress party in occurrences at different points of time and places, for further investigation of the respective crime in view of the revelations/disclosures made in the public speech of the petitioner. One among the four applications was filed before the Judicial Magistrate of the First Class, Adimali, informing of further investigation in Crime No.2/83 of Rajakkad Police Station which related to the murder of one Mullacherial Mathai, an activist of Congress Party. After investigation, report was filed against some accused persons in that crime, and, after committal and trial, the case had ended in their acquittal. After moving an application under Section 173(8) of the Code in the aforesaid crime, further investigation of the crime is stated to be in progress. Another application was moved before the Judicial Magistrate, Peerumedu in Crime No.206/04 of Peerumedu Police Station registered over the murder of one Balu, a congress activist. In that case, after trial, some of the accused had been convicted, and the rest were acquitted. Observing that no permission is required for conducting further investigation when new evidence is collected, recording the request made, the magistrate has dismissed the petition. Further investigation in that crime is also stated to be in progress. The other two applications were filed for further investigation in two other crime cases before the Judicial Magistrate of the First Class, Nedumkandam. One among the applications related to Crime No.118/82 of Santhampara Police Station over the murder of one Ancheri Baby, an activist of Congress Party, wherein the report filed after investigation of the crime, after committal and trial ended in acquittal of the accused persons. The other application was filed in Crime No.65/83 of Santhampara Police Station registered over the murder of one Muttukadu Nanappan, an activist of Congress party, in which case the report filed indicting some accused persons for murder of the aforesaid Nanappan after committal and trial ended in their acquittal. The judicial magistrate before whom the aforesaid two applications were filed in the crimes referred to, passed a common order allowing the applications, but, with direction to file final report in the respective crime expeditiously. Crl.M.C.No.2079/12 is against that common order passed by the magistrate allowing the application for further investigation in Crime No.65/83, and Crl.M.C.No.2080/12, against the order allowing further investigation in Crime No.118/82, both of Santhampara Police Station. 4. In all the three petitions the Superintendent of Police, Iduki, has filed separate statement repudiating the allegations and imputations made by the petitioner to assail Annexure A1 FIR and the common order passed by the magistrate permitting further investigation in two crimes. 5. Annexure A1 FIR based on the speech delivered by the petitioner is assailed and sought to be quashed mainly on the following grounds: (a) The information received for registering the FIR purportedly based on the speech of the petitioner does not make out any cognizable offence. (b) Registration of Annexure A1 FIR would amount to registering of a second FIR in respect of crimes which had already been investigated, charges filed and tried by the court of competent jurisdiction. (c) Any investigation proceeded on the basis of Annexure A1 FIR would amount to fresh investigation or re- investigation of the crimes investigated and reports filed and that is impermissible. Proceeding with an investigation on the basis of Annexure A1 FIR moving an application for permission under Section 173(8) of the Code before the magistrate where investigation of the crimes previously registered had been over, and reports filed in such crimes proceeded with trial culminating in conviction or acquittal of the accused, is patently illegal and it would amount to parallel investigation over the same incident/occurrence which had been investigated fully and also tried by the competent court, contends the petitioner. 6. In Crl.M.C.Nos.2079 and 2080 of 2012, challenging the common order passed by the magistrate permitting further investigation allowing the application moved under Section 173(8) of the Code by the Superintendent of Police, Idukki in Crime Nos.65/83 and 118/12 of Santhampara Police Station, the main question posed for consideration is whether the magistrate in passing such order has acted without jurisdiction as he has become functus officio after committal of the cases on the report previously filed under Section 173(8) of the Code. No further investigation can be allowed by the magistrate, after trial of the case and the judgment of acquittal rendered in favour of the accused who were tried, has become final, is the contention of the petitioner. No proceeding was pending before the magistrate to entertain an application under Section 173(8) of the Code to order further investigation of the crime and as such the order impugned is illegal; any order passed by the magistrate for further investigation would amount to review of his earlier orders taken over the cognizance of offences under the crime, committal orders passed in the case and that is impermissible; and, where no proceeding is pending no permission can be granted under Section 173(8) of the Code for further investigation of the crime by the magistrate and after committal of a case if the case is pending, the court before which it is pending alone can consider such application for further investigation, are other grounds canvassed to assail the common order passed by the magistrate permitting further investigation in the two crimes contending such order amounts to an abuse of process of the court. 7. Challenge raised over the common order passed by the magistrate on the respective application moved by the Superintendent of Police in the aforesaid crimes being closely connected and interlinked, and more so springing up from the public speech made by the petitioner over which Annexure A1 FIR is registered, which is assailed separately, all the three petitions have been heard and considered together. 8. I heard the learned counsel Sri.M.K.Damodaran, who, on instructions, appeared for the petitioner, and learned Director General of Prosecutions {for short "the DGP"} Sri.Asif Ali, who appeared on behalf of the respondents. 9. Learned Senior Counsel Sri.Damodaran assailed Annexure A1 FIR registered in Crime No.1196/12 of Thodupuzha Police Station, on the speech delivered by the petitioner in a public meeting, as illegal and unsustainable on various grounds. No cognizable offence is disclosed if we go by the contents of the FIR wherein a portion of the speech delivered by the petitioner is incorporated is the submission of the learned counsel. That speech would only indicate that the speaker was referring as a representative of his party to some incidents in relation to the attacks made on his party and there is nothing in the speech to show or even to decipher his complicity or involvement individually in any of the incidents referred to, is the submission of the counsel. Right to expression of his views, that too in connection with the activities of some incidents in which his party or party members directly or indirectly had some involvement, during the course of the speech as a leader and representative of the party, that too in a public meeting, cannot give rise to commission of a cognizable offence for registering an FIR against him for grave offences including murder, is the submission of the learned Senior Counsel to contend that the registration of Annexure A1 FIR is totally misconceived and it has no legal foundation or sanctity under law. Reliance is placed on State of Haryana and others v. Ch.Bhajan Lal and others {AIR 1992 SC 604} to buttress the submission made that no investigation can be proceeded on Annexure A1 FIR which, according to the counsel, does not disclose any cognizable offence. Registration of Annexure A1 FIR is nothing but an abuse of process of law and it is liable to be quashed, submits the counsel. Inviting my attention to the contents of Annexure A1 FIR wherein the petitioner/ speaker has referred to three murders, the learned Senior Counsel contended that in respect of all those cases involving murder, separate crimes have been registered, investigated and tried, with such trial culminating in acquittal or conviction of the accused persons proceeded against. In one among the three cases, conviction rendered against some of the persons tried in that case is challenged by them in appeal, which is stated as still pending before this court. When such be the case, learned Senior Counsel contends that no investigation registering an FIR under Annexure A1 FIR in respect of the three cases of murder which had already been investigated thoroughly, with such investigation having culminated in filing of report/reports under Section 173(2) of the Code and further tried by the competent court, is permissible. Registration of Annexure A1 FIR, in such circumstances, according to the counsel, would amount to registering of a second FIR, which is not sanctioned by law. Learned counsel has relied on T.T. Antony v. State of Kerala {(2001) 6 SCC 181}, Lalitha Kumari v. Government of UP {AIR 2012 SC 1515}, Babubhai v. State of Gujarat {2011(1) SCC (Cri) 336}, Ashok Kumar Todi v. Kishwar Jahan {JT [2011] SC 50}, Shivshankar Singh v. State of Bihar {2012(1) SCC 130} and Divine Retreat Centre v. State of Kerala {2008(1) KLT 1042} to reinforce the challenge that no second FIR can be registered in respect of the same case. Registration of Annexure A1 FIR on the basis of the speech made by petitioner imputing that it disclosed cognizable offences where such imputations raised relate to incidents/ occurrences over which previously crimes had been registered, investigated and final report/reports filed before court and trial proceeded against the accused persons named in those reports before the competent courts of jurisdiction, will amount to a second FIR not sanctioned by law, and no investigation on the basis of such FIR subsequently registered can be done, submits the counsel, contending that it will amount to fresh investigation or re-investigation, which is impermissible under law. To have further investigation of a crime, it is the submission of the learned Senior Counsel that once a report under Section 173(2) of the Code has been filed and cognizance thereof has been taken by the competent court having jurisdiction, a proceeding must be pending before such court. When no proceeding is pending before the court, and after due trial decision rendered by the court ended in acquittal/conviction, any investigation registering an FIR over an occurrence/incident which had been investigated and report filed, after trial on the cognizance of the offences taken on such report against the offenders named is sealed with finality, is nothing but a fresh investigation or re-investigation of a crime already investigated and that is not permitted by law, submits the counsel. Learned Senior Counsel adverting to various sections under Chapter XII of the Code and placing much emphasis in particular to Section 173(8) of the Code dealing with the competency of the police to conduct further investigation in a crime after filing of a report under Section 173(2) of the Code contended that such further investigation can be proceeded with only if the case arising from the report filed under Section 173(2) of the Code is pending for consideration before a court. Reliance is placed on Reji Jose v. DGP {2009(4) KHC 787}, Rita Nag v. State of West Bengal {2010 Crl.L.J 2245[SC]}, Edwin Thomas v. Kunhalikutty {2005 (2) KLT 380}, Divine Retreat Centre v. State of Kerala {2008(1) KLT 1042} and Kishan Lal v. Dharmendra Vafna {2009(7) SCC 685} by the learned senior counsel in support of the challenge canvassed as aforesaid that no investigation on registering Annexure A1 FIR can be proceeded with in the given facts of the case. To do so, it is contended that it would amount to fresh investigation or re-investigation not sanctioned by law. Petitioner, though he is a District level leader of his party, is a person hailing from rustic background, and he is not well versed to the etiquettes to be followed while making speeches from public podium, submits the counsel. Apart from his rustic background he is uneducated as well, is the further submission of the learned counsel urging that the utterances made by him in his speech were only general statements about some murders, which took place in the district a few decades ago and the speech as such does not contain any material to proceed against him registering Annexure A1 FIR inculpating him of grave offences including murder. In such circumstances, Annexure A1 FIR is liable to be quashed invoking the inherent jurisdiction of this court under Section 482 of the Code is the submission of the counsel. 10. Common order passed by the magistrate permitting further investigation in the two crimes, Crime Nos.65/83 and 118/82 of Santhampara Police Station, on separate applications moved by the Superintendent of Police, is assailed by the learned counsel contending that the magistrate has no jurisdiction, to accord such permission where no case or proceeding was pending before him. After committal of the case the magistrate has become functus officio and if at all any further investigation is permissible that could be ordered only by the court which is seized of the matter, provided such cases are pending before that court, submits the counsel. Once a crime after investigation has led to filing of a charge and the trial proceeded against the accused persons named therein, and the judgment of acquittal/ conviction rendered by the court has become insulated with finality, it is no longer open to the investigating officer to seek permission from the court under Section 173(8) of the Code for further investigation of the crime as no case is pending in respect of that crime, is the submission of the counsel. Learned counsel has also contended that where on the report filed after investigation of the crime an issue of fact has been tried by a competent court and that decision has attained finality, it would constitute estoppel against the prosecution interdicting it from producing fresh evidence on the issue decided after having further investigation of the crime. Issue estoppel barring reception of evidence when a finding entered on disputed facts has become final is applicable to criminal cases also, and in the two crimes, Crime Nos.65/83 & 118/82 of Santhampara Police Station in which on the reports already filed, trial had been held and conclusive findings had been made by the courts of competent jurisdiction, it will not be open to the investigating agency to have further investigation under Section 173 (8) of the Code, is the submission of the counsel to assail the common order passed by the magistrate permitting further investigation as illegal and unsustainable. Reliance is placed on Manipur Administration v. Thokchom Vira Singh {AIR 1965 SC 87} and Lalta and others v. State of UP {AIR 1970 SC 1381} by the learned counsel to substantiate challenges so canvassed to impeach the common order of the magistrate. 11. Per contra, the learned DGP contended that there is no re-investigation or parallel investigation over any of the crimes already registered, investigated and tried, but only investigation of cognizable offences on the disclosure/revelation made in the speech by the petitioner as to his involvement/ complicity in a series of murders which had taken place in the district in the last few decades. Speech made by the petitioner clearly demonstrates that there was a sinister plan to annihilate the political adversaries of his party preparing a list of such persons and implementing of such plan, with some among them already brutally murdered. With respect to some of the murders mentioned in his speech previously crimes have been registered, investigated and reports filed and the trial against the accused persons named in such cases also proceeded ending in their conviction/acquittal, according to the learned DGP, in no way interdict the registering of an FIR when the speech made by the petitioner revealed that such murders were in consequence and perpetration of a conspiracy formed much earlier preparing a list of the political adversaries and then of butchering them. The list prepared, spoken to by the petitioner, includes names of 13 persons and four among them had been finished off was the utterance made by the petitioner in his speech, and when that be so, an investigation as to who are the other persons included in the list and whether they are alive or finished off, if alive whether there is threat to their life, are all matters that require to be probed by the police and that can be done effectively only after registering an FIR, is the submission of the DGP. If there was a sinister design to do away with the political adversaries after preparing a list naming them and the petitioner was aware of such design to commit murder of the adversaries of his party, even if he had no direct role or complicity in the murder of anyone in the list, still, if there was concealment by him of such design from the police, he is liable to be proceeded for the offence under Section 118 of the IPC, is the submission of the DGP pointing out that the investigation conducted and report filed and trial proceeded in respect of some of the murders referred to in his speech cannot shield or protect him from facing criminal proceedings for such offence. Speech made by the petitioner, a portion of which alone forms part of Annexure A1 FIR, and a full text of which has been separately produced as Annexure R1(a), indubitably spell out that the speaker, adverting to the murders of his political adversaries, that too eulogizing the brutal manner in which they were annihilated, was threatening and criminally intimidating the political opponents that the list prepared for finishing off the adversaries has not exhausted and the fate of those who had been finished off would visit anyone opposing his party. His speech would also show his complicity in the murders that had taken place at least as an abetter and when that be the case registering of Annexure A1 FIR on the basis of such speech which disclosed commission of cognizable offences, that too grave offence of murder, cannot be assailed on any ground whatsoever, and it is not a case of registering a second FIR in respect of any crime which had already been investigated, report filed and tried before the court, is the submission of the DGP. So far as the further investigation ordered by the magistrate on the basis of the applications moved by the Superintendent of Police in Crime Nos.65/83 and 118/82 of Santhampara Police Station, the learned DGP submitted that report/reports have been filed and on such reports trial proceeded and decisions rendered in such cases have become final in no way interdict the police from conducting further investigation in those crimes when it is found essential on the basis of the new information received. If the investigating officer is not empowered to do so for the reason that on a report filed previously after investigation the trial proceeded has ended in acquittal/conviction of the accused persons, then the result would have disastrous consequences as any information throwing light on the crime subsequently received and also the complicity of any other person involved in such crime, which was not known earlier, could not at all be probed by the police. Learned DGP alo submitted that by registering Annexure A1 FIR no further investigation is conducted in Crime Nos.65/83 and 118/82 of Santhampara Police Station, Crime No.206/02 of Peerumedu Police Station and Crime No.2/83 of Rajakkad Police Station, and in those cases, further investigation is being carried out in the respective case themselves as distinct from the investigation proceeded in Annexure A1 FIR. 12. A memo with a report of the Deputy Superintendent of Police, Idukki has also been filed by the DGP, after submissions made in the petitions were over, stating that the murders referred to by the petitioner in his speech and crimes registered over them, are not the subject matter of investigation proceeded on Annexure A1 FIR, and the investigation in that crime is over the concealment of the design of the petitioner to kill the remaining 10 persons in the list which was stated as prepared to annihilate the political adversaries of his party. 13. In Crl.M.C.No.2081/12, the 3rd respondent, Superintendent of Police, Idukki, with his statement dated 11.6.2012 has produced a copy of the transcription of the speech made by the petitioner as extracted from the compact disc over the speech, which formed the basis of Annexure A1 FIR. Petitioner did make a speech in a public meeting at Manacaud in Thodupuzha on 25.5.2012 organised by his party in which declarations and imputations referred to in Annexure R1(a) had been made is not disputed. True, the learned Senior Counsel has contended that the colloquial usages and rhetoric made in his speech were only utterances of a person having rustic background and they do not amount to any assertion or declaration in his individual capacity, but, only general statement connected with the policies and programmes of his party. Whatever that be, even holding that Annexure R1(a) is not a verbatim reproduction of what has been spoken to by him in the public meeting, the fact remains that he made a speech in which he made some declarations relating to some murders which had taken place in the district during the last two/three decades in which some of the political adversaries to his party had been finished off brutally. A list had been prepared of the political adversaries of his party and one by one, four of them, in such list were finished off brutally in retaliation to the murder of one of his party men, is his declaration. Though Annexure A1 FIR does not contain nor reproduce the whole of his speech covered by the compact disc or Annexure R1(a) when a challenge is raised against Annexure A1 FIR invoking the inherent jurisdiction of this court, nothing prevents this court from looking into Annexure R1(a) speech as a whole to examine whether cognizable offence/ offences have been made when a compact disc of the speech delivered by him reached the police to register a crime. 14. The learned DGP moving an application producing with it a compact disc of the speech of the petitioner has requested me for viewing it, asserting that his whole speech and also the body language leave no room for any doubt that the disclosure made over the sinister plan for annihilating the political adversaries and the brutal murders of the political opponents carried out one after the other describing the manner in which it was done is an open declaration, and criminal intimidation of his opponents, that anybody opposing his party would face the fate of the victims already finished off. Though the learned senior counsel for the petitioner submitted that he has no objection in viewing the speech of the petitioner from the compact disc produced, that was totally found unnecessary as the questions involved for consideration in these petitions are not to be decided by deciphering the body language or the manner in which the declarations in Annexure R1(a) speech had been made by the petitioner, but as reflected in such speech. No such exercise as requested for by the DGP was also called for, especially, when Annexure R1 (a) speech has not been disputed. 15. Scanning through Annexure R1(a) speech delivered by the petitioner, what could be gathered, prima facie, is that the petitioner, a leader of a recognised political party, was making it emphatically clear in unmistakable terms that wherever his party is weak, if his party men are attacked, it will pursue a policy of conducting protest march, slogan raising etc., and at places where it has strength it will be retaliated with brutal force. He also made it clear that if his party is weak, and, the attack is so unbearable, outside muscle power would be brought in to assault and beat the opponents. Adverting to the murders that had taken place in the district and more particularly of one of his party men, an area committee member, one Ayyappadas, allegedly, by the political adversaries, in 1982, he asserted and openly declared of the retaliatory measures taken by his party after he published a list containing the names of the political adversaries, numbering thirteen persons. His declaration in the speech, though not strictly a verbatim reproduction, is thus: "I issued a list. Thirteen persons. One, two three, four. First three were killed first. One was shot dead. One was stabbed to death. One was beaten to death." He clarifies further after raising a query whether the listeners understood his rhetoric. "First one was shot, second one was killed by stabbing, third one was killed by beating. Then, all congress men removing khadi (cotton dress) sulked away from the place. For quite some time, they used to plead whether they could walk wearing khadi. Why ? They were afraid of beating." 16. If that was the tenor of the speech of the petitioner wherein a declaration is made that some of the murders that had taken place in the district in which some of the political adversaries to his party were butchered off was part of a design after preparing a list naming such adversaries and finishing them off one by one brutally, it is futile to contend that no cognizable offence is made out from such speech to register an FIR. He may be a rustic and uneducated person, but, he is the district leader of a recognised national political party. His declaration that the political opponents to his party had been finished off after preparing a list naming them, cannot be viewed as an utterance made by a layman, who had no role or connection in the murders referred to in his speech. His list, as per his declaration, contains 13 persons, and four of them, on his own declaration, had been finished off. His speech as such would spell out that whatever list prepared naming the adversaries was part of a sinister design to annihilate the political opponents. Killing of three or four of them as per the declaration made by the speaker clearly spell out that whatever design made had been given effect to at least partially. Previously the murders referred to by him had led to registration of crimes and some persons have been put on trial after investigation and filing of reports, but, such murders were part of a grant design by him or his party was something new to the police, is the submission of the learned DGP. To investigate and find out who are the remaining 10 persons in the list, what was the role of the petitioner in the murders which had taken place, whether the remaining persons in his list are alive or dead, all require further probing especially when the speech discloses commission of cognizable offences, and, there is reason to believe that the petitioner if not an abetter to the murders which had already taken place, was privy to or knew of the common design to murder his political opponents. In the speech the petitioner had criminally intimidated and threatened the political opponents referring to the previous murders, disclosing of the list prepared earlier to annihilate the political adversaries of his party. Registration of Annexure A1 FIR on the basis of the speech for the cognizable offences disclosed in such speech cannot at all be impeached. There is no merit in the submission of the learned Senior Counsel that Annexure A1 FIR does not disclose of commission of cognizable offences by the petitioner. It does disclose sufficient ground to suspect the culpability of the petitioner for the commission of the cognizable offences incorporated, and challenge against Annexure A1 FIR on the premise that no cognizable offences are made out must fail. 17. The next question to be considered is whether registration of Annexure A1 FIR would amount to registration of a second FIR for the reason that over some of the murders, referred to in his speech, crimes had been registered, investigation carried out, reports filed and trial proceeded ending in conviction/acquittal of the accused persons named in such cases. When the very case on which Annexure A1 FIR registered is that those murders are only links in a chain in perpetration of a sinister design formed earlier to annihilate the political adversaries, and in implementing that plan some murders had taken place, and such information for the first time is divulged from a speech made by a person, who was instrumental in hatching a plan to annihilate political adversaries preparing a list naming them, the crime covered by Annexure A1 FIR encompassed a larger plain in which the nature of the offences to be investigated and also the areas to be probed into by the police in investigation of such crime is quite distinct and different from the crimes already investigated over the murder of some among those persons included in the list. A crime has been investigated and on the report filed a trial has proceeded ending in acquittal/ conviction in no way inhibits the police from conducting further investigation of the crime when they receive new information over such crime which demand further probing. If that is not permitted, then new information received over a crime which had been investigated and tried cannot be further probed at all. In Emperor v. Khwaja Nazir Ahmad {AIR (32) 1945 Privy Council 18}, it has been made clear that investigation of a cognizable offence can be undertaken by the police unhampered by any outside agency except for the condition of jurisdiction as laid in Section 156 of the Code. Privy Council has observed thus: "In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the High Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal P.C., to give directions in the nature of habeas corpus." 18. Much argument has been made before me by the learned Senior Counsel and also the DGP with respect to the scope and ambit of Section 173(8) of the Code whether the words "Nothing in this section" with which that sub-section proceeds give unfettered power to the police to investigate a crime after filing of a charge under Section 173(2) of the Code or whether that sub-section is applicable only in a case where after filing of a charge a proceeding is pending before court. Learned Senior Counsel for the petitioner contended that the sub-section has application only in cases where a charge filed under the Section was pending consideration, and the DGP contending otherwise. That dispute has not much significance in the facts presented in the case as it is clearly discernible that the registration of Annexure A1 FIR based on the speech of the petitioner, though it evidences some nexus with the crimes already investigated and tried, relate to cognizable offences suspected to have been committed by the petitioner; and, it cannot be stated that Annexure A1 FIR would amount to a second FIR in respect of the crimes already registered, investigated and tried. 19. Reliance placed by the learned Senior Counsel for the petitioner in T.T.Antony v. State of Kerala {2006(1) SCC 181} to contend that Annexure A1 would amount to a second FIR and it is prohibited by law is totally misplaced. The Apex Court in the above case has clearly spelt out what could be considered as a second FIR. To constitute a second FIR it must be shown that the gravamen of the charges in the two cases is the same and then alone registering of the second FIR and making fresh investigation is prohibited by law. It can never be stated that Annexure A1 FIR in the present case which discloses different cognizable offences, as discussed above, is based on the gravamen of the charges covered by the FIR in the crimes registered over the murders, separately, of different victims at different places, which had been investigated and tried. In T.T.Antony's case the Apex Court has approved the decision laid down in Ram Lal Narang v. State (Delhi Admn.){1979 SCC (Cr) 479} while considering the question whether the crime registered subsequently in the case is a second FIR of a crime already registered and investigated. In Ram Lal Narang's case, it has been held where the facts founded on the two FIRs are different in truth and substance, the registration of the second crime cannot be challenged as a second FIR. In T.T.Antony's case in truth and substance, the essence of the offences imputed in the subsequently registered FIR was the same as in the previous crime. So far as Annexure A1 FIR in which petitioner is proceeded with for the offences punishable under Sections 302, 109 and 118 of the IPC it can never be stated that it is in truth and substance the same with respect to the offences covered in the various crimes registered over the murders of four congressmen at different places, which had occurred at different points of time. Similarly, the decisions in Babubai v. State of Gujarat & ors (2011(1) SCC (Cr) 336} and Shivshankar Singh v. State of Bihar {2012(1) SCC 130} have no application to the facts of this case. In Sivasankaran's case what was considered and held was that over the same incident when there are two different versions, two FIRs are permissible at the instance of the rival parties. In Babubai's case it has been made clear that the test of sameness has to be looked into to consider whether the subsequently registered FIR would fall under the mischief of second FIR impermissible under law. Reliance placed on Divine Retreat Centre's case, cited supra, and more particularly, the observations made by the Apex Court in paragraph 43 of the judgment rendered thereof, by the learned senior counsel have no application to the facts involved in the present case. What has been reiterated by the Apex Court in paragraph 43 is a well settled principle that if no cognizable offence is disclosed prima facie, on the information given, registration of the FIR is not to be proceeded with. Annexure A1 FIR cannot be assailed as a second FIR on the basis of the observations made in the aforesaid decision as indicated above. In Lalitha Kumari's case, cited supra, wherein, the question whether police can hold some kind of primary investigation before registering of the FIR in view of the divergent opinions expressed in number of cases was referred to for consideration by a larger Bench no question relating to the registration of a second FIR in respect of a crime registered under a previous FIR arose for consideration. The question involved was only whether a police officer is bound to register an FIR when a cognizable offence is made out or he has some latitude of conducting some primary enquiry before registering the FIR. That decision also in no way assist the petitioner to assail Annexure A1 FIR as a second FIR not sanctioned by law. By no stretch of imagination it can be stated that the cognizable offences disclosed under Annexure A1 FIR are the same as covered under the previous crimes registered over the murder of four activists of congress other than that the murders covered by such crimes in different places and time, if we go by the declaration of the petitioner, were also those covered by the list prepared naming 13 persons for annihilation. So, I do not find any merit in the challenges mooted that Annexure A1 FIR tantamounts to registering of a second FIR in respect of crimes already investigated and tried and that it is impermissible under law. To the contrary, what is evident from the cognizable offences made out on the revelations made in the speech of the petitioner, in substance and truth differed in material particulars and circumstances with respect to the gravamen of the facts constituting the offences in relation to the crimes previously registered over the murder of some activists of congress party which were investigated and later tried before courts of competent jurisdiction. Challenge against Annexure A1 FIR contending that it is a second FIR to seek its quashing under Section 482 of the Code is unworthy of any merit. 20. Investigation of the crimes registered under Annexure A1 FIR amounts to parallel investigation or re-investigation of those crimes over the four murder cases already investigated and later tried has no basis at all when it has been categorically made clear that there is no re-investigation of the aforesaid murder cases in connection with the investigation of the crime under Annexure A1 FIR, in which cognizable offences as disclosed from the speech of the petitioner are being probed. What could be interdicted in investigation of Annexure A1 FIR is a parallel investigation or re-investigation of the crimes already investigated when there had been investigation of such crimes separately and those cases on the basis of the reports filed were tried by the courts of competent jurisdiction. So far as those crime cases previously investigated, there could be only further investigation in such crimes as contemplated under Section 173(8) of the Code if the circumstances so demand and justify such further investigation. Permission of the court to continue with such investigation may also has to be obtained. But, that does not mean that when a new crime is registered disclosing cognizable offences, no matter covered by the crime cases already registered, investigated and tried could not be looked into by the investigating officer where it is shown to be having some nexus with the crimes registered later. The law does not place any inhibition on the investigating officer in his pursuit for search of truth preventing or interdicting him from looking into the circumstances relating to the murder covered by the previous crime cases, especially in a case of this nature the revelation made by the petitioner for the first time has unfolded of a sinister design to annihilate the political opponents after preparing a list of their names. When that be the disclosure made in the speech of the petitioner, that the previous murders which had been investigated and tried were part of a grant design of annihilating the political opponents, it can never be stated that in the investigation over Annexure A1 FIR, the investigating officer is prevented from looking into the circumstances surrounding the murders covered by those crime cases, though no re-investigation with respect to such crime cases can be resorted to by him. Annexure A1 FIR based on the speech delivered by the petitioner and the investigation proceeded thereunder, even if it warrants a probe into the circumstances surrounding the murders already investigated and tried in the light of the disclosure that such murders too were part of a design formed to annihilate the political opponents does not amount to a fresh investigation or re-investigation of such crimes already investigated on the reports placed, cognizance of the offences thereof taken and trial proceeded with in such cases. Any investigation of the crime registered under Annexure A1 without looking into the circumstances relating to the murder of four congress activists where the disclosure made by the petitioner in his speech would spell out that such murders were part of a preconceived design, that too preparing a list of the political opponents to be annihilated, it goes without saying, would only amount to quixotic expedition, which would serve no purpose at all, and further, such restriction or impediment is inapplicable where true investigation over the cognizable offences disclosed under Annexure A1 FIR has to be carried out. Who are the others named in the list prepared of political opponents and whether any threat to their lives still persists in view of the declaration made in the speech of the petitioner, no doubt, is a matter which can be unearthed only if a fullfledged investigation over the revelations made by the petitioner touching upon even the murders which had already taken place is proceeded with. Such investigation cannot be stultified setting forth a challenge that investigation on the basis of Annexure A1 FIR as it has to probe into the murder of four congress activists in respect of which crimes have been registered, investigated and trial proceeded would amount to re-investigation/fresh investigation of those crimes. There is no re-investigation or fresh investigation of any of those crimes in the investigation of Annexure A1 FIR and in fact, steps have been taken for further investigation in some of those crimes of murder separately in the light of the disclosure made by the petitioner in his speech and permission of the court had also been obtained to do so, is clearly established in the case. So, that ground of attack to assail Annexure A1 FIR and the investigation proceeded thereunder is also meritless. 21. Now, coming to the challenges raised over further investigation ordered under common order passed by the magistrate in the two crime cases of murder, I do not find any merit in the challenge made that in view of the report filed after investigation and trial conducted by the competent court against the offenders/accused persons named in such crime cases further investigation is impermissible. Sub-section (8) of Section 173 of the Code reads thus: "(8). Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)." 22. What it recognises is the power of the police to continue further investigation in a crime when further evidence is obtained after filing of a charge in a crime under Section 173(2) of the Code before the court. A report filed after investigation, would not preclude the right of the investigating agency to proceed with further investigation on receiving further evidence is eloquently and emphatically affirmed in sub-section (8) of Section 173 of the Code. Though sub-section as such does not spell out permission of the court to which the report under Section 173(2) of the Code was filed is required for further investigation judicial precedents more or less uniformly have laid down the principle that when further investigation is proceeded, the court should be informed and its permission has to be obtained. In Reji Jose's case, cited supra, relied by the senior counsel to substantiate the challenges made with respect to the questions covered by further investigation, it is to be stated that what was considered is only to which court a request for further investigation under Section 173 (2) of the Code has to be applied of when after taking cognizance of the offence the case has been committed to the Sessions Court. That decision in no way assist the petitioner in any manner. In Rita Nag's case, cited supra, relied by the senior counsel, what was considered was whether the Magistrate can suo motu direct further investigation under Section 173 (8) of the Code or direct re-investigation into the case after he has taken cognizance on the basis of a report filed under Section 173 (2) of the Code by the Police. Observation made in paragraph 15 of the decision have been relied by the counsel as if it laid down some principle that once the proceedings commenced on a report filed under Section 173 (2) of the Code had ended, the Magistrate cannot entertain an application under Section 173 (8) of the Code for further investigation. The decision does not lay down any such proposition, and in fact, the question which was dilated upon is only whether the Magistrate can order suo motu further investigation under Section 173 (8) of the Code after he has taken cognizance of the offences on a report filed under Section 173 (2) of the Code. In Edvin Thomas's case, cited supra, which has been relied by the counsel, other than a stray observation with respect to invoking of Section 173 (8) of the Code, no principle or binding precedent so far as the right enjoined by the police to proceed with further investigation nor of the competency of the court to accord permission if such a request is made has been dilated upon. That decision also does not assist the petitioner. In Kishan Lal's case, cited supra, relied by the senior counsel, the broad principles to be followed in resorting to Section 173 (8) of the Code for further investigation have been succinctly stated. After carefully going through that decision with reference to the challenges imputed by the counsel, I find, there is nothing in the decision assisting the petitioner to contend that on the circumstances involved in the present case registration of Annexure A1 FIR and further investigation ordered by the Magistrate in two crime cases, suffer from any infirmity whatsoever. 23. Investigation of the crime is within the domain of the police. For the reason that once a crime has been investigated and charge filed against one or more accused persons and the trial proceeded against him ending in his conviction/acquittal, it does not postulate that where fresh evidence throwing light on the crime previously investigated and tried by the court comes to the notice of the police, it cannot be probed at all. To take an illustration, brutal assassination of a former prime minister of our country, that too in a bomb blast, had been found to be the culmination of a conspiracy hatched by a terrorist organisation based in a neighbouring country. Investigation of the crime over that murder led to conviction of some of the accused persons and acquittal of some others named and conviction against some of the accused has been affirmed by the Apex Court of this land, is no ground to hold that further investigation, if need be, cannot be continued in the crime when more information is received over the conspiracy, or other matters touching upon that crime comes to light. To take a view that the trial proceeded in the previously registered crime and the decision rendered by the highest Court of the land against some of the accused persons proceeded in such crime would foreclose further probe into various facets of the brutal murder covered by that crime including the conspiracy behind the heinous crime even if the investigating agency obtains further evidence, is totally repugnant to cannons of criminal investigation and the criminal judicial system. What is prohibited is only fresh investigation/re-investigation of the crime as such and not at all further investigation of the crime on getting further evidence, which demands such investigation further. Permission that is to be obtained from the magistrate for conducting further investigation is only formal. Since the police has the right to have further investigation when they obtain further evidence, such permission can be only formal. On a previous report filed under Section 173(2) of the Code trial proceeded ended in acquittal or conviction of the accused persons tried by itself is not sufficient to deny such permission. However, if the case is pending before a superior forum, no doubt, prudence demands that a report seeking such permission under sub-section (8) of Section 173 of the Code for further investigation has to be placed before that court and not before the magistrate. That is necessary since what is the scope of further investigation and whether it will have an impact in the case pending before the superior forum is something that has to be looked into by that court to take a decision whether to proceed further or await supplemental report, if permission is granted on the request made. 24. I do not find any merit in the challenges canvassed against the common order passed by the learned Magistrate according permission to the investigating agency to conduct further investigation in the two crimes in which after investigation reports were filed against some accused persons and their trial proceeded ending in order of acquittal. What is being investigated further is the role of the petitioner, if any, and, perhaps, of his party and others as well, in the commission of the offences involved in such crimes based on the revelations made by the petitioner in his speech asserting that the murders involved in the crimes were part of a sinister diabolical plan to annihilate political opponents. That information was not known to the investigating agency previously, and in the backdrop that murders covered by the crimes, as per the declaration made by the petitioner, are part and parcel of a sinister plan, no doubt, demands further investigation of such crimes. After further investigation even if a report is filed indicting the petitioner or any other person no fresh evidence can be received in trial in view of the decision rendered in favour of the accused persons who had been tried previously as the bar of issue estoppel would come into play, is another challenge canvassed by the learned Senior Counsel for the petitioner relying on the decisions stated supra. No question of issue estoppel arises as contended. Constitutional protection insulating a person under Article 20(2) of the Constitution even to a person tried before a court is applicable only where he has been prosecuted and punished of the offence. Accused person who had been tried of an offence charged against him where it ends in an order of acquittal/conviction, he alone, will be entitled to the insulation from further prosecution in respect of such offence on the principle 'autre fois acquit' or 'autre fois convict' as enjoined and mandated under Section 300 of the Code. In the crime after investigation, previously, on the report filed some accused persons were tried and it had ended in their acquittal/conviction would not constitute any issue estoppel barring further investigation of the crime, and prosecution of offenders not put on trial earlier. The judgment of acquittal/conviction rendered against the accused previously put on trial in the crimes which is further investigated has relevance only for the limited purpose under Section 43 of the Evidence Act, and nothing more. 25. Petitioner is the leader of a political party, a recognised national party. Political party is a group of human beings formed with certain objectives, based on one or other ideology, which functions and carries out activities with definite policies and programmes. Our Constitution envisages that every citizen shall have the right to engage in political expression and association. That right is enshrined in the Constitution, though there is no direct authorization as such for forming political parties. Exercise of the basic freedom of political expression and association is through the media of political associations. Any interference with freedom of a party or its party men whether it be by an individual or any other party or State, that too by resorting to violence negating the rule of law, is an interference with the freedom of political expression and association guaranteed by the Constitution. In the freedom of free movement, and right to life and liberty guaranteed to a citizen under Articles 19 (1) (d) and 21 of the Constitution of India, it is implicit that they should be free from fear and threat to life in asmuch as the life under fear and threat to death will be no life at all. The right to life means something more than survival of animal existence and it would include the right to live in peace with human dignity. Speech made by the petitioner, a leader of a recognised national political party, which, prima facie, reveals that after preparing a list of political adversaries of his party some of them were butchered one after the other in retaliation to the attack on his party men, and such policy is followed for decades in the district where he controls and heads his party, is so reprehensive, revolting and shocking to human ethos of a civilised society, more than that it is an affront to the guarantees to personal liberty and right to form association enshrined in the Constitution. Speech of the petitioner and the revelations made therein, prima facie, disclosing commission of cognizable offences by its maker, fully justify the registration of the crime under Annexure A1 FIR and investigation proceeded thereof. 26. Right to dissent guaranteed in a republic governed by democracy if met with brutal force, and the dissenter is annihilated, whether it be as a retaliatory measure on the attacks made on one's party men or group, and if it is not checked, then, it will sound the death knell of democracy. Shocking revelations/disclosures made by the petitioner in his speech that brutal murders of some political activists, who were opposed to his party, while he continued as the District Secretary of his party were part of a sinister diabolical plan after a list was prepared by him to annihilate the political opponents, to retaliate the attacks made on his party men, and other cognizable offences disclosed in his speech, necessarily has to be probed by a full-fledged investigation. No political party or leader can claim to be the law unto oneself, and that it/he is above the law, when the rule of law, and that alone, has to prevail. Crl.M.Cs are dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// |
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Crl. M.C. No. 2079 of 2012 - M.M. Mani Vs. State of Kerala, (2012) 258 KLR 947posted Jul 4, 2012 4:18 AM by Law Kerala [ updated Jul 4, 2012 4:19 AM ] |
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