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2023 Supreme(Online)(KER) 9575
HIGH COURT OF KERALA
Ziyad Rahman A. A, J
LAL KRISHNA @ VISHNU
– Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 9263 2022
C.RAJENDRAN, B.K.GOPALAKRISHNAN, ADV SREEJA V - SR PP
An accused cannot be compelled to produce self-incriminatory evidence during a criminal investigation; proper statutory provisions must be cited.
Headnote:
Investigation - Criminal Procedure - Cr.P.C. Sections [160, 173(8), 91] - The court analyzed the legal sustainability of notices issued for further investigation. It concluded that certain notices violated self-incrimination principles and the proper statutory provisions were not followed.
Fact of the Case:
The petitioners, accused in a serious assault case, challenged notices issued for their appearance and production of a vehicle during a further investigation into the matter.
Issues: Whether the notices issued under Sections 160 and 91 of Cr.P.C. were legally sustainable and if they contravened self-incrimination protections.
Ratio Decidendi: A notice compelling an accused to produce evidence against themselves is unsustainable; however, the investigating officer can require presence under appropriate legal provisions.
Final Decision: The notice under Section 91 was quashed; notices under Section 160 were deemed improperly issued but do not preclude further notices under correct provisions.
O R D E R
Dated this the 17th day of January, 2023 The petitioners are the accused Nos.1 to 3, in S.C.
No.151/2020 on the file of the District and Sessions Court, Kollam, which arises from Crime No.323/2018 of Sakthikulangara Police Station. The offences alleged against the petitioners and other accused are under Sections 143, 147, 148, 294(B), 341, 323, 324, 307, read with Section 149 of the Indian Penal Code, 1860 and under Section 27 of the Arms Act, 1959. The prosecution case is that on 30.04.2018 at 23 Hrs, the accused formed themselves into an unlawful assembly, obstructed the bike on which the defacto complainant was travelling and assaulted him by using swords and other weapons thereby, causing severe injuries. Annexure-A1 is the FIR, and Annexure-A2 is the Final Report submitted by the Police. The aforesaid case is pending before the District and Sessions Court, Kollam, as S.C.No.151/2020.
2. While so, the Investigating Officer started further investigation into the matter under Section 173 (8) of Cr.P.C. after giving a formal intimation in this regard to the Court concerned. As part of the further investigation, Annexure-A4 to A6 notices were issued to the 1st petitioner, in which Annexure-A4 and A5 notices were issued under Section 160 of Cr.P.C., directing him to appear before the Assistant Commissioner of Police, Kollam, on 05.09.2022 and Annexure-A6 notice was issued under Section 91 of Cr.P.C., requiring the 1st petitioner to produce the motorcycle bearing registration No.KL-02-AX-8281, which was allegedly used by the 1st petitioner and the other accused to reach the place of occurrence. The petitioners in this Crl.M.C. are challenging Anneuxres-A4 and A5 notices.
2. Heard Smt. C. Rajendran, the learned counsel appearing for the petitioners and Smt. Sreeja V.S, the learned Public Prosecutor for the State.
3. The specific contention put forward by the learned counsel for the petitioners is that issuance of the notices in the form of Anneuxres-A4 to A6 is legally unstainable. On the other hand, the learned Public Prosecutor opposes the said contention by pointing out that those notices were issued as part of the further investigation being conducted under Section 173 (8) of Cr.P.C. and, therefore nothing would preclude the Investigating Officer in issuing the notices.
4. After considering all the relevant aspects, I find some force in the contentions put forward by the learned counsel for the petitioners as regards the Annexure-A6 notice issued under Section 91 Cr.P.C. concerned. It is issued requiring the petitioners to produce the motorcycle which he and the other accused allegedly used for reaching the place of occurance. However, on going through the materials placed on records and even the statements of the defacto complainant recorded under Sections 161 and 164 of Cr. P.C, there is no reference about the motorcycle as referred to in Annexure A6. Moreover, the specific direction in Anneuxre-A6 is to produce the motorcycle they used to reach the spot. The learned counsel for the petitioners contends that, such a direction amounts to compelling a person to give evidence against himself and therefore, not sustainable. After going through the contents of Annexure-A6 and the factual allegations against the accused, I find that such an objection is legally sustainable, being a notice compelling to give evidence that is self-incriminatory. Therefore, I am of the view that, the 1st petitioner being accused cannot be compelled to produce the said vehicle by invoking of Cr.P.C. However, this will not preclude the investigation officer from the seizing or recovering the said vehicle, by using any other means, in compliance with proper procedure established by law.
5. The other contentions are concerning Anneuxre-A4 and A5 notices. It is discernible that the said notices were issued to the petitioners under Section 160 of Cr.P.C., which are meant for the issuance of notices to the witnesses. Admittedly the petitioner
