The Kerala High Court, in a significant judgment, underscored the necessity of hearing an investigating officer before passing adverse remarks that could potentially affect their career. The ruling was delivered by Justice K. Babu in the case G. Gopan @ Gopakumar v. State of Kerala (CRL.A No. 1235 of 2007), which revolved around the legality of a Sessions Court’s decision to implicate a witness as an accused under Section 319 of the Criminal Procedure Code (CrPC).
Background of the Case
The case originated from a raid conducted on March 12, 1998, by the Excise Inspector of the Thirupuram Excise Range. The raid was conducted based on information that illicit arrack was being stored in a building in Karodu Panchayath, Thiruvananthapuram District. The primary accused, Babu, fled the scene upon the arrival of the excise team, leaving behind a jerry can containing illicit arrack, which was recovered from the building. Initially, Babu was the sole accused, and G. Gopan @ Gopakumar, who was the owner of the building, was cited as a witness by the prosecution.
Legal Issues Involved
The primary legal issue in the appeal was whether the Sessions Court was justified in arraigning Gopan, initially a witness, as an accused under Section 319 CrPC based solely on his oral testimony. The prosecution had relied on Gopan’s admission during his recall as a witness that he had earlier lied about the ownership of the building. Based on this testimony, the Sessions Court implicated him as the second accused and subsequently convicted him under Section 58 of the Kerala Abkari Act.
Gopan’s counsel, Adv. K.M. Firoz, who was also appointed as Amicus Curiae, argued that the trial court’s invocation of Section 319 CrPC was improper and that the appellant was entitled to protection under the proviso to Section 132 of the Indian Evidence Act, which shields a witness from self-incrimination. Furthermore, it was contended that the adverse remarks made by the Sessions Court against the investigating officer were passed without providing the officer an opportunity to be heard, violating the principles of natural justice.
Court’s Decision and Observations
Justice K. Babu, delivering the judgment, held that the Sessions Court had indeed overstepped its jurisdiction by implicating Gopan as an accused based solely on his testimony as a witness. The High Court emphasized that the power under Section 319 CrPC should be exercised with caution and only under compelling circumstances. The judgment also reiterated the importance of protecting a witness’s rights under Section 132 of the Evidence Act, which ensures that a witness compelled to testify cannot be prosecuted based on their testimony, except in cases of perjury.
The High Court found that the Sessions Court’s decision to pass adverse remarks against the investigating officer, PW7, was procedurally flawed. The court highlighted that such remarks, which could have serious repercussions on the officerโs career, should not have been made without providing him an opportunity to defend himself. The court quoted the Supreme Court’s precedent, stating, “Before any castigating remarks are made by the Court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures.”
In conclusion, the High Court quashed the adverse remarks against the investigating officer and acquitted Gopan of all charges, setting aside the conviction and sentence imposed by the Sessions Court. The court also directed the refund of any fines paid by the appellant.
Key Observations by the Court:
– “The power exercisable under Section 319 CrPC is an extraordinary power conferred on the Court to do complete justice. It should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not been taken.”
– “The learned Sessions Judge ought not to have passed the remarks contained in paragraph 31 of the judgment. The remarks passed against the Investigating Officer (PW7) shall stand quashed.”
The case highlights the delicate balance courts must maintain between exercising judicial powers and upholding the principles of natural justice, particularly in criminal proceedings where the stakes are high for all parties involved.
Case Details:
– Case Number: CRL.A No. 1235 of 2007
– Bench: Justice K. Babu
– Appellant: G. Gopan @ Gopakumar
– Respondent: State of Kerala
– Lawyers: Adv. Blaze K. Jose (for the appellant), Sri. G. Sudheer (Public Prosecutor), Adv. K.M. Firoz (Amicus Curiae)
