Hearing Opportunity Must Be Given To Investigating Officer Before Making Adverse Remarks Against Him To Protect Future Career Prospects: Kerala HC

The Court passed the above order while considering an appeal against a Sessions Court order whereby adverse remarks were made against the investigating officer for not arraigning the appellant herein as the second accused in a trial under the Abkari Act.

Justice K Babu said,

“The Supreme Court has repeatedly cautioned that 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. Such an opportunity is the basic requirement, for otherwise, the offending remarks would be in violation of the principles of natural justice. In this case, such an opportunity was not given to the Investigating Officer.”

Background Facts

The Additional Sessions Court for the trial of Abkari Act Cases was conducting a trial against the first accused for allegedly finding illicit arrack in his possession. The appellant was a prosecution witness and was the owner of the building from where the arrack was seized. Initially, the appellant rejected ownership of the building but later he admitted to the ownership of the building.

The Sessions court, based on this oral testimony, invoked Section 319 and arraigned the appellant as second accused for unauthorizedly storing arrack in the building. Section 319 confers power on the Court to proceed against persons, other than named as accused in the charge sheet, appearing to be guilty of offence.

The second accused denied the charge against him and faced trial along with the first accused.

The Sessions Court acquitted the first accused and convicted the appellant under Section 58 of the Kerala Abkari Act for possession of illicit arrack. The appellant preferred appeal before the High Court.

The Amicus Curiae submitted before the Court that Sessions Court should not have impleaded the appellant as second accused based only on his oral testimony in the Court. It was submitted that proviso to Section 132 of the Evidence Act and Article 20 (3) of the Constitution guarantees the right against self-incrimination.

On the other hand, the Public Prosecutor submitted that the appellant gave the statement voluntarily and there was no compulsion.

Findings

The Court observed that Section 319 is an extraordinary power conferred upon the Court that must be invoked only with caution and for compelling reasons.

Relying upon the Apex Court decision in Laxmipat Choraria v State of Maharashtra (1968) that referred to Section 132 of the Evidence Act and Article 20 (3) of the Constitution (1968), the Court noted that a person who voluntarily gives testimony as a witness is not a witness against himself but against others.

The Court noted that Article 20 (3) protects the fundamental right of the accused against self-incrimination, whereas, proviso to Section 132 of the Evidence Act gives statutory immunity to a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself.

The Court stated that when an accused is examined under Section 315 of CrPC, he voluntarily gives statements waiving off his protection under Article 20 (3) of the Constitution, unlike a witness giving a statement who is protected under Article 20 (3).

The Court said,” The position would be different when an accused voluntarily enters the dock, invoking Section 315 Cr.PC and answers questions in which case there is a waiver of the privilege, which is against being compelled to be a witness against himself. In such a situation, he is not a witness against himself but against the prosecution. In the present case, the foundation of the prosecution against the appellant was based on his testimony as a witness in the box in which he was bound to give answers which appeared to the learned Sessions Judge as incriminating. Therefore, the order passed by the learned Sessions Judge summoning the appellant to face trial was completely without jurisdiction. This illegality goes to the root of the matter, leading to the trial being vitiated.”

The Court thus found that invoking Section 319 by the Sessions Court to arraign the appellant as second accused based on his oral testimony was patently illegal and vitiates the entire trial.

The Court then found that the prosecution had not established the possession of arrack with the appellant. The Court also disagreed with the findings of the Sessions Court that the appellant had the necessary animus possidendi due to his previous criminal antecedents.

Coming to the issue of adverse remarks against the investigating officer that he did not arraign the appellant as the second accused, the Court found that no opportunity for hearing was given to him.

Referring to Apex Court decisions, it was stated that remarks cannot be made against an individual without making him a party and hearing him since he has a right to reputation guaranteed by the Constitution.

Accordingly, the Court quashed the remarks against the investigating officer and acquitted the appellant.

Counsel for Appellant: Advocate Blaze K Jose

Counsel for Respondents: Public Prosecutor G Sudheer, Amicus Curiae K M Firoz

Case Number: CRL.A NO. 1235 OF 2007

Case Title: G.Gopan @ Gopakumar v State of Kerala

Citation: 2024 Live Law (Ker) 547