Victim Of Crime Cannot Be Penalized For Procedural Irregularities Committed By Investigating Officer: Kerala HC
It would be most significant to note that the Kerala High Court while ruling on a very vital legal point pertaining to the victim of the crime being penalized has as recently as on February 14, 2024 in a most remarkable, robust, rational and recent judgment titled Noel Joseph vs State of Kerala & Ors in Crl.MC.No. 8376 of 2023 and cited so very aptly in Neutral Citation No.: NC:2024/KER/11365 been most unequivocal in holding commendably that the victim of a crime should not be penalized for any procedural irregularities or technical defects if any committed by the investigating officer of the police. To put it differently, it may well be said that we have to concede most graciously that this assertion ensures so very rightly that the pursuit of justice remains unimpeded by any of the administrative or technical shortcomings thus safeguarding the rights of individuals involved in criminal proceedings. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Ms Justice Sophy Thomas had made the crucial observation in a case where a man who had been accused of molesting an 18-year-old girl challenged the criminal case that had been filed against him on the ground that it was investigated by police officers who did not have the territorial jurisdiction to do so. It would also be imperative to note that the Court also clarified very clearly that there is no absolute prohibition on the police on investigating the crimes that were committed well beyond the local territorial jurisdiction.
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Sophy Thomas of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The 3rd accused in SC No.201 of 2023 on the file of Additional District and Sessions Court (for the trial of cases relating to Atrocities and Sexual violence against women and children), Ernakulam (hereinafter referred to as Additional District Court, Ernakulam), has filed this Crl.M.C, invoking inherent jurisdiction of this Court under Section 482 of Cr.P.C, to quash Annexure-A1 final report in Crime No.1292 of 2011 of Vizhinjam Police Station, registered under Section 376 read with Section 34 of IPC, and the proceedings in SC No.201 of 2023, and also for a declaration that the Additional District Court has no jurisdiction to try that case.”
To put things in perspective, the Bench then envisages in para 2 that, “The prosecution allegation is that, on 13.12.2011 at 8.15 a.m., CW2 the victim girl, left her house at Thiruvananthapuram and proceeded to Ernakulam, and while travelling in the bus, she got acquainted with the 1st accused, and under his instigation, she alighted at Palluruthy along with him, and from there, she was taken to various places at Ernakulam by the 1st accused and his friends (A2 to A4), and they sexually assaulted her and committed rape on her. Thereafter, she was abandoned at Ernakulam Railway Station.”
As it turned out, the Bench enunciates in para 3 that, “The father of the victim lodged a man missing complaint before Vizhinjam Police Station on 14.12.2011 and Crime No.1292 of 2011 under Section 57(1)(a) of the Kerala Police Act was registered on its basis, and SI of Police, Vizhinjam started investigation in that crime. Meanwhile, the victim girl, who was found in Railway Station, Ernakulam, was taken custody by Police and she was kept in Women Police Station at Ernakulam. On getting information that the missing girl was kept in Women Police Station, Ernakulam, Vizhinjam Police proceeded to Ernakulam, and brought the victim girl to Vizhinjam Police Station and recorded her statement. Since her statement revealed sexual assault and rape against accused Nos 1 to 4, she was sent for medical examination and the FIR, which was registered under Section 57(1)(a) of the Kerala Police Act was altered, incorporating Section 376 r/w Section 34 of IPC, and investigation was continued. On completing investigation, final report was filed before Judicial First Class Magistrate Court-II, Neyyattinkara. That case was committed for trial to POCSO Court, Thiruvananthapuram, and it was made over to the Special Court, Neyyattinkara, for trial.”
As we see, the Bench then points out in para 4 that, “The petitioner herein filed a discharge petition before the Special Court on the ground that Vizhinjam Police Station had no territorial jurisdiction to conduct the investigation. His discharge petition was dismissed as per Annexure-A2 order. Subsequently, on request, the case was transferred to Ernakulam, and now it is pending before Additional District Court, Ernakulam, as SC No.201 of 2023.”
Most forthrightly, the Bench then propounds in para 24 that, “On analyzing the factual situations, in the light of judicial pronouncements cited above, the following points could be deduced:
(i) An Officer in charge of a Police Station, irrespective of his jurisdictional competence, shall record every information received orally or in writing, relating to the commission of a cognizable offence.
(ii) The power of an Officer in charge of a Police Station to investigate into a cognizable offence is co-extensive with that of the Court having jurisdiction over the local area within the limits of such Station, having power to enquire into or try that offence.
(iii) A Criminal Court ordinarily gets jurisdiction to enquire into or try an offence, only if that offence was committed within its local jurisdiction.
(iv) A Police Officer in charge of a Police Station, on recording information as to the commission of a cognizable offence that occurred outside its territorial jurisdiction, or registering an FIR based on that information, the proper course would be to forward the information recorded/FIR registered, to the Police Station having jurisdiction.
(v) There is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated or enquired into by an Officer in charge of a Police Station, who recorded the information and registered the FIR.
(vi) The power of the Court to interfere with the investigation is limited. The investigation once started cannot be called in question by the Court at any stage, on the ground that the Police Officer investigating the same was lacking territorial jurisdiction.
(vii) A Police Officer investigating a case bona fide without noticing lack of territorial jurisdiction, or a Police Officer conducting investigation as per orders of a Court under Section 156(3) of Cr.P.C., even if that offence occurred beyond the territorial limits of that Police Station, the result of such investigation is to be submitted as provided under Sections 168, 169 and 170 of Cr.P.C.
(viii) When an Officer in charge of a Police Station conducts investigation in a case, in which he had no territorial jurisdiction to investigate, and after completing investigation, he is of the opinion that there is sufficient evidence or reasonable ground of suspicion, he has to forward the accused under custody, or if the offence is bailable, after taking security for its appearance, to the Magistrate empowered to take cognizance of the offence/commit/try etc. under Section 170 of Cr.P.C.
(ix) It is for the Court receiving a complaint regarding commission of a cognizable offence to verify the jurisdiction of the Police Station to which the complaint has been forwarded under Section 156(3) of Cr.P.C. to register the crime and to conduct investigation, and once complaint is received as per orders of the Court, the Officer in charge of that police station, has no other go, but to register a crime and to investigate the same, even if the offence alleged was committed beyond its territorial limits.”
It is worth noting that the Bench notes in para 25 that, “In the case on hand, a girl aged 18, left her house at Thiruvananthapuram and proceeded to Ernakulam by bus. On the way, she got acquainted with the 1st accused, and himself and his friends took her to Ernakulam where she was sexually assaulted and raped by them. After the incident, she was abandoned at Ernakulam Railway Station, and she was taken into custody by Police and kept at Women Police Station, Ernakulam. Vizhinjam Police had already registered a crime for man missing on a complaint filed by her father. On getting information, that the girl was kept in Women Police Station, Ernakulam, Vizhinjam Police proceeded to Ernakulam and took that girl to Vizhinjam Police Station, where she gave a statement disclosing the offence of rape and sexual assault committed by the accused. So, Crime No. 1292 of 2011 registered for man-missing was altered into one under Section 376 read with Section 34 of IPC and investigation was done by Vizhinjam Police. The final report was submitted before Judicial First Class Magistrate Court-II, Neyyattinkara on completion of investigation. The Sessions Case No.223 of 2014, which was pending before Fast Track Special Court, Neyyattinkara, was subsequently transferred to Additional District Court, Ernakulam so as to comply with Section 177 of Cr.P.C. as the alleged offences were committed within the jurisdiction of that Court.”
Finally and far most significantly, the Bench then concludes by holding in para 26 that, “The petitioner has no case that any prejudice was caused to him by the investigation conducted by Vizhinjam Police. Moreover, the victim cannot be penalized for the procedural irregularities or technical defects if any committed by the investigating officer. Moreover, from the points we have deduced from the decisions of the Apex Court as well as of this Court, as detailed in paragraph 24, this Court is of the view that the investigation conducted by Vizhinjam Police is not vitiated. The Additional District Court, where the Sessions Case is now pending for trial, is having jurisdiction to try that case, as the offences alleged were committed within its local jurisdiction. In the result, the Crl.M.C is dismissed as it is devoid of any merits. The trial court is directed to proceed with the trial of SC No.201 of 2023 as expeditiously as possible and dispose the case at the earliest, at any rate within six months from today, as the incident alleged occurred in the year 2011. Registry is directed to forward a copy of this order to the trial court forthwith, for compliance and report.”
All told, the Kerala High Court has made it indubitably clear that the victim cannot be penalized for procedural irregularities committed by Investigating Officer. This must be borne in mind by the lower courts. No denying it!
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