While dismissing the petition moved by Kerala Government to cancel the bail granted by Magistrate to Sriram Venkatraman IAS in the accident death case, the High Court of Kerala slammed the police for its glaring omissions in the probe.
Justice Raja Vijayaraghavan termed the police investigation "shoddy and desultory" for failing to conduct timely breath analyzer test and blood test of the IAS officer, who caused the death of a journalist in Thiruvananthapuram by driving a vehicle in an alleged drunken state.
Though cameras were installed by the police at the road where the accident had occurred, the case diary stated that they were not working on the fateful night, noted the Court. As regards the failure to conduct breath analyzer test for drunken driving, the State Attorney explained before the Court that the officer had given false information to the police that he was not steering the wheel at the time of the accident.
"An accused in a crime cannot be expected to provide materials to the police to unravel the truth behind a crime.", observed the Court in response to this.
The Court observed :
"The case diary shows that that the investigation of the crime, which commenced from its registration, has been shoddy and desultory. It needs to be mentioned that the incident had taken place within a stones throw from the Police Head Quarters and that too in the capital city of the State. The tenor of the argument of the learned State Attorney appears to be that the respondent was instrumental in successfully diverting the investigation. An accused in a crime cannot be expected to provide materials to the police to unravel the truth behind a crime. The breath test, which is mandatory for a successful prosecution for the offence under Section 185 of the MV Act, is a non-intrusive test.
The explanation offered by the police for their failure to conduct a breath test as mandated under the statute cannot be accepted. I find from the records that the police had installed cameras at vantage points in the city. The road wherein the incident had allegedly taken place is no exception. From the report of the concerned officer available in the case diary, it appears that the cameras were not functioning.
Less said about the delay in obtaining the chemical analysis certificate, the better. Instead of setting up Chemical Examiners Laboratories in all Districts in the State to efficiently provide data for investigation immediately after the crime, there is no point in crying hoarse about the delay or inefficiency in the investigation."
Observing that the case at hand was a "testament of lack of professionalism" in the police force, the Court urged the police to have a "specific game plan to ensure that all available evidence are collected systematically in criminal cases".
The incident happened at about 1 AM on August 3, resulting in the death of K M Basheer, a journalist of "Siraj" daily. The FIR registered almost seven hours after the incident initially included the offences under Section 304A IPC for causing death by negligence and Section 279 of the Motor Vehicles Act for rash driving. Later, a higher offence of culpable homicide under Section 304 IPC was included in the FIR on the allegation that drunken driving by the accused is an act of causing death with knowledge.
Sriram Venkatraman, who also suffered injuries in the accident, was initially taken to General Hospital Thiruvananthapuram. Later, he was ordered to be shifted to Medical College Hospital. Instead, he was taken to the KIMS Hospital, a private Hospital at Thiruvananthapuram, where he was administered treatment as inpatient. His blood samples were collected there almost ten hours after the mishap.
He was granted bail on August 6 by Judicial Magistrate First Class-III, Thiruvananthapuram, after observing that there was no 'prima facie case of drunken driving'.
Seeking cancellation of the bail, the State Attorney submitted that eye witnesses had given statement that the IAS officer was under heavy inebriation. After preliminary examination, the doctor recorded that there was smell of alcohol from the accused.
Therefore, the Magistrate should not have granted bail to the accused by treating it as a case of mere negligent driving, submitted the State Attorney.
Rejecting this argument, the Court said that to establish the offence of drunken driving under the MV Act, it was necessary to show that the accused had alcohol above 30 mg per 100 ml of blood. No breath analyzer test as mandated by the MV Act was done. Also, the chemical examination report of the accused did not show any presence of ethyl alcohol in blood, said the Court.
The Court observed that the police should have immediately conducted the medical examination of the accused as per the procedure under MV Act.
"The respondent was brought to the hospital few minutes after 1 a.m and that too by the officers of the Museum Police Station. They were bound to act in accordance with Sections 202 to 205 of the Motor Vehicles Act. After failing to follow the procedure contemplated under the relevant statute, the Police cannot rely on eye witness accounts and assert that the offence under Section 185 of the MV Act would apply.", Justice Raja Vijayaraghavan observed in the order.
The Magistrate did not commit any "jurisdictional error" while granting bail to the accused, as there was no material to show that he had indulged in drunken driving, the Court observed.
"The respondent is an IAS officer with a clean track record. During the relevant point of time, he was functioning as the Director, Directorate of Survey and Land Records. The incident had occurred in the dead of night and the available witnesses have all been questioned. There cannot be any difficulty in securing the presence of the respondent at the stage of investigation or trial. The prosecution has no case that the respondent will be in a position to terrorise the witnesses or tamper with the evidence. Even if there is any such apprehension, necessary conditions have been imposed by the learned Magistrate to allay any such apprehension. Having considered the facts and circumstances, I am of the view that the learned Magistrate has not committed any jurisdictional error in granting bail to the respondent, nor has she gone wrong in exercising her discretion in favour of granting bail to the respondent."
Click here to download Order