Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 20TH DAY OF DECEMBER 2012 29TH AGRAHAYANA 193 WP(C).No. 16408 of 2011 (A) --------------------------- CRIME NO.484 OF 201.OF KOLLAM EAST POLICE STATION PETITIONER(S): ------------- BINDU, AGED 3 YEARS, W/O.SREEJITH CHERIYIL VEEDU, PILLAVEETTIL KIZHAKKATHIL MATHRUKA NAGAR-139,ULIYKOVIL, KOLLAM. BY ADVS.SRI.P.S.SREEDHARAN PILLAI SMT.C.G.PREETHA SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.JOSEPH GEORGE(MULLAKKARIYIL) RESPONDENT(S): -------------- 1. STATE OF KERALA REP. BY THE SECRETARY, DEPARTMENT OF HOME, SECRETARIAT THIRUVANANTHAPURAM.
2. CENTRAL BUREAU OF INVESTIGATION, KOCHI.
3. THE SUPERINTENDENT OF POLICE, CRIME BRANCH, KOLLAM.
4. STATION HOUSE OFFICER, KOLLAM EAST POLICE STATION, KOLLAM DISTRICT. R1,R3,R4 BY SRI.T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS R2 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING: W.P.(C).NO.16408/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FIR IN CRIME NO.484 OF 201.REGISTERED BY THE KOLLAM EAST POLICE DATED 28 4.2011. EXT.P1(a): COPY OF THE FIS IN CRIME NO.606 OF 201.REGISTERED BY THE KOLLAM EAST POLICE DATED 24 7.2010. EXT.P2: COPY OF THE PAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 29 04.2011. EXT.P3: COPY OF THE PAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 01 06.2011. EXT.P4: COPY OF THE INQUEST REPORT DATED 29 04.2011. EXT.P5: COPY OF THE NEWSPAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 30 05.2011. EXT.P6: COPY OF THE NEWSPAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 31 05.2011. EXT.P7: COPY OF THE NEWSPAPER REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 19 05.2011. EXT.P8: RELEVANT PAGES OF MATHRUBHOOMI NEWSPAPER DATED 13 05.2012. EXT.P9: COPY OF THE RELEVANT PAGES OF JANMABHOOMI NEWSPAPER DATED 14 05.2012. EXT.P10: COPY OF THE RELEVANT PAGES OF JANMABHOOMI NEWSPAPER DATED 15 05.2012. EXT.P11: COPY OF THE RELEVANT PAGES OF KERALAKAUMUDI NEWSPAPER DATED 15 05.2012. EXT.P12: COPY OF THE RELEVANT PAGES OF MALAYALA MANORAMA NEWSPAPER DATED 22 05.2012. EXT.P13: COPY OF THE RELEVANT PAGES OF KERALASHABDAM MAGAZINE DATED 20 05.2012. EXT.P14: COPY OF THE FINAL CHARGE SHEET DATED 12 09.2011 FILED BY SP, CB-CID, KOLLAM BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE. //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J.
------------------------------- W.P.(C).NO.16408 OF 201.----------------------------------- Dated this the 20th day of December, 2012 JUDGMENT
Petitioner is the widow of one Rajesh, who was found dead under suspicious circumstances. She has filed the above writ petition complaining that a fair and proper investigation is not conducted in the investigation of the crime registered over the death of Rajesh, in which, she suspects of complicity of some senior police officers as well. Investigation of the aforesaid crime has to be taken over and handed over to the 2nd respondent, Central Bureau of Investigation agency, for short, the 'CBI', with direction to expedite its completion, exercising extraordinary powers of this Court issuing a writ, order or direction, is her plea. Pending the writ petition, investigation of the crime being completed by the Crime Branch Crime Investigation Department, for short, the 'CBCID', filing a final report before the magistrate, petitioner has amended the writ petition to seek a further relief that the final report (Ext.P14) W.P.(C).NO.16408/2011 2 laid before the court be quashed with an order directing further investigation of the crime.
2. Rajesh, the victim, was found dead in a sitting position in his autorickshaw on the early morning of 28.04.2011 in front of Victoria Hospital, Kollam. A crime was registered over the death of Rajesh under Section 174 of the Code of Criminal Procedure, for short, 'Code', at Kollam Police Station. Ext.P1 is copy of the FIR and Ext.P1(a) copy of first information statement of that crime. Initially, the investigation over the crime was conducted by local police and later it was taken over by the CBCID, Kollam, and as stated earlier, pending the writ petition, a final report indicting some accused persons for committing the murder of Rajesh has been filed before the magistrate and committal proceedings thereof are stated to be pending.
3. Petitioner, the widow of Rajesh, has filed this writ petition producing a number of annexures, some of them newspaper reports which appeared in the print media right from W.P.(C).NO.16408/2011 3 the detection of death of Rajesh under suspicious circumstances, and, throughout various stages of investigation of the crime. Such newspaper reports imputed involvement of some senior police officers in the murder of Rajesh, to cover up their involvement in the brutal assault made on a staff reporter of a daily, namely, V.B.Unnithan of Mathrubhoomi newspaper. Rajesh, who had criminal antecedents was involved in the brutal assault on the aforesaid staff reporter, with some anti-social elements, and the attack on such reporter was arranged by a business magnet at Kollam, for and on behalf of some senior police officers of that station since that reporter had published news item regarding their nefarious and unlawful activities of such police officers, is the case of the petitioner. In the crime registered over the murder of that reporter, investigation of which was later taken and handed over to the CBCID, some of the witnesses questioned had disclosed the involvement of Rajesh as one among the assailants of the reporter and, at that stage, to silence him forever his brutal murder was committed, and he happened to be a victim in a preplanned scheme to shut W.P.(C).NO.16408/2011 4 out the evidence in Unnithan's case, according to the petitioner. Pursuant to demand made by media people, investigation of the crime in Unnithan's case was handed over to the CBI. They have arrested one senior police officer and he was then remanded to judicial custody. Some other police officers had been transferred from the station. Death of Rajesh occurred at a time when investigation was in progress in Unnithan's murder case and he was about to be arrested in connection with that case. Rajesh, according to the police, knew about the conspiracy which led to the assault on Unnithan. Though the inquest report (Ext.P4) prepared over the body of Rajesh disclosed that he was murdered, no serious investigation was conducted, and even recording the statement of relatives and his friends was done as a formality. Exts.P8, P9 and P12 are newspaper reports published in two dailies indicated that a police officer had been questioned during the investigation of the crime suspecting his involvement in the commission of murder of Rajesh. During the investigation of Unnithan's case, Santhosh Kumar, a police officer in the rank of Deputy Superintendent of Police, who was W.P.(C).NO.16408/2011 5 granted pardon by the Chief Judicial Magistrate, Ernakulam, had disclosed that the Superintendent of Police of Crime Branch forced him to cover up the names of the accused in the case. Ext.P11 is copy of a newspaper report indicating so, is produced. Disclosures made by the aforesaid police officer Santhosh Kumar also disclose the involvement of another police officer, a Deputy Superintendent of Police, namely, Rasheed in the murder of Rajesh. Exts.P12 and P13 are two other newspaper reports indicating so. Petitioner alleges that police officers who had complicity in the assault of Unnithan, a staff reporter, are involved in the murder of Rajesh also. Since such police officers are involved, any investigation by any wing of the State Police will not be fruitful, is her case complaining that attempts are being made up to cover up and screen the police officers involved by the investigating agency. Omitting the real culprits a final charge sheet naming some persons who committed overtacts in the murder leaving aside the conspirators primarily responsible for the murder of the victim is planned by investigating agency. Since the culprits involved in the murder W.P.(C).NO.16408/2011 6 of Rajesh includes police officers of the State Police Force, investigation of the crime by an independent agency, CBI, is absolutely essential to safeguard the ends of justice, according to the petitioner. She has therefore sought for an order/direction to hand over the investigation of the crime registered over the death of Rajesh to CBI. As indicated earlier, by amendment, an additional relief is canvassed to quash Ext.P14 charge which has been filed during the pendency of the petition before the magistrate by the CBCID, who conducted investigation of the crime.
4. The 3rd respondent Superintendent of Police, Crime Branch, Kollam, headed the investigation team which took over the investigation of the crime from the local police one month after the death of Rajesh pursuant to orders of the State Police Chief. He has filed two police statements, one dated 07.07.2011 and another dated 07.01.2012 countering the imputations and allegations made in the petition by the widow of the victim. A full fledged investigation has been carried out in the case W.P.(C).NO.16408/2011 7 questioning all material witnesses and tracing out mobile phone calls of the victim and all those suspected, and taking note of all attenuating circumstances surrounding the death of the victim, according to the 3rd respondent. Investigation has revealed Rajesh was murdered by one Vettukuttan and his gang members. Vettukuttan followed a modus operandi to summon and trap the victim to an isolated plot and then manhandle him brutally for hours together. In the case of Rajesh also Vettukuttan through his gang members carried out the operation after laying trap for Rajesh through one of his gang members, who, through a mobile phone call, on a false representation brought Rajesh to an isolated place, and there, he was brutally manhandled by some gang members of Vettukuttan. Vettukuttan and four of his gang members have been arrested during the investigation of the crime and, later, after completion of the investigation, charge has been laid against them before the court indicting them for various offences including the murder of Rajesh. Refuting the allegation that the death of Rajesh is connected with the assault of Unnithan, a staff reporter of Mathrubhoomi daily, it is W.P.(C).NO.16408/2011 8 contended that investigation has revealed that there is no connection between the two incidents. A fair investigation has been conducted in the crime, in which, charge has already been filed before the court indicting some accused persons. Relief canvassed by the petitioner for handing over the investigation of the crime to the CBI is resisted by the 2nd respondent contending that the allegations raised impeaching the investigation are totally false and meritless.
5. I heard the learned counsel for petitioner Sri.P.S.Sreedharan Pillai, learned Director General of Prosecution, Sri.T.Asaf Ali and Sri.P.Chandrasekharan Pillai, Standing Counsel for CBI.
6. Learned counsel for petitioner Sri.P.S.Sreedharan Pillai adverting to the circumstances surrounding the death of Rajesh contended that close proximity and nexus of the crime involving murder with a crime registered over the assault of Unnithan, a staff reporter of a national daily, is disclosed, and that being so, W.P.(C).NO.16408/2011 9 fairness and ends of justice demand investigation of the crime by the very same agency CBI to unravel the mystery of death of Rajesh. Complicity of senior police officers in the assault on the staff reporter as arranged by a business magnet at the behest of such police officers has come out during the investigation of that crime and two senior police officers have been arrested in that case. Involvement of Rajesh, the victim, as one among the assailants in the assault of the staff reporter has also come out in such investigation. When such be the case, where complicity of senior police officers are suspected of and atleast one among them previously continued in the CBCID of the same station, investigation of the crime over the death of Rajesh by that agency is totally unfair. There has been a serious attempt, according to the counsel, to cover up and shield the police officers involved in the murder of Rajesh by that investigating agency. A copy of the statement recorded by approver, one Santhosh Kumar, in Unnithan's case has also been produced in the case, which, according to the counsel, would disclose the complicity of another Police officer as well, one Rasheed, Deputy W.P.(C).NO.16408/2011 10 Superintendent of Police, and, further, the pressure exerted on the approver by the Superintendent of Police, Crime Branch not to disclose the names of those involved in the crimes. When that be the case, according to the counsel, investigation conducted by any wing of the State Police over the death of Rajesh would not serve any purpose, and to advance the ends of justice, 2nd respondent CBI has to be handed over the investigation of the crime quashing Ext.P14 charge laid before the court by the 3rd respondent.
7. Learned Prosecutor (Director General of Prosecution) Sri.Asaf Ali contending that a thorough investigation has been conducted in the crime resisted the relief canvassed for handing over the investigation to CBI, that too, at this stage when investigation of the crime has been completed and final report laid before the court with committal proceedings already over by the magistrate. All aspects involved in the crime have been meticulously examined and investigation has been done in most transparent manner and the assailants of Rajesh had been W.P.(C).NO.16408/2011 11 apprehended and investigation was completed within a time frame, is the further submission of the counsel. Investigation has not disclosed of any reason or circumstance to suspect the involvement of any police officer in the murder of Rajesh as imputed by his widow, is the further submission of the learned Prosecutor contending that the petition lacks merit and is not allowable.
8. Learned Standing Counsel appearing for CBI Sri.P.Chandrasekhara Pillai submitted that agency will abide by any direction issued by this Court with respect to the crime registered over the murder of Rajesh. However, it is pointed out that the limited infrastructure facilities available to the CBI has also to be taken into account to consider whether that agency should be entrusted with the investigation of the crime, which has already been completed and final report laid before the court indicting some accused persons by the 2nd respondent.
9. In the light of submissions made by the respective W.P.(C).NO.16408/2011 12 counsel as indicated above, and more particularly, with reference to the facts and circumstances presented in the case where serious imputations have been made against some senior police officers of the State Police Force, the first question that would emerge for consideration is whether the murder of Rajesh had any nexus with the assault made on the staff reporter Unnithan, the crime registered of which was investigated by another agency, the 2nd respondent. Other than stating that investigation in the crime registered over the murder of Rajesh has not revealed the complicity of any police officer, there is nothing more in any of the statements filed as to what enquiry had been conducted with respect to such serious allegations imputed by petitioner, which, it is seen, had been raised in a number of newspaper reports from time to time published at different stages of the investigation. Case diary has been produced before me for perusal. Perusing the case diary also, I do not find that any serious attempt had been made by the investigating agency on that most pertinent question whether there was any nexus between the two crime cases. In fact, the W.P.(C).NO.16408/2011 13 investigation of the crime registered over the assault of Unnithan initially conducted by the Crime Branch had been handed over to the CBI and after taking over such investigation, it has arrested one senior police officer of the State Police Force as involved in that crime. While the investigation in the crime over the assault on Unnithan continued, the murder of Rajesh took place. No attempt has been made by the CBCID during the course of investigation of the murder of Rajesh to ascertain from the CBI whether they have obtained any material in the investigation of the crime carried out by them showing the complicity of any of the accused in Unnithan's case in the murder of Rajesh. The two crimes are investigated by two different agencies do not postulate that they cannot seek assistance and aid from one another if that was so required to have a fair investigation of the respective crime. Fair trial of a case pre-supposes of a fair investigation of the crime. That in fact demands investigation by an independent agency which instills confidence not only to the relatives of the victim but to the public as well. Going through the case diary, I find no W.P.(C).NO.16408/2011 14 attempt has been made despite serious imputations made that Rajesh was one among the assailants of the staff reporter Unnithan and he was put to death to silence him at a stage when he was likely to be arrested in that crime. In case Rajesh was one among the assailants in Unnithan's case, if that be so, essentially whether his murder was on account of his complicity in such crime, requires a serious probe and necessarily by the same investigating agency, CBI, which is entrusted with the investigation in Unnithan's case. The question is whether there was any conspiracy at the behest of some police officers or others to murder Rajesh as imputed by the petitioner, his widow, in view of his involvement in the assault made on Unnithan at a point of time when he was likely to be arrested in that crime. The nature of conspiracy in two cases may by different and also commission of offences thereunder. But if one has nexus with the other, then investigation of both crimes by the same agency is ideal especially in cases where serious suspicions have been raised over the involvement of senior police officers of the State Police Force. To redeem the honour of the State Police Force W.P.(C).NO.16408/2011 15 also such a course of action is essential especially where one among the two crimes which is suspected to have given rise to the other heinous crime of murder has led to arrest of some police officers and handing over of investigation to the 2nd respondent CBI. No attempt has been made by the present investigating agency, 3rd respondent, to unravel whether Rajesh was an assailant of the staff reporter Unnithan. The entire focus of investigation, on perusal of the case diary, would disclose it was essentially directed to the assailants who are stated to be involved in finishing Rajesh and also over a different motive stated thereof. Suspected involvement of atleast one senior police officer, who previously formed part of the Crime Branch, which investigated crime was not something invented by petitioner but raised repeatedly in the print media, which, no doubt, should have alerted the investigating agency to probe in detail all circumstances surrounding the assault on Unnithan's case as well, to examine whether that crime had any nexus with the murder of Rajesh. The fact that investigation of that crime from CBCID was taken over and handed over and conducted by W.P.(C).NO.16408/2011 16 CBI can never be an excuse where a serious probe into that matter is required, even seeking assistance of the CBI, to unravel the murder of Rajesh. But, as indicated earlier, no such attempt was done by the present investigating agency CBCID.
10. I do not find any merit in the submissions made that completion of investigation and final report filed in the case has to be given significance in considering the request made for handing over the investigation to the CBI. Justice cannot become a casualty for the reason that the present investigating agency has filed a final report completing the investigation speedily. When circumstances indicated that a fair investigation of the crime has not been conducted and a serious probe is required, more so, with serious allegation raised that an improper investigation by the State Police has been done to cover up and screen some senior police officers, to do complete justice, direction for investigation by an independent agency and specialised agency like CBI has to be ordered. I have refrained from adverting to several lacuna in the investigation conducted W.P.(C).NO.16408/2011 17 as a critical scrutiny with reference to them is not called for in the present case. To meet the ends of justice and in public interest, it is seen, that CBI should be directed to take up investigation when it has already been entrusted with the investigation of Unnithan's case. To my query to the Standing counsel for the CBI whether during the investigation of Unnithan's case they have collected any material with reference to the murder of Rajesh as having nexus with that crime, learned Standing counsel requested for not being compelled to disclose those aspects since investigation of the crime taken over by that agency still continues. No matter how faithfully and honestly the CBCID may conduct the investigation in the present case the same is likely to lack credibility as serious allegations are raised against some senior police officers, where atleast one of them previously was part of that investigating agency. Some suspicious circumstances presented in the case also would indicate the case canvassed that Rajesh was one among the assailants of Unnithan cannot be brushed aside as untrue. Cardinal principle to be followed that justice must not only to be W.P.(C).NO.16408/2011 18 done but must be seen to be done demands that investigation of the present crime registered over the crime of Rajesh has to be taken over from the CBCID and conducted by CBI.
11. Ext.P14 charge sheet filed before the court, orders of committal passed thereof by magistrate and further proceedings on such committal by Sessions Judge are quashed. First respondent State Government shall issue orders to hand over investigation of Crime No.484 of 2011 of CBCID, Kollam to the 2nd respondent (CBI) issuing notification thereof within a period of two weeks from today, and on issue of such notification, taking over the investigation, CBI shall conduct further investigation of the crime in accordance with law, and complete such investigation as expeditiously as possible. Writ Petition is allowed. S.S.SATHEESACHANDRAN JUDGE prp