Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 WP(CRL.) NO. 1276 OF 2023 CRIME NO.839/2023 OF EDATHALA POLICE STATION, ERNAKULAM PETITIONER: SUBAIR AGED 63 YEARS, S/O. IBRAHIM, KORAGATTUPARAMBU, MALIAKKAPADY ROAD, EDATHALA P.O, ALUVA EAST VILLAGE, ALUVA TALUK, PIN - 683560 BY SRI. SUBAIR (Party-In-Person) RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF KERALA, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 DISTRICT POLICE CHIEF (DPC), ALUVA POWER HOUSE JUNCTION, SUB JAIL RD, PERIYAR NAGAR, ALUVA, KERALA, PIN - 683101 3 THE STATION HOUSE OFFICER EDATHALA POLICE STATION NALAM MILE, KULAKKAD, KERALA, PIN - 683112 4 CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY DIRECTOR 6TH FLOOR,LODHI ROAD, PLOT NO. 5-B, JAWAHARLAL NEHRU STADIUM MARG, CGO COMPLEX, NEW DELHI, DELHI, PIN - 110003
W.P.(Crl.) No.1276/23 -:2:- *5 STATE POLICE CHIEF KERALA STATE POLICE HEADQUARTERS, VELLAYAMBALAM, CITY-THIRUVANANTHAPURAM,PIN -695010 *(ADDL.R5 IS IMPLEADED AS PER ORDER DATED BY ADVS. SRI.P.NARAYANAN, PUBLIC PROSECUTOR THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON 04.04.2024 DELIVERED THE FOLLOWING: W.P.(Crl.) No.1276/23 -:3:-
BECHU KURIAN THOMAS, J.
------------------------------------- W.P.(Crl.) No.1276 of 2023 ------------------------------------ Dated this the 4th day of April, 2024
JUDGMENT
Petitioner seeks for a direction to entrust the investigation into F.I.R No.754/2023 and F.I.R No.839/2023 of Edathala Police Station to the Central Bureau of Investigation.
2. Petitioner and his wife are the owners of an extent of 10.750
Cents of property in Re.Sy.No.417/5 of Block No.35 of Aluva East Village. Petitioner alleges that, through the eastern boundary of the said property, there was a road having a width of 2.5 metres which led to a paddy field. However, after a real estate group purchased a property nearby to construct an apartment complex, petitioner was subjected to repeated threats and inducements with the ulterior objective of increasing the width of the road to 8 metres. Petitioner alleged that from 2008 onwards, he and his family had been subjected to various atrocities and false actions to compel him to forgo his title over the property to create a wider road. A suit filed by him as O.S. No.415 of 2008 is now pending consideration as R.S.A No.490/2014 before this Court, wherein an interim injunction has been issued, restraining the conversion of petitioner's property as a road.
3. While so, petitioner's wife filed a complaint alleging that ten
W.P.(Crl.) No.1276/23 -:4:- persons had concocted and forged documents indicating her consent and manipulated the records of the Panchayat and incorporated 4 cents of her property in the asset register of the Panchayath, causing a loss of Rs.30,00,000/-. Since action was not initiated by the police, a direction was issued under Section 156(3) of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') and thereafter, the police registered a crime as F.I.R No.754/2023 of the Edathala Police Station on 03.11.2023.
4. In the meantime, a complaint was filed by the petitioner also,
alleging that the real estate construction group, in collusion with the Panchayath Authorities, had trespassed into his property, with intent to increase the width of the road. The complaint was registered as F.I.R No.839/2023 of Edathala Police Station alleging offences punishable under Sections 167, 191, 192, 196, 201 203 270, 278, 506 and 441 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC').
5. According to the petitioner, the crimes registered by him and his
wife have not been investigated properly, at the instance of the SHO, Edathala Police Station, who is hand in glove with the culprits and therefore, no investigation worth its name has been conducted. Petitioner also alleges that property of the National Defence Academy is situated close by and the acts of the accused will affect the security of the nation hence, a C.B.I enquiry is essential.
6. The respondents have filed a statement, pursuant to the direction
W.P.(Crl.) No.1276/23 -:5:- of this Court. It is stated therein that petitioner had preferred a complaint in the year 2022, which was registered as F.I.R No.74/2022 of Edathala Police Station, alleging offences punishable under Sections 379, 420, 447, 441, 468, 120(b) 506 and 34 of IPC apart from Section 3 of Prevention of Damage to Public Property Act, 1984. In the said crime it was alleged that the accused had, under the guise of settling the dispute with the real estate group (M/s. Confident Group), trespassed into his property and committed damages and took away the red earth and also threatened his daughter. It is averred that the said crime was, pursuant to the direction of the District Police Chief, taken over by the District Crime Branch on 29.03.2022 and a final report was filed on 30.11.2022 arraying only one person as the accused, that too, under Section 506(i) IPC after deleting all others from the party array.
7. The statement also mentions that the allegations raised by the
petitioner in Crime No.754/2023 are the same as that of Crime No.74/2023, and therefore, after investigation, a report was filed in the above former crime on 27.12.2023 dropping all further action. As far as Crime No.839/2023 is concerned, the respondents allege that the investigation is continuing and is being conducted properly.
8. In the reply affidavit, petitioner denied any connection with Crime
No.74/2022 and Crime No.754/2023. It was also stated that the petitioner or his wife had never given consent to the Grama Panchayat or anybody W.P.(Crl.) No.1276/23 -:6:- else surrendering their property, and if it was so, such a document ought to have been produced or retrieved by the police. Petitioner also alleged that the CCTV footage will reveal that the boundary stones of his property were forcefully removed, that too in the presence of the SHO, Edathala and that the said officer had even threatened petitioner's children that they will also be booked in criminal cases.
9. I have heard the petitioner who appeared as party in person and Sri.P.Narayanan, the learned Public Prosecutor.
10. During the course of hearing, this Court directed the Prosecutor to produce the copy of final reports in F.I.R No.74/2022 and in F.I.R No.754/2023.
11. A perusal of the final report in F.I.R No.74/2022 reveals that only
one person has been arrayed as accused in the said case and the offence alleged is only under section 506(i) IPC, stating that during the widening of the road, since the defacto complainant objected, the accused therein had threatened him on 28.10.2021 and through the mobile phone threatened to kill the children of the defacto complainant and thereby committed the offences alleged.
12. From the final report filed in F.I.R No.754/2023, it is evident that,
though initially the offences were alleged against 10 persons under sections 420, 464, 468, 474 r/w section 34 of the I.P.C, the Investigating Officer dropped all further action stating that investigation into the said W.P.(Crl.) No.1276/23 -:7:- allegations have already been carried out in Crime No.74/2022. In the final report in Crime No.74/2022 only one person was arrayed as accused, that too only for the offence under section 506(i) IPC.
13. On an appreciation of the contentions advanced, it is evident
that petitioner has been fighting to save his property from being taken over by other persons in an attempt to widen a road from 2.5 metres to 8 metres. The property is alleged to be included in the asset register of the Panchayat. If the owners had not surrendered the property, necessarily, there cannot be any inclusion in the asset register, and if consent is available, records will be there. Since the petitioner alleges forgery and fabrication of records, if any such documents are available, the same ought to have been subjected to forensic analysis as well. Such a procedure is not seen carried out. Therefore, the allegation of the petitioner that his property has been included in the asset register after forging documents has not been specifically probed into. In this context, it is necessary to mention that on 26.05.2014, a learned Single Judge of this Court had, in I.A No.1231/2014 in R.S.A No.490/2014, issued an interim injunction, restraining the defendants therein, which includes the real estate group, from interfering with the possession of the plaintiff over the suit property if not already converted as a road.
14. The said interim order restrains persons from converting
petitioner's property into a road. The Investigating Officer seems to have W.P.(Crl.) No.1276/23 -:8:- not taken into reckoning the aforesaid aspects as well. Considering the entire circumstances, I am of the view that, the conclusion arrived at in the final report in F.I.R No.754/2023 is bereft of any material basis. The investigation conducted into the said crime is incomplete. Since allegations have been levelled against the Investigating Officer himself, whose presence at the time of the incident is mentioned by the petitioner, a further investigation is to be conducted by an independent agency. Similarly, F.I.R No.839/2023 in which the investigation is pending, also will have to be investigated by the same agency.
15. Having regard to the above circumstances, the final report filed
in Crime No.754/2023 of Edathala Police Station is set aside. This Court is of the further view that, in order to provide a fair investigation, the District Crime Branch must investigate the allegations in F.I.R No.754/2023 and F.I.R No.839/2023, both of Edathala Police Station. The District Police Chief, Ernakulam Rural, shall immediately issue appropriate orders handing over the investigation of F.I.R No.754/2023 and F.I.R No.839/2023 of Edathala Police Station to the District Crime Branch, who shall conduct a fair and proper investigation at the earliest. This writ petition is allowed as above. Sd/- BECHU KURIAN THOMAS JUDGE vps W.P.(Crl.) No.1276/23 -:9:- APPENDIX PETITIONER'S/S' EXHIBITS Exhibit P1 TRUE COPY OF THE REPORT SUBMITTED BY THE GRAMA PANCHAYATH SECRETARY IN THE MEETING HELD ON 29-10-2007 Exhibit P2 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 3RD RESPONDENT DATED 15-10-2022 Exhibit P3 TRUE COPY OF THE PHOTOGRAPH SHOWING THE PRESENCE OF POLICE OFFICERS IN THE SITE OF REMOVAL OF SOIL Exhibit P4 TRUE COPY OF THE ORDER OF THE 2ND
RESPONDENT TO TRANSFER THE INVESTIGATION OF CRIME NO.1050 OF 2021 AND 1175 OF 2021 TO THADIYITTAPARAMBU POLICE STATION
ORDER DATED 24-01-2022
Exhibit P5 TRUE COPY OF THE SAID LETTER DATED 18-01-2013 ISSUED BY THE HOME DEPARTMENT Exhibit P6 TRUE COPY OF THE COMMUNICATION ISSUED TO THE PETITIONER IN THAT RESPECT Exhibit P7 COPY OF THE FIR NO.754 OF 2023 OF THE EDATHALA POLICE STATION Exhibit P8 TRUE COPY OF THE C.M.P.NO.3763 OF 2023 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I ALUVA Exhibit P9 TRUE COPY OF THE FIR NO.839 OF 2023 OF EDATHALA POLICE STATION REGISTERED IN FURTHERANCE TO EXHIBIT P-8 Exhibit P10 TRUE COPY OF THE LETTERS ISSUED BY THE DY.S.P. OF CRIME BRANCH W.P.(Crl.) No.1276/23 -:10:- Exhibit P11 TRUE COPY OF LETTER IN FURTHERANCE TO LETTER DATED 06-12-2022 Exhibit P12 TRUE COPY OF THE SAID COMPLAINT DATED 27-11-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P13 TRUE COPY OF THE STATEMENT RECORDED BY THE DY.S.P. FROM THE RETIRED POLICE OFFICER Exhibit P14 TRUE COPY OF THE FIR REGISTERED BY THE 3RD RESPONDENT AND FILED BEFORE THE HON'BLE JUDL. FIRST CLASS MAGISTRATE COURT, ALUVA Exhibit P15 TRUE COPY OF THE PETITION FILED BEFORE THE 2ND RESPONDENT DATED 05-02-2024 Exhibit P16 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO.74/2022 OF EDATHALA POLICE Exhibit P17 TRUE COPY OF THE SAID FINAL REPORT IN CRIME NO. 1050 OF 2021 OF EDATHALA POLICE Exhibit P18 TRUE COPY OF THE FINAL REPORT IN CRIME NO.1175 OF 2021 OF EDATHALA POLICE Exhibit P19 TRUE COPY OF THE ORDER OF THE OMBUDSMAN
DATED 07-07-2022 STATING FALSE REPORT IN THE FINAL REPORT IN CRIME NO.754 OF 2023 OF EDATHALA POLICE STATION
Exhibit P20 LETTER ISSUED BY THE GRAMA PANCHAYATH SECRETARY TO THE SHO EDATHALA DATED 10-02-2022 Exhibit P21 TRUE COPY OF THE SAID STATEMENT RECORDED BY THE DY.S.P. CRIME BRANCH DATED 05-05-2018 Exhibit P22 TRUE COPY OF THE LETTER ISSUED BY THE GRAMA PANCHAYATH SECRETARY TO ME AND MY WIFE DATED 18-03-2022 Exhibit P23 TRUE COPY OF THE RE-SURVEY SKETCH W.P.(Crl.) No.1276/23 -:11:- Exhibit P24 8. TRUE COPY OF THE TAX RECEIPT OF THE BUILDING OF THE WIFE OF ME IN THE DISPUTED PROPERTY
Exhibit P25 TRUE COPY OF THE INJUNCTION ORDER
PASSED BY THIS HON'BLE COURT IN I.A.NO.1231 OF 2014 IN RSA NO. 490 OF 2014 DATED 26-05-2014 Exhibit P26 TRUE COPY OF REPORTED THE DAMAGES CAUSED TO THE BUILDING OF THE WIFE OF ME IN THE FINAL REPORT IN 2697 OF 2008