Aathikka, P.C. Vs. State of Kerala and Others - Court Judgment

Excerpt:
1. abdul shukhoor, a young man of 21 years, was brutally murdered in broad day light at the ridge of a paddy field. the allegations, prima facie, reveal that an open trial was conducted by a particular political party n the so-called charge that the deceased had also participated in an attack staged towards a-32 and a-33 in s.c.no.845 of 2012 pending before the sessions court, thalassery. it is alleged that the deceased, who was running away from the hands of a group of assailants, was chased and ultimately stranded at a ridge of the paddy field, where he was surrounded by the assailants, and was hacked to death. 2. the prosecution alleges that a-32 and a-33 were undergoing treatment in room no.315 of the co-operative hospital, taliparamba, where some of the other accused persons were also present. on catching the deceased, he was questioned, his name was obtained, and his photographs were taken by using mobile phones by some of the assailants. the photographs and details were allegedly passed on to the mobile phones of certain persons who were present at room no.315 of the said hospital and got identified by them as one of the persons involved in the alleged attack staged towards a-32 and a-33, in the morning of the same day. it is alleged that the said identification was the result of the brutal murder of the deceased young man. 3. the case was investigated by the local police, and finally a final report was filed before the concerned judicial first class magistrate s court whereby a-32 and a-33 were also arraigned for the offence under section 118 of the indian penal code read with sections 364, 307 and 302 ipc. strangely enough, the investigating officer has not chosen to rope in a-32 and a-33 for the offence under section 120b ipc, even though such an offence has also been levelled against a-28, a-29, a-30 and a-31. 4. the prosecution alleges that a-28, a-29, a-30 and a-31 were also present at room no.315 and surroundings at the time when the photographs were allegedly identified as one of the persons who had staged the attack towards a-32 and a-33 on the same day morning. 5. the petitioner in w.p.(c) 25123/2013 is none other than the bereaved mother of the deceased. according to her, she has been clamouring for justice to bring the actual conspirators behind the brutal murder of her son, before law. her complaint is that investigation with regard to the role played by a-32 and a-33 in the incident is totally unfair and tainted, and a proper investigation with regard to their roles was not conducted. it is also her case that there was absolutely nothing to discriminate a-32 and a-33 from the offence of conspiracy under section 120b ipc behind the murder. it is her further case that even though the government of kerala had decided to have a further investigation in the matter, based on the report of the state police chief, and handover the investigation to the cbi, the central government has turned a deaf ear towards the legitimate request of the government of kerala to have a further investigation conducted in the matter by the cbi. 6. a-25 and a-33 got themselves impleaded in the matter as additional respondents 5 and 6 and they filed an objection. additional respondents 6 and 5 respectively in w.p.(c) no.25123/2013 have filed w.p.(c) no.572/2014 as petitioners for getting ext.p2 notification issued by the first respondent quashed. ext.p-2 notification is the one issued by the government to have a further investigation conducted in the matter by the cbi. 7. heard the learned senior counsel sri s. sreekumar for the petitioner in w.p.(c) no.25123/2013, the learned senior counsel sri m.k. damodaran for additional respondents 5 and 6, who are the petitioners in w.p.(c) no.572 of 2014, the learned director general of prosecution sri asaf ali for the state, and the learned standing counsel for the cbi sri chandrashekaran pillai. the matter involved in w.p.(c) no.572/2014 is also heard in detail. 8. the learned senior counsel sri m.k. damodaran has staged a scathing attack on ext.p-2 notification and argued that the notification as such is bad in law and the state of kerala has no power or authority to issue such a notification when the matter has been taken cognizance of by the courts below. it has been pointed out that on the filing of the final report, the matter has been presently committed to the sessions court where it is pending as sessions case no.845 of 2012. it is also pointed out that the sessions case has been pending as such for the period from 2012 onwards and presently the government has no power to issue such a notification. it is also argued that the trial has commenced in the matter and therefore, either the court which is dealing with the case or the high court alone can order a further investigation of the case. it is also argued that only the high court or the apex court could order such further investigation by the cbi, if at all required. it is also pointed out that the investigation by the cbi can be ordered only in rarest of rare cases where it is absolutely required for safeguarding the confidence of the people in the criminal justice dispensing system and also for protecting the credibility in the system. apart from those rarest of rare cases, in a casual manner, either the government or the court cannot order an investigation or further investigation by the cbi, it is argued. 9. per contra, sri s. sreekumar, the learned senior counsel appearing for the petitioner in w.p.(c) no.25123/2013, has argued that this is a case which has got all the elements to bring it in the category of the rarest of rare cases. it is argued that a particular political party wanted to settle scores and to take the law into their hands by conducting an open trial, that too, in broad day light at the centre point of a paddy field and after such a so-called open trial, a young man of 21 years was hacked to death. according to the learned senior counsel, the facts are selfspeaking to bring out this case to the category of rarest of rare cases, wherein a further investigation by the cbi is required. it is also argued that even when the offences are taken cognizance of by the courts below, there is nothing wrong on the part of the state police chief in finding that a further investigation is required in the matter and to recommend the government that such a further investigation has to be carried out by the cbi. 10. the learned director general of prosecution sri asaf ali has also supported ext.p-2 notification and argued that the state government do have the power to issue such a notification with an explanatory note as one contained in ext.p-2. the learned dgp has argued that, in fact, the state is confessing that the state could not carry out a proper investigation in the matter, and therefore, a further investigation is required. the learned dgp has expressed his anguish in the state of affairs and submitted that at that particular locality, an investigation of the present case could not be properly conducted by the local police. supporting the said argument, the learned senior counsel sri s. sreekumar has argued that exts.p-4 to p-7 news items appeared in various news dailies clearly point out that there were severe threat and intimidation to the investigating officer as well as the other police personnel while they were engaged in investigating this case, and therefore, they could not properly bring the actual culprits to law, through the final report. 11. true that news items in news papers cannot be considered as evidence in a matter. at the same time, those news items assume importance when it reveal that there were such a feeling at least in the mind of the people of the locality, that the investigating officer and other police personnel, who were assisting him were threatened and intimidated. 12. regarding the argument forwarded by the learned senior counsel sri m.k. damodaran that the trial has commenced in the matter, this court is of the view that trial has not been commenced in the matter as charges have not been framed so far. till framing charges, the stage in the matter is inquiry. inquiry terminates only on the framing of charges and from that stage onwards, the trial commences. therefore, it cannot be said that the trial has been commenced. even in a case wherein the trial has been commenced, it cannot be said that a further investigation under section 173(8) cr.p.c. is not possible. the learned senior counsel has canvassed an argument that in this particular case, even though a further investigation could be ordered by the state police chief, the government of kerala has no power or authority to handover such a further investigation to the cbi. such an order can be passed only by the high court under article 226 of the constitution of india or in some cases under section 482 cr.p.c, or by the apex court under article 32 of the constitution of india. 13. the learned senior counsel sri s. sreekumar as well as the learned dgp has vehemently argued that additional respondents 5 and 6 being accused, have no right of audience, in fact, in the case when the request is one for a further investigation under section 173(8) cr.p.c. it has to be taken note of the fact that what is claimed is a further investigation and not a fresh investigation or reinvestigation in the matter. the said aspect has been finalised by the apex court in sri bhagwan samardha sreepada venkata vishwandadha maharaj v. state of a.p. and others (a.i.r.1999 s.c.2332), wherein it was held that- power of the police to conduct further investigation, after laying final report, is recognised under s.173(8) of the code of criminal procedure. even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. in such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition. there is nothing in s.173(8) to suggest that the court is obliged to hear the accused before any such direction is made. casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. as law does not require it, magistrate cannot be burdened with such an obligation. 14. the learned senior counsel sri m.k. damodaran has attempted to distinguish the decision in sri bhagwan samardha s case (supra), by stating that in that particular case, when the reinvestigation was ordered, even though there were allegations against the accused, the accused was not arraigned and that is the reason why it was held that such an obligation on the court would only result in encumbering the court with the burden of searching for all potential accused. 15. in central bureau of investigation and another v. rajesh gandhi and another (a.i.r.1997 s.c.93), it was clearly held in paragraph 8 that there is no merit in the pleas raised by the first respondent either. the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. the accused cannot have a say in who should investigate the offences he is charged with. the said dictum from the apex court clearly shows that the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. 16. in kishan lal v. dharmendra bafna and another ((2009) 7 s.c.c.685), it was held in paragrpah16- the investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. apart from the aforementioned grounds, the learned magistrate or the superior courts can direct further investigation, if the investigation is found to be trained and/or otherwise unfair or is otherwise necessary in the ends of justice. the question, however, is as to whether in a case of this nature a direction for further investigation would be necessary. there, the apex court has held that whenever it appears that the investigation is tainted in any manner, it gives room for ordering a further investigation in the matter under section 173(8) cr.p.c. 17. in hasanbhai valibhai qureshi v. state of gujarat and others (a.i.r.2004 s.c.2078), it was held in paragraphs 12 and 13- sub-section 8 of section 173 of the code permits further investigation, and even de hors any direction from the court as such, it is open to the police to conduct proper investigation, even after the court took cognizance of any offence on the strength of a police report earlier submitted. all the more so, if as in this case, the head of the police department also was not satisfied of the property or the manner and nature of investigation already conducted. in om prakash narag and another v. state (delhi admn.) (a.i.r. 1979 s.c.1791) it was observed by this court that further investigation is not altogether ruled out merely because cognizance has been taken by the court. when defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. it would ordinarily be desirable and all the more so in this case, that police should inform the court and seek formal permission to make further investigation when fresh acts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. in view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. the mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. 18. therefore, it was held that for arriving at the truth and to do real and substantial as well as effective justice, when a further investigation is required, even the investigating officer can decide to have a further investigation under section 173(8) cr.p.c., even in cases wherein cognizance has been taken by the court. 19. in ram lal narang v. state (delhi admn.)(a.i.r.1979 s.c.1971) it was held- notwithstanding that a magistrate had taken cognizance of the offence upon a police report submitted under section 173 of the 1898 code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. there was no provision in the code of criminal procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the magistrate. neither s.173 nor s.190 lead to say that the power of the police to further investigate was exhausted by the magistrate taking cognizance of the offence. practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts. 20. sri s. sreekumar has invited the attention of this court to the decision in prabhavathiamma v. state of kerala (2007 (4) k.l.t.601) rendered by a division bench of this court wherein it was clearly held that- power of the police to conduct further investigation under s.173 (8) will, in no way, fetter the power of the high courts and apex court in ordering investigation by the special investigating agency if circumstances warrant. it was also held that inherent powers of the court to secure the ends of justice are saved by section 482 cr.p.c. power of the court under article 226 of the constitution of india is also enabling the court in ordering further investigation by special investigating agency in the circumstances of the case, to avoid failure of justice. 21. learned senior counsel sri m.k. damodaran has invited the attention of this court to the decision in vinay tyagi v. irshad ali @ deepak and others ((2013) 5 s.c.c.762); wherein it was held in paragraph 22 and paragraph 23 that unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a fresh investigation . 22. the apex court has held that when matters are there revealing the unfairness of the investigation and it is such that it pricks the conscience of the court, the court can interfere to have a fresh investigation in a case. here in this case, what is contemplated is not a fresh investigation ; whereas, it is only a further investigation . even then the court has to examine whether the final report reflects unfairness on the part of the investigating officer and whether it is such that it pricks the conscience of the court. 23. the attention of this court has been invited to the decision in state of panjab v. davinder pal singh bhullar and others etc. ((2011) 14 s.c.c.770) and sri m.k. damodaran has argued that the court cannot direct cbi to investigate as to whether a particular person has committed an offence as alleged or not. it has also been argued that the person against whom the investigation is sought, has to be impleaded as a party and must be given a reasonable opportunity of being heard. at the same time, the decision shows that it was a case, wherein an investigation was ordered. it does not contemplate a situation wherein a further investigation has to be ordered under section 173(8) cr.p.c. it is true that the apex court has held in davinder pal singh bhullar s case (supra) that in a case wherein allegations are levelled against a person and an investigation is sought for, the concerned person against whom such an investigation is sought for should be impleaded as a party to the proceedings. 24. by citing the decision in divine retreat centre v. state of kerala ((2008) 3 s.c.c.542), it has been argued that it is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person, in violation of the principles of nature justice. those decisions in davinder pal singh bhullar s case (supra) and divine retreat centre s case (supra) are relating to matters wherein there were no accused and an investigation was sought for against those persons to arraign them as accused. here the situation is totally different. 25. the learned senior counsel for respondents 5 and 6 has invited the attention of this court to the decision in state of west bengal and others v. committee for protection of democratic rights, west bengal and others ((2010) 3 s.c.c.571); wherein the parameters have been laid down by the apex court to have an investigation in the matter by the cbi, in paragraph 70, as follows: before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by articles 32 and 226 of the constitution, while passing any order, the courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. the very plentitude of the power under the said articles requires great caution in its exercise. insofar as the question of issuing a direction to cbi to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. otherwise cbi would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 26. time and again, the apex court has reiterated the principle that the extraordinary power to have an order for an investigation by the cbi must be exercised sparingly, consciously and in exceptional situations where it becomes necessary to provide credibility and to instill confidence in the investigation, or where national and international ramifications are there. it has also been held that such an order should be passed only in cases wherein such an order is necessary for doing complete justice and enforcing the fundamental rights. 27. in prof. k. v. rajendran v. superintendent of police,, cbcid south zone, chennai and others ((2013) cri.l.j.4464), it was held in paragraph 10 that: 10. in view of the above, the law can be summarised to the effect that the court could exercise its constitutional powers for transferring an investigation from the state investigating agency to any other independent investigating agency like cbi only in rare and exceptional case. 28. in prof. k. v. rajendran s case (supra), the apex court has relied on sakiri vasu v. state of up (a.i.r.2008 s.c. 907); wherein it was held that: this court or the high court has power under article 136 or article 226 to order investigation by the cbi. that, however should e done only in some rare and exceptional case, otherwise, the cbi would be flooded with a large number of cases and would find it impossible to properly investigate all of them. 29. the learned senior counsel for respondents 5 and 6 have invited the attention of this court to secretary, minor irrigation and rural engineering services, u.p. and others ((2002) 5 s.c.c.521); wherein it was held: while the high court has power under article 226 to direct inquiry by cbi, a decision to direct an inquiry by cbi against a person can only be done if the high court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by cbi or any other similar agency. the same cannot be done as a matter of routine or merely because a party makes some such allegations. it is not sufficient to have such material in the pleadings. on the contrary, there is a need for the high court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by cbi. while directing an inquiry by cbi, the high court must record a prima facie finding as to the truth of such allegations with reference to the reply filed. 30. now the question to be looked into is whether the final report reflects unfairness in the matter of investigation and whether there are matters that prick the conscience of this court. no doubt, the petitioner in w.p.(c) no.25123 of 2013, who is none other than the mother of the deceased young man of 21, entertains a strong feeling and belief that there was a conspiracy hatched by a-32 and a-33 along with the other accused persons who were present at room no.315 of the said co-operative hospital, taliparamba, which culminated in the brutal murder of her son. the way in which the investigating officer has prepared the final report in the case, clearly reveal that the investigating officer has laboured much to discriminate a-32 and a-33 from the charge of criminal conspiracy under section 120 b ipc. 31. as per the final report, even according to the investigating officer, a-32 and a-33 were present in room no.315 at the relevant time. the investigating officer has gone to the extent of arraigning a-28, a-29, a-30 and a31, who were allegedly present along with a-32 and a-33 at room no.315 and its surroundings, with the aid of the offence under section 120 b ipc. according to the petitioner, the investigating officer could not collect the evidence relating to a-32 and a-33 regarding the said element of conspiracy. it is the specific case of the mother of the deceased that the investigating officer was unable to collect the evidence and to probe further in the matter solely because of the stiff resistance and intimidatory tactics being played by the particular political party of which a-32 and a-33 are leaders. 32. whatever it is, the cry of the mother of the deceased should not remain unheard. it should not die down as mere wild cries. even the learned director general of prosecution has practically confessed before this court that the state police machinery could not conduct a proper investigation in the matter and could not probe in the matter because of the intimidatory tactics and attitude of a particular political party of which a-32 and a-33 are leaders. 33. if self proclaimed kings of a locality are permitted to rule in the matter of investigation, criminal justice will become a casualty in their hands. the courts cannot remain as mute spectators to such intimidatory tactics being played by such elements to protect persons partaking in heinous crimes. the same has to be viewed very seriously. when state machinery has expressed inability to have a proper investigation in the matter, the said aspects clearly prick the conscience of the court. it reflects patent unfairness in the investigation. 34. when a-28, a-29, a-30 and a-31 could be arraigned as accused with the aid of the offence under section 120 b of the indian penal code, this court is at a loss to understand as to why the investigating officer could not collect evidence relating to the commission or otherwise of a similar offence by a-32 and a-33. the answer has been given by the learned senior counsel for the mother of the deceased, as well as the learned dgp. 35. the learned standing counsel for the cbi also vehemently opposed the handing over of the further investigation to the cbi, mainly on the ground that, the cbi is flooded with investigation and it may not be possible for the cbi to carry out a proper investigation on account of such constraints. regarding ext.p-2 notification issued by the state government, the same need not be considered at all at present. its validity is not at all a question to be decided now. the explanatory note attached to the notification clearly reveals that the state police chief wanted to have a further investigation in the matter. 36. even though the learned senior counsel for additional respondents 5 and 6 has pointed out that the explanatory note does not clearly mention that the state police chief had perused the case diary, this court is of the view that the said argument is too hyper technical. it is implied in the explanatory note that the state police chief had perused and gone through the case diary as well as the entire investigation. it was after that he had formed an opinion that a further investigation was required in the matter under section 173(8) cr.p.c. 37. the next question to be considered is, whether such a further investigation can be handed over to the cbi or not. even though the learned senior counsel for respondents 5 and 6 has vehemently opposed ext.p-2 in the sense that the government had no power to hand over such a further investigation to the cbi, this court is of the view that the said argument also is hyper technical. whatever it is, when the conscience of this court has become shaken on account of the unfairness in the investigation, and when the state police chief has also expressed the view that a further investigation under section 173(8) cr.p.c. is required, this court cannot shut its eyes towards the hard realities pointed out by the learned dgp that the state machinery cannot conduct a further investigation in a fair manner and therefore, the same has to be handed over to the cbi. it is true that, even though ext.p-2 notification was issued by the government, the central government has not cared to issue a further notification thereby, entrusting the investigation to the cbi in the matter. now, that chapter is closed. this court is stepping in by exercising the powers of this court under article 226 of the constitution of india and the power under section 482 cr.p.c. to order a further investigation in the matter under section 173(8) cr.p.c. and to entrust such further investigation to the cbi. 38. even though the central government has expressed the view that the cbi is flooded with similar investigations and therefore, they are unable to take up the matter, the cbi cannot wash its hands by saying like that. in a particular locality of the state, when a proper investigation is not possible by the state police machinery, the state can seek the aid of the central government in getting the matter investigated by the cbi. in the federal system, it is for the central government to digest such a situation and to rise to the occasion by handing over the investigation to the cbi. true that cbi may be flooded with investigation; but that is not the look out of this court at present. when conscience of the court is shaken and when the cries of the bereaved mother of the deceased are echoing in the ears of the court, this court has to order that the further investigation in the case has to be conducted by the cbi. 39. let the cbi conduct a further investigation in the matter. there cannot be any heartburn for respondents 5 and 6 in such a further investigation. this court does not understand as to why respondents 5 and 6 are saying that the investigation conducted by the local police is proper? at the same breath, they are challenging the offence alleged against them under section 118 ipc. in order to do complete justice to the parties, this court hereby orders the further investigation in the case by the cbi. 40. it is a fact that the cbi requires timely and sufficient assistance by the state police machinery as well as the government to carry out a proper further investigation in the matter. the government of kerala as well as the state police chief shall consider all such requests for assistance by the cbi. even without such a request, they shall give all sorts of assistance to the cbi, including all necessary infrastructures. in case of any shortcomings, it is open to the cbi to approach this court at any time. the further investigation in crime 136/2012 of kannapuram police station is hereby entrusted to the cbi. in the result, w.p.(c) no.25123 of 2013 is allowed as above, and w.p.(c) no.572 of 2014 is dismissed.

Judgment:

1. Abdul Shukhoor, a young man of 21 years, was brutally murdered in broad day light at the ridge of a paddy field. The allegations, prima facie, reveal that an open trial was conducted by a particular political party n the so-called charge that the deceased had also participated in an attack staged towards A-32 and A-33 in S.C.No.845 of 2012 pending before the Sessions Court, Thalassery. It is alleged that the deceased, who was running away from the hands of a group of assailants, was chased and ultimately stranded at a ridge of the paddy field, where he was surrounded by the assailants, and was hacked to death.

2. The prosecution alleges that A-32 and A-33 were undergoing treatment in room No.315 of the Co-operative Hospital, Taliparamba, where some of the other accused persons were also present. On catching the deceased, he was questioned, his name was obtained, and his photographs were taken by using mobile phones by some of the assailants. The photographs and details were allegedly passed on to the mobile phones of certain persons who were present at room No.315 of the said hospital and got identified by them as one of the persons involved in the alleged attack staged towards A-32 and A-33, in the morning of the same day. It is alleged that the said identification was the result of the brutal murder of the deceased young man.

3. The case was investigated by the local police, and finally a final report was filed before the concerned Judicial First Class Magistrate s Court whereby A-32 and A-33 were also arraigned for the offence under Section 118 of the Indian Penal Code read with Sections 364, 307 and 302 IPC. Strangely enough, the investigating officer has not chosen to rope in A-32 and A-33 for the offence under Section 120B IPC, even though such an offence has also been levelled against A-28, A-29, A-30 and A-31.

4. The prosecution alleges that A-28, A-29, A-30 and A-31 were also present at room NO.315 and surroundings at the time when the photographs were allegedly identified as one of the persons who had staged the attack towards A-32 and A-33 on the same day morning.

5. The petitioner in W.P.(C) 25123/2013 is none other than the bereaved mother of the deceased. According to her, she has been clamouring for justice to bring the actual conspirators behind the brutal murder of her son, before law. Her complaint is that investigation with regard to the role played by A-32 and A-33 in the incident is totally unfair and tainted, and a proper investigation with regard to their roles was not conducted. It is also her case that there was absolutely nothing to discriminate A-32 and A-33 from the offence of conspiracy under Section 120B IPC behind the murder. It is her further case that even though the Government of Kerala had decided to have a further investigation in the matter, based on the report of the State Police Chief, and handover the investigation to the CBI, the Central Government has turned a deaf ear towards the legitimate request of the Government of Kerala to have a further investigation conducted in the matter by the CBI.

6. A-25 and A-33 got themselves impleaded in the matter as additional respondents 5 and 6 and they filed an objection. Additional respondents 6 and 5 respectively in W.P.(C) No.25123/2013 have filed W.P.(C) No.572/2014 as petitioners for getting Ext.P2 notification issued by the first respondent quashed. Ext.P-2 notification is the one issued by the Government to have a further investigation conducted in the matter by the CBI.

7. Heard the learned Senior Counsel Sri S. Sreekumar for the petitioner in W.P.(C) No.25123/2013, the learned Senior Counsel Sri M.K. Damodaran for additional respondents 5 and 6, who are the petitioners in W.P.(C) No.572 of 2014, the learned Director General of Prosecution Sri Asaf Ali for the State, and the learned Standing Counsel for the CBI Sri Chandrashekaran Pillai. The matter involved in W.P.(C) No.572/2014 is also heard in detail.

8. The learned Senior Counsel Sri M.K. Damodaran has staged a scathing attack on Ext.P-2 notification and argued that the notification as such is bad in law and the State of Kerala has no power or authority to issue such a notification when the matter has been taken cognizance of by the courts below. It has been pointed out that on the filing of the final report, the matter has been presently committed to the Sessions Court where it is pending as Sessions Case No.845 of 2012. It is also pointed out that the sessions case has been pending as such for the period from 2012 onwards and presently the Government has no power to issue such a notification. It is also argued that the trial has commenced in the matter and therefore, either the court which is dealing with the case or the High Court alone can order a further investigation of the case. It is also argued that only the High Court or the Apex Court could order such further investigation by the CBI, if at all required. It is also pointed out that the investigation by the CBI can be ordered only in rarest of rare cases where it is absolutely required for safeguarding the confidence of the people in the criminal justice dispensing system and also for protecting the credibility in the system. Apart from those rarest of rare cases, in a casual manner, either the Government or the court cannot order an investigation or further investigation by the CBI, it is argued.

9. Per Contra, Sri S. Sreekumar, the learned Senior Counsel appearing for the petitioner in W.P.(C) No.25123/2013, has argued that this is a case which has got all the elements to bring it in the category of the rarest of rare cases. It is argued that a particular political party wanted to settle scores and to take the law into their hands by conducting an open trial, that too, in broad day light at the centre point of a paddy field and after such a so-called open trial, a young man of 21 years was hacked to death. According to the learned Senior Counsel, the facts are selfspeaking to bring out this case to the category of rarest of rare cases, wherein a further investigation by the CBI is required. It is also argued that even when the offences are taken cognizance of by the courts below, there is nothing wrong on the part of the State Police Chief in finding that a further investigation is required in the matter and to recommend the Government that such a further investigation has to be carried out by the CBI.

10. The learned Director General of Prosecution Sri Asaf Ali has also supported Ext.P-2 notification and argued that the State Government do have the power to issue such a notification with an explanatory note as one contained in Ext.P-2. The learned DGP has argued that, in fact, the State is confessing that the State could not carry out a proper investigation in the matter, and therefore, a further investigation is required. The learned DGP has expressed his anguish in the state of affairs and submitted that at that particular locality, an investigation of the present case could not be properly conducted by the local police. Supporting the said argument, the learned Senior Counsel Sri S. Sreekumar has argued that Exts.P-4 to P-7 news items appeared in various news dailies clearly point out that there were severe threat and intimidation to the investigating officer as well as the other police personnel while they were engaged in investigating this case, and therefore, they could not properly bring the actual culprits to law, through the final report.

11. True that news items in news papers cannot be considered as evidence in a matter. At the same time, those news items assume importance when it reveal that there were such a feeling at least in the mind of the people of the locality, that the investigating officer and other police personnel, who were assisting him were threatened and intimidated.

12. Regarding the argument forwarded by the learned Senior Counsel Sri M.K. Damodaran that the trial has commenced in the matter, this Court is of the view that trial has not been commenced in the matter as charges have not been framed so far. Till framing charges, the stage in the matter is inquiry. Inquiry terminates only on the framing of charges and from that stage onwards, the trial commences. Therefore, it cannot be said that the trial has been commenced. Even in a case wherein the trial has been commenced, it cannot be said that a further investigation under Section 173(8) Cr.P.C. is not possible. The learned Senior Counsel has canvassed an argument that in this particular case, even though a further investigation could be ordered by the State Police Chief, the Government of Kerala has no power or authority to handover such a further investigation to the CBI. Such an order can be passed only by the High Court under Article 226 of the Constitution of India or in some cases under Section 482 Cr.P.C, or by the Apex Court under Article 32 of the Constitution of India.

13. The learned Senior Counsel Sri S. Sreekumar as well as the learned DGP has vehemently argued that additional respondents 5 and 6 being accused, have no right of audience, in fact, in the case when the request is one for a further investigation under Section 173(8) Cr.P.C. It has to be taken note of the fact that what is claimed is a further investigation and not a fresh investigation or reinvestigation in the matter. The said aspect has been finalised by the Apex Court in Sri Bhagwan Samardha Sreepada Venkata Vishwandadha Maharaj v. State of A.P. and others (A.I.R.1999 S.C.2332), wherein it was held that-

Power of the police to conduct further investigation, after laying final report, is recognised under S.173(8) of the Code of Criminal Procedure. Even after the Court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conduct further investigation. In such a situation the power of the Court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in S.173(8) to suggest that the Court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard. As law does not require it, Magistrate cannot be burdened with such an obligation.

14. The learned Senior Counsel Sri M.K. Damodaran has attempted to distinguish the decision in Sri Bhagwan Samardha s case (supra), by stating that in that particular case, when the reinvestigation was ordered, even though there were allegations against the accused, the accused was not arraigned and that is the reason why it was held that such an obligation on the court would only result in encumbering the court with the burden of searching for all potential accused.

15. In Central Bureau of Investigation and another v. Rajesh Gandhi and another (A.I.R.1997 S.C.93), it was clearly held in paragraph 8 that

There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with.

The said dictum from the Apex Court clearly shows that the decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice.

16. In Kishan Lal v. Dharmendra Bafna and another ((2009) 7 S.C.C.685), it was held in paragrpah16-

The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be trained and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary.

There, the Apex Court has held that whenever it appears that the investigation is tainted in any manner, it gives room for ordering a further investigation in the matter under Section 173(8) Cr.P.C.

17. In Hasanbhai Valibhai Qureshi v. State of Gujarat and others (A.I.R.2004 S.C.2078), it was held in paragraphs 12 and 13-

Sub-section 8 of Section 173 of the Code permits further investigation, and even de hors any direction from the Court as such, it is open to the police to conduct proper investigation, even after the Court took cognizance of any offence on the strength of a police report earlier submitted. All the more so, if as in this case, the Head of the Police Department also was not satisfied of the property or the manner and nature of investigation already conducted.

In Om Prakash Narag and another v. State (Delhi Admn.) (A.I.R. 1979 S.C.1791) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission to make further investigation when fresh acts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice.

18. Therefore, it was held that for arriving at the truth and to do real and substantial as well as effective justice, when a further investigation is required, even the investigating officer can decide to have a further investigation under Section 173(8) Cr.P.C., even in cases wherein cognizance has been taken by the court.

19. In Ram Lal Narang v. State (Delhi Admn.)(A.I.R.1979 S.C.1971) it was held-

Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither S.173 nor S.190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts.

20. Sri S. Sreekumar has invited the attention of this Court to the decision in Prabhavathiamma v. State of Kerala (2007 (4) K.L.T.601) rendered by a Division Bench of this Court wherein it was clearly held that-

Power of the police to conduct further investigation under S.173 (8) will, in no way, fetter the power of the High Courts and Apex Court in ordering investigation by the Special Investigating Agency if circumstances warrant.

It was also held that inherent powers of the Court to secure the ends of justice are saved by Section 482 Cr.P.C. Power of the Court under Article 226 of the Constitution of India is also enabling the court in ordering further investigation by special investigating agency in the circumstances of the case, to avoid failure of justice.

21. Learned Senior Counsel Sri M.K. Damodaran has invited the attention of this Court to the decision in Vinay Tyagi v. Irshad Ali @ Deepak and others ((2013) 5 S.C.C.762); wherein it was held in paragraph 22 and paragraph 23 that unless the unfairness of the investigation is such that it pricks the judicial conscience of the court, the court should be reluctant to interfere in such matters to the extent of quashing an investigation and directing a fresh investigation .

22. The Apex Court has held that when matters are there revealing the unfairness of the investigation and it is such that it pricks the conscience of the court, the court can interfere to have a fresh investigation in a case. Here in this case, what is contemplated is not a fresh investigation ; whereas, it is only a further investigation . Even then the court has to examine whether the final report reflects unfairness on the part of the investigating officer and whether it is such that it pricks the conscience of the court.

23. The attention of this Court has been invited to the decision in State of Panjab v. Davinder Pal Singh Bhullar and others etc. ((2011) 14 S.C.C.770) and Sri M.K. Damodaran has argued that the court cannot direct CBI to investigate as to whether a particular person has committed an offence as alleged or not. It has also been argued that the person against whom the investigation is sought, has to be impleaded as a party and must be given a reasonable opportunity of being heard. At the same time, the decision shows that it was a case, wherein an investigation was ordered. It does not contemplate a situation wherein a further investigation has to be ordered under Section 173(8) Cr.P.C. It is true that the Apex Court has held in Davinder Pal Singh Bhullar s case (supra) that in a case wherein allegations are levelled against a person and an investigation is sought for, the concerned person against whom such an investigation is sought for should be impleaded as a party to the proceedings.

24. By citing the decision in Divine Retreat Centre v. State of Kerala ((2008) 3 S.C.C.542), it has been argued that it is not permissible for the court to set the criminal law in motion on the basis of allegations made against a person, in violation of the principles of nature justice. Those decisions in Davinder Pal Singh Bhullar s case (supra) and Divine Retreat Centre s case (supra) are relating to matters wherein there were no accused and an investigation was sought for against those persons to arraign them as accused. Here the situation is totally different.

25. The learned Senior Counsel for respondents 5 and 6 has invited the attention of this Court to the decision in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others ((2010) 3 S.C.C.571); wherein the parameters have been laid down by the Apex Court to have an investigation in the matter by the CBI, in paragraph 70, as follows:

Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plentitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

26. Time and again, the Apex Court has reiterated the principle that the extraordinary power to have an order for an investigation by the CBI must be exercised sparingly, consciously and in exceptional situations where it becomes necessary to provide credibility and to instill confidence in the investigation, or where national and international ramifications are there. It has also been held that such an order should be passed only in cases wherein such an order is necessary for doing complete justice and enforcing the fundamental rights.

27. In Prof. K. V. Rajendran v. Superintendent of Police,, CBCID South Zone, Chennai and others ((2013) CRI.L.J.4464), it was held in paragraph 10 that:

10. In view of the above, the law can be summarised to the effect that the Court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional case.

28. In Prof. K. V. Rajendran s case (supra), the Apex Court has relied on Sakiri Vasu v. State of UP (A.I.R.2008 S.C. 907); wherein it was held that:

This Court or the High Court has power under Article 136 or Article 226 to order investigation by the CBI. That, however should e done only in some rare and exceptional case, otherwise, the CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them.

29. The learned Senior Counsel for respondents 5 and 6 have invited the attention of this Court to Secretary, Minor Irrigation and Rural Engineering Services, U.P. and others ((2002) 5 S.C.C.521); wherein it was held:

While the High Court has power under Article 226 to direct inquiry by CBI, a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency. The same cannot be done as a matter of routine or merely because a party makes some such allegations. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. While directing an inquiry by CBI, the High Court must record a prima facie finding as to the truth of such allegations with reference to the reply filed.

30. Now the question to be looked into is whether the final report reflects unfairness in the matter of investigation and whether there are matters that prick the conscience of this court. No doubt, the petitioner in W.P.(C) No.25123 of 2013, who is none other than the mother of the deceased young man of 21, entertains a strong feeling and belief that there was a conspiracy hatched by A-32 and A-33 along with the other accused persons who were present at room No.315 of the said Co-operative Hospital, Taliparamba, which culminated in the brutal murder of her son. The way in which the Investigating Officer has prepared the Final Report in the case, clearly reveal that the investigating officer has laboured much to discriminate A-32 and A-33 from the charge of criminal conspiracy under Section 120 B IPC.

31. As per the final report, even according to the investigating officer, A-32 and A-33 were present in room No.315 at the relevant time. The investigating officer has gone to the extent of arraigning A-28, A-29, A-30 and A31, who were allegedly present along with A-32 and A-33 at room No.315 and its surroundings, with the aid of the offence under Section 120 B IPC. According to the petitioner, the investigating officer could not collect the evidence relating to A-32 and A-33 regarding the said element of conspiracy. It is the specific case of the mother of the deceased that the investigating officer was unable to collect the evidence and to probe further in the matter solely because of the stiff resistance and intimidatory tactics being played by the particular political party of which A-32 and A-33 are leaders.

32. Whatever it is, the cry of the mother of the deceased should not remain unheard. It should not die down as mere wild cries. Even the learned Director General of Prosecution has practically confessed before this Court that the State Police machinery could not conduct a proper investigation in the matter and could not probe in the matter because of the intimidatory tactics and attitude of a particular political party of which A-32 and A-33 are leaders.

33. If self proclaimed kings of a locality are permitted to rule in the matter of investigation, criminal justice will become a casualty in their hands. The courts cannot remain as mute spectators to such intimidatory tactics being played by such elements to protect persons partaking in heinous crimes. The same has to be viewed very seriously. When state machinery has expressed inability to have a proper investigation in the matter, the said aspects clearly prick the conscience of the court. It reflects patent unfairness in the investigation.

34. When A-28, A-29, A-30 and A-31 could be arraigned as accused with the aid of the offence under Section 120 B of the Indian Penal Code, this Court is at a loss to understand as to why the Investigating Officer could not collect evidence relating to the commission or otherwise of a similar offence by A-32 and A-33. The answer has been given by the learned Senior Counsel for the mother of the deceased, as well as the learned DGP.

35. The learned Standing Counsel for the CBI also vehemently opposed the handing over of the further investigation to the CBI, mainly on the ground that, the CBI is flooded with investigation and it may not be possible for the CBI to carry out a proper investigation on account of such constraints. Regarding Ext.P-2 notification issued by the State Government, the same need not be considered at all at present. Its validity is not at all a question to be decided now. The explanatory note attached to the notification clearly reveals that the State Police Chief wanted to have a further investigation in the matter.

36. Even though the learned Senior Counsel for additional respondents 5 and 6 has pointed out that the explanatory note does not clearly mention that the State Police Chief had perused the case diary, this Court is of the view that the said argument is too hyper technical. It is implied in the explanatory note that the State Police Chief had perused and gone through the case diary as well as the entire investigation. It was after that he had formed an opinion that a further investigation was required in the matter under Section 173(8) Cr.P.C.

37. The next question to be considered is, whether such a further investigation can be handed over to the CBI or not. Even though the learned Senior Counsel for respondents 5 and 6 has vehemently opposed Ext.P-2 in the sense that the Government had no power to hand over such a further investigation to the CBI, this Court is of the view that the said argument also is hyper technical. Whatever it is, when the conscience of this Court has become shaken on account of the unfairness in the investigation, and when the State Police Chief has also expressed the view that a further investigation under Section 173(8) Cr.P.C. is required, this Court cannot shut its eyes towards the hard realities pointed out by the learned DGP that the State Machinery cannot conduct a further investigation in a fair manner and therefore, the same has to be handed over to the CBI. It is true that, even though Ext.P-2 notification was issued by the Government, the Central Government has not cared to issue a further notification thereby, entrusting the investigation to the CBI in the matter. Now, that chapter is closed. This Court is stepping in by exercising the powers of this Court under Article 226 of the Constitution of India and the power under Section 482 Cr.P.C. to order a further investigation in the matter under Section 173(8) Cr.P.C. and to entrust such further investigation to the CBI.

38. Even though the Central Government has expressed the view that the CBI is flooded with similar investigations and therefore, they are unable to take up the matter, the CBI cannot wash its hands by saying like that. In a particular locality of the State, when a proper investigation is not possible by the State Police Machinery, the State can seek the aid of the Central Government in getting the matter investigated by the CBI. In the federal system, it is for the Central Government to digest such a situation and to rise to the occasion by handing over the investigation to the CBI. True that CBI may be flooded with investigation; but that is not the look out of this Court at present. When conscience of the Court is shaken and when the cries of the bereaved mother of the deceased are echoing in the ears of the Court, this Court has to order that the further investigation in the case has to be conducted by the CBI.

39. Let the CBI conduct a further investigation in the matter. There cannot be any heartburn for respondents 5 and 6 in such a further investigation. This Court does not understand as to why respondents 5 and 6 are saying that the investigation conducted by the local Police is proper? At the same breath, they are challenging the offence alleged against them under Section 118 IPC. In order to do complete justice to the parties, this Court hereby orders the further investigation in the case by the CBI.

40. It is a fact that the CBI requires timely and sufficient assistance by the State Police Machinery as well as the Government to carry out a proper further investigation in the matter. The Government of Kerala as well as the State Police Chief shall consider all such requests for assistance by the CBI. Even without such a request, they shall give all sorts of assistance to the CBI, including all necessary infrastructures. In case of any shortcomings, it is open to the CBI to approach this Court at any time. The further investigation in Crime 136/2012 of Kannapuram Police Station is hereby entrusted to the CBI.

In the result, W.P.(C) No.25123 of 2013 is allowed as above, and W.P.(C) No.572 of 2014 is dismissed.