JUDGMENT Chettur Sankaran Nair, J. 1. Petitioners -- mother and sister of one deceased Mohankumar in that order, seek a writ of mandamus to command seventh respondent -- Central Bureau of Investigation, to institute an investigation into the alleged loss of a diary for the year 1986 maintained by Mohankumar. According to them, diaries for 1985 and 1986 were seized by 6th respondent, and he secreted the diary for 1986, committing the offence of 'theft'. Covering up financial dealings between Mohankumar and 6th respondent, recorded in the diary, is the motivation for the 'theft', state petitioners. 2. Mohankumar died during the small hours of 14-1-1987 at a hospital at Ernakulam due to extensive burns (I am referring to the facts revealed from the case diary, only because there was an allegation that Mohankumar met with a homicidal death). By all accounts, Mohankumar was a man of easy virtue, who had come by easy money. In a remarkably short time, he came into prosperity, acquiring an expensive life style. He had a passion for women, recorded in purple in the Diary for 1985 (produced along with the case diary). Mohankumar developed a deep fascination for one Vimala Jacob, a Barrister. It reached its peak and Mohankumar wanted her to desert her husband and children for him. She was not responsive to his entreaties to that extent, though she yielded to him otherwise. To impress her of his need for her, he made attempts to kill himself, more than once. On the fateful night, Mohankumar visited Vimala Jacob when her husband was away, and told her that he would immolate himself if she would not live with him. He purchased a quantity of petrol through a watchman, poured part of it on his clothes, and lit a match in a bid to suit his deeds to his words. That was the flash point and the flames enveloped Mohankumar, casuing extensive burns. The maid servant in the house, watchman Edwin, two policemen in the vicinity on beat duty, and certain others came on the scene. He was taken to a hospital past midnight, where he died before 3 a.m. Mohankumar beseeched those who saw him, to save his life, stating that he was a Billionaire. He did not say that an attempt was made on his life, by anyone. 3. The investigating agency found it to be a case of accidental death. He was taken to a hospital past midnight, where he died before 3 a.m. Mohankumar beseeched those who saw him, to save his life, stating that he was a Billionaire. He did not say that an attempt was made on his life, by anyone. 3. The investigating agency found it to be a case of accidental death. Petitioners, or one of them moved the Supreme Court by W.P. (Crl.) No. 309/89 to order an investigation into the cause of death of Mohankumar, through the Central Bureau of Investigation. After hearing the matter, the Supreme Court dismissed the writ petition on 29-8-1989. In the light of the judgment of the Supreme Court and in the light of the facts revealed from the case diary, it must be held that the death of Mohankumar was accidental. The matter must end there. 4. While seeking a further probe into the cause of death, petitioners allege that two diaries belonging to Mohankumar were seized by 6th respondent, and that the diary for the year 1986 was secreted by him. There is a further and equally serious allegation that a mercedes Benz car bearing registration No. KEK 1 in the use of 6th respondent, was obtained through Mohankumar, or with funds belonging to him. Counsel for petitioners asserted time and time again, that 6th respondent who committed the offence of 'theft' of a diary, is a 'disgrace to public administration', and that an investigation through the Central Bureau of Investigation against him, is warranted. 5. The charges are sought to be supported, only on the basis of allegations. However, counsel submitted that Shri T. V. Madhusoodanan -- Inspector General of Police, 5th respondent -- another Inspector General of Police, and Shri Hormis Tharakan -- a Deputy Inspector General of Police, had reported that the diary was with 6th respondent, and that the reports form part of the file leading to Ext. P7. I asked counsel for the State, whether he had any objection in making the files available to counsel for petitioners for examination. He had no objection. Counsel went through the files and submitted that there was no report from Shri Madhusoodanan or 5th respondent, or Shri Hormis Tharakan to the effect that 6th respondent had seized a diary for the year 1986. 6. He had no objection. Counsel went through the files and submitted that there was no report from Shri Madhusoodanan or 5th respondent, or Shri Hormis Tharakan to the effect that 6th respondent had seized a diary for the year 1986. 6. The whole case of petitioners is based on an assumption that Mohankumar had maintained a diary for the year 1986, and that 6th respondent had seized the same. This assumption, in turn is based on the theory that the Home Secretary to the State Government had thought so, because he wrote Ext. P7 letter, asking for an enquiry by the Central Bureau of Investigation. According to counsel, this is conclusive proof of the involvement of 6th respondent. He would also say that Ext. P7 letter was on the basis of Ext. R5(b) report from 5th respondent --Inspector General of Police (Crimes). 7. Counsel for 6th respondent invited my attention to five representations made by petitioners, Exts. P1 to P5, and pointed out that they had no case about a diary for the year 1986 till the writ petition was filed. Exts. P1 to P5 referred only to one diary for the year 1985. However, counsel for petitioners has an answer to this. Ext. P5 states that one of the diaries of Mohankumar was shown. This, according to him would mean that there was more than one diary. It is difficult to attribute such meanings. If a person says that one diary was shown, or 'a' diary was shown, it does not mean that there were other diaries. Meanings must be gathered from the context and state of enlightenment of the person making a statement. Exts. P1 to P5 give the clear impression that there was only one diary to the knowledge of petitioners. As pointed out by respondents, there is nothing on record to suggest that there was a second diary (1986). Neither the counter affidavit of 5th respondent, nor his report Ext. R5(b) suggest that there were two diaries. On the contrary, the first letter of 6th respondent to 5th respondent Ext. R5(a), the affidavit of Shri P.R. Chandran Ext. R6(b), the statement in paragraph (12) of the counter affidavit of 4th respondent, and the statements in paras (6) and (13) of the counter affidavit of 6th respondent, give the impression that there was only one diary. On the contrary, the first letter of 6th respondent to 5th respondent Ext. R5(a), the affidavit of Shri P.R. Chandran Ext. R6(b), the statement in paragraph (12) of the counter affidavit of 4th respondent, and the statements in paras (6) and (13) of the counter affidavit of 6th respondent, give the impression that there was only one diary. It is too much to think, that letters and correspondence spread over a span of two years or so, were tailored in such a manner as to make it appear that there was only one diary, while there were really two. In this connection, counsel for 6th respondent would submit that no diary meant anything to petitioners at any time, till the filing of the writ petition. No steps were taken to get possession of the diaries of 1985 and 1987. If the idea was to get information from the diary regarding financial dealings of Mohankumar and pursue monetary claims, petitioners would have made attempts to collect Rs. 17 lakhs said to be due from one Cheriyan, Rs. 10 lakhs said to be due from one George, Rs. 1 lakh said to be due from Khaleej Exports, and an un-named amount due from Pappan of Mannarkkadu, referred in Ext. P1 -- states counsel. Counsel would also point out that no attempts were made to elicit from Vimala Jacob, whether the diaries were with her, when the finger of suspicion was pointed at her, for more serious reasons. According to counsel, it is pertinent to note that petitioners had no case till the writ petition was filed, that Mohankumar and 6th respondent were at-least known to each other. Whatever is now alleged, is only a creation of imagination, according to counsel for 6th respondent. 8. As noticed hereinbefore, there is nothing but an allegation, and there is no material to connect 6th respondent with the charge of segregating the diary. The letter from the Home Secretary Ext. P7, does not lend the inference that a diary was segregated by 6th respondent. At best, one may say, that the Home Secretary or the Inspector General of Police (Crimes) thought that the allegations against 6th respondent should be examined, not that they found the allegations correct. Incidentally, the files leading to Ext. P7 reveal no application of mind, or any finding regarding existence or disappearance of a diary. At best, one may say, that the Home Secretary or the Inspector General of Police (Crimes) thought that the allegations against 6th respondent should be examined, not that they found the allegations correct. Incidentally, the files leading to Ext. P7 reveal no application of mind, or any finding regarding existence or disappearance of a diary. On a petition presented by petitioners, some notings were made, and the matter went to the Home Secretary. He in turn enquired, whether Central Bureau of Investigation would enqire into such cases. On this querry, remarks were offered by an Under Secretary. The file moved upwards and then it was decided to circulate the file to the Chief Minister, obviously for his orders. The Chief Minister merely signed on the note sheet. He did not pass any order, nor did he signify approval to any proposal, nor did he even write 'seen'. A letter/report from 5th respondent (Ext. R5(a)) which is the sheet-anchor or corner stone of petitioners' case, was relied on to say that 6th respondent was involved in the disappearance of a diary, and that an investigation by the Central Bureau of Investigation is called for into the disappearance of a diary. Ext. R5(b) report does not show that 5th respondent had at least convinced himself that an enquiry was merited. He merely referred to the allegations of petitioners and the version of 6th respondent, and expressed the opinion that the Kerala Police may not be very effective, and suggested an enquiry by the Central Bureau of Investigation. Ext. R5(b) states: As the DIC and the mother of deceased take diametrically opposite stands on the diary for the year 1986, I am not in a position to come to a definite conclusion. The Central Bureau of Investigation will be in a better position to go more deep into the matter and find out the diary. (Emphasis supplied) Perhaps he merely recognised superior capabilities in the Central Bureau of Investigation. Perhaps, he too, like many others in the system, was adopting the posture of Pontius Pilate. It is a matter of opinion, whether the Inspector General of Police (Crimes) should have suggested an enquiry by the Central Bureau of Investigation into the alleged loss of a diary, only on a vague allegation. 9. Perhaps, he too, like many others in the system, was adopting the posture of Pontius Pilate. It is a matter of opinion, whether the Inspector General of Police (Crimes) should have suggested an enquiry by the Central Bureau of Investigation into the alleged loss of a diary, only on a vague allegation. 9. It has to be considered whether, on such allegations or a suspicion entertained by the Home Secretary and Inspector General of Police (Crimes), an investigation by the Central Bureau of Investigation is to be ordered. It is also to be considered whether investigation is to be ordered merely because a person, who considers himself aggrieved, feels that an investigation is called for. Normally, matters relating to investigation, are matters in the province of the Executive Government. Courts do not come into this area. The functions and areas pertaining to Courts and investigating agencies stand clearly demarcated, eversince the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad ( AIR 1945 PC 18 : (1945 (46) Cri LJ 413). This view of the Judicial Committee was approved by the Supreme Court in State of West Bengal v. S.N. Basak ( AIR 1963 SC 447 : (1963 (1) Cri LJ 341, State of Bihar v. J.A.C. Saldanna AIR 1980 SC 326 : (1980 Cri LJ 98), State of West Bengal v. Sampat Lal AIR 1985 SC 195 : (1985 Cri LJ 516) and in a long line of decisions thereafter. In State of Bihar v. P. P. Sharma AIR 1991 SC 1260 : (1991 Cri LJ 1438), the Supreme Court reiterated the position and counselled restraint against interference by Courts in matters relating to investigation. On principle, it makes no difference, whether a writ is issued to quash an investigation or to initiate one. 10. Normally, courts do not interfere with investigations. However, if a public authority fails to discharge its public duty, it is liable to be compelled by a writ of mandamus to exercise its jurisdiction, as in the situation Visualised in R. v. Metropolitan Police Commissioner (1968 (1) All ER 762 (CA)): In the extremely unlikely event, the police failing or refusing to carry out their duty, the court would not be powerless. (Para 771) (Emphasis supplied) That is the law laid down in the Commissioner of Police v. Gordhandas Bhanji ( AIR 1952 SC 16 ) and S.N. Sharma v. Bipen Kumar Tiwari AIR 1970 SC 786 : (1970 Cri LJ 764) also. That is not to say that the Court will pick out the agency for investigation in each case or that a party is free to elect an agency of its choice. Parties cannot innovate their remedies. If that were the state of law, uncertainties would prevail and the system will operate on unpredictables. Though the Court enjoys vast discretion and wide powers under Article 226 to issue a direction to an investigating agency in appropriate cases, exercise of such power should be modulated by discretion, based on sound considerations, and not on spasmodic or unregulated impulses. 11. Hard and fast rules cannot govern an area like this. A variety of fact situations of varying nuances and hues may arise. In Gudalure M.J. Cherian v. Union of India ( 1991 (4) JT 535 ), the Supreme Court, while making it clear that ordinarily the Central Bureau of Investigation would not investigate into a case of that nature, issued a direction to that agency to take up investigation, having regard to the special circumstances. In Vishal Jeet v. Union of India AIR 1990 SC 1412 : (1990 Cri LJ 1469), the Supreme Court felt that a roving enquiry by the Central Bureau of Investigation into matters touching on prostitution was neither desirable, nor called for. In State of Bihar v. P.P. Sharma AIR 1991 SC 1260 : (1991 Cri LJ 1438), a case where the High Court quashed an investigation, the Supreme Court highlighted the need for restraint in the exercise of power, and also highlighted possible harassment that may result from unregulated exercises. 12. If the Court feels that the police failed in its statutory, duty, or basic trust or that considerations of larger social justice require it, it will exercise its jurisdiction under Article 226 and issue a direction to cause an investigation. But, this is not a matter of right in a party, nor a matter for indulgence in favour of a party. Institutional perspectives and sound considerations of policy should prevail in this area. A party cannot choose his investigator or judge. But, this is not a matter of right in a party, nor a matter for indulgence in favour of a party. Institutional perspectives and sound considerations of policy should prevail in this area. A party cannot choose his investigator or judge. The possibility of interdepartmental rivalry between different wings of police, vying with each other, and possible disastrous consequences must also be taken into account. Again, the Court must guard itself against the situation envisioned in Chandrapal Singh's case AIR 1982 SC 1238 : (1982 Cri LJ 1731). The apex court said : Chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of criminal Court. Exceptions cannot be the rule. Nor, can the rule be made an exception. Bias, vengeance and all that goes with it, which may inhere in an aggrieved person, will not promote ends of criminal justice system. To avoid this, an independent investigating agency and prosecuting agency is evolved. Private perceptions of guilt should not impell investigations. 13. In this background, the facts of the present case may be examined. The basic allegation is that one diary of the deceased is missing. Petitioners had no such case in Exts. P1 to P5, or even after Ext. R2(a). I do not suggest that petitioners are guilty of fabricating a charge. Honestly they might have entertained a certain notion on their own, or at the instance of others. Sometimes, as Baron Alderston said, "the mind is apt to take a pleasure in adapting circumstances to one another, even by straining them a little, if need be, to force them to form part of one connected whole. The more ingenious the mind, the more likely it is." 14. As for the allegation that 6th respondent committed 'theft' of the diary -- which was the refrain of the song, it will be the height of hazard to accept it in the state of evidence available. It eludes comprehension, why 6th respondent should have shown the diary to petitioners earlier as stated by them (presumably to put frills and embroidery around their case that there was a diary in existence), if he had anything to conceal, or if the diary contained something incriminating against him, as alleged now. It is even more difficult to understand why petitioners did not complain of the missing diary, till the time of filing the writ petition. It is even more difficult to understand why petitioners did not complain of the missing diary, till the time of filing the writ petition. The conduct of petitioners in not taking possession of the diary for the year 1985 offered to them, and not making any attempt to get the diary for 1987 (to which reference is made), is ununderstandable. The ostensible purpose of getting the diary is to realise the amounts due to the deceased. If that is so, petitioners would have proceeded against Cheriyan who is said to own Rs. 17 lakhs to the deceased, or against M.E. George who is alleged to owe Rs. 10 lakhs to the deceased. They have no case that they have done this. 15. In this context, another contention advanced by counsel for petitioners must be noticed. He states that taking the diary into custody without a mahazar is highly improper, and that this merits serious consequences. There is no basis to think that 6th respondent took a diary for 1986 into custody. Hence it is unnecessary to go into the matter further. Incidentally, even in cases of improper search and seizure, consequence is jonly that the evidence should be examined with caution (Dr. Pratap Singh v. Director, Enforcement AIR 1985 SC 989 : (1986 Cri LJ 824) & Pooran Mal v. Director of Inspection AIR 1974 SC 348 : (1974 Tax LR 340). 16. The credibility of the case put forward by petitioners, is very low. Plainly, it cannot be accepted with any degree of assurance of its veracity. If on such wild hunches an enquiry by the C.B.I, is to be ordered, it would have an oppressive and demoralising effect on the administrative or police machinery. While it is essential that purity of public administration should be maintained, it is equally essential that officials are protected against unmerited harassment. Putting the machinery under constant threat of enquiries, or fear would hamper its fearless and effective functioning, which is necessary in larger public interest, I do not conceive that top brass in public adminisatration is above scrutiny or accountability. At once, I have no doubt that fear of reprisal for slightest reasons, from every quarter or all around, would hamper efficiency of the machinery. Original Petition is without merit and is dismissed. No costs.