Judgment : Reliefs prayed for in this Writ Petition In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the father of one Mohammed Shafeeque, who was killed in Police firing on 15.11.2009 at Kasaragod, seeks a writ of Mandamus or any other direction calling upon respondents 2, 3 and 5 (State of Kerala represented by Chief Secretary to Government, Director General of Police and Sub Inspector of Police, Kasaragod) to hand over the investigation of Crime No.85/2010 of Kasaragod Police Station to the 1st respondent (Director, Central Bureau of Investigation, New Delhi) and a writ of mandamus or any other direction calling upon the 2nd respondent to pay a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) to the petitioner as compensation for the death of the petitioner’s son due to gun-shot injuries inflicted by the 6th respondent (Ramdas Pothan) the former Superintendent of Police, Kasaragod. THE OCCURRENCE (Petitioner’s version) 2. The case of the petitioner is as follows:- On 15.11.2009 at about 5 pm near the new bus stand at Kasaragod a public meeting was proposed to be conducted for giving a reception to the State leaders of the Indian Union Muslim League (IUML for short) which is a registered political party before the Election Commission of India under Section 29A of the Representation of the People Act, 1951. Mohammed Shafeeque aged 23 years, the eldest son of the petitioner, who was employed in the Persian Gulf, was at that time in his native place at Cheruvathur in Hosdrug Taluk. He is a follower of the Kerala State Muslim League which is also a registered political party. The son of the petitioner came to Kasaragod to attend the said meeting. The meeting started at about 5 p.m. The meeting was stopped at 6 pm to enable the Muslims to perform the Magrib prayers. It was announced that the meeting would be resumed at 6.30 pm after the prayers. The petitioner’s son went to the Mosque situated to the south of the Kasaragod-Cherkala National Highway for performing the prayer. At about 6.30 pm, the petitioner’s son was walking towards the venue of the meeting after his prayers. There were some disturbances in some parts of Kasaragod town between the Police and certain anti-social elements during that evening. The petitioner’s son went to the Mosque situated to the south of the Kasaragod-Cherkala National Highway for performing the prayer. At about 6.30 pm, the petitioner’s son was walking towards the venue of the meeting after his prayers. There were some disturbances in some parts of Kasaragod town between the Police and certain anti-social elements during that evening. But there was no disturbance at or around the venue where the meeting was held near the new bus stand at Kasaragod. The 6th respondent, Ramdasan Pothan who was the Head of the Police force in Kasaragod district was standing along with his gunman shouting and hurling abusive words at the people in an angry mood. When the petitioner’s son reached the western side of the new bus stand complex building, the 6th respondent who was in an angry mood suddenly snatched the pistol from the hands of his gun-man and shot at the petitioner’s son on his chest. Mohammed Shafeeque who was fatally wounded fell on the road for a long time without anybody attending on him. It was without any provocation from the side of the petitioner’s son that the 6th respondent opened fire at him and the petitioner’s son succumbed to the bullet injuries sustained on his chest. After realizing that the petitioner’s son was killed by his act of firing, the 6th respondent went to the Kasaragod Police Station and registered a case as Crime No.816/2009 of Kasaragod Police Station for offences punishable under Sections 143, 147, 148, 353, 332, 333, 427 and 307 read with 149 IPC and Section 3(1) of the Prevention of Destruction to Public Property Act. Ext.P4 is the FIR in that case registered against 500 and odd IUML people stating, inter alia, that he fired three rounds out of self defence with the service pistol taken from his gunman to disperse the angry mob which had resorted to violence. No extraordinary circumstances existed at the place to justify the act of the 6th respondent who opened fire at the IUML workers. The 6th respondent was not doing any act in discharge of his official duty. On the contrary, the 6th respondent was intentionally and knowingly committing the offence of murder with the requisite mens rea and punishable under Section 302 IPC. The 6th respondent was not doing any act in discharge of his official duty. On the contrary, the 6th respondent was intentionally and knowingly committing the offence of murder with the requisite mens rea and punishable under Section 302 IPC. Mohammed Shafeeque was the eldest son of the petitioner and the only support of the petitioner, who is afflicted with old age ailments. The 5th respondent, Sub Inspector of Police, Kasaragod did not take any action to arrest the 6th respondent or to conduct the investigation evidently because he is a subordinate of the 6th respondent. Mohammed Shafeeque who was lying wounded on the road with bullet injuries on him for a long time was eventually taken to the Taluk Head Quarters Hospital, Kasaragod by the Police. On reaching there the doctor pronounced him dead. Inquest over the dead body of the petitioner’s son was conducted by the Tahsildhar, Kasaragod. Thereafter the dead body was taken to the Academy of Medical Sciences, Pariyaram, Kannur for autopsy. Ext.P2 is the post-mortem certificate, as per which the autopsy Surgeon concluded that the petitioner’s son died of gun-short injury on the chest involving his lungs and aorta. The petitioner was under the bona fide belief that the Police had registered a crime in connection with the murder of his son. But on enquiry it was understood that the Police had not registered any murder case against the 6th respondent who was working as the Superintendent of Police, Kasaragod. Therefore, on 4.12.2009, the petitioner lodged Ext.P3 complaint before the 5th respondent (Sub Inspector of Police, Kasaragod), detailing the occurrence and requesting him to take action against the 6th respondent for the murder of the petitioner’s son. Eventhough Ext.P3 complaint was duly received on 4.12.2009 as evidenced Ext.P3(a) receipt, no crime was registered by the 5th respondent. Hence the petitioner was constrained to file Ext.P5 criminal complaint as Crl.M.P. 413/2010 before the J.F.C.M, Kasaragod who forwarded the same to the Police under Section 156(3) Cr.P.C resulting in the 5th respondent finally registering Crime No.85/2010 against the 6th respondent for an offence punishable under Section 302 IPC. There was no extraordinary circumstance or law and order situation justifying the act of the 6th respondent in opening fire qt the persons who had collected there to attend the meeting. There was no extraordinary circumstance or law and order situation justifying the act of the 6th respondent in opening fire qt the persons who had collected there to attend the meeting. Since the investigation of the above crime is conducted by a subordinate of the 6th respondent, there will be no fair and free investigation and the petitioner will not get any justice in such investigation. For the deprivation of the precious life of the petitioner’s son and the infringement of his human rights and fundamental freedoms the petitioner is entitled to the remedy of compensation in public law based on strict liability and the defence of Sovereign immunity is not available to the State. Hence this writ petition. POLICE VERSION OF THE OCCURRENCE 3. One M.J. Sojan, Deputy Superintendent of Police, OCW-IV, Sub Unit, Kasaragod has filed a statement contending inter alia as follows:- On the statement of Sri. Ramadasan Pothan, the then Superintendent of Police, Kasaragod, a case was registered as Crime No.816 of 2009 of Kasaragod Police Station against 500 and odd IUML activists for attacking the police, destroying public properties etc. That case is being investigated by the C.B. CID Kasaragod Sub Unit. Crime No. 85 of 2010 registered by the Kasaragod Police against Sri. Ramadasan Pothan for an offence punishable under Sec. 302 I.P.C. pursuant to the J.F.C.M. Kasaragod forwarding the private complaint filed by the petitioner to the Kasaragod Police was also transferred to the C.B. CID for investigation as per order dated 2-2-2007 by the 3rd respondent Director General of Police. Investigation of this case was entrusted to the Dy.S.P., C.B. CID, OCW IV Kasaragod from 31-3-2010. The maker of the statement (M.J. Sojan) is investigating this case also. In the evening of 15-11-2009 there was a public meeting organized by the Indian Union Muslim League near the New Bus Stand, Kasaragod. The said meeting was organized to felicitate the newly elected State President and other leaders of the IUML. Many workers of the party from various parts of the district came to attend the meeting. At about 18.30 hours trouble erupted when the workers numbering about 500 started pelting stones towards the shops and at the police party on duty. They also attacked a temple in Amey Colony. In the meantime persons belonging the other community collected at the site and started to retaliate. At about 18.30 hours trouble erupted when the workers numbering about 500 started pelting stones towards the shops and at the police party on duty. They also attacked a temple in Amey Colony. In the meantime persons belonging the other community collected at the site and started to retaliate. The unruly crowd continued their activities in spite of efforts by the police. As the situation was going out of control and there was a likelihood of communal clashes and destruction of public property, senior police officers under the leadership of Sri. Ramadasan Pothan reached the site and began to disperse the crowd using grenades and by resort to lathi charge. Since all efforts by the police proved futile and the mob continued its violence destroying police vehicles and burning private vehicles and some of the police personnel sustained injuries, the Superintendent of Police as a last resort to protect himself and the police party and to control the violence and communal clashes fired three rounds from his service pistol towards the mob. The petitioner’s son Muhammed Shafeeq who was an active member of the unlawful assembly suffered bullet injury on his chest and fell down on the spot. After dispersing the violent mob and bringing the situation under control the Superintendent of Police, Kasaragod reached the Kasaragod Police Station and Crime No. 816 of 2009 in relation to the aforementioned incident. In the F.I.R. he has admitted that the deceased died due to the injuries sustained in the police firing. He has also narrated the circumstances which led to the police firing. At present both Crime Nos. 816 of 2009 and 85 of 2010 are investigated by the maker of the statement. The investigation so far conducted has revealed that the petitioner’s son was an active member of the unlawful assembly which indulged in large scale violence, destruction of public property and attack on places of worship belonging to the other community. In the case registered by the Superintendent of Police, the petitioner’s son figured as an accused and was subsequently deleted from the array of the accused consequent on his death. In Crime No. 816 of 2009 there are 46 named accused persons and about 450 other accused persons who were responsible for the large scale violence. In the case registered by the Superintendent of Police, the petitioner’s son figured as an accused and was subsequently deleted from the array of the accused consequent on his death. In Crime No. 816 of 2009 there are 46 named accused persons and about 450 other accused persons who were responsible for the large scale violence. Out of the 46 named accused persons 11 have been arrested and remanded to judicial custody and all of them are now on bail. In connection with the above incident and subsequent incidents, 36 crime cases have been registered and investigation in those cases is being conducted by the local police. T.M. Sameer who is the 2nd witness cited by the witness in the complaint filed by him before the J.F.C.M. Court is the first accused in Crime No. 816 of 2009. A dye marker grenade taken away from the police jeep which was overturned by the violent mob has been recovered on the confession made by the said Sameer. The police firing and the consequent death of the petitioner’s son were unavoidable in view of the situation which was prevailing then. This Court had occasion to take judicial notice of the communal clashes in Kasaragod District in Sudheesh K. and Others v. State of Kerala and Another – ILR 2009 (4) Kerala 350. The Writ Petition may therefore be dismissed accepting this statement. 4. I heard Adv. Sri. K.A. Jaleel, the learned counsel appearing for the petitioner and Adv. Sri. C.K. Suresh, the learned Public Prosecutor who defended the State. ARGUMENTS OF THE PUBLIC PROSECUTOR 5. The learned Public Prosecutor made the following submissions before me in opposition of the prayers in the Writ Petition:- Between 5.45 and 6.30 p.m. on 15-11-2009 about 500 IUML activists including the petitioner’s son were freely indulging in vandalism. They rushed towards a colony predominantly occupied by Hindus. About 50 persons started pelting stones at a bhajanamadom and a temple. Ext.P4 is the F.I. Statement given by Sri. Ramadasan Pothan, Superintendent of Police (R6) in which he has frankly confessed that he fired three rounds with the pistol taken from his gunman in self defence. Crime Nos. 880 of 2009 and 34 other crimes were registered by the Kasaragod Police in connection with the above incident. Ext.P4 is the F.I. Statement given by Sri. Ramadasan Pothan, Superintendent of Police (R6) in which he has frankly confessed that he fired three rounds with the pistol taken from his gunman in self defence. Crime Nos. 880 of 2009 and 34 other crimes were registered by the Kasaragod Police in connection with the above incident. A Dy.S.P., two Circle Inspectors and a Sub Inspector sustained injuries in the mob attack and the firing was resorted to as there was no other alternative. During investigation of Crime No.816 of 2009 registered by R6 (Ramadasan Pothan) 46 accused persons have been identified. Out of them 11 persons have been arrested. All of them have obtained bail. Sameer, the eye-witness of the petitioner is the first accused in Crime No.816 of 2009. His statement recorded under Sec. 161 (3) Cr.P.C. is to the effect that he did not see the occurrence. Third witness of the petitioner is one Abdul Sherif who is A32 in Crime No.816 of 2009. Petitioner’s 4th witness is Muhammed Althaf who is A33 in Crime No. 816 of 2009. In Thomas V.C. v. Achamma Thomas and Another – 2009 (2) KHC 693 a Division Bench of this Court has held that the High Court should discourage the practice of filing Writ Petitions or petitions under Sections 482 Cr.P.C. by complainants alleging that their complaints are not being properly investigated by the Investigating Agency. In paragraphs 46 and 47 of State of West Bengal v. Committee for Protection of Democratic Rights – 2010 (1) KLT 723 (SC) a Constitution Bench of the Supreme Court observed as follows, - “46. Before parting with the case, we deem it necessary to emphasize 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. Before parting with the case, we deem it necessary to emphasize 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. In so far as the question of issuing a direction to the C.B.I. 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 leveled some allegations against the local police. This extra-ordinary 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, the C.B.I. 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. 47. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521), this Court had said that an order directing an enquiry by the C.B.I. should be passed only when 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 the C.B.I. or any other similar agency. We respectfully concur with these observations. The High Court cannot direct the investigating agency to submit a report that is in accord with its views since that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency. (Vide M.C. Abraham v. State of Maharashtra – [(2003) 2 SCC 649]. It is the statutory obligation and duty of the police to investigate into the crime and Courts normally should not interfere and guide the investigating agency as to in whatmanner the investigation has to proceed. (Vide M.C. Abraham v. State of Maharashtra – [(2003) 2 SCC 649]. It is the statutory obligation and duty of the police to investigate into the crime and Courts normally should not interfere and guide the investigating agency as to in whatmanner the investigation has to proceed. (See paragraph 25 of D. Venkatasubramaniam and Others v. M.K. Mohan Krishnamachary and Another – (2009) 10 SCC 488). Further investigation under Section 173 (8) Cr.P.C. can be ordered (i) When new facts come to light, or (ii) When superior courts find that the investigation is tainted and/or unfair, or (iii) When superior courts find that it is required ion the ends of justice Where direction for further investigation by the Magistrate in unwarranted, the revisional Court will be justified in interfering with the discretionary jurisdiction of the Magistrate (Vide Kishan Lal v. Dharmendra Bafna and Another – (2009) 7 SCC 685. In Director, Central Bureau of Investigation and Others v. “Niyamavedi” represented by its member K. Nandini, Advocate and Others – (1995) 3 SCC 601 the Apex Court observed as follows, - “Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralize the investigation. Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences. We say no more.” The above observation was noted with approval by the Supreme Court in Babubhai Jamnadas Patel v. State of Gujrat and Others – . Thus, the general rule is that Courts will not interfere with the investigation of a case and interference is only an exception. The 6th respondent Superintendent of Police was really acting under Sec. 129 Cr.P.C. by attempting in good faith to disperse an unlawful assembly. Sec. 132 (2) (a) Cr.P.C. declares that such a person shall not be deemed to have committed any offence. Under Sec. 132 (1) Cr.P.C. there is a statutory interdict against institution of a prosecution against such person for any act purporting to be done under Sec. 129 Cr.P.C. except with the sanction of the State Government, if such person is an officer of the State Government. No sanction of the State Government under Sec. 132(1) has been obtained. Under Sec. 132 (1) Cr.P.C. there is a statutory interdict against institution of a prosecution against such person for any act purporting to be done under Sec. 129 Cr.P.C. except with the sanction of the State Government, if such person is an officer of the State Government. No sanction of the State Government under Sec. 132(1) has been obtained. Hence, the learned Magistrate could not have entertained the private complaint filed by the petitioner as CMP 413 of 2010. Likewise, the 6th respondent Superintendent of Police who is the accused in Crime No. 85 of 2010 cannot be prosecuted without the requisite sanction under Sec. 197 Cr.P.C. No such sanction has been obtained. In Ramkumar v. State of Haryana – 1987 (1) KLT 462 (SC) the Apex Court considered the distinction between the sanction under Sec. 132 (1) and Sec. 197 Cr.P.C. The protection conferred by Sec. 132 (1) Cr.P.C. would be rendered nugatory if it is contended that it is for the accused police officer to prove after trial that he was acting in discharge of his duties in dispersing an unlawful assembly and if that is proved Section 79 I.P.C. will come into operation and the accused would not be guilty. If such an interpretation is placed on Sec. 132 Cr.P.C. then the onus will have to be thrown on the accused police officer to prove in the trial that he acted under Chapter X Cr.P.C. and is therefore innocent of the offences alleged against him in order to show that the complaint against him is invalid for want of sanction under Sec. 132 (1) Cr.P.C. (Vide Krishna Pillai Madhavan Pillai and another v. P. Sadasivan Pillai and Others – AIR 1963 Kerala 7). To find out whether the accused police officer acted under Chapter X Cr.P.C. or not, it cannot be said that the complaint and the sworn statement alone can be looked into and not any other circumstances or documents. [Vide Sankarankutty Menon and Others v. Deputy Superintendent of Police, Trichur and Others – 1961 KLT 208 (DB). No interference by this Court is called for with regard to the investigation of Crime No. 85 of 2010 of Kasaragod Police Station. If this Court so orders, the investigation of the above crime can be entrusted with the D.I.G. or the I.G. of Police. JUDICIAL EVALUATION 6. No interference by this Court is called for with regard to the investigation of Crime No. 85 of 2010 of Kasaragod Police Station. If this Court so orders, the investigation of the above crime can be entrusted with the D.I.G. or the I.G. of Police. JUDICIAL EVALUATION 6. I am afraid that I find myself unable to agree with the submissions made by the learned Public Prosecutor. The solitary accused in Crime No. 85 of 2010 of Kasaragod Police Station is the 6th respondent herein namely Ramadasan Pothan who was the Superintendent of Police, Kasaragod at the relevant time. Admittedly, the petitioner’s son died as a result of gun shot injuries from the pistol fired by the Superintendent of Police after snatching the firearm from his gunman. The stand taken by the State that the petitioner’s son was an accused in Crime No. 816 of 2009 registered by the Superintendent of Police and he was deleted from the array of accused after he succumbed to the injuries does not appear to be correct. He was not made an accused at all in Crime No. 816 of 2009. Admittedly, the investigation of Crime No. 85 of 2010 in which the only accused person is the said Superintendent of Police is conducted by a Deputy Superintendent of Police. Hence, the first question to be considered is whether the investigation of the said case should be allowed to be conducted by the State Police itself or by the Central Bureau of Investigation which is an independent Central Agency. FURTHER INVESTIGATION – Whether by State Police or C.B.I. 7. There cannot be any quarrel about the propositions laid down in the decisions relied on by the learned Public Prosecutor regarding the limitations of the Court in interfering with the freedom of the investigating agency. But, here the question is whether the near relative of the deceased and the public at large can legitimately expect a fair and impartial investigation against the Superintendent of Police when the investigation is admittedly conducted by a subordinate officer. Even if the investigation were to be conducted by an officer of higher rank in the State Police, will that be sufficient to instill confidence of all concerned in the matter since an investigation by a member of his own tribe is bound to evoke suspicion or mistrust? Even if the investigation were to be conducted by an officer of higher rank in the State Police, will that be sufficient to instill confidence of all concerned in the matter since an investigation by a member of his own tribe is bound to evoke suspicion or mistrust? Even if change of the investigating agency in a case of this nature is not on account of lack of faith or trust in the State Police, the change is to ensure credibility in the system and to dispel the fear or anxiety, if any, in the public mind. Justice should not only be done but should also appear to have been done. 8. As observed above, the investigation of this case in which the sole accused person is a former Superintendent of Police, Kasaragod is not only conducted by an officer of the State Police but lower in rank than the accused officer himself. In spite of the allegations in the Writ Petition and in spite of sufficient alert while preparing the counter statement, it is rather unfortunate that the investigation was not entrusted with an officer higher in rank than the accused police officer. On the question of desirability of the State Police itself conducting investigation of a case in which the accusations are directed against an officer of the State Police itself, Courts have taken definite stand in the interests of justice. In R.S. Sodhi v. State U.P. – AIR 1994 SC 28 the Apex Court observed as follows:- “We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigations to the Central Bureau of Investigation forthwith and we so hope that it would complete the investigation at an early date so that those involved in the occurrences one way or other may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice.” In Ramesh Kumari v. State (NCT of Delhi) and Others (2006) 2 SCC 677 the Supreme Court came to the following conclusion in paragraph 8 of the decision:- “We are also of the view that since there is allegation against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like C.B.I.”: In the following cases the Apex Court either entrusted the investigation of the cases with the C.B.I. or approved the directions to entrust the investigation with the C.B.I.:- i) Comptroller and Auditor General of India and Gian Prakash, New Delhi and Anr. V. K.S. Jagannathan and Anr. – (1986) 2 SCC 679 ii) Gudalure M.J. Cherian and Ors v. Union of India and Ors. – (1992) 1 SCC 397 iii) State of Bihar and Another v. Ranchi Zila Samta Party and Another – (1996) 3 SCC 682 iv) C.B.I. v. Rajesh Gandhi – 1997 Crl.L.J. 63 (SC) v) State of W.B. and Ors. v. Nuruddin Mallick and Ors. – (1998) 8 SCC 43 vi) Kashmeri Devi v. Delhi Administration – (1998) SCC Crl. 864. vii) Nirmal Singh Kahlon v. State of Punjab and Ors – (2009) 1 SCC 441 9. v. Nuruddin Mallick and Ors. – (1998) 8 SCC 43 vi) Kashmeri Devi v. Delhi Administration – (1998) SCC Crl. 864. vii) Nirmal Singh Kahlon v. State of Punjab and Ors – (2009) 1 SCC 441 9. In J. Prabhavathi Amma v. State of Kerala – 2007 (4) KLT 601 a Division Bench of this Court in “Udayakumar Murder Case” where the accused persons were officers of the State Police, entrusted the investigation with the C.B.I. In Mariyu v. Dy.S.P. CB CID – 2008 (1) KLD 431 this Court had entrusted the investigation of “Faizal Murder Case” with the CBI on the ground that the real culprits were not brought to book due to political influence by the party in power. The said action of this Court was not interfered with by the Supreme Court in the S.L.P. filed by the State Government. In Murukeshan v. State of Kerala – 2010 (2) KHC 621 this Court entrusted the investigation of “Sampath Murder Case” with the C.B.I. on the ground that it may not be fair on the part of the State Police to conduct the investigation of that case in which Sampath was admittedly killed as a result of custodial torture by certain officers of the State Police. The said verdict was also approved by the Supreme Court which dismissed the S.L.P. filed by the State Government. I have therefore, no hesitation to conclude that this case also should be investigated by the C.B.I. THE BAR UNDER SEC. 132 (1) Cr.P.C. 10. I now proceed to consider the contention raised by the learned Public Prosecutor that no prosecution can be instituted against the 6th respondent police officer without the requisite sanction of the State Government under Sec. 132 (1) Cr.P.C. It is the specific case of the petitioner both in Ext.P5 complaint as well as in this Writ Petition that eventhough there were issues between the police and certain anti-social elements in other parts of Kasaragod District, there was absolutely no disturbance at the site near the New Bus stand, Kasaragod, where the function was held. According to the petitioner the 6th respondent had without any provocation snatched the pistol from his gunman and had fired at the mob resulting in the death of the petitioner’s son. According to the petitioner the 6th respondent had without any provocation snatched the pistol from his gunman and had fired at the mob resulting in the death of the petitioner’s son. It is the investigating officer who contends in the statement filed by him and in the arguments addressed before this Court that the mob had turned violent necessitating the firing by the Superintendent of Police as a last resort. A question incidentally arises as to whether the above rival versions can be considered at this juncture when the case is still at the stage of investigation. Section 129 Cr.P.C. reads as follows:- “129. Dispersal of assembly by use of civil force:- (1) Any Executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. (2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting a confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.” Sec. 132. Cr.P.C. is extracted herebelow: Sec. 132. Protection against prosecution for acts done under preceding sections:- (1) No prosecution against any person for any act purporting to be done under Section 129, section 130 or section 131 shall be instituted in any Criminal Court except – a) with the sanction of the Central Government where such person is an officer or member of the armed forces; b) with the sanction of the State Government in any other case. 2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith; (b) no persons doing any act in good faith in compliance with a requisition under Section 129 or section 130; (c) no officer of the armed forces acting under Section 131 in good faith; (d) no member of the armed forces doing any act in obedience to any order which he was found to obey, Shall be deemed to have thereby, committed an offence. 3) In this section and in the preceding sections of this Chapter:- a) the expression “armed forces” means the military, naval and air forces operating as land forces and includes any other Armed Forces of the Union so operating; b) “officer”, in relation to the armed forces, means the person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer, c) “member”, in relation to the armed forces means a person in the armed forces other than an officer”. Thus, under Sec. 132 (1) Cr.P.C. there is a total embargo against the institution of a prosecution against any person for any act purporting to be done inter alia under Sec. 129 Cr.P.C. except with the sanction of the appropriate Government. (In this case, it is the State Government which has to accord the sanction). Such sanction must precede the institution of the prosecution. Institution of a prosecution can ordinarily be either in the form of a complaint made to a Magistrate or in the form of a police report filed before the Magistrate. Here Ext.P3 complaint was filed by the petitioner before the 5th respondent Sub Inspector. Ext.P5 is the private complaint filed by the petitioner before the Magistrate who, however, did not take cognizance of the offence of murder alleged against the 6th respondent, but instead, forwarded the complaint to the 5th respondent Police Officer under Sec. 156 (3) Cr.P.C. 11. Regarding the stage at which the question of sanction under Section 132 (1) Cr.P.C. could be raised, the Apex Court in Matajog Dobey v. H.C. Bhari – AIR 1956 SC 44 held as follows:- “The question may arise at any stage of the proceedings. Regarding the stage at which the question of sanction under Section 132 (1) Cr.P.C. could be raised, the Apex Court in Matajog Dobey v. H.C. Bhari – AIR 1956 SC 44 held as follows:- “The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.” The above passage was quoted with approval by a three Judge’s Bench of the Apex Court in Nagraj v. State of Mysore – AIR 1964 SC 269 to conclude as follows:- “It follows, therefore, that the contention that a police officer cannot be prosecuted without the sanction from the State Government for an offence which he alleges to have taken place during the course of his performing the duties under Chap IX of the Code cannot be accepted. His mere allegation will not suffice for the purpose and will not force the Court to throw away the complaint of which it had properly taken cognizance on the basis of the allegations in the complaint.” A contention similar to the proposition laid down by a learned Judge of this Court in Krishna Pillai Madhavan Pillai – AIR 1963 Kerala 7 (Supra) was raised but repelled by the Supreme Court in paragraph 14 of Nagraj’s Case (Supra) as follows:- “14. It is contended for the appellant that if the question of sanction is not decided in the very first instance when a complaint is filed or when the accused alleges that he could not be prosecuted for the alleged offences without the sanction of Government in view of S. 132 of the code, the protection given by this section will be nugatory as the object of giving this protection is that the police officer be not harassed by any frivolous complaint. There may be some such harassment of the accused, but the Court has no means to hold in the circumstances alleged that the prosecution of the accused was in connection with such action as the complaint did not disclose the necessary circumstances indicating that fact and the bare word of the accused cannot be accepted to hold otherwise. Just as a complaint is likely to omit mentioning the facts which would necessitate the sanction of Government before he can prosecute the accused, the accused too is likely to make such allegations which may lead to the rejection of the complaint for want of sanction. It is well settled that the jurisdiction of the Court to proceed with the complaint emanates from the allegations made in the complaint and not from what is alleged by the accused or what is finally established in the case as a result of the evidence recorded.” Thus, the allegations in the complaint alone will ordinarily cloth the Court with the jurisdiction to proceed with the complaint. When such a complaint is filed before the Magistrate, the Supreme court has lucidly explained the scope of enquiry for finding out whether the objection under Sec. 132 (1) Cr.P.C. can be entertained or not. This is what the Supreme Court has observed in Nagraj’s Case (Supra):- “12. It is clear that when a complaint is made to a criminal court against any police officer and makes allegations indicating that the police officer had acted or purported to act under Ss.127 and 128 of the code and in so doing committed some offence complained of, the court will not entertain the complaint unless it appears that the State Government had sanctioned the prosecution of the police officer. If the allegations in the complaint do not indicate such facts, the Court can have no ground for looking to the sanction of the Government and in the absence of such a sanction for refusing to entertain the complaint. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person. 13. It must proceed with the complaint in the same manner as it would have done in connection with complaints against any other person. 13. The occasion for the Court to consider whether the complaint could be filed without the sanction of the Government would be when at any later stage of the proceedings it appears to the Court that the action of the police officer complained of appears to come within the provisions of Ss. 127 and 128 of the Act. This can be either when the accused appears before the court and makes such a suggestion or when evidence or circumstances prima facie show it. The mere suggestion of the accused will not, however, be sufficient for the Court to hold that sanction was necessary. The court can consider the necessity of sanction only when from the evidence recorded in the proceedings or the circumstances of the case it be possible to hold either definitely that the alleged criminal conduct was committed or was probably committed in connection with action under Ss. 127 and 128 of the code.” Thus, in a case where an objection is taken by the accused officer that he cannot be prosecuted without the sanction of the Government under Sec. 132 (1) Cr.P.C. since he had acted under Sec. 129 Cr.P.C., it is incumbent upon the Court to find out whether going by the allegations in the complaint the accused police officer had committed any act purporting to be done under Sec. 129 Cr.P.C. If the Court finds any such indication in the complaint the Court should refuse to proceed with the complaint in the absence of the requisite sanction. If on the other hand, the Court does not find any such indication in the complaint, the Court can determine the question of sanction even in the course of prosecution evidence at the trial as the question of sanction whether necessary or not may have to be determined from stage to stage in the light of the observation in Matajog Dobey’s case (supra). In State of Kerala v. T.T. Antony – 2000 (2) KLT 90 a Division Bench of this Court after review of the authorities on the point observed as follows:- “According to us, the benefit of Section 132 can be availed of only during the trial of the proceedings, if a charge is filed.” As already mentioned, Ext.P5 private complaint filed by the petitioner does not even remotely indicate that there were circumstances justifying dispersal by the police of an unlawful assembly. Hence, the defence based on Sec. 132 (1) Cr.P.C. can be raised only during the trial of the case and not before. Many of the defences available to an accused person under the General Exceptions in Chapter IV of the Indian Penal Code are likewise exculpating defences but can pave the way for an acquittal only if successfully raised during the trial of the case and not before. I, therefore, hold that the defence of want of sanction under Sec. 132 (1) Cr.P.C. is now premature and can be raised only during the trial of the case. Whether there is want of prosecution sanction under Sec. 197 Cr.P.C.? 12. The contention based on Sec. 197 Cr.P.C. is also premature. The said Section, so far as it is relevant for the present discussion reads as follows:- “197. Whether there is want of prosecution sanction under Sec. 197 Cr.P.C.? 12. The contention based on Sec. 197 Cr.P.C. is also premature. The said Section, so far as it is relevant for the present discussion reads as follows:- “197. Prosecution of Judges and public servants:- (1) When any person who is or was a Judge or magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction – a) in the case of a person who is employed or, as the case may be, was at the time of commission or the alleged offence employed, in connection with the affairs of the Union, of the Central Government; b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government; [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted.] 2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Force of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government. 3) The State Government may, by notification, direct that the provisions of sub-section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section will apply as if for the expression “Central Government” occurring therein the expression “State Government” were substituted.” Thus, the bar under Sec. 197 is against a Court taking cognizance of the offence without the requisite sanction. The distinction between the sanction under Sec. 132 (1) and the sanction under Sec. 197 Cr.P.C. has been lucidly noted by the Apex Court in Ramkumar v. State of Haryana – 1987 (1) KLT 462 (SC) to observe that while sanction under Sec. 132 (1) Cr.P.C. is addressed to the intending complainant, sanction under Sec. 197 Cr.P.C. is addressed to the Court. The Court is yet to take cognizance of any offence in this case. The learned Magistrate did not take cognizance of the offence of murder on Ext.P5 complaint. The Magistrate had only forwarded the complaint to the police under Sec. 156 (3) Cr.P.C. The question of taking cognizance of the offence in this case will arise only if the police after investigation file a charge sheet against the 6th respondent. The sanction under Sec. 197 Cr.P.C., if necessary, need be produced only before the Court takes cognizance of the offence. Moreover, Courts have held that the question regarding sanction may have to be decided only during trial if the context in which the act of the accused necessitating sanction requires elucidation during trial. Hence, the contention based on prosecution sanction is equally misconceived. The question regarding compensation 13. In the light of the decisions in State of Karnataka v. B. Padmanabha Beliya and Others – 1992 Crl.L.J. 634 (Karnataka), Nilabati Behera v. State of Orissa – (1993) 2 SCC 746 and Sube Singh v. State of Haryana and Others – (2006) 2 SCC (Crl.) 54 the State cannot resist the claim for compensation for the death of the petitioner’s son due to gun shot injuries in the police firing. It was admitted by the learned Public Prosecutor that in the Koothuparamba police firing case (25-11-1994), Pushpan, the injured who is still undergoing treatment was paid Rs. 5,00,000/- from the Chief Minister’s Relief Fund over and above the financial aid given to him earlier. In the police firing at Muthanga (19-02-2003) the bereaved family of deceased Jogi was given Rs. 2,00,000/- and the deceased family of the Police Constable K.V. Vinod was paid Rs. 6,50,000/-. The bereaved family of each of the deceased persons in the Cheriyathura police firing (17-5-2009) has been given Rs. 10,00,000/-. Considering the above precedents available, I direct the 2nd respondent State of Kerala to pay a sum of Rs. 2,00,000/- and the deceased family of the Police Constable K.V. Vinod was paid Rs. 6,50,000/-. The bereaved family of each of the deceased persons in the Cheriyathura police firing (17-5-2009) has been given Rs. 10,00,000/-. Considering the above precedents available, I direct the 2nd respondent State of Kerala to pay a sum of Rs. 5,00,000/- (Rupees five lakhs only) by way of compensation to the petitioner for the death of his son in the police firing. The said amount shall be paid within three months from today. 14. In the result, this Writ Petition is allowed as follows:- CONCLUSION A. i) The 3rd respondent is directed to hand over the investigation of Crime No. 85 of 2010 of Kasaragod Police Station to the first respondent, Director, Central Bureau of Investigation, New Delhi. ii) The investigation of the case shall be taken over by the Superintendent of Police (SPE, C.B.I., Thiruvananthapuram Branch) who shall entrust the charge of investigation of the case with one or more officers of proven record. iii) It shall be within the discretion of the C.B.I. to conduct a de novo investigation of the case or to continue the investigation from the stage where the State Police had reached. iv) The Officer in-charge of the investigation shall forthwith handover the investigation files to the Superintendent of Police (SPE, C.B.I., Thiruvananthapuram Branch). v) The State Government shall extend all infrastructural and other facilities to the officers of the C.B.I. investigating the above case. B. The 2nd respondent shall pay a sum or Rs. 5,00,000/- (Rupees five lakhs only) as compensation to the petitioner within three months from today. Dated this the 24th day of September, 2010.