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2016 DIGILAW 454 (KER)

Ajeesh v. State of Kerala

2016-05-30

T.B.RADHAKRISHNAN

body2016
JUDGMENT : T.B. Radhakrishnan, J. 1. These Writ Petitions relate to Crime No. 909 of 2016 stated to have been registered by the Kuruppampady Police Station in Ernakulam District of the State of Kerala. Speaking from the judiciary, it is too early for us to make any statement on the nature of the crime, the victim and other relevant aspects which ought to be taken as matters gaining attention in the course of investigation. The sum and substance of these three Writ Petitions is that the petitioners including an organisation; as also another organisation, which has sought impleadment in one of the Writ Petitions; is that the investigation in the aforesaid crime is not going forward in the manner in which it ought to. Different reliefs are sought for through the different Writ Petitions. In W.P.(C) No. 17047 of 2016, the relief sought for includes a prayer that the investigation be handed over to a senior woman police officer. The learned counsel for the petitioner in that case submits that as of now, the investigation has been handed over to a senior woman I.P.S. Officer of the Kerala Cadre and therefore, to that extent, this Writ Petition can be closed, though there are reliefs which refer to the petitioner's allegation as to the shortcomings in different other aspects of policing. In the other two Writ Petitions, the reliefs are sought for, for handing over the investigation to the Central Bureau of Investigation and for different other directions. In W.P.(C) No. 17274 of 2016, there is also a specific allegation and a relief sought for seeking a direction for appropriate action against the Station House Officer, Kuruppampady, and the Rural Superintendent of Police, Aluva and other negligent officials. This relief is sought for on the allegation that there is violation of the provisions of the Scheduled Caste/Scheduled Tribe Prevention of Atrocities Act, 1999, as amended by the 2015 Act. This relief is sought for on the allegation that there is violation of the provisions of the Scheduled Caste/Scheduled Tribe Prevention of Atrocities Act, 1999, as amended by the 2015 Act. In W.P.(C) No. 17022 of 2016, filed by an advocate and in which there is an application for impleadment by an NGO, the relief sought for is to constitute a special investigation team headed by a senior woman police officer or to entrust the investigation to the C.B.I. The further relief sought for therein is to direct an enquiry to be conducted to ascertain matters in connection with the autopsy and any lapse in the matter of non-cordoning and sealing off, of the scene of occurrence. 2. The learned Senior Government Pleader submits today that the investigation has been handed over to Dr. B. Sandhya, I.P.S., who is now the Additional Director General of Police (South Zone) and she will be assisted by a team of seven Officers enlisted in the order dated 26.5.2016 of the Director General of Police and State Police Chief. 3. Pursuant to the directions given in the writ petitions which we are dealing with now, Sri. Mahipal Yadav I.P.S., I.G.P., Kochi Range, is present. He has with him two sealed covers which are stated to contain papers relating to the investigation carried out until now. 4. In so far as the constitution of an investigation team is concerned, the predominant thrust in the Writ Petitions is to have a special investigation team headed by a woman police officer and if that is not to happen, the investigation be entrusted to the C.B.I. The standing counsel for the C.B.I. is also present. We have heard the learned counsel for the writ petitioners, the learned Senior Government Pleader and the learned counsel for the C.B.I. in that regard. We cannot ignore the fact that after the earlier interim orders were issued by this Court, the investigation has been handed over to a woman I.P.S. Officer in the Kerala State Cadre and there is no doubt that she is fairly senior enough to push off any allegation of a junior having being entrusted with the investigation. She is being assisted by police personnel at different ranks. She is being assisted by police personnel at different ranks. It is not a matter which requires judicial guidance, but something that is within the police duties of the State, including through the investigating officer, is to do everything that is needed in accordance with law to ensure that there is a fair and complete investigation into all aspects of the incident and conclude it in accordance with law. Once such a conclusion comes out, it would definitely be a matter which will gain the attention in the appropriate jurisdiction in the judiciary. It is also not as if in exceptionally exceptional appropriate circumstances and situations, the judiciary does not have the power to step in to see that there is no deflection of the course of justice in the pursuit of investigation. The balancing of the rights and liabilities of all stake holders including the victims, the witnesses, the accused persons etc. are well balanced in the Indian system. It is the effectuation of this system in the fullest manner that results in comprehensive justice in all such situations. 5. Taking into consideration the aforesaid aspects of the case in hand, we are of the firm opinion that this case does not now deserve to be handed over to the C.B.I. or any other agency and the investigation shall proceed in terms of the decision now taken to hand over the investigation to Dr. B. Sandhya I.P.S., who is now the Additional Director General of Police (South Zone) and the team under her command. It is so ordered. 6. The learned counsel appearing for the petitioners voiced a grievance that there are a lot of allegations regarding the autopsy including the identity of the person who had conducted the autopsy and that the postmortem report is not even being given to the near relatives of the victim or is not available to persons who have requested for it. For one thing, autopsy and the result of that procedure is, in the ultimate analysis, an integral part of the investigation into an occurrence and the result of such autopsy will generate conclusions which will lead the investigating team to proceed in the right manner taking necessary inputs from the postmortem report. If there is any shortcoming in the process of autopsy, it is for the persons in the management of that sector who have to take care of it. If there is any shortcoming in the process of autopsy, it is for the persons in the management of that sector who have to take care of it. It is not a matter for judicial consideration at this point of time or for a debate in public. The manner in which Forensic Science has to be studied and applied would definitely show that such things would not end in the hands of one or two, but the result becomes part and parcel of the material that comes to the judicial sector in the adjudicative process as well. We say this more importantly because, whatever has happened until now in relation to the occurrence in question is also a matter for audit at the hands of the present investigating officer, namely, Dr. B. Sandhya I.P.S. and her team of officers. It will not be advisable for us to attempt our role as advisers to the investigators. 7. This takes us to the ticklish issue of the non-availability of the autopsy report in public domain and on the request of persons who claimed to be the relatives of the victim. By and large, the eligibility to maintain the privacy of the human remains is part of the fundamental rights of that person. This has to be understood so in the light of right to life under Art. 21 of the Constitution of India, in which lies embedded the right to privacy. Such right to privacy can be subjected only to the due process of law and autopsy report, which is part and parcel of consideration of whatever material is stated to be human remains, needs to have such privacy and such principles of privacy and right to privacy insulates forensic reports including the postmortem reports from being flown like kites in the air as if those are pieces of information in the public domain. No person has the right in public domain to ask for the copies or information regarding the contents of autopsy reports particularly when the investigation is in progress and it will be anathema to the whole system of investigation and preparation of police diaries and investigators' diaries as prescribed by settled norms and Rules if such materials are permitted to jump on spring boards and reach hands in public domain. That will only derail the proper course of due investigation in accordance with the Constitution and the laws. That will only derail the proper course of due investigation in accordance with the Constitution and the laws. We therefore hold that none of the petitioners has any right whatsoever in law, to claim for copies or information regarding the autopsy or the postmortem report in relation to the occurrence which will be dealt with herein. We say this at this point of time specifically because, the final report of the police has never reached the appropriate jurisdictions in accordance with the provisions of the Code of Criminal Procedure. Then only would the wheels of 'justice delivery system' through the judiciary takes a proper platform and then the papers could be accessible to the different stakeholders, if and when required and permitted by law. 8. The petitioner in W.P.(C) No. 17274 of 2016 complains about the non-registration of the F.I.R. by a Station House Officer. This is an aspect which will have to be considered by the Supervising Police authority as regards the Kuruppampady police station is concerned and if there is such an incident; there has to be a proper look into that aspect of the matter independently and action, if any, found necessary in accordance with law shall follow. We clarify that if the non-registration of that particular incident has anything to do with the occurrence in question, that will be a link which will also be a matter of importance, if the investigating officer of Crime No. 909 of 2016 of Kuruppampady police station finds that the said aspect also needs to be probed. We record the submission on behalf of the petitioners that it appears that the identity of the victim and her parents has been published in such a manner that the settled norms of non-disclosure of such details stand blatantly violated. We wonder for ourselves and we also posed the question to the learned counsel for the petitioners as to who is to be blamed. We think that the society and everybody who has opened their mouth sticking out the names of the victim and parents, owe an apology to the victim for such behaviour which cannot be scuttled by merely passing an order against the uniform forces of the State. Subject to the directions issued above, these Writ Petitions are ordered accordingly.