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2016 DIGILAW 723 (KER)

Ayisu v. State of Kerala

2016-08-25

RAJA VIJAYARAGHAVAN V.

body2016
JUDGMENT : 1. This petition is filed under Article 226 of the Constitution of India by the septuagenarian mother of a 42 year old man by name Abdu, who was done to death by unidentified assailants in a brutal manner on 14.10.2006 at about 8.15 p.m. 2. It has to be mentioned at this stage that this petition is the fifth in a series of writ petitions filed by the mother before this Court with a prayer to hand over investigation in the crime to the 5th respondent, the Central Bureau of Investigation ('CBI' for short). On the earlier occasions, this Court by reposing faith in the investigative and forensic skills of the top ranking police officers of the State, and taking note of the fact that it was a case of murder, with no other ramifications, did not deem it necessary at that stage to concede to the prayer of the petitioner. Relief as prayed for was denied based on the assurance given through the scores of statements filed by the Investigating officers that earnest efforts would be taken to render justice to the beleaguered mother. The last nail on the coffin was struck when this Court, after much desperation by a very detailed order dated 13.8.2015 had expressed the opinion that the present investigating officer, who had immaculate credentials to his credit, would unearth the mystery in the least possible time in order to instill public confidence in the police investigation system. Though an year has passed, it appears that the High Ranking Police Officers, on whose hands the investigation was entrusted by this Court by a series of orders are still groping in the dark. Totally disillusioned by the rudderless investigation conducted by the State Police, the petitioner prays for a fair and proper investigation to bring out the truth concerning the diabolic murder of her son. 3. Before dwelling into the merits of the petition, the basic facts will have to be stated in some detail. 4. On 14.10.2006, at about 8.15 p.m., deceased Abdu, son of the petitioner was returning home in a bicycle. When he reached the KVHS Eriyad Junction, some unidentified persons inflicted grievous head injuries on his head with some deadly weapon. Abdu was immediately rushed to the Modern hospital, Kodungalloor, from where he was shifted to the Aswini Hospital, Thrissur for better treatment. When he reached the KVHS Eriyad Junction, some unidentified persons inflicted grievous head injuries on his head with some deadly weapon. Abdu was immediately rushed to the Modern hospital, Kodungalloor, from where he was shifted to the Aswini Hospital, Thrissur for better treatment. While undergoing treatment, he succumbed to the injuries sustained at 2.55 p.m., on 15.12.2006. On the basis of the statement furnished by Smt. Mary, a nearby resident, Crime No. 865 of 2006 of Kodungalloor Police Station was registered. The investigation was initially conducted by the Sub Inspector of Police. Later, it was taken over by the Circle Inspector of Police. When no headway was made, investigation was handed over to the Deputy Superintendent of Police who took over investigation on 25.9.2008. Later, another Deputy Superintendent of Police took over investigation on 6.6.2009. 5. When it appeared that the police had reached a dead end, the petitioner, after about three years of the incident, approached this Court and filed W.P.(C) No.15989 of 2009 seeking a direction to the State Police to hand over investigation to the Central Bureau of Investigation. This Court, by Ext.P3 order dated 5.11.2009, took the view that every case of murder is not required to be investigated by the Central Bureau of Investigation ('CBI' for short). It was felt that the investigation should be entrusted with the Crime Branch with a rider that the same should be carried out by an officer not below the rank of Deputy Superintendent of Police. Orders were passed and it was specifically directed that the investigation should be expeditious and the culprits be brought to book. 6. In pursuance to Ext.P3 order, the investigation was transferred to the CBCID HH W-II, Ernakulam by the State Police Chief. The Superintendent of Police, CBCID HH W-II took over the investigation. 7. The distraught mother waited for a year and when it was felt that no significant progress had been made approached this Court again by filing W.P.(C) No. 18735 of 2010 with the same prayer. This Court, after hearing the rival submissions, took note of the steps taken by the Special Investigation Team which had been constituted by then, did not deem it fit to hand over the investigation to the CBI as it felt that it would affect the investigation conducted till then. This Court, after hearing the rival submissions, took note of the steps taken by the Special Investigation Team which had been constituted by then, did not deem it fit to hand over the investigation to the CBI as it felt that it would affect the investigation conducted till then. However, the Special Investigation Team was directed to pursue the investigation with all earnestness to resolve the mystery surrounding the death by Ext.P4 judgment. The right of the petitioner to approach this Court again at the appropriate stage was reserved. 8. The petitioner was following up with the investigation and when it occurred to her that the investigation had not reached anywhere she again approached this Court by filing W.P.(C) No. 22034 of 2011 seeking to transfer the investigation to the CBI. This Court had called for a report from the Special Investigation Team. It was submitted before Court by the then Investigating Officer that they had zeroed in on the culprits and it was just a matter of time that the assailants were brought to book. Various steps taken were highlighted and it was submitted that certain suspects had been traced who were abroad and steps have been taken to bring them to India. It was also pointed out that a team of officers were camping at Kodungalloor for the sole purpose of solving this case. On the basis of these emphatic assertions made by the investigating agency, this Court came to the conclusion that there was no need to change the investigating agency or to entrust the matter with the CBI. The writ petition was consequently closed by Exhibit P5 judgment with a direction to the Special Investigation Team to pursue with the investigation with all sincerity and to make all earnest efforts to unravel the cause of death and the culprits. 9. The petitioner waited for two more years and then approached this Court and filed W.P.(C) No. 12177 of 2012 with the identical prayer to entrust the matter with the CBI. Innumerable statements were filed before the Court to convince the Court that all steps have been taken. It was pointed out that 61 witnesses had been questioned till then. It was also reported that one Circle Inspector and his team had been deployed exclusively for the investigation of this case in addition to the team headed by the Superintendent of Police, Crime Branch, Ernakulam. It was pointed out that 61 witnesses had been questioned till then. It was also reported that one Circle Inspector and his team had been deployed exclusively for the investigation of this case in addition to the team headed by the Superintendent of Police, Crime Branch, Ernakulam. When this Court was not satisfied with the statements, it was reported that the supervision of the investigation that was being conducted by the Superintendent of Police, (Crime Branch) had been handed over to the Inspector General of Police (Crime). On the basis of the said submission and hopeful that a meaningful investigation would be conducted by adopting all scientific methods and by securing the assistance of well experienced and trained police officers, the petition was disposed of by Exhibit P6 judgment directing the Inspector General of Police (Crime) to supervise the investigation. The right of the petitioner to approach this Court in course of time was also reserved. 10. The petitioner waited for an year and she realized to her dismay that though more than 8 years had elapsed, no progress had been achieved. 11. It was in the said circumstances that the instant petition was filed seeking to handover the investigation in the Crime No. 865 of 2006 of the Kodungalloor Police Station to the 5th respondent. 12. Statements opposing the prayer of the petitioner was filed on 17.6.2014. From the said statement, it is revealed that on 20.12.2006, an iron pipe was seized from the courtyard of the house of one Pedikkat Muhammed, about 200 meters from the place of occurrence. On analysis, it was found to contain 'B' group of blood which compared well with that of the deceased. It was, therefore, concluded that the said weapon was used for the commission of the offence. The sequence of events till 2014 is reiterated and it has also been stated that a total of 250 witnesses had been questioned by the Special Investigation Team which was operating under the supervision of a Superintendent of Police. The officers had suspected one Kattakathu Muhammed as there were some strife between the deceased and the said person. It was emphatically stated in the said report that no clues regarding the identity of the culprits could be obtained even after 8 years of Investigation. The officers had suspected one Kattakathu Muhammed as there were some strife between the deceased and the said person. It was emphatically stated in the said report that no clues regarding the identity of the culprits could be obtained even after 8 years of Investigation. Some indications however pointed to the fact that one person by name Shameer has information about the incident and he was questioned. He was also put in the category of prime suspects. It is also stated that only if tests such as Polygraph, Brain mapping and Narco analysis are conducted, some head way could be achieved. The long and short of the story is that even after 8 years, the officers had no clue as to the assailants. Thereafter, statements were filed on 24.11.2014 and 29.1.2015. 13. This Court as per order dated 13.1.2015 expressed deep sense of dissatisfaction in the mode in which the investigation was being carried out. In the order dated 10.2.2015, the recourse to methods like Polygraph, Narco analysis etc. without recourse to fail safe investigative methods was also questioned. 14. However, it has to be mentioned that in the statement dated 29.1.2015, names of some of the suspects were given. It appears that it is only on the basis of vague assumptions that such names were mentioned. Some more time was sought in the said statement. In the next statement filed before Court on 10.6.2015, the details of some more suspects were given and a time of 3 months was sought for completing the investigation. 15. This Court in a very strongly worded order reminded the investigating agency that despite the words of caution, advisories and admonitions issued by the Court on various occasions, no significant progress had been made. An undertaking was furnished by the State Attorney that the matter would be taken with the State Police Chief to entrust the matter with the best possible team so that the unvarnished truth is unraveled. Finally, on 12.8.2015, it was submitted before Court that the State Police Chief had decided to entrust the matter with a very efficient officer of the Kerala Police force, known for his investigative acumen, and his investigation would be supervised by a very senior officer. It was assured that the special team would be given all the freedom and that the investigation would be completed within 4 to 5 months. 16. It was assured that the special team would be given all the freedom and that the investigation would be completed within 4 to 5 months. 16. On 13.8.2015, this Court had recorded the submission and to ensure that the investigation proceeds with all alacrity it was ordered that the supervising officer should have fortnightly discussions with the Investigating team and that the review of the investigation should be conducted by the Additional Director General of Police (Crimes) on 6 week basis. The investigating officer was also directed to file monthly statements before this Court. 17. The sequence of events were highlighted in detail to have a birds eye view of what had transpired from 15.12.2006 on which day the crime was registered till date. 18. The learned Counsel appearing for the petitioner, highlighted the grievance of the petitioner and contended that the petitioner had waited for 10 long years. The petitioner had been asserting about the lackluster investigation of the local police. In order to do complete justice and to instill confidence in the public, it is necessary that the investigation should be handed over to the 5th respondent is the submission. The learned Counsel would rely on the State of Kerala v Gopalan [2015(1) KLT SN 64 (C.No.84)], George Muthoot v. State of Kerala [ 2010(1) KLT 399 ] Narmada Bai v. State of Gujarat and Others [ AIR 2011 SC 1804 ], Gudalure M.J. Cherian and Others v. Union of India [ (1992) 1 SCC 397 ] and State of West Bengal v. Committee for Protection of Democratic Rights [ 2010 (3) SCC 571 ] to advance his contentions. 19. The learned State Attorney would reiterate the statements filed by the Investigating Officer and would contend that the Investigating Officer is on the verge of zeroing in on the culprits. Certain suspects have been identified and they are abroad. Steps are being taken to bring them to India, so that they can be questioned and it is hoped that some indications as regards the assailants could be obtained. 20. The learned Standing counsel for the 5th respondent contends that the Investigating Officer who has been presently entrusted with the case is quite competent and according to the learned counsel, some more time has to be granted. 20. The learned Standing counsel for the 5th respondent contends that the Investigating Officer who has been presently entrusted with the case is quite competent and according to the learned counsel, some more time has to be granted. It is also highlighted that more than 10 years have elapsed and no purpose would be served by handing over the investigation to the 5th respondent. It is also contended that the case does not involve any larger public interest or any interstate of international ramifications. The mere fact that the prime suspects are abroad is not a reason to entrust the investigation with the CBI. Further, it is contended that the 5th respondent is already overburdened with the investigation/enquiry of different cases entrusted to it by various courts. It is asserted that having regard to the state of law laid down by this Court and the contingencies which investigation by the CBI is called for, the facts and circumstances of the case does not merit any such direction. 21. In reply, the learned counsel appearing for the petitioner would assiduously contend that the sequence of events which led to the merciless murder of her son and the impassive response of the state machinery and casual mode which investigation is conducted warrants a fair and impartial probe by the CBI. The learned counsel also argued that the state police have more or less given up the case and no point will be served in persisting with the said agency. Reiterating the assertions in the writ petition, the learned counsel would argue that the entrustment of investigation with the fifth respondent would not prejudice the other respondents in any manner and it would secure the obligatory requirement of a fair, effective and partial inquisition. 22. That the extra-ordinary power of the constitutional courts Under Articles 32 and 226 of the Constitution of India the issuance of direction to the CBI to conduct investigation must be exercised with great caution was underlined in Committee for Protection of Democratic Rights (supra). 22. That the extra-ordinary power of the constitutional courts Under Articles 32 and 226 of the Constitution of India the issuance of direction to the CBI to conduct investigation must be exercised with great caution was underlined in Committee for Protection of Democratic Rights (supra). The Apex Court had observed that although no inflexible guidelines can be laid down in this regard, it was highlighted that such an order cannot be passed as a matter of routine or merely because the party has levelled some allegations against the local police and can be invoked in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental right. 23. In Prof K.V. Rajendran V Superintendent of Police, CBCID South Zone Chennai and others [2013 KHC 4641] the Apex Court in paragraph No. 6 had observed as follows :- "The issue involved herein, is no more res integra. This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having "a fair, honest and complete investigation", and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies." 24. Any criminal offence is one against the society at large casting an onerous responsibility on the state, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and in a committed manner. The state is always accountable to the law abiding citizenry for any lapse in the expeditious and fair conduct of the Investigation carried out by the Investigating agency. 25. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. The state is always accountable to the law abiding citizenry for any lapse in the expeditious and fair conduct of the Investigation carried out by the Investigating agency. 25. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Art.20 and Art.21 of the Constitution of India. (See Manu Sharma v. State (NCT of Delhi), 2010 (6) SCC 1 ). 26. As held in Manu Sharma (supra), the importance of a fair and proper investigation cannot be understated. Courts have always tenaciously defended the rights of the accused as well as the victim to have a fair investigation and trial as in an adversarial system of administration of justice, fairness of investigation is the very first requirement for the fairness of a trial. 27. The expression "fair and proper investigation" in criminal jurisprudence was held by this Court in Vinay Tyagi v. Irshad Ali @ Deepak and Ors. [ (2013) 5 SCC 762 ] to encompass two imperatives; firstly the investigation must be unbiased, honest, just and in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya and Ors. v. State of Karnataka and Ors. [ (2012) 7 SCC 407 ] that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction. 28. In Dharam Pal V State of Haryana and others, the Apex Court in paragraph No. 21 had occasion to observe as follows :- "......................... Any lapse, it was proclaimed, would result in error of jurisdiction. 28. In Dharam Pal V State of Haryana and others, the Apex Court in paragraph No. 21 had occasion to observe as follows :- "......................... It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the 'faith' in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the "tour de force" of the prosecution and if we allow ourselves to say so it has become "'id'ee fixe" but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law". 29. It is blatantly obvious that the petitioner has been treated in a grossly unfair manner. As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law". 29. It is blatantly obvious that the petitioner has been treated in a grossly unfair manner. The case diary and the scores of statements filed before this Court would reveal that investigation was initially conducted by a Sub Inspector of Police and in course of time, the same was handed over to the officer of the Highest Rank in the State Police. This Court has consistently passed orders directing the officers concerned to harness all the resources at their command to solve the mystery surrounding the death of Abdu, the son of the petitioner. Though the case diary would reveal that several witnesses have been questioned, no results have been achieved till date. The brutal killers are still at large. Other than the recovery of a blood stated weapon and the shedding of names of certain suspects, nothing else has transpired. It is obvious that the officers concerned has thrown in the towel and the investigation has reached a mortuus finem. 30. The power of the constitutional courts to direct further investigation or re-investigation is a dynamic component of its jurisdiction to exercise judicial review, a basic feature of the Constitution. Though it has to be exercised with due care and caution and with self imposed restraint, the plenitude and content thereof can neither be enervated nor moderated by any legislation. Fair trial and fair investigation is also part of constitutional rights guaranteed under Art.20 and Art.21 of the Constitution of India. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. I am of the firm view that if this Court fails to interfere in this matter on the ground that 10 years have lapsed, it would result in failure of justice. 31. It has also been held by the Apex Court that the availability of power in the Constitutional Courts and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. 31. It has also been held by the Apex Court that the availability of power in the Constitutional Courts and its exercise are two distinct matters. This Court does not direct transfer of investigation just for the asking nor is transfer directed only to satisfy the ego or vindicate the prestige of a party interested in such investigation. The decision whether transfer should or should not be ordered rests on the Court's satisfaction whether the facts and circumstances of a given case demand such an order. No hard-and-fast rule has been or can possibly be prescribed for universal application to all cases. Each case will obviously depend upon its own facts. What is important is that the Court while exercising its jurisdiction to direct transfer remains sensitive to the principle that transfers are not ordered just because a party seeks to lead the investigator to a given conclusion. It is only when there is a reasonable apprehension about justice becoming a victim because of shabby or partisan investigation that the Court may step in and exercise its extraordinary powers. The sensibility of the victims of the crime or their next of kin is not wholly irrelevant in such situations. After all transfer of investigation to an outside agency does not imply that the transferee agency will necessarily, much less falsely implicate anyone in the commission of the crime. That is particularly so when transfer is ordered to an outside agency perceived to be independent of influences, pressures and pulls that are commonplace when State Police investigates matters of some significance. The confidence of the party seeking transfer in the outside agency in such cases itself rests on the independence of that agency from such or similar other considerations. It follows that unless the Court sees any design behind the prayer for transfer, the same must be seen as an attempt only to ensure that the truth is discovered. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent. (See Mithilesh Kumar Singh V State of Rajasthan and others 2015 (9) SCC 795 ). 32. The hallmark of a transfer is the perceived independence of the transferee more than any other consideration. Discovery of truth is the ultimate purpose of any investigation and who can do it better than an agency that is independent. (See Mithilesh Kumar Singh V State of Rajasthan and others 2015 (9) SCC 795 ). 32. It was further held in Mithilesh Kumar Singh (supra) that transfer of Investigation to the CBI have been ordered by the Constitutional Courts in varied situations but the test which has to be applied is whether the order was made in view the nature of allegations, necessary with a view to making the process of discovery of truth credible. It was further held that there has never been any reluctance on the part of the Court to grant relief to the victims or their families in cases, where intervention is called for, nor is it necessary for the petitioner seeking a transfer to make out a cast - iron case of abuse or neglect on the part of the State Police, before ordering a transfer. Transfer can be ordered once the Court is satisfied on the available material that such a course will promote the cause of justice, in a given case. 33. The fact that a decade has passed after the murder is no reason to deny the relief to the petitioner. A perusal of the record of the writ proceedings, will clearly demonstrate that there was no deliberate inaction or laches on the part of the petitioner. It would reveal a sordid picture of a mother praying for urgent intervention asserting that the local police, in spite of all their efforts, and the orders passed by this Court, has not made any sort of headway in the investigation. In Pooja Pal V Union of India and others [ (2016) 3 SCC 135 ] the Apex Court, on facts of that case, has held that the fact that a decade has passed after commission of the Crime is no reason to refuse the prayer for CBI investigation. The premier agency was directed in spite of the constraints that it may face in view of the time lag, to make all possible endeavors to disinter the truth through its effective and competent investigation and submit the same before the trial court. 34. The premier agency was directed in spite of the constraints that it may face in view of the time lag, to make all possible endeavors to disinter the truth through its effective and competent investigation and submit the same before the trial court. 34. After having considered the matter in all perspectives, this Court is of the view that the prayer sought for cannot be denied to the petitioner. None of the grounds raised by the respondents are found to be convincing enough to deny the prayer. The call of justice demands, that the CBI in spite of the constraints that it may face in view of the time lag, would make all possible endeavor to unravel the truth through an effective and competent investigation and submit the same before the trial court, as early as possible. 35. Accordingly, in the interests of justice and to enhance the credibility and more particularly, to instill public confidence in the system, the investigation in Crime No. 865 of 2006 of the Kodungallor Police Station should be entrusted with the 5th respondent. I make it abundantly clear that this direction for handing over of the investigation to the CBI has been made in view of the exceptional features of the case as overwhelmingly demonstrated by attendant facts and circumstances indispensably necessitating the same. 36. In the result, this Writ Petition is disposed of with the following directions:- a. The investigation of Crime No. 865 of 2006 of the Kodungallor Police Station and re-registered as Crime No. 444/CR/HHW-II/EKM/1010 by the Crime Branch shall be transferred to the 5th respondent for investigation. b. The investigation files of the above case shall be immediately handed over to the 5th respondent, Superintendent of Police, CBI (SPE) Ernakulam and he shall entrust the charge of investigation with an officer/team of officers he chooses with proven track record. c. All assistance including all necessary infrastructures shall be afforded by the respondents 1 to 4 to the officers of the C.B.I. investigating the above case for carrying out the investigation in a free, fair, unbridled and impartial manner.