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2017 DIGILAW 248 (KER)

Shaji v. State of Kerala

2017-02-02

ANU SIVARAMAN, THOTTATHIL B.RADHAKRISHNAN

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JUDGMENT : THOTTATHIL B.RADHAKRISHNAN, J. 1. A common judgment issued in two Writ Petitions on issues referable to handing over of investigation of a criminal case to Central Bureau of Investigation (CBI) is under challenge in these intra-court appeals filed under S.5 of the Kerala High Court Act, 1958. 2. Heard the learned senior advocates for the appellants, the learned senior advocate for the contesting respondent and the learned Advocate General. 3. We are concerned with Crime No.136 of 2012 of Kannapuram Police Station, Kannur District; for short, ‘Crime Case’. W.P.(C) No.25123 of 2013 was filed by the mother of the deceased victim alleging that the investigation at the hands of the State Police is misdirected, particularly inasmuch as there was a concerted effort on the part of the investigator or the investigating team to exclude accused persons at serial Nos.32 and 33 (A32 and A33) from being covered for commission of all the offences which are traceable to them, including criminal conspiracy; and that those persons are attempted to be charged only with lesser offences. She, therefore, sought appropriate orders for handing over the crime Case to the C.B.I. for investigation. Pending her Writ Petition, final report was filed before the JFCM concerned. That final report is one whereby though A32 and A33 were enlisted alleging commission of punishable under S.118 I.P.C. read with Ss.364, 367 and 302 I.P.C., those persons were not arraigned for offence punishable under S.120B I.P.C., even though allegation of such offence is levelled against A28, A29, A30 and A31. 4. Pending the afore-noted Writ Petition, Government of Kerala issued notification dated 18.12.2013 under Section 6 of the Delhi Special Police Establishment Act, 1946, ‘DSPE Act’, for short, according consent to the members of the Delhi Special Police Establishment to exercise powers and jurisdiction in the whole of State of Kerala to investigate the offences involved in the Crime Case and other matters thereto. That is the Crime Case in relation to which the mother of the victim had sought direction to have the case investigated through C.B.I. The said notification was published in the Kerala Gazette on 19.12.2013. 5. Challenging the aforesaid notification, W.P.(C) No.572 of 2014 was filed by T.V. Rajesh, who is arrayed as accused No.33 in the Crime Case, and one Shaji K.V. 6. 5. Challenging the aforesaid notification, W.P.(C) No.572 of 2014 was filed by T.V. Rajesh, who is arrayed as accused No.33 in the Crime Case, and one Shaji K.V. 6. The sum and substance of the allegations of the mother of the victim being that accused No.32 who was the District Secretary of CPI(M), a political party, and accused No.33, who is a member of the Kerala Legislative Assembly, have been surreptitiously excluded from being charged for offences relating to criminal conspiracy etc., though their involvement to that effect is so apparent and overwhelming; the accused persons who challenged the State Government’s notification under the D.S.P.E. Act took the stand that the victim’s mother is a tool in the hands of I.U.M.L., another political party. 7. After considering the submissions of the learned counsel for the parties and also taking note of the submission on behalf of the State Government, the learned single Judge held that even if the Central Government has not issued a further notification following the notification issued by the State Government giving consent under the D.S.P.E. Act, this is an eminently fit case where this court steps in, in exercise of powers under Article 226 of the Constitution of India and the power of the High Court under S.482 Cr. P.C. to order a further investigation in the matter and to entrust such further investigation to C.B.I. The learned single Judge also did not countenance the opposition of the Central Government that C.B.I. is flooded with similar investigations because, according to the learned single Judge, when the conscience of the Court is shaken and when the cries of the bereaved mother of the deceased are echoing in the ears of the Court, the matter cannot be left without this Court ordering a further investigation of the case to be conducted by C.B.I. 8. At this point of time, we make record that the learned single Judge had noted that even the Explanatory Note attached to the notification issued by the State Government clearly revealed that the State Police Chief wanted to have a further investigation in the matter and this stand of the State Government was, apparently, reiterated even before the learned single Judge. 9. 9. Referring to the relevant judicial precedents governing the field and noticing the impact of those decisions, the learned single Judge adverted to the question as to whether the final report reflects unfairness in the matter of investigation, thereby prompting this Court to exercise its extraordinary jurisdiction. It is apposite to quote paragraphs 30 and 31 of the impugned judgment, which read as follows: “30. Now the question to be looked into is whether the final report reflects unfairness in the matter of investigation and whether there are matters that prick the conscience of this court. No doubt, the petitioner in W.P.(C) No.25123 of 2013, who is none other than the mother of the deceased young man of 21, entertains a strong feeling and belief that there was a conspiracy hatched by A32 and A33 along with the other accused persons who were present at room No.315 of the said Co-operative Hospital, Taliparamba, which culminated in the brutal murder of her son. The way in which the investigating officer has prepared the Final Report in the case, clearly reveal that the investigating officer has laboured much to discriminate A32 and A33 from the charge of criminal conspiracy under S.120B I.P.C. 31. As per the final report, even according to the investigating officer, A32 and A33 were present in room No.315 at the relevant time. The investigating officer has gone to the extent of arraigning A28, A29, A30 and A31, who were allegedly present along with A32 and A33 at room No.315 and its surroundings, with the aid of the offence under S.120B I.P.C. According to the petitioner, the investigating officer could not collect the evidence relating to A32 and A33 regarding the said element of conspiracy. It is the specific case of the mother of the deceased that the investigating officer was unable to collect the evidence and to probe further in the matter solely because of the stiff resistance and intimidatory tactics being played by the particular political party of which A32 and A33 are leaders.” 10. It is the specific case of the mother of the deceased that the investigating officer was unable to collect the evidence and to probe further in the matter solely because of the stiff resistance and intimidatory tactics being played by the particular political party of which A32 and A33 are leaders.” 10. While the learned Senior Advocates appearing for the appellants vehemently argued that in the case in hand, there is absolutely no room to order further investigation or fresh investigation and the learned single Judge had exceeded jurisdiction primarily because certain preconceived views have been taken, that too merely reckoning the possible emotions of the mother of the deceased, we are of the view that the aforequoted two paragraphs from the impugned judgment are reasons sufficient enough for us to ensure for ourselves that the learned single Judge was satisfied that reasons existed to hold that the investigation was not fair and there were earnest efforts to surreptitiously exclude A32 and A33 from being proceeded against on counts of, and those relatable to, criminal conspiracy and allied matters. 11. Since there was criticism levelled during the course of arguments as to the manner in which the notification was issued by the State Government under the D.S.P.E. Act, we had called for the relevant papers which included communications as between the Principal Secretary to the Government, the State Police Chief and the District Police Chief of Kannur District. Examining those materials which were placed before us by the “learned Advocate General for perusal, we cannot but hold that the learned single Judge was fully justified in taking the view that the State Police Chief had materials to come to the conclusion that the investigation was not fair and proper, and it was therefore that he had recommended that the Crime Case be transferred to C.B.I. for further investigation. The materials that we have been shown, clearly clinch the issue to the extent it establishes that the State Police Chief had materials before him to conclude that the case is one which needed to be further investigated and that the investigation at the hands of the State Police could not be a “safe” procedure on the scales of criminal justice delivery system. We say this because the State Police Chief had addressed the Principal Secretary in the Home Department making reference to the inputs from the District Police Chief, Kannur and indicating that considering the facts and circumstances of the case and the involvement of some prominent persons, who happen to be leaders of a particular political faction and the political scenario in Kannur, it is just and proper to entrust further investigation of the case to C.B.I. The learned single Judge cannot, therefore, be found fault with for having exercised the jurisdiction under Article 226 of the Constitution of India and S.482 Cr.P.C., which are potentially powerful tools at the hands of highest seat of judiciary of the State, i.e., the High Court, to ensure that justice is meted out through the criminal justice delivery system, fairly and without fear or favour. Investigation is expected to reveal; not conceal. If investigation stoops under uncalled-for social, economic or political pressures, that would sound the death knell of the criminal justice system. This will lead to extra-constitutional subversion and oppression of the due course and flow of Rule of Law. 12. The learned senior advocates appearing on behalf of the appellants attempted to justify the filing of the final report by the investigating agency and contended that in terms of the decisions of the Apex Court, it was impermissible to hand over the Crime Case to the C.B.I. even through the intervention of this Court in writ jurisdiction. It was pointed out that the persons against whom the investigation through the C.B.I. was sought to be targeted at the instance of the mother of the victim ought to have been given an opportunity to oppose the request. It was argued that the learned single Judge had essentially indicated, quite conclusively, that certain offences have been committed by A32 and A33, which offences have not been enumerated in the final report submitted by the investigating agency and that this was in excess of jurisdiction of the learned single Judge. It was argued that the learned single Judge had essentially indicated, quite conclusively, that certain offences have been committed by A32 and A33, which offences have not been enumerated in the final report submitted by the investigating agency and that this was in excess of jurisdiction of the learned single Judge. Per contra, the learned counsel appearing for the victim’s mother argued that it is the settled position of law that the person against whom a specific accusation may ultimately stand is not a necessary person to be heard in relation to a Writ Petition seeking direction to hand over the investigation to the C.B.I. and that, once the learned single Judge was satisfied on the facts and materials that the case deserves to be handed over to the C.B.I. by taking it off from the agency which was carrying out the investigation and which even filed the final report, it would be hyper technical to insist that the so-called concluded investigation should be permitted to stand. He argued that if such course is resorted to, it would only imperil the rights of the victim and deflect the course of the criminal justice delivery system. 13. Reference was made by the learned counsel on either side to different precedents; among which, in the context of the case in hand, we see that it is apposite to refer to the decisions of the Hon’ble Supreme Court of India in Rubabbuddin Sheikh v. State of Gujarat, (2010) 2 SCC 200 ) and Pooja Pal v. Union of India (Criminal Appeal No.77 of 2016), the first among which was by the mother of the victim and the second, by the widow of the victim. In Pooja Pal, quoting the observations of Lord Denning from The Due Process of Law, it was noted, inter alia, that in safe-guarding our freedoms, the society needs for its defence, a well-led, well-trained and well-disciplined force of police whom it can trust; and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice. Referring to Criminal Investigation - Basic Perspectives by Paul B. Weston & Renneth M.Wells, the avowed purpose of a criminal investigation and its efficacious prospects were pointed out, inter alia, to the effect that successful investigations are based on fidelity, accuracy, and sincerity in lawfully searching for the true facts of an event under investigation and on an equal faithfulness, exactness and probity in reporting the results of an investigation. Suffice it to say; these principles underscore the need for reliable investigation as one of the strong pillars of faith of the people in the criminal justice delivery system. Hence, we are of the view that in the case in hand, the learned single Judge cannot be found fault with for having exercised the discretionary jurisdiction under Article 226 of the Constitution and S.482 Cr. P.C. to order further investigation and hand over the Crime Case to the Central Bureau of Investigation. We also do not find any merit in the contention that the accused persons had an indefeasible right to be heard in opposition to reference of the Crime Case to the Central Bureau of Investigation. We do not find any jurisdictional error or legal infirmity in this regard, either. 14. Objections were raised by the appellants that the learned single Judge had not called for and examined the investigation file. Having regard to the quality of the observations made by the learned single Judge as regards the contents of the final report, this contention could be treated as hyper technical. Be that as it may, we called for the entire records which are now in the custody of C.B.I. We have perused those documents thoroughly. We are satisfied that the impugned judgment has to stand to secure the ends of justice. There is no other view possible on the case in hand. 15. In the light of the view that we have taken above, we notice that there is no ground to hold that the discretion under Article 226 of the Constitution of India or S.482 Cr.P.C. was erroneously or illegally exercised by the learned single Judge. No case of excessive, or even erroneous, exercise of jurisdiction has been made out. 15. In the light of the view that we have taken above, we notice that there is no ground to hold that the discretion under Article 226 of the Constitution of India or S.482 Cr.P.C. was erroneously or illegally exercised by the learned single Judge. No case of excessive, or even erroneous, exercise of jurisdiction has been made out. We say this notwithstanding the fact that if we were to treat it as merely an order under S.482 Cr.P.C., an intra-court appeal would not lie to the Division Bench, viewing from the scales of the jurisdiction under Article 226 of the Constitution of India, we do not find our way to interfere with the decision of the learned single Judge. 16. All the aforesaid apart, we notice that the impugned judgment contains fairly critical and strongly worded expressions on different aspects of the societal fabric, including the political colours and the probability of extra constitutional powers being illegally exercised merely because of political power or will. The learned single Judge was apparently visualizing the heartburn of the mother who had lost her 21 year old son, vis-a-vis, the political scenario in which there were fights among people owing allegiance to different political parties, conglomerations, or even fractions. The allegation in the Crime Case also appears to suggest that the assailant in one incident becomes the victim in the next. Whatever the learned single Judge has said to that extent through the impugned judgment in the Writ Petitions ought to be considered only as expressions of anguish from the judicial seat, where such social pressures of oppression will not go unnoticed. We are sure that those observations in the impugned judgment will not, in any manner, by themselves, guide the investigation by C.B.I. following the directions issued through the impugned judgment. In the result, for the aforesaid reasons, these Writ Appeals fail and they are dismissed.