IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 WP(C).No. 685 of 2011(I) ------------------------ CRIME NO.10/2010 OF NILAMBUR POLICESTATION PETITIONER(S): --------------- JOSEPH KUNCHERIA MARATTUKULAM, S/O. LATE KUNCHERIA MARATTUKULAM, AGED 57 YEARS, MANAGING DIRECTOR, I.P. RUBTY LATEX PVT.LTD., TANAH, NILAMBUR, MAMPAD.P.O, MALAPPURAM DISTRICT. BY ADV. SRI.PIUS C.MUNDADAN SMT.ANJU DIVAKAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM -695 001. 3. ADDITIONAL DIRECT GENERAL OF POLICE (INTELLIGENCE), HEADQUARTERS, SPECIAL BRANCH CID, THIRUVANANTHAPURAM - 695 001 4. THE SUPERINTENDENTOF POLICE, MALAPPURAM- 676505. 5. THE CIRCLE INSPECTOR OF POLICE, NILAMBUR-679329. 6. THE SUB INSPECTOR OF POLICE, NILAMBUR POLICE STATION, NILAMBUR, MALAPPURAM DISTRICT - 679 329. 7. THE DEPUTY SUPERINTENDENT OF POLICE, SPECIAL BRANCH, MALAPPURAM - 676 505. 8. THE DEPUTY SUPERINTENDENT OF POLICE, MALAPPURAM - 676 505. WP(C) NO.685/2011 2 9. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI - 110 001. ADV. SRI.P.CHANDRASEKHARA PILLAI,SC, C.B.I. FOR R9 GOVERNMENT PLEADER SHRI K.J.MOHAMMED ANZAR FOR R1 TO R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.685/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE LICENCE ISSUED BY THE RUBBER BOARD IN THE NAME OF IP RUBY LATEX PVT. LTD. EXT.P2 TRUE COPY OF THE ANALYSIS REPORT DATED10.11.2009 EXT.P3 -DO- DATED 18/11/2009 EXT.P4 TRUE COPY OF THE LATEST LICENCE ISSUED BY THE MAMPAD GRAMA PANCHAYAT WHICH WAS VALID UPTO 31.3.2010 EXT.P5 TRUE COPY OF THE ISO 9001:2008 CERTIFICATE ISSUED IN THE NAME OF IP RUBY LATEX PVT.LTD EXT.P6 TRUE COPY OF ISO 14001:2004 CERTIFICATE ISSUED IN THE NAME OF IP RUBY LATEX PVT.LTD. FOR ENVIRONMENTAL MANAGEMENT SYSTEM EXT.P7 TRUE COPY OF STATEMENT RECORDED BY THE CHAIRMAN OF THE RUBBER BOARD IN THE VISITORS BOOK EXT.P8 TRUE COPY OF STATEMENT RECORDED BY THE ASST. DISTRICT INDUSTRIES OFFICER EXT.P9 TRUE COPY OF STATEMENT RECORDED BY THE MANAGER OF M/S.KURLON LTD. ON 9.5.2008 IN THE VISITORS BOOK EXT.P10 TRUE COPY OF STATEMENT RECORDED BY AGM (WORKS) OF RULFILA INTERNATIONAL LTD. DATED 10.8.2006 IN THE VISITORS BOOK EXT.P11 TRUE COPY OF FIR DATED 6.12.2009 OF THE 6TH RESPONDENT ON THIS INCIDENT SENT TO JFCM, NILAMBUR EXT.P12 TRUE COPY OF SECOND COMPLAINT DATED 7.12.2009 SUBMITTED TO 6TH RESPONDENT EXT.P13 TRUE COPY OF ORDER DATED 11.12.2009 PASSDED BY THIS COURT IN WP(C) NO.35886/2009 EXT.P14 TRUE COPY OF JUDGMENT DATED 18.1.2010 OF THIS COURT IN WP(C) NO.35886/2009 EXT.P15 TRUE COPY OF REPORT OF MEDICAL OFFICER, MAMPAD DATED 15.12.2009 EXT.P16 -DO- OF THE GRAMA PANCHAYAT EXT.P17 -DO- OF THE POLLUTION CONTROL BOARD DATED 24.12.2009 EXT.P18 TRUE COPY OF APPEAL TO THE PUBLIC ISSUED BY THE PETITIONER COMPANY EXT.P19 TRUE COPY OF PHOTOSTAT SHOWING DAMAGE AND DESTRUCTION TO MOTOR CYCLES WP(C) NO.685/2011 EXT.P19(a) -DO- TO THE FACTORY OF PETITIONER EXT.P19(b) -DO- -DO- EXT.P19(c) -DO- -DO- EXT.P19(d) -DO- -DO- EXT.P20 TRUE COPY OF NEWSPAPER REPORT PUBLISHED IN FRONT PAGE OF MALAYALA MANORAMA DAILY DATED 6.1.2010 EXT.P20(a) -DO- OF MATHRUBHUMI DAILY DATED 6.1.2010 EXT.P21 TRUE COPY OF FIR DATED 5.1.2010 IN CRIME NO.10/2010 OF NILAMBUR POLICESTATION EXT.P22 TRUE COPY OF REPRESENTATION DATED 5.4.2010 SUBMITTED TO THE HOME MINISTER EXT.P23 TRUE COPY OF REPORT DATED 17.2.2010 OF THE 3RD RESPONDENT EXT.P24 TRUE COPY OF THE NEWSPAPER REPORT PUBLISHED IN MALAYALA MANORAMA DAILY DATED 29/1/2011 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C.) No.685 of 2011 -------------------------------------- Dated this the 16th day of February, 2011. JUDGMENT Petitioner is the Managing Director of I.P.Ruby Latex Pvt. Ltd. (for short, “the Company”) at Mampad, near Nilambur in Malappuram District. On 06.12.2009, it is alleged, a mob trespassed into its factory and destroyed furniture in the office causing loss of around Rupees one lakh. Regarding that, a complaint was lodged with the Nilambur Police who registered Ext.P11, FIR against certain identifiable persons. While so on 07.12.2009 there was yet another attack on the said factory by certain miscreants trespassing into it, damaged the factory, equipments, etc. and caused loss of around `.3.5 lakhs. Again the company authorities preferred a complaint to the local police who registered Ext.P12, FIR. Since inspite of the above two incidents the local Police did not afford necessary protection to the Company, it was constrained to move this Court for police protection vide W.P.(C) No.35886 of 2009. This Court by Ext.P13, interim order dated 11.12.2009 directed the Police to afford necessary protection to the company. But, nothing was done in the matter, petitioner complains. WP(C) No.685/2011 2 2. On 05.01.2010 a mob carrying deadly weapons and said to be led by one Abdul Karim who is a political leader of the locality went to a nearby factory by name 'Merdac R.K.Latex Pvt. Ltd.' and started erecting a shed in the premises of the said factory. Another group attacked the Security Guard and destroyed vehicles parked in the premises of that factory. The security staff were beaten up and the armed security staff fired in the air to disperse the violent mob. A person was shot below his knee. The mob turned violent and set fire to the factory. The factory of petitioner is situated about one kilometre away from the factory which was set fire. In between those two factories is situated another factory by name 'Velankanni Matha Rubber Products'. Petitioner, learning about the incidents which occurred in Merdac R.K.Latex Pvt. Ltd. informed respondent Nos.5 and 6, Circle Inspector and Sub Inspector of the area concerning the incidents and the possibility of factory of petitioner also being attacked by the mob. Petitioner contacted the said officers over telephone several times between 11.30 a.m. and 12 noon. But, inspite of the factory of petitioner being situated five kilometres away from the local Police Station and notwithstanding that this Court passed interim order to afford protection to the factory of petitioner, nothing was done by the Police. Petitioner informed the Police Officers that miscreants might attack his factory. He contacted the Superintendent of Police, Malappuram expressing his apprehension in the matter. Still, nothing worthwhile happened. Petitioner even contacted the Special Branch Police and intimated them about the impending WP(C) No.685/2011 3 attack. At about 12.05 p.m. about 50 persons attacked the factory of petitioner with iron rods, sticks and stones and some of them carried inflammable articles in cans. Certain persons had come on motor bikes carrying those cans. They set fire to the motor bikes parked in the premises of the factory of petitioner. Others in the mob attacked the factory building and set fire to the factory and store room. Ext.P19 series are the photographs of the factory which was gutted in fire. 3. The prayer in this petition is to handover investigation of the case to the Central Bureau of Investigation (for short, “the CBI”). It is stated that investigation is being conducted by respondent No.8, the Deputy Superintendent of Police, Malappuram. Petitioner contends that regarding the matter, the Government had called for a report from the Additional Director General of Police (Intelligence) and that officer had given a report (a copy of which is Ext.P23) which stated that the Malappuram Police did not take necessary action to prevent the untoward incident notwithstanding Ext.P13, order of this Court. The attack on the factory of petitioner was well planned at the instance of some political leaders of the locality and involving the Managing Director of Velankanni Matha Rubber Products to gain monopoly in the business. It is alleged that Abdul Karim who is the Vice President of the local Panchayat, President of Mampad unit of the Indian Union Muslim League and an employee of Velankanni Matha Rubber Products is very much involved in the incident. WP(C) No.685/2011 4 According to the petitioner, involvement of fundamentalist elements in the incident also cannot be ruled out. Petitioner contended that it is not merely complacency on the part of the local Police in providing protection to the factory notwithstanding Ext.P13, order but their hand and legs were tied by certain extra constitutional authorities and hence the involvement of the Police also is to be the subject matter of investigation. In such a situation investigation by the local Police is not likely to yield the expected result and hence the prayer to entrust investigation to the CBI. Learned counsel has placed reliance on the decision of the Supreme Court in (1988 SCC (Cri.) 864), Gudalure M.J.Cherian v. Union of India ((1992) 1 SCC 397) and Rubabbuddin Sheikh v. State of Gujarat and others ((2010) 2 SCC 200). 4. Respondent No.8 in answer to the averments in the Writ Petition has filed a counter affidavit denying all allegations regarding complacency on the part of Police. It is stated that the local Police has registered a case with respect to the destruction of the factory of petitioner and that persons whose involvement is revealed in the investigation have already been arrested. It is stated in paragraph 6(3) of the counter affidavit that the local Police has registered Crime No.10 of 2010 for offences punishable under Sections 143, 147, 148, 427, 452, 435 and 436 read with Section 149 of the Indian Penal Code. The Circle Inspector of Police, Nilambur investigated the case with the help of Cyber Cell, Malappuram regarding involvement of the accused and WP(C) No.685/2011 5 others. A Special Investigation Team was constituted under the leadership of respondent No.8, the Deputy Superintendent of Police, Malappuram as per order of the Superintendent of Police, Malappuram with sufficient number of Police Personnels including the Circle Inspector of Police, Nilambur, Assistant Sub Inspector of Police, Nilambur and others. In the course of investigation accused Nos.8 to 17 were identified. Those persons were arrested and later they were released on bail. In paragraph 7 of the counter affidavit it is stated that on 26.01.2011 (almost a year after the incident) one Nizar Ahammad from Kanjirappally came to the office of respondent No.8 and said that he was doing rubber business along with one Rouf at Calicut and that the said Rouf had committed many criminal acts including destruction of a rubber factory at West Hill, Calicut by setting fire to it in the year 1996. Nizar Ahammad confessed that he also assisted Rouf to set fire to the said latex factory at West Hill, Calicut. He expressed doubt about involvement of the said Rouf in the destruction of rubber factories at Nilambur (including that of petitioner) by setting fire to it. In paragraph 8 of the counter affidavit it is stated that investigation is being continued on the suspected hidden conspiracy as stated by the said Nizar Ahammad and so far, no positive clue could be obtained but, efforts are on to find out whether there is any truth in what Nizar Ahammad said. The deponent concludes his affidavit stating that investigation is going on in the proper manner and all earnest efforts are being continued to conclude the investigation WP(C) No.685/2011 6 and submit final report in the case. But present Investigating Agency has no objection in entrusting the case with any other Agency as this Court deems fit and proper. 5. Countering the counter affidavit petitioner has filed a reply affidavit asserting the averments in the petition and urging that there was total inaction on the part of the local Police before the incident in preventing it and after it in properly investigating and booking the culprits. Learned counsel for petitioner contended that Devassy referred to in Ext.P23, report of the Additional Director General of Police (Intelligence) has not even been questioned. Learned counsel also pointed out that involvement of the person named by Nizar Ahammad has not been properly verified by the Investigating Agency, not to say about involvement of political leaders who remained behind the curtain. Learned counsel placing reliance on the decisions referred above argued that in appropriate cases when the court considers that investigation by the Police is not in the proper direction and in order to do complete justice and to instill confidence in the mind of the public it is open to this court to handover investigation to a independent agency like the CBI. 6. Learned Public Prosecutor contended that the case is being investigated by the present team properly, effectively and in the correct direction. It is pointed out that Abdul Karim, local leader of a political party referred WP(C) No.685/2011 7 above is accused No.1 in the case registered by the local police, altogether 17 accused have already been identified and arrested and that Devassy, Managing Partner of Velankanni Matha Rubber Products has also been questioned and his call details during the relevant time have been verified. Learned Standing Counsel for the CBI would contend that this is not a fit case to entrust investigation to that Agency in the light of the decision of the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010 (1) KLT 723). It is contended that there is dearth of officers with the CBI to investigate the large number of cases entrusted to it. Learned counsel pointed out that during the last year, this Court ordered investigation of 19 cases by the CBI. 7. In Rubabbuddin Sheikh v. State of Gujarat and others (supra) the Supreme Court has held that it is necessary to ensure that investigation should not only be fair but should also be seen to be fair in order to instill confidence in the mind of victims of crime and the general public. In that case having regard to the facts and circumstances investigation was entrusted to the CBI. It was observed that in appropriate cases the High Court entitled to order investigation by the CBI even when a charge sheet has been submitted. Reference has been made to the decision in Kashmeri Devi v. Delhi Administration (supra) in paragraph 56 of the said decision where it was WP(C) No.685/2011 8 held that where the Police had not acted fairly and acted in a partisan manner to shield the real culprits, it would be proper and interest of justice will be served if investigation is handed over to the CBI or an independent Agency for proper investigation of the case. In paragraph 58 reference is made to the decision in Gudalure M.J.Cherian v. Union of India (supra) where the Supreme Court referred to the increasing demand for CBI investigation but, nevertheless in a given situation to do justice between the parties and to instill confidence in public mind it may become necessary to ask the CBI to investigate the crime. 8. In State of West Bengal v. Committee for Protection of Democratic Rights (supra) the Constitution Bench of the Supreme Court has laid down guidelines for entrusting investigation of cases to the CBI. It is held that although no inflexible guidelines can be laid down to decide whether or not such power should be exercised, 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 levelled some allegations against the local Police. The extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The Supreme Court has also pointed out that otherwise the CBI would be flooded with a large number of cases and WP(C) No.685/2011 9 with limited resources it may find it difficult to properly investigate even serious cases and in the process, lose its credibility and purpose with unsatisfactory investigations. 9. Now on the face of the above guidelines and factual situation emerging from the case, question for decision is whether in this case investigation by CBI is required. Ext.P23, report (dated 17.02.2010) submitted by the Additional Director General of Police (Intelligence) to the Additional Chief Secretary states the circumstances in which the incident occurred. The Additional Director General of Police has referred to the incident that occurred on January 5, 2010. It is stated that the Malappuram Police had not taken necessary action to enforce the order of this Court (Ext.P13) and in that situation, Merdac R.K.Latex Pvt. Ltd. had to appoint security men for protection of its factory. It is stated that enquiry revealed that the incident on 05.01.2010 was pre-planned and that there was an attempt to stop functioning of some of the latex factories to gain monopoly in the field for which certain political leaders and the Managing Director of Velankanni Matha Rubber Products (which according to the petitioner was not touched in the course of incidents on 05.01.2010) had made a pre-planned scheme. The report states that so far as the factory of petitioner was concerned, there was no indication of any water or air pollution (petitioner has a case that himself and family are residing in the WP(C) No.685/2011 10 compound of the same factory and hence there is no possibility of any such pollution). It is further stated (in Ext.P23) names of leaders of the action council with their political affiliation. 10. I referred to the investigation conducted so far by respondent No.8 as detailed in the counter affidavit and that 17 persons including Abdul Karim (who is said to have been the leader of the mob) have been arrested (though later released on bail). Investigation also revealed that the said Abdul Karim was getting some benefit from Velankanni Matha Rubber Products (which according to the Investigating Agency was the reason for not attacking the said factory). Learned Government Pleader has given me the Kerala Police Connectivity Pages - 2010-11 as to the division of work. It is seen that for hurt and homicide a separate wing (H and HW) is formed in the Crime Branch CID. Yet another wing has also been constituted under the Crime Branch CID (for organized crime wing). That wing is headed by the Deputy Inspector General of Police at the State level with its units at Thiruvananthapuram, Ernakulam, Palakkad and Kannur, each unit being headed by a Superintendent of Police and consisting of officers of the rank of Deputy Superintendent of Police and below. Malappuram District comes under the Palakkad unit (S.P.O.C.W. - III). WP(C) No.685/2011 11 11. No doubt it would appear from Ext.P23 and the facts revealed that there was inaction on the part of the local Police in giving sufficient protection to the factory of petitioner even when they were informed in advance about the impending incident and notwithstanding that this Court has passed Ext.P13, order directing police assistance. It is no answer to say that there was no sufficient Police strength. The Police had the duty to protect life and property ot the citizen. There is reason to think that the local Police failed in discharging that duty. I am not proceeding with that failure in this proceeding as that has to be decided in other appropriate proceeding. But it is a matter to be ascertained the reason for their inaction – was it mere complacency, lack of sufficient strength, or was there any force behind, constitutional or extra constitutional which tied the hands and legs of the Police in moving to the scene of occurrence and preventing the crime? That is a matter which the Investigating Agency has to look into. I do not intend to make any observation as to the correctness or otherwise of the said allegation made by the petitioner. I leave it to be investigated by the Police as hereinafter directed. But I am not inclined to think that there was no proper investigation at all. But of course, more serious investigation is needed. Intelligence reports may not be evidence in the case but would certainly guide the investigator in the proper line. It is not clear whether circumstances stated by the Additional Director of General of Police (Intelligence) in Ext.P23 have been explored in the investigation. The revelation made by Nizar Ahammad also cannot be brushed aside as irrelevant. For an WP(C) No.685/2011 12 intelligent investigator, nothing shall be irrelevant and inconsequential. He shall not leave any stone unturned. Having regard to the circumstances stated above I am not inclined to think that this is a case which comes within the guidelines prescribed by the Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (supra) and hence the matter has to go to the CBI. The State Police has to investigate the case and bring out all the culprits involved. Having regard to the facts and circumstances I am inclined to order that the further investigation be conducted by the S.P.O.C.W. - III, Palakkad. 12. I am coming across a large number of petitions where, for some reason or the other correct or not parties are approached this Court requesting to transfer investigation from the State Police to the CBI. Is it because people of this State have no confidence in investigation of their cases by the State Police, or is there anything defective in the investigation by the State Police? As the Supreme Court has pointed out in the decisions referred supra, investigation should not only be fair but also seen to be fair. It is the duty of the State to provide fair investigation. The citizen has the fundamental right for fair and proper investigation. If the State fails in that duty, it will have an adverse bearing on the administration of criminal justice and that ultimately may lead to private retribution which no civilized society can afford to bear. If the present investigation system is not able to rise to the expectations of the people and WP(C) No.685/2011 13 conduct investigation in a fair and proper manner bringing the culprits to book, it is high time that the State Government thought of making necessary amends. I am not inclined to think that in this State, there is dearth for intelligent Police Officers, skilled in investigation who can do the job in an excellent manner. They must be free to do their job. I had the occasion to deal with this matter while deciding S.C.No.151 of 1997 of the Sessions Court, Thalassery and in paragraph 63 of the judgment I referred to the need to set up Special Investigation Team to investigate into major crimes with some autonomy for such team. I also suggested that in such a situation immediately after a major crime is registered, it should be transferred to the Special Investigation Team for investigation. A copy of that judgment was forwarded to the State Government through proper channel for consideration. On a later occasion, while responding to the request of the State Government to make suggestions to prevent incidents like the one which occurred at Marad Beach, Kozhikode on 02.05.2005, I made recommendations in the report of the Commission of Judicial Enquiry and in Chapter X of the Report (Volume I) under the caption “legal measures” as item No.4 it was recommended that a State Bureau of Investigation at the State level and Crime Investigation Units under it at District level separate from the law and order maintenance wing had to be established. Persons having skill, intelligence and aptitude for intelligence collection, crime detection and investigation should be appointed in that Bureau and Units (by deputation and direct appointment) strictly on merit basis, after conducting WP(C) No.685/2011 14 aptitude test and personality and intelligence test. It was suggested that cases involving major crimes should be investigated by the State Bureau of Investigation and the Units under it. Modern equipments for investigation should be made available for those investigation units. It was also suggested that special rules must be framed for the posting and transfer of officers of the State Bureau of Investigation, District Crime Investigation Units and Intelligence Wings. It should be ensured that except for compelling reasons an officer in the course of investigation of