IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 8199 of 2007(A) ------------------------------------- PETITIONER: ------------------- SHYAMALA, W/O.RAJAN, AGED 53 YEARS, THEKKETHODY HOUSE, MARADU, KOZHIKODE DISTRICT. BY ADVS. MR.P.S.SREEDHARAN PILLAI, SMT.C.G.PREETHA. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE HOME SECRETARY, MINISTRY OF HOME AFFAIRS, CENTRAL SECRETARIAT, NEW DELHI. 2. SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING, NORTH BLOCK, NEW DELHI. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR, SPECIAL POLICE ESTABLISHMENT, CENTRAL BUREAU OF INVESTIGATION, NEW DELHI. R1 & R2 BY MR.P.PARAMESWARAN NAIR, ASST.S.G, R3 BY MR. K.K. RAVINDRANATH, DIRECTOR GENERAL OF PROSECUTIONS, R4 BY MR. M.V.S. NAMBOOTHIRY, SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/02/2009, ALONG WITH W.P.(C). NOS. 4622/ 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8199/2007-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C).NO.22566/2003. EXT.P.2: COPY OF THE REPORT OF THE MARADU ENQUIRY COMMISSION. EXT.P.3: COPY OF THE COMMUNICATION DTD. 12/09/2006. EXT.P.4: COPY OF THE NEWS REPORT DTD. PUBLISHED IN THE NEW INDIAN EXPRESS DT. 02/02/2007. EXT.P.5: COPY OF THE NEWSPAPER REPORT PUBLISHED IN THE PIONEER DTD. 02/02/2003. EXT.P.6: COPY OF THE JUDGMENT DTD. 16/03/2006 IN W.P.(C). NO. 1935/2006. RESPONDENTS' ANNEXURE: ANNEXURE-A: COPY OF THE NOTIFICATION NO.24507/SSA2/2003/HOME DTD. 08/03/2007. ANNEXURE-B: COPY OF THE G.O. (RT).NO:7910/06/GAD DTD. 09/10/2006. //TRUE COPY// P.S. TO JUDGE. Prv. J.B.KOSHY, Ag.CJ & V.GIRI, J. =========================== W.P.(C).Nos.8199/2007 (A), 4622/2007 (S), 8006/2007 (S) and 13850/2007 (W) =============================== Dated this the 18th day of February, 2009. J U D G M E N T Koshy, Ag.CJ. All these writ petitions are filed seeking CBI enquiry regarding Marad massacre which occurred on 2.5.2003 in which 9 persons lost their lives, several injured and several lost their residents. Earlier, W.P.(C).No.22378/03 and connected cases were filed on the very same relief and in view of the detailed investigation by the State Agency and after considering the contentions, this Court allowed those writ petitions to be withdrawn by judgment dated 31.7.2003. It is submitted that, later State Government even though decided to send part of the matter to be investigated by CBI, CBI did not accept it as investigation cannot be conducted partly as it will affect the main case investigated by the State Agency regarding the actual crime committed and it will result in conflict of findings. CBI wanted investigation in full and not in part as investigation by the State Agency was progressed well and finally several persons were W.P.(C).Nos.8199/2007 and connected cases. 2 charge sheeted and a trial has taken place. The trial court convicted 69 accused. 68 of them have been convicted for offence punishable under Section 302 IPC (murder) and they were sentenced to life imprisonment apart from other punishments. However, it was held by the Sessions Judge that the allegations regarding the conspiracy were not proved beyond doubt. We doubt whether an investigation, regarding conspiracy part alone conducted at this distance of time, will yield any result. About 6 years have passed after the incident. Except in compelling circumstances, High Court cannot issue writ of mandamus for directing CBI investigation. 2. A thorough investigation was already conducted by the CBCID (Crime Branch) State Police regarding actual crimes committed resulting in conviction of 69 persons. Apart from the above, Government also appointed a Commission of Enquiry. A learned District Judge conducted enquiry. Various measures were also suggested by the Commission to prevent such occurrence in future. It is submitted that such measures are being taken by W.P.(C).Nos.8199/2007 and connected cases. 3 the State Agency. It is also submitted that Mr.Mahesh Kumar Singla did not investigate the involvement of foreign elements etc., despite a statement submitted before this Court and action should be taken against him. It is further submitted that attitude of Mr.Mahesh Kumar Singla is suspicious. If there is any action to be taken against Mr. Mahesh Kumar Singla on the basis of the commission report, it is for the Government to take appropriate action according to law complying with principles of natural justice and service rules. 3. It is submitted that apart from the crimes and massacres committed on 3/4-1-2002 and 2.5.2003 in Marad, for which final reports were laid after conducting investigation which resulted in conviction and sentence of the accused, there is an element of larger conspiracy involving foreign elements, terrorist groups or fundamentalists and their involvement should be enquired by a cental enquiry as safety and communal harmony in our country is at stake. State Government has again requested the Central Government to order investigation by CBI W.P.(C).Nos.8199/2007 and connected cases. 4 in the larger conspiracy. After referring to the letters dated 12.9.2006, 6.7.2007, 4.2.2008 and 24.11.2008, by letter dated 3.1.2009 Government requested as follows: “As per this Government's letter 5th cited, Government of India was again requested to reconsider their stand on the request of the State Government for a CBI enquiry in to the larger conspiracy involving other forces, sources of all explosives, large quantity of weapons collected for the massacre and the source of the large funds used in the planning and execution of the incident that took place on 2.5.2003 at Marad, as recommended by Thomas P.Joseph Commission of Inquiry. 2) I would now inform that the crime cases registered by the Kerala Police in the Marad incident on 02.05.2003 have been tried in a Special Court, Kozhikode and the Court has pronounced its judgments on 27.12.2008, finding about 62 persons guilty. In the judgment it is understood that the Court has specifically observed that the conspiracy behind the Marad massacre could not be properly investigated by the State Agency, the Crime Branch. In the backdrop of the Court verdict the issue has acquired special importance. I am therefore to request you once again to reconsider the stand so far taken in the matter and to instruct the CBI to take up the investigation at the earliest.” W.P.(C).Nos.8199/2007 and connected cases. 5 In view of the above, we leave the matter open to the Central Government to take appropriate action. But, no grounds are made to issue a writ of mandamus to conduct investigation in a long pending matter and conviction and sentence ordered in connected criminal cases. We therefore, dispose of all the connected writ petitions accordingly. In view of the findings of this judgment, all the I.As also stand closed. J.B.KOSHY, ACTING CHIEF JUSTICE. V.GIRI, JUDGE. bkn/tks