IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 Crl.MC.No. 2338 of 2007(B) -------------------------- PETITIONER(S): --------------- VIJAYAKUMAR.S.NAIR, S/O.P.R.SANKARANARAYANAN NAIR, RESIDING AT GEETHANJALI, NANDIKULANGARA, NORTH PARUR, ERNAKULAM DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): --------------- 1. THE DEPUTY SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, SPECIAL CRIME BRANCH, A WING, 3RD FLOOR, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI. 2. CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, CBI HEAD QUARTERS, NEW DELHI. 3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1-2 R3 BY PUBLIC PROSECUTOR SRI.PUZHAKKARA MOHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------------- Crl.M.C.No. 2338 of 2007 ---------------------------------------- Dated this the 30th day of March, 2010 ORDER Sri. Shyamkumar was found missing since 10.09.02, under suspicious circumstances. He is stated to be an Electronic/Satellite Telecommunication Engineer. He is petitioner's brother. On the next day of missing, petitioner made a complaint to the North Paravur Police Station and a crime was registered as Crime no. 579/2002, under the caption, “man missing”, and the FIR is Annexure-1. 2. According to petitioner, Shyamkumar was married to Smt . Akhila on 25.7.1999 at a temple and this was not to the liking of Akhila's relatives. Therefore, Shyamkumar was assaulted and threatened by Akhila's relatives. Shyamkumar made a complaint to the North Parur Police Station and the Circle Inspector in respect of the incident. Since, those did not yield any result, Annexure-2 complaint dated 09.09.2002, was made by Shyamkumar to the Director General of Police. 3. As per the allegations in Annexure-2, on 07.09.2002, Shyamkumar was assaulted, threatened and criminally Crl.M.C.No. 2338 of 2007 2 intimidated, by certain named and unnamed persons who are identifiable by sight. They were armed with sword, knife etc., and were under the control of Shyamkumar's wife's uncle. Shyamkumar had also made clear in Annexure-2 that he apprehended danger to his life and also to his wife. 4. Petitioner filed a petition for writ of habeas corpus as WP (Crl.) No. 114/2004 since he suspected illegal detention of his brother Shyamkumar in the custody of respondents 5 to 14 (referred to in the writ petition), who are all related to Mrs. Akhila, wife of Shyamkumar. The police failed to produce the alleged detenue. This court passed Annexure-5 order dated 11.8.2004, in the said writ petition. The relevant portion is as follows: “Considering the fact that there has been considerable delay in the conduct of investigation and there is no headway and considering the fact that petitioner has got serious complaints against police officials also it would be appropriate that the investigation of the case be entrusted with the C.B.I. Appropriate orders may be passed to that effect by the Home Department of the State of Kerala. Petitioner would make available this order to the Home Department”. 5. Pursuant to directions issued by this court, as per Annexure-5 order, consequential orders were passed by the State Crl.M.C.No. 2338 of 2007 3 Government and C.B.I. took up the investigation. Crime No.579/2002 of North Parur Police Station was re-registered as “P.E” (Preliminary Enquiry). After the completion of enquiry, a report was filed by C.B.I before the Judicial Magistrate of First Class, North Parur. But the report was returned stating that the FIR. was not before the court. 6. Therefore, C.B.I. submitted report before the Registrar of this court and as per the direction of this Court, the report was submitted before the Sub Divisional Magistrate. As per the report, Sri Shyamkumar is not missing, but he was absconding, in the wake of various crimes registered against him. Petitioner would contend that there was no proper enquiry in the matter and C.B.I has taken one-sided attitude and accepted whatever was stated by Mrs. Akhila and her mother to file a report that petitioner is absconding etc. Therefore, petitioner requests this court to issue directions to the C.B.I. to conduct a further investigation. 7. On hearing both sides, it appears that Crime No.579/2002 (“man missing case”) of North Parur Police Station was re- registered by the C.B.I, as “PE” and after completion of the “Preliminary Enquiry”, a final report was filed, as per the C.B.I. Crl.M.C.No. 2338 of 2007 4 Manual. But, on going through C.B.I. Manual and the FIR registered in this case, it does not appear to me that the final report submitted in this case falls under Section 173 of the Criminal Procedure Code ('the Code' for short). 8. A reading of section 173 of the code shows that a report under Section 173(2) of the Code can be filed, only after completion of “investigation under the provisions of the Code as provided in Chapter XII” of the Code. Such investigation commences on receipt of information regarding commission of cognizable offence under Section 154 of the Code. But, the so- called FIR in Crime no. 579/2002 in this case does not reveal commission of any cognizable offence and it cannot therefore, be treated as one rrecorded under section 154 of the code. 9. Apart from this, a particular procedure is laid down in the C.B.I. Manual for filing a report in a Preliminary Enquiry. In the above circumstances, report filed by C.B.I in this case cannot be equated with a report under Section 173(2) of the Code, since it is filed not after an investigation under Chapter the provisions of the Code as provided in Chapter XII of the code, in respect of any cognizable offence. Therefore, the question application of Section Crl.M.C.No. 2338 of 2007 5 173 (8) of the Code also does not arise. 10. However, it appears from the submissions made at the Bar that the “missing person” made a complaint to North Parur and also to the Circle Inspector, in respect of an incident which happened on 07.09.2002, involving criminal offences committed against him. But the police did not take any action nor lodge any FIR in this regard. Hence, he sent a letter to the Director General of Police on 09.09.2002 (copy is Annexure-2). It is specifically alleged in Annexure-2 that certain persons, at the instance of Akhila's uncle, had assaulted him and threatened that if he would pursue the matter in relation to his wife Mrs. Akhila, he would face dire consequences and that his life will be taken away etc. Shyamkumar is alleged to be missing on the next day onwards. 11. It is submitted by learned counsel for petitioner that, it was on 10.9.2002 immediately on the next day of sending the letter to the Director General of Police that the petitioner's brother Shyamkumar was found missing. It is also submitted that Mrs. Akhila was actually married to Shyamkumar and petitioner was a witness to the marriage at the temple. The marriage has taken place on 25.7.1999 at the temple, in the presence of certain Crl.M.C.No. 2338 of 2007 6 relatives and the petitioner. But, C.B.I. has proceeded only on the basis of statements allegedly given by certain persons to conclude that the girl who was married was not Mrs. Akhila. According to petitioner, C.B.I committed a fundamental mistake in not coming to the right conclusion even regarding the marriage of Mrs. Akhila with Shyamkumar. 12. No proper enquiry was also conducted into the circumstances under which Sri.Shyamkumar was missing and hence directions may be issued to C.B.I to conduct proper enquiry by re-opening the same, it is argued. Had a proper enquiry was conducted, it would be revealed that Mrs. Akhila was married to Shyamkumar and that her people were behind his missing, it is submitted. 13. Learned Standing Counsel for C.B.I. submitted that there is evidence to show that Shyamkumar was alive, even after the alleged missing in the year 2002, and nothing untoward has happened to him. As per the statement given by Mrs. Akhila, it is clear that she had not married Shyamkumar. But, he had threatened her over her phone on several occasions in 2003, including November,2003 from various phones at different places. Crl.M.C.No. 2338 of 2007 7 Those phone numbers were noted and given to C.B.I. It is also submitted that though there was an understanding to marry Akhila, she back out from the idea, since she came to know from the paper reports that Shyamkumar was involved in various criminal cases, including theft. 14. Crimes were registered against him in the year 2001. Shyamkumar was not actually missing, but he is absconding to evade arrest from various criminal cases, it is submitted. In the circumstances, a report was filed by C.B.I. before the Sub Divisional Magistrate stating that Sri.Shyamkumar was not missing, but he was absconding. Therefore, there is no need to re-open the enquiry, it is submitted. 15. It appears from submissions made by both sides that crimes were registered against Shyamkumar only in the year 2001 whereas, the alleged marriage was about two years back, on 25.7.1999. It also appears that, the investigating officer has proceeded on the basis of the statement given by Akhila and their family members that she had withdrawn her consent from marriage due to involvement of Shyamkumar in various crimes and hence she was not married to Shyamkumar. At the same Crl.M.C.No. 2338 of 2007 8 time, statements of Akhila and her mother would reveal that the family was agreeable to the marriage of Akhila with Shyamkumar. 16. In such circumstances, a question will reasonably arise whether Akhila had any reason to back out from the marriage proposal and refuse to marry Shyamkumar in the year 1999, since crimes were registered against Shyamkumar only much later, in 2001. But, C.B.I has proceeded on the statements made by Akhila and her relatives that she refused to marry Shyamkumar due to his involvement in the crimes. The C.B.I will have to reconsider whether the reason stated for Akhila to give up the marriage is acceptable or not in the light of the above facts. It is also necessary to investigate into the fact, whether Akhila was actually married or not to Shyamkumar on 25.7.1999, as stated by petitioner. 17. It also appears to me that allegations made in Annexure- 2 are also relevant for consideration for an effective investigation into the missing of Shyamkumar. But, no investigation appears to have been done on the aspects alleged in Annexure-2. The allegations made in Annexure-2 are certainly relevant and those are to be looked into by the investigating agency while making an Crl.M.C.No. 2338 of 2007 9 enquiry into the circumstances under which Shyamkumar was found missing. Only if such enquiry is made into allegations in Annexure-2, a clear picture would be available under what circumstances Shyamkumar was missing. 18. It is also not clear whether any enquiry was made by C.B.I whether Shyamkumar had actually made phone calls to Akhila in the year 2003 , from the numbers given by her. The enquiry appears to have been proceeded with, by believing the version given by Akhila alone, without a cross-check. At this juncture, learned counsel for petitioner submitted that Akhila is re-married in the year 2004 to another person and this fact dissuades the C.B.I. officers from making a detailed investigation into this case. The C.B.I. appears to have taken the issue as dead, since Akhila got re-married and hence no proper enquiry is made into allegations made in Annexure-2, though these facts are brought to the notice of C.B.I. by the petitioner himself, it is submitted. 19. On hearing both sides, I am satisfied that a further enquiry is to be conducted by the C.B.I. into the allegations made in Annexure-2 and also all other relevant aspects touching the Crl.M.C.No. 2338 of 2007 10 issue. I am also satisfied that to secure ends of justice necessary directions are to be issued to the C.B.I. for a further enquiry in the matter. 20. Hence the following order is passed: 1. The first and second respondents shall conduct a further enquiry into the case, in the light of the observations made in this order. 2. A report shall be filed, as expeditiously as possible, and not later than two months from date of receipt of this order. 3. If any further time is required, the C.B.I is at liberty to approach this court for extension of time. Petition is disposed of accordingly. K.Hema, Judge cms Crl.M.C.No. 2338 of 2007 11 K.HEMA, J. -------------------------------------------- Crl.M.C.No.2338 of 2007 -------------------------------------------- Dated this the 26th day of March, 2010 ORDER The respondent will state under what provision the investigation is started in this case and on what basis the investigation is commenced in this case by the C.B.I (from Annexure A5 it appears that no direction is issued by this court to the C.B.I to conduct investigation) and respondent will file a statement. Call on 30.3.2010 as 1st item. K.Hema, Judge pm H/O