CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 11304 of 2010(Q) ----------------------- PETITIONER(S): ----------- M.K.MUSTHAFA HAJI,S/O.KUNHAMMAD, PAYYANKI HOUSE, KAITHAKKAD,CHERUVATHUR VILLAGE, HOSDURG TALUK,KASARAGOD DISTRICT. BY ADV. SRI.K.A.JALEEL RESPONDENT(S): --------------- 1. DIRECTOR,CENTRAL BUREAU OF INVESTIGATION,NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR GENERAL OF POLICE, GOVERNMENT OF KERALA,POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 4. SECRETARY TO GOVERNMENT,HOME DEPARTMENT GOVERNMENT OF KERALA,THIRUVANANTHAPURAM. 5. SUB INSEPCTOR OF POLICE, KASARAGOD POLICE STATION. WP(C).No. 11304 of 2010(Q) 6. RAMADASAN POTHAN,COMMANDANT,KAP IV BATTALION,MANGATTUPARAMBU,KANNUR (FORMER SUPERINTENDENT OF POLICE,KASARAGOD). ADDL. R7: DEPUTY SUPERINTENDENT OF POLICE NARCOTIC CELL, KASARAGOD (IMPLEADED AS PER ORDER DATED 17-6-2010 IN I.A. NO. 7746 OF 2010 ) ADV. SRI.MVS.NAMBOOTHIRY for R1 GOVERNMENT PLEADER SRI. C.K. SURESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-7-2010 THE COURT ON 24/09/2010, DELIVERED THE FOLLOWING: WP(C).No. 11304 of 2010(Q) APPENDIX PETITIONER'S EXTS: Ext.P1: True copy of F.I.R. in Crime No. 85 of 2010 of Kasaragode Police Station on the file of the Judicial I Class Magistrate Court, Kasaragod Ext.P2: true copy of postmortem certificate dated 16-11-2009 issued from Academy of Medical Sciences, Pariyaram, Kannur' Ext.P3: True copy of the complaint filed by the petitioner before the Station House Officer, Kasaragod on 4-12-2009 Ext.P3 (a) – true copy of the receipt issued for acceptance of Ext. P3 from the Police Station, Kasaragod Ext.P4: true copy of F.I.R. in Crime No. 815 of 2009 of Kasaragod Police Station registered by the 6th respondent. /true copy/ P.S. to Judge ani/ CR V. RAMKUMAR, J. ................................... W.P.(c) No.11304 of 2010 .................................. Dated: 24th September, 2010 JUDGMENT Reliefs prayed for in this Writ Petition In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the father of one Mohammed Shafeeque, who was killed in Police firing on 15.11.2009 at Kasaragode, seeks a writ of Mandamus or any other direction calling upon respondents 2,3 and 5 (State of Kerala represented by Chief Secretary to Government, Director General of Police and Sub Inspector of Police, Kasaragode) to hand over the investigation of Crime No.85/2010 of Kasaragode Police Station to the 1st respondent (Director, Central Bureau of Investigation, New Delhi) and a writ of mandamus or any other direction calling upon the 2nd respondent to pay a sum of Rs.25,00,000/- (Rupees twenty five lakhs only) to the petitioner as compensation for the death of the petitioner's son due to gun-shot injuries inflicted by the 6th respondent (Ramdas W.P.(c).No.11304/2010 -:2:- Pothan) the former Superintendent of Police, Kasaragode. THE OCCURRENCE (Petitioner's version) 2. The case of the petitioner is as follows:- On 15.11.2009 at about 5 pm near the new bus stand at Kasaragode a public meeting was proposed to be conducted for giving a reception to the State leaders of the Indian Union Muslim League (IUML for short) which is a registered political party before the Election Commission of India under Section 29A of the Representation of the People Act, 1951. Mohammed Shafeeque aged 23 years, the eldest son of the petitioner, who was employed in the Persian Gulf, was at that time in his native place at Cheruvathur in Hosdrug Taluk. He is a follower of the Kerala State Muslim League which is also a registered political party. The son of the petitioner came to Kasaragode to attend the said meeting. The meeting started at about 5 p.m. The meeting was stopped at 6 pm to enable the Muslims to perform the Magrib prayers. It was announced that the meeting would be resumed at 6.30 pm after the prayers. The petitioner's son went to the Mosque situated to the south of the Kasaragode-Cherkala National Highway for performing the prayer. At about 6.30 pm, the petitioner's son was walking towards the venue of the meeting after his prayers. There were some disturbances in some parts of Kasaragode town between the Police and certain anti-social elements during that evening. But there was no disturbance at or around the venue where the meeting was W.P.(c).No.11304/2010 -:3:- held near the new bus stand at Kasaragode. The 6th respondent, Ramdasan Pothan who was the Head of the Police force in Kasaragod district was standing along with his gun-man shouting and hurling abusive words at the people in an angry mood. When the petitioner's son reached the western side of the new bus stand complex building, the 6th respondent who was in an angry mood suddenly snatched the pistol from the hands of his gun-man and shot at the petitioner's son on his chest. Mohammed Shafeeque who was fatally wounded fell on the road for a long time without anybody attending on him. It was without any provocation from the side of the petitioner's son that the 6th respondent opened fire at him and the petitioner's son succumbed to the bullet injuries sustained on his chest. After realising that the petitioner's son was killed by his act of firing, the 6th respondent went to the Kasaragode Police Station and registered a case as Crime No. 816/2009 of Kasaragode Police Station for offences punishable under Sections 143,147,148,353,332,333,427 and 307 read with 149 IPC and Section 3(1) of the Prevention of Destruction to Public Property Act. Ext.P4 is the FIR in that case registered against 500 and odd IUML people stating, inter alia, that he fired three rounds out of self defence with the service pistol taken from his gunman to disperse the angry mob which had resorted to violence. No extraordinary circumstances existed at the place to justify the act of the 6th respondent who opened fire at the IUML workers . The 6th respondent was not doing W.P.(c).No.11304/2010 -:4:- any act in discharge of his official duty. On the contrary, the 6th respondent was intentionally and knowingly committing the offence of murder with the requisite mens rea and punishable under Section 302 IPC. Mohammed Shafeeque was the eldest son of the petitioner and the only support of the petitioner, who is afflicted with old age ailments. The 5th respondent, Sub Inspector of Police, Kasaragode did not take any action to arrest the 6th respondent or to conduct the investigation evidently because he is a subordinate of the 6th respondent. Mohammed Shafeeque who was lying wounded on the road with bullet injuries on him for a long time was eventually taken to the Taluk Head Quarters Hospital, Kasaragode by the Police. On reaching there the doctor pronounced him dead. Inquest over the dead body of the petitioner's son was conducted by the Tahsidhar, Kasaragode. Thereafter the dead body was taken to the Academy of Medical Sciences, Pariyaram, Kannur for autopsy. Ext.P2 is the post- mortem certificate, as per which the autopsy Surgeon concluded that the petitioner's son died of gun-shot injury on the chest involving his lungs and aorta. The petitioner was under the bona fide belief that the Police had registered a crime in connection with the murder of his son. But on enquiry it was understood that the Police had not registered any murder case against the 6th respondent who was working as the Superintendent of Police, Kasaragode. Therefore, on 4.12.2009, the petitioner lodged Ext.P3 complaint before the 5th respondent (Sub Inspector of Police, W.P.(c).No.11304/2010 -:5:- Kasaragod), detailing the occurrence and requesting him to take action against the 6th respondent for the murder of the petitioner's son. Eventhough Ext.P3 complaint was duly received on 4.12.2009 as evidenced Ext.P3(a) receipt, no crime was registered by the 5th respondent. Hence the petitioner was constrained to file Ext.P5 criminal complaint as Crl.M.P. 413/2010 before the J.F.C.M, Kasaragod who forwarded the same to the Police under Section 156(3) Cr.P.C resulting in the 5th respondent finally registering Crime No.85/2010 against the 6th respondent for an offence punishable under Section 302 IPC. There was no extraordinary circumstance or law and order situation justifying the act of the 6th respondent in opening fire qt the persons who had collected there to attend the meeting. Since the investigation of the above crime is conducted by a subordinate of the 6th respondent, there will be no fair and free investigation and the petitioner will not get any justice in such investigation. For the deprivation of the precious life of the petitioner's son and the infringement of his human rights and fundamental freedoms the petitioner is entitled to the remedy of compensation in public law based on strict liability and the defence of Sovereign immunity is not available to the State. Hence this writ petition. POLICE VERSION OF THE OCCURRENCE 3. One M.J. Sojan, Deputy Superintendent of Police, OCW -IV, Sub Unit, Kasaragod has filed a statement contending inter W.P.(c).No.11304/2010 -:6:- alia as follows:- On the statement of Sri. Ramadasan Pothan, the then Superintendent of Police, Kasaragod, a case was registered as Crime No. 816 of 2009 of Kasaragod Police Station against 500 and odd IUML activists for attacking the police, destroying public properties etc. That case is being investigated by the C.B. CID Kasaragod Sub Unit . Crime No. 85 of 2010 registered by the Kasaragod Police against Sri.Ramadasan Pothan for an offence punishable under Sec. 302 I.P.C. pursuant to the J.F.C.M. Kasaragod forwarding the private complaint filed by the petitioner to the Kasaragod Police was also transferred to the C.B. CID for investigation as per order dated 2-2-2007 by the 3rd respondent Director General of Police . Investigation of this case was entrusted to the Dy.S.P. , C.B. CID, OCW IV, Kasaragod from 31-3-2010 . The maker of the statement (M.J. Sojan) is investigating this case also. In the evening of 15-11-2009 there was a public meeting organized by the Indian Union Muslim League near the New Bus Stand , Kasaragod. The said meeting was organized to felicitate the newly elected State President and other leaders of the IUML. Many workers of the party from various parts of the district came to attend the meeting. At about 18.30 hours trouble erupted when the workers numbering about 500 started pelting stones towards the shops and at the police party on duty . They also attacked a temple in Amey Colony. In the meantime persons belonging the other community collected at the site and started to retaliate. The unruly crowd continued their activities in spite of efforts by the police . As the situation W.P.(c).No.11304/2010 -:7:- was going out of control and there was a likelihood of communal clashes and destruction of public property, senior police officers under the leadership of Sri. Ramadasan Pothan reached the site and began to disperse the crowd using grenades and by resort to lathi charge . Since all efforts by the police proved futile and the mob continued its violence destroying police vehicles and burning private vehicles and some of the police personnel sustained injuries , the Superintendent of Police as a last resort to protect himself and the police party and to control the violence and communal clashes fired three rounds from his service pistol towards the mob. The petitioner's son Muhammed Shafeeq who was an active member of the unlawful assembly suffered bullet injury on his chest and fell down on the spot . After dispersing the violent mob and bringing the situation under control the Superintendent of Police, Kasaragod reached the Kasaragod Police Station and Crime No. 816 of 2009 in relation to the aforementioned incident. In the F.I.R. he has admitted that the deceased died due to the injuries sustained in the police firing. He has also narrated the circumstances which led to the police firing. At present both Crime Nos. 816 of 2009 and 85 of 2010 are investigated by the maker of the statement. The investigation so far conducted has revealed that the petitioner's son was an active member of the unlawful assembly which indulged in large scale violence, destruction of public property and attack on places of worship belonging to the other community. In the case registered by the Superintendent of Police, the petitioner's son figured as an accused and was subsequently deleted from the W.P.(c).No.11304/2010 -:8:- array of the accused consequent on his death. In Crime No. 816 of 2009 there are 46 named accused persons and about 450 other accused persons who were responsible for the large scale violence. Out of the 46 named accused persons 11 have been arrested and remanded to judicial custody and all of them are now on bail. In connection with the above incident and subsequent incidents, 36 crime cases have been registered and investigation in those cases is being conducted by the local police. T.M. Sameer who is the 2nd witness cited by the witness in the complaint filed by him before the J.F.C.M. Court is the first accused in Crime No. 816 of 2009. A dye marker grenade taken away from the police jeep which was overturned by the violent mob has been recovered on the confession made by the said Sameer. The police firing and the consequent death of the petitioner's son were unavoidable in view of the situation which was prevailing then. This Court had occasion to take judicial notice of the communal clashes in Kasaragod District in Sudheesh K. and Others v. State of Kerala and Another - ILR 2009 (4) Kerala 350. The Writ Petition may therefore be dismissed accepting this statement. 4. I heard Adv. Sri. K.A. Jaleel, the learned counsel appearing for the petitioner and Adv. Sri. C.K. Suresh, the learned Public Prosecutor who defended the State. ARGUMENTS OF THE PUBLIC PFOSECUTOR 5. The learned Public Prosecutor made the following W.P.(c).No.11304/2010 -:9:- submissions before me in opposition of the prayers in the Writ Petition:- Between 5.45 and 6.30 p.m. on 15-11-2009 about 500 IUML activists including the petitioner's son were freely indulging in vandalism . They rushed towards a colony predominantly occupied by Hindus . About 50 persons started pelting stones at a bhajanamadom and a temple . Ext.P4 is the F.I. Statement given by Sri. Ramadasan Pothan, Superintendent of Police (R6) in which he has frankly confessed that he fired three rounds with the pistol taken from his gunman in self defence. Crime Nos. 880 of 2009 and 34 other crimes were registered by the Kasaragod Police in connection with the above incident. A Dy.S.P., two Circle Inspectors and a Sub Inspector sustained injuries in the mob attack and the firing was resorted to as there was no other alternative. During investigation of Crime No. 816 of 2009 registered by R6 (Ramadasan Pothan) 46 accused persons have been identified . Out of them 11 persons have been arrested. All of them have obtained bail . Sameer , the eye-witness of the petitioner is the first accused in Crime No. 816 of 2009. His statement recorded under Sec. 161 (3) Cr.P.C. is to the effect that he did not see the occurrence. Third witness of the petitioner is one Abdul Sherif who is A32 in Crime No. 816 of 2009. Petitioner's 4 th witness is Muhammed Althaf who is A33 in Crime No. 816 of 2009. In Thomas V.C. v. Achamma Thomas and Another - 2009 (2) KHC 693 a Division Bench of this Court has held that the High Court should discourage the practice of filing Writ Petitions or petitions under Sections 482 Cr.P.C. by complainants alleging that their W.P.(c).No.11304/2010 -:10:- complaints are not being properly investigated by the Investigating Agency . In paragraphs 46 and 47 of State of West Bengal v. Committee for Protection of Democratic Rights - 2010 (1) KLT 723 (SC ) a Constitution Bench of the Supreme Court observed as follows:- “46. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self- imposed limitations on the exercise of these constitutional powers. The very plentitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the C.B.I. to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but 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. This extra-ordinary power must be exercised sparingly cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise, the C.B.I. would be flooded with a large number of cases and with limited resources, may find it difficult to properly W.P.(c).No.11304/2010 -:11:- investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 47. In Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya & Anr. (2002) 5 SCC 521), this Court had said that an order directing an enquiry by the C.B.I. should be passed only when the High Court, after considering the material on record, comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the C.B.I. or any other similar agency. We respectfully concur with these observations. The High Court cannot direct the investigating agency to submit a report that is in accord with its views since that would amount to unwarranted interference with the investigation of the case by inhibiting the exercise of statutory power by the investigating agency. (Vide M.C. Abraham v. State of Maharashtra- [(2003) 2 SCC 649]. It is the statutory obligation and duty of the police to investigate into the crime and Courts normally should not interfere and guide the investigating agency as to in what manner the investigation has to proceed . (See paragraph 25 of D.Venkatasubtamaniam and Others v. M.K. Mohan Krishnamachary and Another - (2009) 10 SCC 488). Further investigation under Section 173 (8) Cr.P.C. can be ordered (i) When new facts come to light, or W.P.(c).No.11304/2010 -:12:- (ii) When superior courts find that the investigation is tainted and /or unfair, or (iii) When superior courts find that it is required in the ends of justice Where direction for further investigation by the Magistrate is unwarranted, the revisional Court will be justified in interfering with the discretionary jurisdiction of the Magistrate (Vide Kishan Lal v. Dharmendra Bafna and Another - (2009) 7 SCC 685. In Director, Central Bureau of Investigation and Others v. “Niyamavedi” represented by its member K. Nandini , Advocate and Others - (1995) 3 SCC 601 the Apex Court observed as follows:- “Any observations which may amount to interference in the investigation, should not be made. Ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the investigation. Of late, the tendency to interfere in the investigation is on the increase and courts should be wary of its possible consequences. We say no more”. The above observation was noted with approval by the Supreme Court in Babubhai Jamnadas Patel v. State of Gujrat and Others - CDJ 2009 S C 1728. Thus, the general rule is that Courts will not interfere with the investigation of a case and W.P.(c).No.11304/2010 -:13:- interference is only an exception. The 6th respondent Superintendent of Police was really acting under Sec. 129 Cr.P.C. by attempting in good faith to disperse an unlawful assembly. Sec. 132 (2) (a) Cr.P.C. declares that such a person shall not be deemed to have committed any offence. Under Sec. 132 (1) Cr.P.C. there is a statutory interdict against institution of a prosecution against such person for any act purporting to be done under Sec. 129 Cr.P.C. except with the sanction of the State Government, if such person is an officer of the State Government. No sanction of the State Government under Sec. 132 (1) has been obtained. Hence, the learned Magistrate could not have entertained the private complaint filed by the petitioner as CMP 413 of 2010 . Likewise, the 6th respondent Superintendent of Police who is the accused in Crime No. 85 of 2010 cannot be prosecuted without the requisite sanction under Sec. 197 Cr.P.C. No such sanction has been obtained. In Ramkumar v. State of Haryana - 1987 (1) KLT 462 (SC) the Apex Court considered the distinction between the sanction under Sec. 132 (1) and Sec. 197 Cr.P.C. The protection conferred by Sec. 132 (1) Cr.P.C. would be rendered nugatory if it is contended that it is for the accused police officer to prove after trial that he was acting in discharge of his duties in dispersing an unlawful assembly and if that is proved Section79 I.P.C. will come into operation and the accused would not be guilty. If such an interpretation is placed on Sec. 132 Cr.P.C. then the onus will have to be thrown on the accused police officer to prove in the trial that he acted under Chapter X Cr.P.C. and is therefore W.P.(c).No.11304/2010 -:14:- innocent of the offences alleged against him in order to show that the complaint against him is invalid for want of sanction under Sec. 132 (1) Cr.P.C. (Vide Krishna Pillai Madhavan Pillai and another v. P. Sadasivan Pillai and Others - AIR 1963 Kerala 7). To find out whether the accused police officer acted under Chapter X Cr.P.C. or not , it cannot be said that the complaint and the sworn statement alone can be looked into and not any other circumstances or documents. [Vide Sankarankutty Menon and Others v. Deputy Superintendent of Police, Trichur and Others - 1961 KLT 208 (DB)]. No interference by this Court is called for with regard to the investigation of Crime No. 85 of 2010 of Kasaragod Police Station. If this Court so orders, the investigation of the above crime can be entrusted with the D.I.G. or the I.G. of Police. JUDICIAL EVALUATION 6. I am afraid that I find myself unable to agree with the submissions made by the learned Public Prosecutor. The solitary accused in Crime No. 85 of 2010 of Kasaragod Police Station is the 6th respondent herein namely Ramadasan Pothan who was the Superintendent of Police, Kasaragod at the relevant time. Admittedly, the petitioner's son died as a result of gun shot injuries from the pistol fired by the Superintendent of Police after snatching the firearm from his gunman. The stand taken by the State that the petitioner's W.P.(c).No.11304/2010 -:15:- son was an accused in Crime No. 816 of 2009 registered by the Superintendent of Police and he was deleted from the array of accused after he succumbed to the injuries does not appear to be correct. He was not made an accused at all in Crime No. 816 of 2009. Admittedly, the investigation of Crime No. 85 of 2010 in which the only accused person is the said Superintendent of Police is conducted by a Deputy Superintendent of Police . Hence, the first question to be considered is whether the investigation of the said case should be allowed to be conducted by the State Police itself or by the Central Bureau of Investigation which is an independent Central Agency. FURTHER INVESTIGATION - Whether by State Police or C.B.I. 7. There cannot be any quarrel about the propositions laid down in the decisions relied on by the learned Public Prosecutor regarding the limitations of the Court in interfering with the freedom of the investigating agency. But, here the question is whether the near relative of the deceased and the public at large can legitimately expect a fair and impartial investigation against the Superintendent of Police when the investigation is admittedly conducted by a subordinate officer. W.P.(c).No.11304/2010 -:16:- Even if the investigation were to be conducted by an officer of higher rank in the State Police, will that be sufficient to instill confidence of all concerned in the matter since an investigation