IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 W. A. No. 654 of 2008 ------------------------------------ APPELLANTS/RESPONDENTS 6,2,5 AND 1IN WP(C). ------------------------------------------------------------------------ 1. STATE OF KERALA , REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF SECRETARIAT THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE, SPECIAL INVESTIGATION TEAM OF CRIME NO:313/CR/KNR/2006. 4. THE DEPUTY SUPERINTENDENT, C.B.C.I.D, THALASSERY, KANNUR. BY ADVOCATE GENERAL SHRI C.P. SUDHAKARA PRASAD & SENIOR GOVERNMENT PLEADER SHRI T.B. HOOD. RESPONDENTS/ PETITIONER & RESPONDENTS 3 AND 4 IN WP(C). ---------------------------------------------------------------------------------------------- 1. MARIYU, W/O.MUHAMMED FAZIL [LATE] AGED 30 YEARS, NAFEEZA MANZIL, MADAPEEDIKA, THALASSERY. 2. THE CENTRAL BUREAU OF INVESTIGATION, COCHIN UNIT, REPRESENTED BY THE SUPERINTENDENT OF CENTRAL BUREAU OF INVESTIGATION, OFFICE OF THE CENTRAL BUREAU OF INVESTIGATION, COCHIN UNIT, KADAVANTHRA, ERNAKULAM. W.A. NO.654 OF 2008 3. THE CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REPRESENTED BY ITS DIRECTOR. R1 BY ADVOCATE SHRI SUNNY MATHEW. R2 & R3 BY ADV. SRI.MVS.NAMBOOTHIRY,SC FOR CBI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.04.2008, THE COURT ON 04.09.2008 DELIVERED THE FOLLOWING: H.L. DATTU, CJ. & K. M. JOSEPH, J. -------------------------------------------------- W. A. NO. 654 OF 2008 --------------------------------------------------- Dated this the 4th September, 2008 JUDGMENT K.M. JOSEPH, J. A learned Single Judge of this Court has allowed the Writ Petition filed under Article 226 of the Constitution of India by the first respondent in the Writ Appeal (hereinafter referred to as the writ petitioner) and directed the appellants to transfer the investigation files relating to the murder of the husband of the writ petitioner to the Central Bureau of Investigation. The learned Single Judge has directed the Central Bureau of Investigation to continue the investigation and bring to justice the culprits behind slaying of late Shri Muhammed Fasal, the husband of the writ petitioner (hereinafter referred to as Shri Fasal). The learned Single Judge has also made certain observations. It is feeling aggrieved by the aforesaid Judgment that the State of Kerala, the Director General of Police, The Superintendent of police, Special investigation Team of Crime No.313/CR/KNR (for short, Kannur)/ 2006 and the Deputy Superintendent, CBCID, Thalassery, Kannur have preferred this Writ Appeal. 2. The Writ Petition came to be filed on 29.3.2007. Briefly put, the case of the writ petitioner is as follows; At about 3/30 A.M. on 22.10.2006, Shri Fasal who was distributing the newspaper daily by name "Thejus" came to be brutally murdered near the liberty quarters. He received as many as twenty stab injuries. The injuries suggested that the assailants were professionals, and that it was a pre- WA. NO. 654/08 2 planned cold blooded murder. Investigation was taken up by the Superintendent, CB CID, Thalassery and no person was arrested. The deceased was a supporter of National Democratic Front (hereinafter referred to as NDF). He was a good behaved man, and he had no enemies. He was earlier an hardened supporter and worker of the Communist Party of India (Marxist) (for short, CPM). But, he later shifted his alligience and joined the NDF. It is the further case of the writ petitioner that many members of the Muslim Community defected to the NDF at the instance of her husband. He was instrumental in many a person terminating subscription to the CPM Party and subscribing to the Thejus newspaper. The investigation was proceeding in an unusual manner. The police dog attached to the Dog Squad has got into the houses of certain members of the CPM Party. One Shri Radhakrishnan, Dy. S.P. of the DCRB, Kannur, who had made considerable progress in the investigation, was withdrawn from the team. The murder, it is pointed out, took place in the constituency of Shri Kodiyeri Balakrishnan who is none other than the present Home Minister. Thrisuls were found near the dead body so as to create an impression that the murder was the handi work of the members of Rashtriya Swayam Sevak (RSS). Persons who were taken into custody after the sniffer dog had run into the house of a CPM worker, were all released at the intervention of the leaders of CPM. News items in two popular dailies were relied upon by the writ petitioner. The writ petitioner did not expect, it is her case, to get justice as the CPM is in power and the Minister from the constituency where the murder took place, is controlling the home portfolio. The writ petitioner had filed W.P.(C). No.2063/07 praying for investigation by a specialist and an impartial agency WA. NO. 654/08 3 preferably by the CBI. That Writ Petition came to be disposed of by Judgment dated 14.2.2007 and it came to be disposed of entrusting the investigation with a Special Team to be headed by the fifth respondent Superintendent of Police. But, even after such entrustment, no effective investigation had been conducted. 3. Two Statements on behalf of the third appellant, namely the Superintendent of police, Special investigation Team were filed. It is stated that four persons residing at liberty quarters had seen the incident partially as admitted before the investigating Officer. It is also stated that two persons, namely Shri Abdulla and Shri Sali had also admitted that they had seen three persons attacking Fasal, but they could not identify the assailants. In the later Statement filed by Shri T.K. Rajmohan, the Investigating Officer, it is stated that after a systematic investigation, the case was analysed threadbare. It is his case that the investigation revealed that one Sunilkumar @ Kodi Suni, Koyeri Biju @ Pachutti Biju @ Bijesh and M.K. Jithesh @ Jithu were known political bad characters who were actually involved in various political murders and attempt to murder cases. It is stated that A1 Sunilkumar is involved in twentyone criminal cases, A2 Koyeri Biju is involved in six criminal cases including Shaji murder case and A3 M.K. Jithesh is involved in four criminal cases. They had arrived at the liberty quarters in a motor cycle and were hiding at the side of the bylane on the eastern side of the liberty quarters. They pounced upon the deceased and attacked him with deadly weapons, like chopper and knife, etc. It is stated that M.K. Jithesh had left behind the chappal at the scene of the crime and returned to the spot. Hearing the screaming sound from the road, one Abdulla and Lulu Marjan witnessed the WA. NO. 654/08 4 incident in dim light, but they could not identify the assailants. It is also stated that one Sameera, resident of liberty quarters had switched on the exterior light and saw a person searching for his chappal on the road in front of the quarters. Upon seeing the light, Jithesh left the scene. On the way to Illathuthazham, they concealed the chopper and knife in an unoccupied open compound on the western side of Pankaj Talkies. It is stated that on the confession of A2 and A3, the Superintendent of police recovered those weapons under a mahazar. The three assailants reached their respective houses and left for Mysore on the next day. It is stated that A1 is in judicial custody and A2 and A3 were arrested on 8.10.2007 while A1 was formally arrested on 10.10.2007. 4. The learned Single Judge after evaluation of the circumstances which included perusal of the case diary files, took the view that there was no independent investigation so as to converge on the three accused persons. It is stated that the only guiding factor appears to be the bad antecedents of the three accused persons so that they could be found handy for easy arraignment as the culprits in this case. The learned Single Judge has found the story of Section 27 recovery of the weapons from an open compound adjacent to the Pankaj Talkies after months of the occurrence, too good to be believed. The learned Single Judge has found that even according to the investigating team, the three accused persons were professional gundas involved in several cases. He found that no investigation appears to have been conducted to pinpoint and confirm the identity of A1 to A3 as the assailants of Fasal. The witnesses, namely Abdulla and Lulu Marjan who had allegedly witnessed the occurrence in dim light have not identified the WA. NO. 654/08 5 assailants. The learned Judge further noticed that if the accused are professional assassins, they must have been definitely engaged by somebody owing allegiance to the CPM to do away with Fasal towards whom the CPM workers were nurturing extreme enmity for canvassing the Muslim youths to join NDF and for increasing the circulation of "Thejus" Daily. The learned Single Judge also found that there is no evidence forthcoming to show the conspiracy hatched to assassinate Fasal against whom the local CPM activist had an axe to grind for his defection from the Marxist Party. He further found that having regard to the political set up in the State, he was fully convinced that the petitioner will not get justice at the hands of the State Police and that a serious investigation by an impartial agency alone can bring out the truth. It was in such circumstances that the learned Single Judge directed investigation to be done by the CBI. It is thereafter that the learned Single Judge has made the following observations: "8. If reports are to be believed, Kannur District, particularly, Thalassery Taluk has, over the years, become the hot-bed of political violence and carnage of the worst order. All political parties there seem to freely indulge in the cult of violence. What is surprising is the fact that the health conscious people of that area, although very friendly, affabale and hospitable to others, turn mad and transform themselves into veritable demons while under the seizure of acute political acrimony. Previous lives of fellow mortals are taken in the most horrendous manner by the rival bigwigs either through their own partymen or through hired assassins. Lethal weapons are procured and stored without any defection. The God given terrestrial lease of the poor citizens is determined not by any natural causes WA. NO. 654/08 6 but by the beastly animals in human form who dwell amongst us. Very cunningly, however, the party leaders escape unhurt in this cruel and blood thirsty game. 9. Given the full freedom, the State Police is par excellence in crime detection and investigation, provided there is no political or other intervention. But the ground reality is that we get a different picture at Kannur. It is a shame that even if it be for survival, the police pandering to the vicious instincts of the influential politicians by shielding from punishment those who are really guilty and projecting either innocent persons listed out from the party office or arraigning party confidants who volunteer to go to the dock and eventually to the prison houses at the party's expense. There were reported instances of the peoples' representatives with diabolic designs barging into police stations to rescue their own party criminals from the police lock-ups. Experience shows that whichever party comes into power, violence and political killings continue unabashedly in this part of the State and the common man there lives in constant fear and very often there is a crippling standstill rendering normal life of the people miserable. Shops remain closed continuously to the extreme hardship of the people. All-Party peace missions are nothing but a hoax to hoodwink the fickleminded public. Past lessons show that restoration of peace and harmony is only an evanescent episode invariably followed by a history of repeated violence and vindictive vandalism. No serious concern appears to have been shown to this man-made holocaust in which the bread winners of several families have been slain to death driving the orphaned widows and children literally to the streets. The only solution seems to be a timely intervention by the Union Government by deploying sufficient forces who will not yield to the political WA. NO. 654/08 7 or plutocratic clout by those in power and out of power. It is hoped that there will be a gubernatorial move to apprise the Central Government of the urgent need for a permanent prophylactic action to curb further bloodshed and killings in Kannur District where manslaughter is a competing sport. Blessed are those who are able to die a natural death in Thalassery." 5. We heard Shri C.P. Sudhakara Prasad, learned Advocate General appearing on behalf of the appellants, Shri Sunny Mathew, learned counsel appearing on behalf of the writ petitioner and also Shri M.V.S. Namboothiry, learned standing counsel appearing for the CBI. 6. Contentions of the learned Advocate General: He would contend that a proper investigation was being conducted in this case and it revealed that there was sufficient evidence to establish and pinpoint that A1 to A3 already referred to, have committed the crime. It is contended that the witnesses Shri Kuniyil Ramsheed and Shri Keloth Sajeer have identified the accused, as they were seen with deadly weapons near the place of occurrence immediately after the incident. The aforesaid two witnesses had identified them and admitted that they were the persons whom they saw on the night of 22.10.2006. The three witnesses, residents of liberty quarters, namely Lulu Marjan, Abdulla and Sameera, who saw the incident, though could not identify the assailants, had stated that they have seen only three assailants attacking the victim. As per the version of A2 and A3, the weapons used for the offence concealed under the ground, were recovered in the presence of the witnesses under Section 27 of the Indian Evidence Act. The chappal recovered from the scene of the crime was fitting WA. NO. 654/08 8 to A3. The two assailants, A2 and A3 have left for Mysore on the very next day of the incident. Though the place of concealment of the weapons, it is contended, was an open ground, the concealed weapons were recovered after digging the earth. It is further contended that when the recovered weapons were produced before Dr. Sherly Vasu, Professor and Head of the Department, Forensic Medicine, Medical College, Calicut, she has opined that the injuries on the body of the victim could be caused with those weapons. It is further contended that the writ petitioner had not made any adverse comment regarding the arrest of the accused and her complaint was that there would be other accused who would have conspired in the case who were not being booked. It is contended that the investigating agency has borne this aspect in mind. It was in the light of this perspective and to consider whether there was a conspiracy, a polygraph test was conducted on A2 and A3. It is pointed out that after analysing the result of the polygraph test the allegation concerning conspiracy and involvement of the other accused can be ruled out. It is further contended by the learned Advocate General that the appellants are not averse to conducting any further test, like Narco Analysis, Brain Mapping, etc. on the accused persons to unearth the existence of conspiracy. It is the case of the appellants that the mobile phone print out of the accused was obtained and it is under analysis. It is the case of the State that there has been a qualitative investigation. Learned Advocate General pointed out that Crime No.442/06 under Section 302 IPC was registered by the Circle Inspector of Police, Shri P. Sukumaran, suo motu on 22.10.2006. Shri K.P. Philip, Dy. Superintendent, Thalassery prepared the Inquest Report and sent the body for post-mortem. Shri Radhakrishnan was WA. NO. 654/08 9 ordered to head a special team and they started investigation on 22.10.2006. Between 22.10.2006 and 3.11.2006, 105 witnesses came to be questioned. He found that both the BJP and CPM sympathizers could be suspected. It is pointed out that no conclusion was reached in this investigation. By order dated 3.11.2006, investigation was transferred to the CB CID, Kannur. A special team led by Shri D. Sali was entrusted with the investigation of the case. The investigation which he took up on 8.11.2006 continued till 25.1.2007. He questioned 149 witnesses. Since the investigation did not bear fruit, the Additional Director General of Police (Crimes) entrusted the investigation to a team headed by Shri T.P. Mohan Das, Superintendent of Police, CB CID, SIG III, Kozhikode. The investigation under him was spread over a period which commenced from 1.2.2007 and terminated on 3.4.2007. Though he questioned 33 witnesses, there was no clue during his investigation also. Shri T.P. Mohan Das came to be entrusted with the Calicut SM Street explosion case and, therefore, he was relieved from the investigation by order dated 10.4.2007. The investigation was entrusted with Shri T.K. Rajmohan, who was the Superintendent of Police, CB CID, Kannur and he commenced investigation on 12.4.2007 and continued till 24.5.2007. It is thereafter that Shri V. Venugopalan who took charge as Superintendent of CB CID, Kannur, took over the investigation. Thereafter, by order dated 12.6.2007, stating that Shri T.K.Rajmohan who was transferred and posted as Superintendent of police, CB CID, Kozhikode was well-versed with the facts and circumstances of the case and the change of the Investigating Officer will adversely affect the progress of the investigation, shri Rajmohan was ordered to continue as the Investigating Officer in this case. WA. NO. 654/08 10 7. Learned Advocate General would, therefore, point out that there cannot be any room for any complaint that the State was not earnest or sincere in unearthing the truth behind the shocking incident. No effort was spared, it is contended by the learned Advocate General as this was a murder committed in the constituency of the Home Minister, and the State was all the more serious in sparing no efforts in booking the culprits. It is further contended that there is absolutely no basis for the learned Single Judge to have ordered an investigation by the CBI in the circumstances as aforesaid. He would contend that even if it may be true that the investigation conducted earlier was unfruitful, by the time the Writ Petition came to be heard, having regard to the fact that the actual culprits had been arrested and the state of the materials available against them, the learned Single Judge has clearly erred in ordering an investigation by the CBI. He would further contend that the learned Single Judge has proceeded to make various observations which we have already extracted. He would contend that not only were those observations wholly unwarranted, they were unnecessary for deciding the lis before him. In this regard, he relied on the dicta laid down in the following decisions: 1) The State of Uttar Pradesh v. Mohammad Naim (AIR 1964 SC 703). 2) A.M. Mathur v. Pramod Kumar Gupta & Others ((1990) 2 SCC 533). 3) State of Maharashtra & Others v. Admane Anita Moti & Others ((1994) 6 SCC 109). 4) Mangilal and Others v. State of M.P. ((1994) 4 SCC 564). 5) State of Karnataka v. Registrar General, High Court of Karnataka (AIR 2000 SC 2626). WA. NO. 654/08 11 6) State represented by Inspector of Police & Others v. N.M.T. Joy Immaculate ((2004) 5 SCC 729). It is apparently on the basis of the impression that the learned Single Judge had in the matter, as could be gleaned from those observations contained in paragraphs 8 and 9 of the Judgment that he has proceeded to decide the Writ Petition and gave the impugned direction to entrust the investigation with the CBI. He contended that the Court should not stray away from the issues which fall for its consideration and decision. A Court should also refrain from making observations about matters except with restraint and only in circumstances when such observations are germane for arriving at conclusions which are necessary for deciding the controversy before it. He would submit that an investigation is essentially a matter which falls within the exclusive province of the police and it is not for the writ court to tinker with the same (See State of Bihar and Another v. J.A.C. Saldanna and Others (AIR 1980 SC 326). He would submit that there cannot be one set of natural reaction. In Bachittar Singh v. State of Punjab ((2002 (8) SCC 125), which is referred to in State of Punjab v. Hardam Singh and Others ((2005) SCC (Crl) 834), it is held as follows: "Human behaviour varies from man to man. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a man would behave in a particular situation, can never be predicted." He would, therefore, submit that this Court may not go into the merits of the matter and should allow the matter to be considered by the competent WA. NO. 654/08 12 criminal court. He also contended with the aid of the decision in Sakiri Vasu v. State of Uttar Pradesh and Others ((2008) 2 SCC 409) that the Apex Court has taken the view that if an investigation was not being conducted into the commission of an offence or if the investigation which is being conducted is not proper, the Magistrate is not without power either ordering an investigation or giving necessary directions so as to ensure that a proper investigation is made. The Court held, inter alia, as follows: "27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C." He would submit that when the State police carries out an investigation and books the persons with materials against them, it would be a travesty of justice besides undermining the morale of the State police, if the High Court were to order an investigation by the Central Bureau of Investigation. He also pointed out that the observations made by the learned Single Judge would WA. NO. 654/08 13 only help in the actual culprits getting away. He also contended that the Court could not order investigation by the CBI without consent of the State Government. In this regard, he relied on the decision of the Apex Court in State of W.B. and Others v. Committee For Protection of Democratic Rights, W.B. and Others ((2006) 12 SCC 534) to point out that the matter has been referred to a Larger Bench of the Apex Court where it is pending consideration. 8. Contentions of the first respondent/Writ Petitioner Shri Sunny Mathew, learned counsel appearing for the first respondent would, on the other hand, point out that here is a case where the husband of the writ petitioner came to be brutally murdered. There were as many as twenty injuries. He would point out that though there was a call to the Control Room, intimating the police regarding the crime, steps were not taken to identify the informant over phone. He contended that in the Inquest Report by Shri K.P. Philip, Dy. Superintendent of Police, there was a statement given by one Ajinas that there were indeed eight assailants and not three as claimed by the investigating agency. He further contended that the sniffer dogs had run into the house of three CPM workers and the CPM leaders