IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 35392 of 2008(L) -------------------------- PETITIONER(S): --------------- 1. MOTHER ANNIE JOHN, SUPERIOR GENERAL, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM-686006. 2. SR.SAUMY,ASSISTANT SUPERIOR GENERAL, ST.JOSEPH'S GENRERALATE, S.H.MOUNT P.O. KOTTAYAM-686006. 3. ST.JENET, GENERAL COUNCILLOR, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O.KOTTAYAM-686006. 4. ST.THERESE, GENERAL COUNCILLOR, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM -686006 5. SR.TRESA MARIA, GENERAL COUNCILLOR, ST.JOSEPH'S GENERATE, S.H.MOUNT P.O. KOTTAYAM - 686006. 6. SR.SHIRLY, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM-686006 7. SR.SUDEEPA, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM-686006. 8. MS.ACHAMMA, ST.JOSEPH'S GENERALATE, S.H. MOUNT P.O. KOTTAYAM-686006. 9. SR.FLOWERY, ST.JOSEPH'S GENERALATE, S.H. MOUNT P.O. KOTTAYAM -686006 10. SR.ELSY JOSE, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O.,KOTTAYAM-686006. WP(C).No. 35392 of 2008(L) 2 11. SR.ROSY, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM-686006. 12. SR.LINOJ, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O., KOTTAYAM 686006 13. SR.JYOTHI,ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM -686006. 14. SR.ANIT ST.JOSEPH'S GENERALATE, S.H. MOUNT P.O., KOTTAYAM-686006 15. SR.JAICY, ST.JOSEPH'S GENERALATE, S.H. MOUNT P.O.KOTTAYAM-686006. 16. SR.ELSY TRESA, ST.JOSEPH'S GENERALATE S.H.MOUNT P.O.KOTTAYAM-686006 17. SR.HANNAH, ST.JOSEPH'S GENERALATE, S.H. MOUNT P.O. KOTTAYAM-686006 18. SR.SIYA, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O. KOTTAYAM - 686006. 19. SR.JOLLY, ST.JOSEPH'S GENERALATE, S.H.MOUNT P.O.KOTTAYAM-686006. BY ADV. SRI.ANOOP MATHEW ABRAHAM RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REPRESENTED BY ITS DIRECTOR. 3. THE DEPUTY SUPERINTENDENT OF POLICE, C.B.I.ACB, KOCHI.(INVESTIGATING OFFICER IN RC 8 (S)/93/KER) BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R2 & 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------------------- W.P.(C)No.35392 OF 2008 L ----------------------------------------------------- DATED THIS THE 18th DAY OF DECEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The petitioners 1 to 7 and 9 to 19 are Nuns under the St.Joseph's Congregation. They are running a Convent called Pius 10th Convent at Kottayam. The 8th petitioner, though not a Nun, is employed in that Convent. This Writ Petition is filed by them, feeling aggrieved by certain alleged commissions and omissions of the 3rd respondent, who is an Officer of the CBI, investigating RC.8(S)/93/KER, a crime registered in connection with the unnatural death of Sr.Abhaya. Now, her death is considered as homicidal and investigation is done accordingly. The 3rd respondent issued Exhibit P1 notice to the second petitioner directing her to make available for questioning, four Nuns and two employees of the aforementioned Convent. Sl.Nos.3 to 5 in Exhibit P1 are petitioners 6 to 8 in this Writ Petition. The petitioners point out that they have made all arrangements for questioning the persons named in Exhibit P1 at their Generalate at S.H.Mount, Kottayam. But the 3rd respondent insisted that W.P.(C)No.35392/08 -2- they would be questioned only in the Guest House of Hindustan Newsprint Limited, Velooor. They were questioned from 9 a.m. to 9 p.m. When the said persons came back, they were accompanied by a lady Police Officer and also a Constable. They remained in the Convent between 18.11.2008 and 25.11.2008 and kept surveillance over the witnesses. Those witnesses were not allowed to mingle with other inmates of the Convent. The stay of the outsiders in the Convent is against the Canons of the Congregation. Later, on 27.11.2008, the first petitioner was served with Exhibit P3 communication by the 3rd respondent requesting her to make available three Nuns named therein for questioning on 29.11.2008. The first petitioner on the very same day replied, stating that those Nuns are not working under her and therefore, it is not possible to arrange their presence. She also pointed out that the questioning done by the CBI earlier pursuant to Exhibit P1 was in violation of Section 160(1) of Cr.P.C. So, in Exhibit P4, she requested that further questioning may be done in the Convents concerned. 2. Feeling aggrieved by the actions of the 3rd respondent in taking the witnesses to a Guest House and questioning them W.P.(C)No.35392/08 -3- there and also sending Officers under him to stay in the Convent, this Writ Petition was filed. 3. The 3rd respondent has filed a counter affidavit denying the allegations of the petitioners. According to him, this Writ Petition is an attempt to stall the investigation into the crime involving the death of Sr.Abhaya. The 3rd respondent issued notice to the second petitioner for questioning the persons mentioned therein at the place of their choice. The second petitioner herself wanted to avoid the questioning in the Convent, as the same may expose them to unnecessary and unwanted adverse publicity. So, only as desired by the second writ petitioner, the persons mentioned were questioned in the Gust House. In fact, the witnesses on their own came to the Guest House. The questioning was over by 5.30 p.m. and they were sent back and so the allegations made by the petitioners on the above point are unfounded. Regarding the stay of the police women in the Convent, the 3rd respondent would submit that with the permission of the Head of the Convent, they stayed there. The allegations to the contrary are unfunded. The allegation of surveillance is also denied by the 3rd respondent. W.P.(C)No.35392/08 -4- 4. The petitioners have filed a reply affidavit contesting the stand taken in the counter affidavit of the 3rd respondent and also reiterating the averments in the Writ Petition. They say, against their wishes, the persons named in Exhibit P1 were taken to the Guest House of Hindustan Newsprint Limited and using their authority, the women Police Officers stayed in the Convent and conducted surveillance over the witnesses. 5. We heard learned counsel on both sides. Section 160 (1) of the Cr.P.C. reads as follows:- 160. Police Officer's power to require attendance of witnesses.- (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required. Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.” If a notice issued under Section 160(1) is disobeyed, it is an W.P.(C)No.35392/08 -5- offence punishable under Section 174 of the I.P.C. The above quoted provision grants certain protection to women in the matter of questioning. 6. As mentioned earlier, two heads of harassment from the part of the 3rd respondent were highlighted before us. (i) The witnesses were questioned in violation of Section 160 of the Cr.P.C. Instead of questioning them in the place of their residence, they were taken to the Guest House of a Central Public Sector undertaking and questioned there till late in the night. (2) Against the custom and tenets of the Congregation, two police women using their authority stayed in the Convent and conducted surveillance over the witnesses questioned. 7. As mentioned earlier, both the allegations are denied by the CBI. In this jurisdiction, we cannot take evidence and decide actually what happened. Normally, while questioning in criminal cases, the witnesses involved will be inconvenienced. But,if such inconvenience caused to them has crossed the limits and infringed any of their rights, they can work out the ordinary W.P.(C)No.35392/08 -6- remedies available to them before the ordinary courts. Such courts can take evidence and decide whether their rights were infringed and if it is found so, can grant reliefs also. But, regarding the future questioning, we record the undertaking of the learned Standing Counsel for the CBI that they will follow the mandate of Section 160(1) Cr.P.C. while questioning the lady witnesses. Against their wishes, they will not be taken to outside places for questioning. We also notice the submission of the learned counsel for the petitioners that they will co-operate with the CBI for questioning, if the same is done as mandated under Section 160(1) of the Cr.P.C. The Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn