IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 WP(CRL).No. 342 of 2011 (S) PETITIONER: PHALALOCHANAN NAIR S/O.EASWARA PILLAI "ROHINI" , KALAITHOTTAM ARUMANOOR,THIRUPURAM THIRUVANANTHAPURAM. BY ADV.SRI.K.B.PRADEEP RESPONDENT(S); 1 . THE STATE OF KERALA, REP.BY THE SECRETARY,HOME AFFAIRS GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2 . THE DIRECTOR GENERAL OF POLICE, O/O.THE DIRECATOR GENERAL GOVERNMENT OF KERALA THIRUVANANTHAPURAM. 3 . THE CIRCLE INSPECTOR OF POLICE, POOVAR POLICE STATION THIRUVANANTHAPURAM. 4 . THE SUB INSPECTOR OF POLICE, POOVAR POLICE STATION THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.R.PADMARAJAN. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RK WP(CRL).No. 342 of 2011 (S) APPENDIX PETITIONER'S EXHIBITS P1: COPY OF THE COMPLAINT DATED 3.07.2011 LODGED BY THE PETITIONER TO THE 4TH RESPONDENT. P2: COPY OF THE F.I.R.DATED 3.07.2011 REGISTERED BY THE 4TH RESPONDENT. RESPONDENTS ANNEXTURE ANNEXTURE-I : CIRCULARNO.5/2010 DATED, 25.01.10 ANNEXTURE-II : CIRCULARNO.20/2011 DATED, 21.07.11 ANNEXTURE-III: REPORT OF THE COMMITTEE ON REFORMS OF CRIMINAL JUDICIAL SYSTEM. /TRUE COPY/ PA TO JUDGE RK Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. = = = = = = = = = = = = = = = = = = = = = = = = WP(Crl).No.342 of 2011-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of December, 2011. Judgment Thottathil B.Radhakrishnan, J. 1.This writ petition was filed seeking issuance of a writ of habeas corpus alleging that a case of man-missing is not being appropriately investigated. Later, it was seen that the investigation is not appropriately progressing. Therefore, the Bench issued the following order on 1st August, 2011: 1.This is a classic case which demonstrates the most urgent need for the, quite often spoken of, requirement to segregate the investigation mechanism from the law and order machinery. 2.The petitioner before us alleges that a complaint of man missing registered in relation to his son, aged 18 years, does not see any progress in investigation. He therefore wants us to issue an order directing the State Government WPCR342/11 -: 2 :- authorities to make available the petitioner's son who is a citizen of India and is, therefore, entitled to the protection of the State. Following the earlier orders, today, the learned Government Pleader states that by now, more than 45 persons have been questioned by the investigating officer, yet without obtaining any lead. He says that the Public Relations Department has been contacted to provide facility to have publication of the identity of the missing person in an effort to trace him out. 3.The investigating officer, who is the Sub Inspector of Police, Poovar Police Station, is present before us. We asked him as to how many investigations are now being dealt with by him. He candidly admits that he deals with 76 investigations. We further asked him as to who takes care of law and order, administration and other allied activities in the Poovar Police Station. He says that he himself is in charge of law and order, administration etc. apart from the investigation of cases which are under him. In our view, we are fortunate that he is before us in life and blood. WPCR342/11 -: 3 :- 4.It would be totally impossible for a human being to take the cart load of work, investigation, law and order, administration etc. to be saddled ultimately with the responsibility of not carrying out those duties in accordance with the dictates of the Constitution and the laws, in time, as is necessary for reaching at the goals which are constitutionally fixed by the People of India. 5.It is a great misfortune that we do not have a separate stream to deal with investigations. The need is to ensure that investigations are not merely put on officers who have other duties. For the victim of crime, his quest for justice starts when he approaches the police for investigation. Investigator's work requires continuity. Many steps of the investigative process have a bearing on trial. It requires application of mind. If an officer is overloaded with multiple varieties of police duties and also, administrative duties, collection of materials, recording them in terms of the law, drawing up of diaries etc. would be at peril. The ultimate casualty would be WPCR342/11 -: 4 :- the prosecutions which are put in Court on the strength of such materials. The investigating officers have to go to Court in connection with trials. They have also to take care of providing materials before the prosecutors, for being vetted before finalising the police papers. The rate of acquittals which are often attributed to inefficient and improper investigations is not the making of the investigating officers alone. In the ultimate analysis, many of such situations would be the product of the circumstances in which the investigating officers are compelled to work. 6.If officers who are investigating cases have also to be in charge of maintenance of law and order, administration etc, maintenance of high probity in investigation and taking forward the requirement to ensure appropriate investigations and prosecutions in the criminal justice system will remain a mirage. 7.It would also be profitable to refer to inputs in a recent dialogue in the Lok Nayak Jayaprakash Narayan National Institute of Criminology and Forensic WPCR342/11 -: 5 :- Science(NICFS) established under the Ministry of Home Affairs in the Government of India to undertake teaching in criminology and to impart in-service training to senior functionaries of the criminal justice system. The monograph on “Delay in Criminal Trial” brought out by NICFS under the caption 'Expediting Criminal Trial' has enumerated different requirements for immediately gearing up the pre-charge stage in criminal cases. This includes the requirement to deal with the problem of lack of specialisation among investigating officers and also avoiding their distraction into non-investigation task like law and order duty, VIP duty etc. which prolongs the investigative process. Apart from this, different suggestions are made in that publication which would be material worth reading for guidance, by officers in charge of investigation, prosecution and also judicial officers. One cardinal principle that has to be remembered is that speedy and fair trial is a right of every individual and this is treated as an indefeasible even obtaining the gaze of the constitutional rights, in particular, the fundamental rights. WPCR342/11 -: 6 :- 8.Therefore, taking into consideration the facts of this case, the general public interest involved in such matters and the rights of the victims and the society for speedier and healthier investigation mechanisms, we direct the State Police (Chief) to look into all relevant aspects in the light of what is stated above and file a detailed statement as to the question whether the State Police has identified the need to bifurcate the investigating stream and law and order and other streams of police duties and if so, as to what action has been taken in that regard. 9.Now, the learned Government Pleader further points out that a Circular was issued by the State Police (Chief) in 2009 requiring Circle Inspectors to look into the investigations of 'man-missing' cases. We, therefore, direct the Circle Inspector of Police, Poovar to supervise the present investigation and if found necessary, take over the same and carry it out vigorously and report the progress to the District Police (Chief), Thiruvananthapuram, Rural, without fail within a period of three weeks so that WPCR342/11 -: 7 :- the learned Government Pleader will be able to place effective submissions at the next date of posting. Post after four weeks awaiting the report of the State Police (Chief) and the District Police (Chief), Thiruvananthapuram, Rural.” 2.Thereupon, it was reported by the District Police Chief, Thiruvananthapuram (Rural) that the writ petitioner's son fell into a sea following an altercation with a person and that the said person has been arrested on allegation of commission of offences punishable under Sections 304(ii) and 202 IPC. In answer to certain queries posed in the order dated 1st August, 2011, the State Police Chief had filed a statement. On the basis of that statement, the following order was minuted on 5th September, 2011: 1.We have seen the report of the District Police Chief, Trivandrum (Rural). It is submitted that the writ petitioner's son allegedly fell into sea following an WPCR342/11 -: 8 :- altercation with a person who is named in paragraph 3 of the statement and that the said person has confessed to certain matters, on the basis of which, a crime has been registered and the said person was arrested on 9.8.2011 on alleged commission offences punishable under Section 304 (ii) and 202 IPC. We record this only to point out that nothing much remains for the petitioner to prosecute this case before us. Learned counsel for the petitioner seeks a short adjournment. 2.With the aforesaid, we also have the statement of the State Police Chief, stated to have been filed in obedience to our earlier orders. The State Police Chief has taken earnest efforts to place all relevant facts and factors, however, ultimately conceding to the fact situation that the empowerment of the police investigating sector is not up to the required bench mark by any standard. It is stated that as on 1.7.2011, the sanctioned strength of Sub Inspector + Assistant Sub Inspector + Head Constable in the District Local Police is 7102 personnel and the department is actively pursuing step by step increase of the strength to arrive at an investigating WPCR342/11 -: 9 :- staff strength of 11000 in the near future. The question will be how near would be that future, having regard to the galloping crime rate, that too, crimes of varied nature and modus operandi getting surfaced as the society moves forward. In our view, there can be no excuses, even financial, to further delay the enhancement of the investigating staff strength. This is an issue which has a direct bearing on right to life of the citizens, the society's requirement for an orderly behaviour and also policing of the State's interest which may also get involved in the commission of crimes. 3.With this, we need the State Government to tell us as to the time frame within which the augmentation of the investigating staff strength and other requirements in terms of the State Police Chief's report can be expected. The Secretary to the Government of Kerala in the Home Department is, therefore, directed to file an affidavit disclosing the governmental action in this regard and the bench marks, including time limits, within which the aspirations expressed by the State Police Chief would WPCR342/11 -: 10 :- get translated into reality for the State Police. Post on 27.9.2011.” 3.When the matter was taken up on 28th November, 2011, Government Letter No.70640/D1/2011/Home dated 26.11.2011 was placed on record pointing out, among other things, that the Government have resolved to establish State Bureau of Investigation, which has district level officers in all districts and action is being taken to comply with that decision. Recording that Government letter, we thought that the Government would, by this time, have come out with further action on that. That was why as per order dated 28.11.2011, Government were required to file an affidavit as to the further action taken on the policy reflected in the aforesaid Government letter. We are yet to see such an affidavit. We do not think that this matter could be retained further. In the light of the submissions made before this WPCR342/11 -: 11 :- Court on the basis of the Government Letter No.70640/D1/2011/Home dated 26.11.2011, it is hereby directed that the Government shall formulate the necessary further action and establish State Bureau of Investigation with district level officers as stated before us, at the earliest. It is further directed that all actions proposed in that letter, including the strengthening of investigation in police stations, shall be carried out immediately so that the huge investigative work load of Kerala Police as noticed by the State Police Chief and reflected in the second paragraph of the aforesaid letter, gets handled appropriately. The writ petition so ordered. Thottathil B.Radhakrishnan, Judge. C.T.Ravikumar, Judge. Sha/