IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 WP(Crl.).No. 354 of 2009(S) --------------------------- PETITIONER: --------------- SURENDRAN UNNITHAN, RESIDING AT SURENDRA BHAVAN, KUNNIDA,KURUMBAKKARA P.O. PATHANAPURAM, PATHANAMTHITTA DISTRICT. BY ADV. SRI.T.C.SURESH MENON RESPONDENTS: --------------- 1. THE SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 2. SURENDRAN PILLAI, S/O. CHAKKALATE CHELLAPPAN PILLAI, RESIDING AT NAIR VILASOM, PATTEZHI VADAKKEKKARA,KADUVATHODE, CHELIKUZHI P.O., KOLLAM DISTRICT. ADDL.3. THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, CBI OFFICE, C.G.O COMPLEX, NEW DELHI - 3. (Addl.R3 is impleaded as per order dated 26.11.2010 in I.A.No.15404 of 2010) ADV. SRI.BECHU KURIAN THOMAS FOR R2 SRI.ROSHEN.D.ALEXANDER FOR R2 GOVERNMENT PLEADER SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR ADDL.R3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(Crl) No.354 of 2009 ***************************** Dated this the 26th day of November, 2010 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to search for, trace and produce his son Sreerajan Unnithan, a person aged about 25 years. The alleged detenu was taken to Mumbai in connection with his employment by the 2nd respondent in March, 2008 and there was no information about the whereabouts of the alleged detenu after 19.03.2008. Efforts made by the petitioner to trace his son did not succeed. It is, in these circumstances, that the petitioner came to this Court with this petition. He came to this Court as early as on 25.08.2009. The petition was admitted on 26.08.2009 and directions were issued from time to time. The Kerala Police had conducted detailed investigation. Superior officials of the police, including the Director General of Police, were directed to oversee, monitor and supervise the investigation. Special Investigating Team headed by the Superintendent of Police, CBCID, HHW-1, Trivandrum, was placed in charge of the investigation. W.P(Crl.) No.354 of 2009 2 2. To cut a long story short, the alleged detenu has not been traced yet. The police have come to the conclusion that the alleged detenu had wanted to come to Kerala and had boarded the train from Mumbai on 19.03.2008. En route for some reasons he was detained by the Railway Police at Chiploore Station on 20.03.2008. Thereafter his whereabouts have not been traced. 3. The petitioner came to this Court initially airing the apprehension/suspicion that the 2nd respondent is detaining his son, the alleged detenu. Investigation by the police has not in any way justified this apprehension of the petitioner. 4. But in spite of our efforts, we have not been able to get any authentic version about the whereabouts of the alleged detenu from the Investigators in the Kerala Police. This judgment must be read in continuation of the various orders passed by us resting with the detailed order dated 30.09.2010. The police have asked for further time for completing the investigation. The learned Government Pleader submits that the Kerala Police lacks sufficient infrastructure to conduct a complete, detailed and exhaustive probe into the allegations raised. The petitioner has now filed another application as W.P(Crl.) No.354 of 2009 3 I.A.No.15404 of 2010 to implead the Central Bureau of Investigation and to issue directions to the C.B.I to continue the investigation and trace the alleged detenu. 5. We have heard the learned Standing Counsel for the C.B.I. The C.B.I has filed objection to their impleadment and the proposal to entrust the investigation to them. The application is vehemently opposed. The learned Standing Counsel for the C.B.I submits that in the facts and circumstances of this case, this case cannot be said to fall within the parameters prescribed by the Supreme Court which can enable this Court to invoke its constitutional jurisdiction under Article 226 to entrust the investigation to the C.B.I. There is nothing extraordinary or peculiar in this case to justify resort to that course by this Court, submits the learned Standing Counsel for the C.B.I. 6. We have anxiously considered all the relevant inputs. We are certain that a mere case of man missing cannot and would not have been entrusted by us to the C.B.I. But we cannot omit to appreciate the unfortunate plight of the petitioner. The available indications suggest that the petitioner's son, the alleged detenu, was last seen in the custody of the police. That police belongs to another State. We are persuaded to accept the W.P(Crl.) No.354 of 2009 4 request of the petitioner and the stand of the learned Government Pleader that a meaningful, effective and exhaustive investigation can be conducted only by a police agency which has the requisite infrastructure to conduct such an investigation. We do, in these circumstances, reckon this as a fit case where the investigation must be entrusted to the C.B.I. We may reiterate at the risk of repetition that the fact that the alleged detenu was known to have been detained at a police station in a State outside Kerala, is the factor that tilts the scales in our mind in favour of exercising the powers under Article 226 to entrust the investigation to the C.B.I. 7. This Writ Petition is, in these circumstances, allowed in part. We direct the additional 3rd respondent, CBI, to continue the investigation in Crime No.147/CR/HHW-1/Tvm/2010 of CBCID under the caption `man missing' (earlier registered as Crime 315 of 2008 of Enathu Police Station). The investigation shall be conducted by the Trivandrum unit of the C.B.I. We direct the State of Kerala and the 1st respondent to extend all necessary co-operation and facilities to the CBI to conduct such investigation. The file shall forthwith be transmitted to the C.B.I by the present Investigating Officer. Trimonthly report about W.P(Crl.) No.354 of 2009 5 the progress of the investigation shall be filed by the C.B.I before this Court. The first of such report shall be filed on or before 31.01.2011. 8. Hand over copies of this judgment to the learned Government Pleader and the learned Standing Counsel for the C.B.I forthwith for compliance of the directions. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/ W.P(Crl.) No.354 of 2009 6 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.354 of 2009 ------------------------------------- Dated this the 28th day of June, 2010 ORDER BASANT, J. W.P(Crl.) No.354 of 2009 7 The alleged detenu has not been traced so far. Report is filed by the Director General of Police, Kerala about the steps taken and the progress made in the investigation. The Court is assured that the needful shall be done and every effort shall be taken to trace the alleged detenu at the earliest. Time is prayed for by the Director General of Police to produce results. We accept the request of the Director General of Police. We post the case to 16.08.2010. If the alleged detenu is not traced by then, the Director General of Police shall file a further statement explaining to the Court the steps taken and the progress made. Such statement must be filed on or before 12.08.2010 with copy to the counsel for the petitioner. Needless to say, if the alleged detenu is traced earlier, he shall be dealt with in accordance with law and his presence before Court shall be ensured. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- W.P(Crl.) No.354 of 2009 8 W.P(Crl.) No.354 of 2009 9 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.354 of 2009 ------------------------------------- Dated this the 19th day of May, 2010 ORDER BASANT, J. This order must be read in continuation of the earlier directions/orders issued by this Court in the matter resting with the order dated 05.04.2010. The petitioner has come to this Court complaining that his adult son Sreerajan Unnithan is missing from 20.03.2008. This petition was filed on 25.08.2009. Directions were issued from time to time. The alleged detenu has not been traced and his whereabouts has not been ascertained so far. By order dated 05.02.2010, another Bench W.P(Crl.) No.354 of 2009 10 had directed the Director General of Police to continue the investigation. Accordingly a team was constituted and the investigation is now being conducted by the Superintendent of Police, CBCID, HHW-I, Trivandrum. We have perused the report dated 18.05.2010 submitted by the Superintendent of Police, CBCID, HHW-I. The report shows that the investigation has not yielded any tangible results. Efforts are continuing, it is reported. 2. We feel that more active and serious efforts must be undertaken by the police to trace the alleged detenu, who has been missing from 20.03.2008. We deem it necessary, in these circumstances, to direct the Director General of Police to personally monitor and supervise the investigation in this case and ensure that no stone is left unturned to secure the presence of the alleged detenu by the next date of posting. 3. Call this petition again on 28.06.2010. By which day, we expect the Director General of Police to ensure that tangible results are produced. If the alleged detenu is not traced by that date, the Director General of Police shall file a statement explaining the steps taken and the results achieved. W.P(Crl.) No.354 of 2009 11 4. Hand over a copy of this order for immediate communication to the Director General of Police. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/- W.P(Crl.) No.354 of 2009 12 R.BASANT & M.C.HARI RANI, JJ. ------------------------------------ W.P(Crl.) No.354 of 2009 ------------------------------------- Dated this the 15th day of September, 2009 ORDER BASANT, J. Statement of facts have been filed by the Investigating Officer, which shows that investigation in the crime has been conducted. But the alleged detenu has not been traced. The learned Government Pleader prays that time may be granted to the police to take appropriate action to re-open the investigation and proceed further with the investigation. Request is accepted. Time is granted to the police as requested by the learned Government Pleader to take appropriate action. W.P(Crl.) No.354 of 2009 13 2. Call on 12.10.09. On that day, report shall be filed by the Investigating Officer about the steps taken and the stage of the proceedings. Appropriate further directions shall be issued on that date. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-