IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WP(C).No. 35594 of 2010(Y) --------------------------------------- CRIME NO.137/2001 OF PERUMBADAPPU POLICE STATION. .................. PETITIONER(S): --------------------- AYISUMMA, W/O.LATE MUHAMMEDUNNI, MALAYAM KULATHEL HOUSE, MARANCHERY, MALAPPURAM DISTRICT. BY ADV. SRI.P.SANTHOSH (PODUVAL), SMT.R.RAJITHA. RESPONDENT(S): ------------------------- 1. SUB INSPECTOR OF POLICE, PERUMBADAPPU POLICE STATION, MALAPPURAM-676 505. 2. SUPERINTENDENT OF POLICE, MALAPPURAM-676 505. 3. DY. SUPERINTENDENT OF POLICE, C.B.C.I.D, MALAPPURAM-676 505. 4. SUPERINTENDENT OF POLICE, C.B.C.I.D, MALAPPURAM-676 505. 5. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM-695 001. 6. SUPERINTENDENT OF POLICE, SPE/CBI, KOCHI-682 016. 7. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 TO R7 BY GOVT. PLEADER SMT.M.K. PUSHPALATHA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C). No.35594 of 2010 -------------------------------------- Dated this the 21st day of February, 2011. JUDGMENT Petitioner seeks a direction to respondent No.6, Superintendent of Police, SPE/CBI, Kochi to take up investigation of Crime No.137 of 2001 of Perumbadappu Police Station. Petitioner's son, Suroor died under mysterious circumstances in the year 2001. He was missing from his house on 06.02.2001 onwards. A case for 'man missing' was registered. While so, a dead body was traced in kiliyamthodu on 15.02.2001 and after conducting super imposition test it was identified to be the body of the said Suroor. The Sub Inspector, Perumbadappu investigated the case. While so petitioner filed O.P.No.31291 of 2001 before this Court and this Court vide Ext.P2, judgment directed respondent No.2, Superintendent of Police, Malappuram to supervise the investigation. Still, there was no progress in the investigation. Petitioner submitted a representation to the Chief Minister requesting proper investigation of the case. Based on that, the CBCID took over investigation of the case on 12.10.2003. But that has not yielded any result and hence this petition. 2. As per direction of this Court the Detective Inspector, CBCID, HHW-III, Kozhikode has submitted a statement detailing the steps taken so far in the investigation of the case and its result. Learned counsel for petitioner argues that even now the Deputy Superintendent of Police who is conducting WP(C) No.35594/2010 2 investigation has not been able to say in what manner the alleged incident occurred apart from stating about involvement of a few persons in the death of petitioner's son. Learned Public Prosecutor has submitted that the Detective Inspector has conducted investigation of the case and it revealed that four persons are involved in the death of deceased but, the Detective Inspector was not able to find out in what manner death was caused. It is also the submission of learned Public Prosecutor that the present Investigating Agency has no objection in handing over the investigation to the Central Bureau of Investigation (for short, “the CBI”). 3. The Supreme Court in State of West Bengal v. Committee for Protection of Democratic Rights (2010 (1) KLT 723) has laid down the guidelines for entrusting a case for investigation to the CBI. It is stated that the extra-ordinary power of the High Court must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The Supreme Court has also pointed out that otherwise the CBI would be flooded WP(C) No.35594/2010 3 with a large number of cases and with limited resources it may find it difficult to properly investigate even serious cases and in the process, lose its credibility and purpose with unsatisfactory investigations. 4. I have gone through the statement submitted by the present Investigating Officer. He has stated about the investigation conducted so far and its result. According to the Investigating Officer, involvement of certain persons was suspected and polygraph test was conducted. On the basis of the polygraph test and circumstantial evidence four persons were arrayed as accused (accused Nos.1 to 4) and the Section of offence was altered to under Sections 120B, 302 and 201 read with Section 34 of the Indian Penal Code. In the meantime, some of the accused were arrested and accused Nos.2 and 3 were released on bail. The statement of the Detective Inspector who investigated the case is that there is no solid evidence to prove the incident and there are only circumstantial evidence and polygraph test result available as evidence. He has expressed his difficulty in collecting solid evidence about the incident which occurred ten years back. 5. It is true that the mother who is unable to ascertain cause of death of her son is before this Court even after about ten years of the incident. It would appear from the report submitted by the present Investigating Officer that apart WP(C) No.35594/2010 4 from arraying certain persons as accused on account of circumstantial evidence and polygraph test result, he was not able to say in what manner the death of the deceased was caused. But that by itself is no ground to handover investigation to the CBI. It is not as if there was any laxity on the part of the present investigating team in ascertaining the cause of death and the manner of causing it. 6. Presently investigation is being conducted by the Detective Inspector of the CBCID, H&HW-III, Kozhikode. Having regard to the circumstances of the case it appears to me that the investigation can be entrusted to the Superintendent of Police of that wing rather than leaving the matter to the CBI. The State Police is competent and should find out the cause of death rather than saying that they have no objection in handing over the case to the CBI for investigation. Having regard to the facts and circumstances of the case this petition is disposed of in the following lines: i. The Superintendent of Police, CBCID, H&HW-III, Kozhikode is directed to take up further investigation of the case. ii. It is open to him to form a team of officers, if necessary consisting the present Investigating Officers also to ensure continuity of investigation. iii. The Additional Director General of Police (Crimes), WP(C) No.35594/2010 5 Thiruvananthapuram shall pass necessary orders in this regard within two weeks from the date of receipt of a copy of this judgment which petitioner shall make available to that officer. iv. The Superintendent of Police with whom the investigation is entrusted shall make every endeavour and take all necessary steps as provided under law to unravel the cause of death and manner in which it is committed, if it is found to be a murder. THOMAS P.JOSEPH, Judge. cks