IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 32732 of 2003(V) --------------------------------------- PETITIONER: ------------------- C.K.JANU D/O. KARIAN, AGED 32 YEARS, RESIDING AT PANAVALLI MICHABHOOMI COLONY, PANAVALLI P.O., KATHKULAM VIA, MANANTHAVADI, WAYANADU. BY ADV. SRI.A.X.VARGHESE. RESPONDENTS: ----------------------- 1. DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, NEW DELHI. 2. SUPERINTENDENT, SPECIAL CRIME BRANCH, C.B.I., RAJAJI BHAVAN, BASANT NAGER, CHENNAI. 3. STATE OF KERALA, REP.BY CHIEF SECRETARY SECRETARIATE, THIRUVANANTHAPURAM. 4. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. R3 & R4 BY GOVERNMENT PLEADER SRI. S.U. NAZAR, R1 & R2 BY ADV. SRI.M.V.S.NAMBOOTHIRY,S.C, C.B.I, ADV. SRI. S. SREEKUMAR, S.C, C.B.I. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2008, ALONG WITH W.P.(C). NOS. 35533/2004 & 890/2005 THE COURT ON 04/12/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.32732/2003-V: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION DTD. 23/04/2003. EXT.P.2: COPY OF THE NOTIFICATION DTD. 17/05/2003. EXT.P.2.A: COPY OF THE FORWARDING NOTE DTD. 15/07/2003. EXT.P.3: COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, CHENNAI DTD. 23/09/2003. EXT.P.4: COPY OF THE NEWS ITEM REPORTED IN MADHYAMAM DTD. 26/02/03. EXT.P.5: COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE INSPECTOR GENERAL OF FORESTS REQUESTING FOR NECESSARY INSTRUCTIONS TO BE GIVEN TO THE AUTHORITIES CONCERNED TO REGISTER A CASE AGAINST THE CULPRITS WHO HAVE SET FIRE TO THE PROTECTED AREA ON 19/06/03. EXT.P.6: VIDEO CLIPPINGS OF KAIRALI CHANNEL. EXT.P.6.A: VIDEO CLIPPINGS OF INDIA VISION. EXT.P.7: COPY OF THE NEWS ITEM REPORTED IN INDIAN EXPRESS DTD. 18/08/04. EXT.P.8: COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER DTD. 05/12/03. EXT.P.9: CERTAIN PHOTOGRAPHS SHOWING THE ATROCITIES COMMITTED ON THE TRIBAL WOMEN AND CHILDREN. EXT.P.10: COPY OF THE COMPLAINT SUBMITTED BY A TRIBAL WOMAN KAVITHA BEFORE C.B.I. EXT.P.10.A: ANOTHER COMPLAINT SUBMITTED BY ANOTHER TRIBAL WOMAN MALU, BEFORE THE C.B.I. DTD. 14/07/03. EXT.P.11: COPY OF THE MEDICAL REPORT OF GITHANANDAN. EXT.P.12: PHOTOGRAPH OF LAND GIVEN FOR AGRICULTURAL PURPOSE. EXT.P.13: COPY OF THE MAP. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. R. BASANT, J. ------------------------------------------------- W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E ------------------------------------------------- Dated this the 4th day of December, 2008 JUDGMENT As the issues involved in these three writ petitions, though distinct, are broadly intertwined, I choose to dispose them of by this common (though virtually distinct) judgment. I am perturbed and dissatisfied with the delay in disposal of these petitions filed in 2003, 2004 and 2005 for which delay I must own the crucial slice of responsibility. The vagueness and general nature of the assertions and allegations, the absence of precise materials to resolve the controversies, voluminous materials thrust into court, some of them not directly relevant, inadequate assistance in properly marshalling the facts, absence of adequate information on vital aspects have all contributed to the delay in disposal of these writ petitions which were heard in part by, at least, two Judges W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 2 :- earlier. I start with the dissatisfaction that I have been responsible partly for the delay in the disposal. The reasons for the delay may be relevant to appease myself that the delay is not attributable to lethargy or want of commitment; but they are certainly not sufficient to satisfy the petitioners who have been forced to remain in the queue for justice for an unjustifiably long period of time. The matter was heard for a number of days and was ultimately re-opened and heard and reserved for judgment on 29/10/08. 2. A synoptic resume of the events which led to the three writ petitions in question does appear to be crucially necessary before I take up each of these petitions for separate consideration in this common judgment. The disputes raised in these petitions have a human face and reveal the tale of suffering humanity engaged in the battle of life. Adivasis in India have grievances about deprivation of land and resources which belonged to them. The history of human civilization has been the sad tale of “some” attempting to deprive “all” of the elements which belong to all in common. The four elements – land, water, air and fire (in Indian thought, there are five – space being the 5th of the Panjaboothas) belonged originally to all on the planet with no exclusive right for any one. Slowly, the W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 3 :- powerful started arrogating to themselves the elements. The elements which belonged to all originally have fallen into the hands of a few. Land was the first casualty. Water and even air are facing threats and fire – the element of destruction is also concentrated in the hands of a few. The quest to conquer the space has also began. 3. Adivasis complain of deprivation of land and that they are being driven out of land which belonged to them. Adivasis in Kerala have been clamouring for recognition of their right over land. A 48 days long peaceful agitation in front of the Secretariat at Trivandrum led to execution of an agreement dated 16/10/01 between the representatives of the Adivasis and the Government. There was promise of distribution of land. This agreement was allegedly not honoured and performed in letter and spirit. This gave rise to a lot of resentment. Protesting against the non-compliance of the agreement, the adivasis under the leadership of AGMS (Advasis Gothra Maha Sabha) started agitations. They embarked on an agitation in January, 2003. Men and materials were collected and they entered into and occupied forest land at Muthanga, which was long earlier declared to be reserve forest, falling within the Wayanad Wild Life Sanctuary. This entry by way of protest W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 4 :- commenced on 5/1/03. The protesters had collected men and materials and the proposal was to occupy the forest land in assertion of their right to land. 4. Powers that be did take note of this method of protest but chose not to act decisively. Call it inaction or tolerance as you may choose, we find the protesters occupying the reserve forest land belonging to the Government within the Wayanad Wild Life Sanctuary without any resistance till 17/2/03. From 5/1/03 to 17/2/03 the protesters occupied the forest land and no action was taken to deter them or to throw them out of the reserve forest into which they had trespassed. The action of the protesters were clearly, undoubtedly and even admittedly opposed to law. They felt that their democratic right to protest took within its wings the right to so violate the law - “peacefully”, according to them. 5. Some untoward incidents took place on 17/2/03. Rival versions are advanced about the incidents that took place on that day. The officials of the State assert that on that day there was mischievous fire in the forest and the protesters were responsible for such fire. The protesters on the other hand explained that it was not mischievous fire caused by the protesters; but it was the officials of the State and certain W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 5 :- miscreants acting at their dictation who caused the fire to discredit the peaceful protest. Be that as it may, we find some officials and other civilians (described as goondas by the protesters and as casual workers by the State and its officials) being taken into custody and held hostage by the protesters. According to the protesters, these persons had caused the fire mischievously and they had confessed that they were so responsible. They were detained and were released ultimately only when the District Collector, Wayanad, intervened. About that incident on 17/2/03, a crime was registered at the Sulthan Bathery Police Station as Crime No.71/03. 6. This action on the part of the protesters raised alarm. Local people became agitated. The State and its officials perceived the threat to law and order posed by the occupying protesters. After the hostages were released by the protesters consequent to the discussions with the District Collector etc., there was a decision taken on 18/2/03 by the State and its officials to evict the protesters from the reserve forest. This decision was allegedly announced and prior information was allegedly conveyed to all the protesters to vacate the forest land or face forcible eviction. The operation eviction was to start on 19/2/03 it was decided. W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 6 :- 7. The State hurriedly summoned forces including the police, forest and other officials etc., to carry out this “operation eviction”. Men, materials and arms were collected by the executive which commenced the operation on 19/2/03. In the course of operation eviction on that day untoward incidents occurred at two places. In respect of such incidents on 19/2/03 at two different venues in the area occupied by the protesters, conflicting versions are advanced by the State and the protesters. According to the protesters, there was meaningless violence, cruelty and barbarity unleashed against the helpless and defenceless protesters who included women and children whereas the State and its officials take the stand that it was no peaceful protest at all. The protesters had collected arms and weapons. They had allegedly obstructed and attacked public servants discharging their official duty. The State alleges that the unruly and violent protesters had held public officials hostages and had demanded ransom – in the form of concessions and demands, for their release. In the course of operation eviction, the police and the officials had to employ force. Firing was resorted to. One person by name Jogi was killed in the operation. Several suffered injuries – both protesters and officials. Some officials who were held hostage in the course of W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 7 :- the operation, had suffered very serious injuries. They were not released by the protesters. They laid conditions and made demands in return for such release. One police man, who was forcibly released later from captivity, succumbed to his injuries. In respect of the incidents that took place on that day including the death of one of the protesters (Jogi) who succumbed to his injuries, six crimes were registered. Five of them were against the protesters who allegedly engaged themselves in objectionable culpable activities to resist the operation eviction and to attack the officials. The 6th one was a crime registered under Sec.174 Cr.P.C. regarding the death of the protester (Jogi) in police firing. 8. Investigation by the Kerala police commenced. Protest, illegal entry/trespass into the forest on 5/1/03, the tolerance/inaction till 17/2/03 and the events that took place between 17/2/03 and 19/2/03 had attracted great public attention. The Government tried to justify its stand on the assertion that it could not be a passive spectator to the protesters taking law into their hands and defying the Government and its officials. On the other hand, there was criticism that the State machinery had acted illegally unlawfully and improperly. The matter became a very sensitive and W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 8 :- sensational issue. Allegations were raised that a number of protesters have been killed in the police action and many of them had disappeared. It was alleged that the State forces had liquidated many of the protesters. The issue attracted national attention and the dailies came out with exaggerated versions regarding the incidents which were furnished to them by different quarters. The conscience of the community was hurt. Demands were made for a thorough and proper investigation/enquiry. 9. The local police continued the investigation. The State took the stand that there was nothing improper. The attention of the National Human Rights Commission was invited to the episode. By Ext.P5 order dated 20/3/03 (all documents are referred to as they are marked in W.P.(c) No.890/05), the National Human Rights Commission issued directions. Crucially relevant portions of Ext.P5 are extracted below: “Both the Chief Secretary and the DGP have “concluded” that there was no question of any departmental action being taken against any police personnel as they did not violate any law at any point of time and had acted very much within the parameters of law under the supervision of W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 9 :- their superiors. After considering the reports submitted by the Chief Secretary and the DGP we find that the same do not meet the allegations contained in the complaint squarely. Their reports appear to be based on information given to them by the District officials who were present at the spot on 19.2.2003 and whose conduct itself is impugned. We are at a loss to understand as to how the Chief Secretary and the DGP could conclude, without holding any, independent inquiry, that not only was the police action justified but that even no departmental proceedings against any police/forest official were called for. Prima facie we are not satisfied with the reports. The issue before us is of a great importance as it affects human rights of a large number of persons belonging to the vulnerable section of the society. Whether or not police firing on 19.2.2003 was justified and whether more force then was necessary was used as alleged by the complainant can only be found out by holding an inquiry, through an agency independent of the State machinery. We are of the opinion, that there should be an W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 10 :- independent inquiry, preferably, by CBI into the police firing and the related incidents, including various allegations of torture, which took place in Muthanga forest region on 19.2.2003. We, accordingly, strongly recommend to the State Government to take effective steps for getting the independent inquiry to be commenced at the earliest. Action taken report in this behalf should be sent to the NHRC in 10 days. In the meanwhile, we appeal to all concerned to maintain peace and clam so that the inquiry can be held expeditiously.” (emphasis supplied) 10. The State Government responded positively to the directions of the National Human Rights Commission and very promptly Ext.P6 order was issued. By the said order, an enquiry was directed to be conducted by the C.B.I. in deference to Ext.P5 order passed by the National Human Rights Commission. It will be apposite straightaway to extract Ext.P6 order which reads as follows: “In pursuance of the provisions of Section 6 of the Delhi Special Police W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 11 :- Establishment Act, 1946 (Central Act 25 of 1946), the Government of Kerala hereby accord consent to the members of the Delhi Special Police Establishment to exercise powers and jurisdiction in law whole of the State of Kerala for conducting an inquiry into the police firing and circumstances leading to the same and also related incidents including various allegations of torture which took place in Muthanga Forest Region on 19.2.2003 in the Wayanad district of Kerala.” (emphasis supplied) 11. On the basis of Ext.P6 order, the C.B.I. registered Preliminary Enquiry No.2/03 and commenced the enquiry. Though Ext.P6 order referred to Sec.6 of the DSPE Act, the C.B.I. reckoned the same only as an enquiry which it was called upon to conduct on the basis of Ext.P6 order following the direction in Ext.P5 of the NHRC. Hence the preliminary enquiry report (and not First Information Report) was registered as P.E.No.2/03. I take note straight away that P.E.2/03, according to the CBI, was not registered as part of crime investigation; but only as assignment of the responsibility to enquire into the W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 12 :- matter as directed by the State Government under Ext.P6 as per the orders of the NHRC in Ext.P5. 12. There was clamour that the 7 crimes which were registered at the Sulthan Bathery Police Station should also be entrusted to the C.B.I. for conducting a proper unbiased investigation. It was apprehended that if the investigations were left to the State police a free fair, honest and bona fide investigation may not be conducted. The Government appears to have accepted the said request and we find Ext.P7 Notification dated 17/5/03 being issued by the Government under Sec.6 of the DSPE Act. For investigation of all the 7 cases (one relating to the incident on 17/2/03 (Crime No.71/03), 5 relating to the incidents that took place in the forest at two venues on 19/2/03 (Crime Nos.76 to 80/03) in the course of operation eviction and the one under Sec.174 Cr.P.C. relating to the death of Jogi (i.e., Crime NO.81/03) consent was given by Ext.P7 to the C.B.I. to conduct investigation. 13. After securing consent of the State Government, the Central Government issued Ext.P30 Notification dated 25/6/03 under which the members of the DSPE were conferred with powers and jurisdiction to investigate into 6 specified crimes i.e., Crime No.71/03 and 76 to 80/03 of the Sulthan Bathery Police W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 13 :- Station. Be it noted here that consent was not specifically granted to investigate Crime No.81/03 registered under Sec.174 Cr.P.C. 14. It will be apposite straightaway to note that after extending powers jurisdiction to investigate into these 6 specific crimes residual authority is given in Ext.P30 to exercise powers in respect of “attempts, abetments and conspiracy in relation to or in connection with one or more of the offences mentioned above and any other offence and offences committed in the course of the same transaction or arising out of the same facts.” 15. On the basis of Exts.P7 and P30 the C.B.I. took over investigation in all the 6 crimes. Those crimes were registered as R.C.Nos.2 to 7/S/03/CBI/SCB/Chennai. I have already mentioned that the enquiry ordered under Ext.P6 was registered as P.E.No.2/03. The crime registered under Sec.174 Cr.P.C. in respect of the death of Jogi – Crime No.81/03 of the Sulthan Bathery Police Station was not registered as a regular crime by the CBI. It was not a crime in the strict sense – in that no specific cognizable offence was alleged in the report registered in the FIR book. That crime is referred to in Ext.P7 specifically. But the same is not specifically referred to in Ext.P30. That crime i.e., Crime No.81/03 was re-registered as P.E.No.3/03. W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 14 :- The C.B.I. started investigation into all the 6 regular crimes referred above (R.C.Nos.2 to 7/03) as also enquiry in two P.Es. referred above (P.E.Nos. 2 and 3/03). 16. Before the investigations were transferred to the C.B.I., Smt.C.K. Janu, the leader of the AGMS and who spearheaded agitation along with her trusted colleagues before the Secretariat for 48 days and at Muthanga from 5/1/03 was arrested along with another leader Geethanandan on 22/2/03 by the local police. There are rival versions about the arrest. The version of the police is that the two leaders were detained by the local people and handed over to the police; whereas it is the version of Janu and Geethanandan that they had come out of the forest with the intention of surrendering before the police. According to them, they took the decision to surrender as the police were vexing and harassing the advasis in their quest to apprehend the leaders and arrest them. Allegations were raised by the said Janu that she was tortured and tormented while in police custody after arrest before she was produced before the Magistrate. 17. While the investigation by the C.B.I. was in progress, we find the first of these three cases - W.P.(c) No.32732/03, being filed by Smt.C.K. Janu. It may be apposite straightaway to W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 15 :- note that at that stage no objections were raised against the investigation by the C.B.I. and the specific request was only to direct the C.B.I. to conduct a thorough investigation into the custodial torture of the petitioner - C.K. Janu by the local police. 18. During the pendency of W.P.(c) No.32732/03, we find another petition – W.P.(c) No.35533/04 being filed by 8 minor children represented by their parents/guardians. In the operation eviction that took place on 19/2/03 several women and children had also got involved and some of them had suffered injuries. There were allegations that the police had behaved brutally to such innocent women and children. There were allegations that the children were unjustifiably taken into custody and detained and sent to prison along with the alleged adult offenders. Their human rights have been violated and the rights of the children under the Juvenile Justice (Care and Protection of Children) Act, 2000 were grossly infringed, it was alleged. W.P.(c) No.35533/04 was one filed to alleviate the grievances of such children/innocent sufferers. 19. The C.B.I. completed the investigation/enquiry and submitted their final reports. In P.E.No.2/03 registered on the basis of Ext.P6., Ext.R3(c) report was submitted by the C.B.I. to the Government of Kerala. In that report, the C.B.I. had come to W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 16 :- the final conclusion that there was no contumacious conduct whatsoever on the part of the police. For the sake of ready and immediate reference, I extract below the final recommendations in Ext.R3(c) in para-12: “12. Final recommendation: i) The facts and circumstances discussed above evidently show that the encroachment and the continued illegal occupation at Muthanga forest region by Adivasis under the aegis of Adivasi Gothra Maha Sabha was blatantly illegal. Though, as stated above, the District Administration and Forest Authorities did not react at the earliest for various reasons, the disruption of duties of forest officials who went into the forest to douse the fire on 17.2.03 and their abduction and wrongful confinement by the Adivasis necessitated the immediate eviction. Hence, the decision to evict was not only justified but was also seriously warranted in the given circumstances. ii) during the eviction on 19.2.03 also, the adivasis, instead of surrendering, decided to lock horns with the police and forest officials which resulted in the use of force during the morning operation at W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 17 :- Thangarapadi. In this melee, a group of Police and Forest officials got isolated and 3 among them were attacked and forcefully taken by the Adivasis. Those taken were inflicted serious injuries and were detained as captives by the Adivasis in s shed at Koundangvayal where they had re- assembled after the morning 9operation at Thagarapadi, thus, precipitating the problem further. The Adivasis also started bargaining with the Police at the cost of the lives of the captives without heeding to the request of the police for an unconditional release of the hostages. This violent and inconsiderate behaviour of the Adivasis without giving any respect to the law of the land ultimately necessitated the use of fire arms by the police. Hence, the enquiry reveals that, the use of force and the firing by the police at Muthanga on 19.2.03 was clearly necessitated by the turn of events and its fully justified and lawful. Iii) The enquiry conducted by CBI did not reveal any lapse on the part of the police while dealing with the situation at Muthanga on 19.2.03 and as such no action is recommended against any of the officials.” W.P.(c) Nos.32732 of 2003-V, 35533 of 2004-E & 890 of 2005-E -: 18 :- It is submitted that the report in the preliminary enquiry has been submitted by the C.B.I. to the State Government. It is not specifically stated whether the State Government has considered the same and accepted or rejected it. 20. Investigation continued into 6 crimes which were initially registered