IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 20767 of 2008(V) -------------------------- PETITIONER: ------------ KUNIYIL SUBAIDA, W/O.MUHAMMED, SHIHAB MANZIL, P.O.VILACODE, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: ------------- 1. THE CIRCLE INSPECTORL OF POLICE, OFFICE OF THE CIRCLE INSPECTORL OF POLICE, IRITTY. 2. THE DEPUTY SUPERINTENDENT OF POLICE, OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE, IRITTY. 3. THE SUB INSPECTOR OF POLICE, IRITTY POLICE STATION. 4. THE CENTRAL BUREAU OF INVESTIGATION, COCHIN UNIT, REPRESENTED BY THE SUPERINTENDENT OF CENTRAL BUREAU OF INVESTIGATION, OFFICE OF THE CENTRAL BUREAU OF INVESTIGATION, COCHIN UNIT, KADAVANTHRA, ERNAKULAM. 5. THE CENTRAL BUREAU OF INVESTIGATION, NEW DELHI, REPRESENTED BY ITS DIRECTOR. 6. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R4 & 5 BY GOVERNMENT PLEADER SRI. P.N. SUKUMARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- W.P.(c)No. 20767 of 2008-V ------------------------------------------------- Dated this the 3rd day of September, 2008 JUDGMENT The contract theory of modern organised State postulates that the individual citizen must surrender his primitive right to private vengeance and personal retribution in favour of the State. In return, he is entitled to and has the right to insist that the State must provide and must have in place an efficient, fair and just system of administration of criminal justice. Efficient investigation of crimes, just and expeditious adjudication of guilt and prompt execution of the result of adjudication are the hallmarks of an efficient system of administration of criminal justice. Whatever the political colour of the elected democratic executive Government, every citizen of the Indian Republic has an inalienable right to insist that the State, in discharge of its constitutional promise of good governance, must perform its duty to administer criminal W.P.(c)No. 20767 of 2008-V -: 2 :- justice fairly, impartially and without fear or favour. The right to live in a crime free society and to expect fair and efficient investigation and trial is inherent in the right to live guaranteed under Art.21 of the Constitution of India. If such rights were not zealously protected, the evil of private vengeance and personal retribution will raise its ugly head and render the constitutional promise of justice unreal. “To each what he deserves” is the mantra of justice. Succour to the victim, punishment to the guilty, exoneration for the innocent and peace of harmony to society are the basic postulates of criminal justice. 2. The petitioner herein – the mother of a young man aged 23 years who was murdered most brutally and violently on 23/6/08, laments before me in this writ petition that this basic right for a free, fair, unbiased, impartial and efficient investigation has been denied to her. She prays that investigation may be entrusted to fair, just, efficient and impartial hands. It may be taken away from the local police and may be handed over to the C.B.I. This, in short, is the prayer in this writ petition. W.P.(c)No. 20767 of 2008-V -: 3 :- 3. I must be circumspect. I must avoid expression of any opinion which might even remotely suggest that I have already come to any specific conclusion about the complicity or otherwise of any accused presently on the array or any one not arrayed so far. I must also be careful that no observation should send negative messages or cause embarrassment to the political executive, police establishment of the State or the present Investigating Officers. In cold judicial objectivity, I intend to consider and decide whether the interests of justice demand and mandate that this Court should invoke the extraordinary constitutional jurisdiction under Art.226 of the Constitution and/or the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. vested in it to entrust the investigation to the C.B.I. 4. After hearing arguments elaborately and after perusing the records, the learned Public Prosecutor was requested to state whether the State would on its own agree to entrust the investigation to the C.B.I. so that this Court can avoid even inevitable observations in the judgment. The learned Public W.P.(c)No. 20767 of 2008-V -: 4 :- Prosecutor, after taking instructions, submits that the State is satisfied that a proper investigation is in progress and is not willing to resort to such a course. So discuss I must all the relevant and vital facts. I must give reasons for my decision. Facts may have to be adverted to. But I enter a caveat and state that the discussions and the expressions of opinion are only to decide whether the investigation must be handed over to the C.B.I. They have no bearing on the question of guilt of the accused now on the array or outside it. 5. To the law relating to jurisdiction under Art.226 of the Constitution first. Normally and ordinarily, investigation must be conducted by the State police authorities. Under the Constitution that we have, it is the duty, responsibility, power and privilege of the provincial/State Governments to conduct investigation into the crimes and bring the offenders to book. The C.B.I. constituted under the Delhi Special Police Establishment Act can take over investigation only when requested by the State Government or when ordered by the superior courts. The court must be alertly conscious of its W.P.(c)No. 20767 of 2008-V -: 5 :- burden of responsibility. In issuing a direction to the C.B.I. to conduct investigation, this Court is interfering with the delicate balance of power between the Federal and Provincial Governments as mandated by the Constitution and the laws. Sufficient, satisfactory and compelling reasons must be shown to exist to justify the invocation of such powers. Law on this aspect is well settled. I do not, in these circumstances, think it necessary to advert to the precedents copiously cited at the Bar in any great detail in this judgment. There has been an invitation to this Court not to take up the responsibility of deciding the matter now as it is stated that the Supreme Court is seized of the matter and is persuaded to reconsider whether reference to the C.B.I. can be made under orders of the superior courts when State Governments have not issued the requisite requisition/consent. The law on this aspect is also well settled. The mere fact that the Supreme Court may choose to reconsider the law and may probably come to a different conclusion is no reason for this Court now to abdicate its jurisdiction which is well established under binding precedents. The law as on W.P.(c)No. 20767 of 2008-V -: 6 :- today, the Supreme Court and the High Courts have the jurisdiction and responsibility in an appropriate case to direct investigation by the C.B.I. 6. To the vitally relevant facts next. The northern District of Kannur in Kerala has earned notoriety for political crimes and political murders. Of late, there is a conflict between a new organization by name NDF which has started functioning and is attempting to make inroads into the space occupied by other political groups. There is running competition between the NDF on the one hand and the other political parties on the other. The NDF has opened the campus front – a students’ organization. There are conflicts, quarrels and fights between the SFI – the students’ organization of the CPI(M) and the campus front – a students’ organization of the NDF. There were certain skirmishes early on the morning of 23/6/08 at about 11.15 a.m. There was an incident in which some workers of the CPI(M) and its feeder organizations went to one Salala Chicken Centre to question the persons there about the earlier skirmishes which took place between the campus front and the W.P.(c)No. 20767 of 2008-V -: 7 :- SFI. 7. The incident proper in this murder case took place long later at about 1.30 p.m. To put it in a nutshell, the allegation is that about 8 persons armed with dangerous weapons came to the Salala Chicken Centre and surrounded the deceased - a person by name Sainudheen. This person is allegedly an active worker of the NDF. He was surrounded and restrained. He tried to run for his life. He was followed and was inflicted serious injuries with dangerous weapons by the assailants. The assailants, after inflicting the injuries as if they were performing a well schemed and rehearsed mission, ran back to a vehicle which was kept ready there; with its engine running. They got into the vehicle. The vehicle sped away from the scene. The injured was taken to the hospital. He breathed his last within a short time. The FIR was registered later on the day at 7 p.m. Seven named accused persons as also one unnamed person were arrayed as accused. Investigation commenced. The Circle Inspector of Police, Iritty, an officer by name Muraleedharan, commenced the investigation on the morning of 24/6/08. At Iritty, there is a Divisional Officer W.P.(c)No. 20767 of 2008-V -: 8 :- - a Deputy Superintendent of Police by name Shoukkathali. He is the immediate official superior of the Investigating Officer. Investigation commenced and the Case Diary shows that on 28/6/08 four of the 7 named accused (i.e., A1, A2, A4 and A7) were arrested by the police. In the remand report it is alleged that they were traced and located in the early hours on that morning. They tried to resist arrest. Some force had to be employed. They were arrested, questioned and later produced before the learned Magistrate. 8. The learned Magistrate’s order on the remand report clearly shows that the accused persons raised no complaint whatsoever against the police. They were remanded to custody. They were seen by a doctor first on 29/6/08 when they were sent to such Medical Officer at the District Hospital. At that point of time also no complaint whatsoever was raised by these accused persons - A1, A2, A4 and A7, of any act on the part of the police to torture them. It appears that they were again taken to the Doctor on 30/6/08. At that point of time, for the first time they made a statement to the Doctor that they were tortured while W.P.(c)No. 20767 of 2008-V -: 9 :- they were in police custody. The Doctor, who recorded the alleged cause of their grievance in the wound certificate, made a categoric noting that there was no external injury except complaint of pain and tenderness on any one of the accused persons. Intimation was given to the police. 9. It is at that stage that we find that the local Sub Inspector of Police, Iritty, goes to the hospital and records the statement of A2. A2 alleges in that statement that the 4 accused persons on coming to know that they are arrayed as accused had gone to the Police Station on 26/8/08. They were kept in the Police Station till 28/8/08. There they were allegedly questioned by the C.I. of Police. It is alleged that in the course of such interrogation they were allegedly beaten by the C.I. of Police and two other Police Constables. It is alleged further that they were taken to the Deputy Superintendent of Police, Iritty, and there also they were physically belaboured by the Deputy Superintendent of Police. Very promptly and immediately an FIR is seen registered against the C.I. of Police and the Deputy Superintendent of Police alleging that they have committed W.P.(c)No. 20767 of 2008-V -: 10 :- offences punishable under Sec.342 and 323 read with Sec.34 IPC. What followed thereafter is more interesting. The Deputy Superintendent of Police and the C.I. of Police were placed under suspension by orders of the Director General of Police and the Government. What is the reason? The short reason is that such an allegation has been made against them by the accused arrested in the murder case and an FIR had consequently been registered on the basis of those allegations. They - the C.I. of Police and the Dy. S.P., were taken away from the investigation in the crime and the investigation was entrusted to two new entrants to the District – a C.I. of Police, the present Investigating Officer who was brought down from the District of Thrissur and the Deputy Superintendent of Police who was brought down from the District of Kozhikode. They continued the investigation. It is at that stage that the unfortunate mother of the victim has run to this Court seeking relief. 10. Investigation into both these crimes i.e., Crime No.373/08 (Sec.302 IPC crime) and Crime No.383/08 (the crime against the investigating police officers) are being investigated W.P.(c)No. 20767 of 2008-V -: 11 :- by these police officials - that under Sec.302 IPC by the C.I. of Police and that under Secs.323 and 342 IPC by the Deputy Superintendent of Police . 11. The mother of the victim complains that this is naked and blatant interference with the due course of investigation by the State at the instance of the ruling party (CPM) to which the accused persons admittedly belong. It is her apprehension that the suspension of the two police officials on such flimsy reasons is not as innocent as it looks and the transparent purpose is to take them away from the investigation of the crime with oblique motive. Thereby a message was attempted to be conveyed eloquently to all police officials that if they go against the interests of the ruling political party, sticks wait for them. Even the complaint by the 2nd accused in the F.I.R in Crime No.383/08 suggests that the accused, against whom serious allegations of murder were raised in the F.I.R in which they were named, had walked into the police station to court arrest. They expected different and favoured treatment at the police station. The two officials who are now under suspension were not prepared to W.P.(c)No. 20767 of 2008-V -: 12 :- oblige. The learned counsel for the petitioner submits that consistent with the pernicious practice prevailing in that part of the State the political party wanted to give a list of names to be proceeded with in prosecution. But the two Investigating Officers – C.I. of Police and the Deputy Superintendent of Police, who were suspended, were not willing to oblige. They wanted relevant information to be secured and the real culprits to be brought to book. According to the petitioner, they appear to have done their job with some commitment and that appears to have triggered animosity against those officials. That is the only reason why they were unceremoniously excluded from the investigation and the investigation was entrusted to the present police officers who the counsel for the petitioner describes to be convenient officers entrusted with a job to be performed to the tune of the powers that be. The counsel, in these circumstances, submits that the petitioner is entitled to the relief claimed. 12. The learned Public Prosecutor, on the contrary, submits that these allegations are all totally unsatisfactory and untenable. The learned Public Prosecutor reminds the Court of W.P.(c)No. 20767 of 2008-V -: 13 :- the parameters within which the power to issue a writ under Article 226 of the Constitution must be exercised by this Court. The learned Public Prosecutor submits that there is nothing to assume that the suspended police officials had, in any way, done anything which could have attracted animosity against them. The learned Public Prosecutor further submits that the present Investigating Officers have done an honest and proper job and there is no reason to allege that they have not done their duties properly. In the short time that was available for the present Investigating Officer, he has done the best that he can and was humanly possible. It is idle to make false and defamatory allegations against the officers presently in charge of the investigation. The learned Public Prosecutor, in these circumstances, prays that, at any rate, this writ petition may be dismissed and the present Investigator may be permitted to continue the investigation. Should the Court feel after going through the records that any change of Investigating Officer is necessary, the State is willing and prepared to entrust the investigation to the Crime Branch if the same be necessary in the W.P.(c)No. 20767 of 2008-V -: 14 :- interests of justice in the assessment of this Court, submits the learned Public Prosecutor. 13. I have considered all the relevant aspects. I have perused the case diary exhaustively. I must be very careful at this stage not to embark on a detailed discussion on facts or the complicity of individuals. I shall carefully avoid, to the best of my ability, all references and observations which may prejudice the interests of the indictees or fetter the course to be adopted by the Investigators. Facts cumulatively persuade me to come to my conclusions. I shall broadly advert to three important reasons that persuade me to come to a conclusion in favour of granting the request of the petitioner. 14. The first of these is the unceremonious exclusion of the C.I. of Police and the Deputy Superintendent of Police who were forced out of the investigation by an order of suspension. The manner in which the Investigating Officer and his superior were forced out of the investigation does cause dissatisfaction and disapproval in my mind. The ease and the felicity with which these two Investigating Officers have been shown the door is W.P.(c)No. 20767 of 2008-V -: 15 :- really disturbing. The accused persons had not complained to the learned Magistrate or the Doctor who examined them on the 29/6/08 of any act of torture against them, whereas the remand report clearly shows that the police had to employ force to secure the arrest of the accused. It is in the light of that, we have to consider the absence of allegation to the learned Magistrate and to the first Doctor about any torture. I shall not be more explicit. I need only say that the manner in which an F.I.R has been registered against the two officers does generate serious amount of doubt, suspicion and reservation in my mind. It will be very difficult to find any case in which such allegations are not raised by the offenders who face serious allegations against them and who are proceeded against by police officials. The morale of an honest and conscientious police officer can easily be broken and shattered by such allegations raised and the convenient acceptance of such allegations to register an F.I.R and also to place them under suspension. 15. The learned Public Prosecutor makes a valiant attempt to contend that the District Police Complaint Authority had W.P.(c)No. 20767 of 2008-V -: 16 :- initiated proceedings against the police officials and in these circumstances the police had no option, but to take action against those two police officials and to register the F.I.R. I have gone through the suspension order that is placed before me. There is significant absence of reference in the suspension order to any such proceedings initiated by the District Police Complaint Authority. Less said about such proceedings by the District Police Complaint Authority, the better. I need only mention that the manner in which the then C.I. of Police and the Deputy Superintendent of Police have been eased out of the investigation does create great amount of dissatisfaction and disapproval in the mind of the Court. The contention of the learned counsel for the petitioner that the belated allegation of torture, registration of the F.I.R., suspension of the Investigating Officers and the alleged initiation of proceedings before the District Police Complaint Authority were all part of a deliberate ploy with the only purpose of excluding those Investigators, who were in no mood to take instructions from any alien source does appear to me at this stage to be at least W.P.(c)No. 20767 of 2008-V -: 17 :- eminently reasonable. This is not the occasion to come to final conclusions on that aspect. 16. The second aspect which causes concern is afforded intrinsically by the Case Diary itself. I have gone through the Case Diary in detail. 17. The progress of the investigation made in these two cases and the conclusions presently reached provisionally are also interesting. The Investigator in Crime 383/08 appears to have sailed to the conclusion that the allegations against the two police officials raised are not justified at all. The learned Public Prosecutor highlights this to contend that the subsequent investigation has been fair. But I see the point in the submission of the learned counsel for the petitioner that the F.I.R was itself registered only with the avowed object of removing of those inconvenient officers from the scenario of investigation. What ultimately comes out of such investigation does appear to me to be irrelevant. 18. In Crime 373/08 also the outcome does generate interest. It appears that it is the case revealed in investigation W.P.(c)No. 20767 of 2008-V -: 18 :- that the 10th accused, who is not even alleged to be holding any post in the party, is alleged to have himself decided that an attack must be mounted on the N.D.F personnel who were available in the Salala Chicken Centre. He, it appears, called the 4th accused and the 4th accused collected the 1st, 2nd and the 8th accused and they proceeded in the autorickshaw of the 9th accused to a place near the scene of the crime where the 10th accused by then was present after collecting the 3rd, 5th, 6th and the 7th accused. To say the least, this fanciful and casual story does not inspire confidence and satisfaction. More detailed and elaborate investigation appears to be absolutely necessary. 19. It does not require the wisdom of Solomon to suspect in a case like this that there may be involvement of higher functionaries of the political party to which the accused persons belong. If someone does not doubt or suspect such involvement, there is something radically wrong with the cognitive faculties of such person. This was a case of political murder. There was more than sufficient indications to conclude that it was a planned and organised murder. It would be unreasonable if a person W.P.(c)No. 20767 of 2008-V -: 19 :- does not suspect conspiracy in the given facts and circumstances. Who all were the conspirators? Who gave instructions to the men? Who took part in the activity? How and in what manner they conducted the same? Did this heinous act have the approval of higher political functionaries? To my mind it would be perverse if an Investigating Officer does not address himself to these fundamental questions. Significantly and surprisingly the Case Diary does not at all reveal a scintilla of doubt or suspicion entertained by the Investigating Officers on this aspect. It must fairly be said that even the two officers who have been suspended did not also (at any rate, the Case Diary does not reveal any such effort) to rivet their pointed attention to this aspect of the matter. I am not expressing any final opinion that there must have been a higher conspiracy. But if in the given circumstance a prudent mind, which I assume the Investigating Officer has, does not suspect a conspiracy, I have no hesitation to agree that he is not thinking properly and fairly. I cannot agree that his thinking is unbiased. I am not now on the question whether there was a conspiracy or not at the higher W.P.(c)No. 20767 of 2008-V -: 20 :- levels. I am concerned about the absence of application of mind on that aspect by the Investigating Officers, both the former and the present. The learned counsel for the petitioner submits that the former Investigating Officers were about to embark on a deeper investigation up the ladder and up the stream to locate persons at higher tiers who were responsible for the murder. But the Case Diary very