IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 11627 of 2009(Q) ---------------------------------------- CMP. NO.390/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KOCHI. ............. PETITIONER(S): -------------------- E.M.ASHRAF, AGED 57 YEARS, S/O.LATE MUHAMMED, H.NO.XIII/555A, CHITHUPARAMBU, KOCHANGADI, KOCHIN-2. BY ADV. MR.A.X.VARGHESE MR.A.V.JOJO RESPONDENT(S): ------------------------- 1. DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, NEW DELHI. 2. THE SUPERINTENDENT OF POLICE, KERALA BRANCH CBI, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE, CRIME BRANCH CID, ERNAKULAM. 4. STATE OF KERALA, REP.BY HOME SECRETARY SECRETARIAT, THIRUVANANTHAPURAM. 5. INSPECTOR GENERAL OF POLICE, CRIME BRANCH C I D, THIRUVANANTHAPURAM. *R6 IS IMPLEADED 6. THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, CID SIG-II, ERNAKULAM. *R6 IS IMPLEADED AS PER ORDER DTD.27.10.2009 IN IA. NO.13013/2009. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1-2 R3 TO R4 BY GOVERNMENT PLEADER MR.K.S.SIVAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.11627 OF 2009 ------------------------------------------ Dated 17th November 2009 O R D E R Petitioner is the father of deceased Sherbin, who died on suspicious circumstances on 28/1/2008 at her matrimonial house. Crime No.104/2008 of Mattancherry police station was registered under Section 174 of Code of Criminal Procedure. Later petitioner filed C.M.P.390/2008 before Judicial First Class Magistrate-II, Kochi contending that his daughter was murdered and an offence under Sections 302 and 498(A) read with Section 34 of Indian Penal Code was in fact committed by two persons, named as accused in the complaint. By Ext.P4 order, learned Magistrate sent the complaint for investigation under Section 156(3) of Code of Criminal Procedure. Case is now being investigated by third respondent, Deputy Superintendent of police (Crime Branch), CBCID, Ernakulam. This petition is filed under Article 226 of Constitution of India for a writ of mandamus directing first respondent Director of Central Bureau Wpc 11627/09 2 of Investigation to constitute a special investigation team to investigate crime No.104/2008 of Mattancherry police station, contending that no proper investigation is being conducted and it is not a case of suicide, but homicide. 2. On behalf of third respondent sixth respondent has filed a counter affidavit. It shows that case is being investigated by sixth respondent and investigation is in progress and petition filed before the Judicial First Class Magistrate, Kochi seeking sanction to conduct polygraph test to the accused, Rifas and his brother Riswin and it is pending and only on getting sanction, they could be subjected to polygraph test. It also shows that red shawl of the deceased as well as cellophane taken from both hands of the deceased at the time of inquest and opinion of the expert on examination of the materials collected by Scientific Assistant is awaited. In paragraph 12 of the counter affidavit investigating officer has stated that based on the statement of the doctor who conducted autopsy as well as Head of Department of Forensic Medicines, Medical College, Thrissur and findings of the Assistant Director, Physics Division who examined Wpc 11627/09 3 the scene of crime, he is of the opinion that “death of Sherbin is not a homicide but death due to suicide by hanging herself following physical and mental harassment by her husband” and Section 302 of Indian Penal Code was deleted and report sent to the concerned court” 3. Submission of the learned counsel appearing for the petitioner is that the finding of the investigating officer shows that there will not be a independent fair investigation and the attempt is only to make it appear that it is not a case of homicide but suicide and in such circumstances, it is necessary to direct a proper and fair investigation. 4. Learned Government Pleader submitted that investigation is continuing in the proper course and there is no necessity to change the investigating officer. 5. On hearing the learned counsel and the Government Pleader and the view already taken by the investigating officer, it is clear that there will not be a fair and proper investigation by third respondent as he has already formed an opinion that this is not a Wpc 11627/09 4 case of homicide but suicide. Fact that when the deceased was taken to Gawtham Hospital, her husband and relatives of the husband were not prepared to disclose the true facts and suggested false facts is a serious suspicious circumstance. Similarly, before getting report of the FSL, on examination of cellophane which was collected by the Scientific Assistant as stated in paragraph 16 of the counter affidavit, investigating officer should not have jumped into a conclusion that it is not a case of homicide but suicide. If result of examination of cellophane tape taken by the Scientific Assistant discloses that ligature was not present, finding cannot be in support of the view already taken by the investigating officer. In such circumstances, when the investigating officer has already pre-judged the question and decided that it is not a case of homicide but suicide, for a fair and proper investigation of the case, investigating officer is to be changed. 6. But I do not find that it is a fit case where investigation is to be handed over to the CBI as sought for. When the CBI is even otherwise crowded with more serious cases, interest of justice will be Wpc 11627/09 5 met, if a direction is issued to the Director General of Police to entrust the investigation of the case to some other senior officer not below the rank of Deputy Superintendent of police with a direction that the case is to be investigated fairly and properly and expeditiously and it shall be monitored by another officer not below the rank of Superintendent of police. Writ petition is disposed directing Director General of Police to entrust investigation of crime No.104/2008 of Mattancherry police station, from sixth respondent, to an efficient officer not below the rank of Deputy Superintendent of police with a direction that investigation shall be monitored by another officer not below the rank of Superintendent of police. It is made clear that investigation must be fair, proper and expeditious. M.SASIDHARAN NAMBIAR, JUDGE. uj.