IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 WP(C).No. 35590 of 2007(J) -------------------------- CRMP.4928/2007 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER: ------------ JOMON PUTHENPURACKAL, PUTHENPURACKAL HOUSE, NEENDOOR P.O., KOTTAYAM. BY ADV. SRI.S.KRISHNAMOORTHY RESPONDENTS: ------------- 1. THE DIRECTOR, CENTRAL BUREAU OF INVESTIGATION, CBI HEAD QUARTERS, BLOCK NO.3, CGO COMPLEX, LODHI RODAD, NEW DELHI-3. 2. SRI.R.M.KRISHNA, SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, SER-IICBI HEAD QUARTERS, BLOCK NO.3, CGO COMPLEX, LODHI RODAD NEW DELHI-3. ADDL.3RD RESPONDENT THOMAS, AGED 60 YEARS, IKKARAKUNNEL, AREEKARA VELIYANNOOR P.O., UZHAVOOR, KOTTAYAM DISTRICT IS IMPLEADED AS THE ADDL. 3RD RESPONDENT AS PER ORDER DATED 11-01-2008 IN I.A.NO. 16713 OF 2007 BY ADV. SRI.S.SREEKUMAR, SC FOR CBI SRI.A.X.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * W.P. (c ) No. 35590 of 2007 * * * * * * * * * * * * * * * * * * Dated: 11-01-2008 JUDGMENT In this petition filed under Art. 227 of the Constitution of India, the petitioner who is the applicant in Crl.M.P. No. 4928 of 2007 in Crime No. R.C. 8(s)/93/SPE/KER/CBI on the file of the Chief Judl. Magistrate's Court, Ernakulam, seeks the following reliefs:- (i) to set aside Ext.P7, order dated 26-11-2007 in Crl.M.P. 4928 of 2007 in Crime No. R.C. 8 (S)/93 SPE/KER/CBI on the file of the Chief Judicial Magistrate Court, Ernakulam and to allow the relief prayed in the said complaint inExt.P4. (ii) to issue a writ of mandamus or other appropriate writ order or direction, directing the respondents to produce the entire progress report of the Crime No. RC 8(s)/93 SPE/KER (CBI) including the Narco Analysis Report before this Hon'ble Court and to give appropriate directions for a speedy investigation of the said Crime. iii) to issue appropriate directions to the Court below and to monitor the investigation of this case and to direct that the investigation to be completed within a time limit. iv) and to issue such other relief as this Hon'ble Court deem fit and proper in the circumstances of the case. 2. Ext.P4 referred to in prayer No. (i) above is the petition filed by the petitioner herein before the Chief Judicial Magistrate, Ernakulam and registered as Crl.M.P. No. 4928 of 2007. The reliefs W.P. (c ) No. 35590 of 2007 -:2:- sought for in that petition are the following:- i) to submit before this Hon'ble Court the result of the narco analysis tests mentioned above immediately; ii) to produce before this Hon'ble Court the original postmortem work book; iii) Subject others, all who are suspected to be involved to Narco Analysis Test and report to the court about the result; iv) to file a detailed progress report on the complaint in Crl.M.P. No. 2154 of 2007 filed by the complainant/petitioner. 3. I heard Advocate Sri.S. Krishnamoorthy, the learned counsel appearing for the petitioner, Adv.Sri. S.Sreekumar, the learned Standing Counsel for the C.B.I. and Adv. Sri. A.X. Varghese, the learned counsel appearing for the Suppl. 3rd respondent who is the father of the deceased. 4. This Writ Petition is another off-shoot of the case which is popularly known as “Sister Abhaya Case” which has been unduly sensationalised both by the Press and the print media. 17 year old Sister Abhaya who was a student of pre- degree at B.C.M. College, Kottayam was staying at St. Pius Tenth Convent, Kottayam. Her deadbody was found in a well in the Convent premises on 27-3-1992. Consequent on the local police as well as the Crime Branch police concluding after W.P. (c ) No. 35590 of 2007 -:3:- investigation that it was a case of suicide, the investigation of the case was entrusted with the C.B.I., which took over the investigation on 29-3-1993. The case which was originally registered as Crime No. 187 of 1992 of Kottayam West Police Station was re-registered as Crime No. RC 8 (S)/93- SPE/KER/CBI. After commencing the investigation on 29-3- 1993, the C.B.I. altogether filed three supplementary final reports before the Chief Judicial Magistrate, Ernakulam. All the three reports were rejected by the Chief Judicial Magistrate who on each of the occasions directed further investigation of the case. The 3rd and the latest final report was filed on 30-8-2005. In all the three final reports the C.B.I. concluded that the death of Sister Abhaya was not a natural death, that Sister Abhaya did not commit suicide as concluded by the State Police, that the death of Sister Abhaya was not due to any accident and that the cause of her death was homicide. But according to the C.B.I., despite best efforts made by it during the investigation, the identity of the culprits could not be established. They, therefore, wanted the Chief Judicial Magistrate to accept the refer report and to close the case untraced. After the last refer report filed on 30-8-2005 was rejected by the Chief Judicial W.P. (c ) No. 35590 of 2007 -:4:- Magistrate on 21-8-2006 and after further investigation was ordered directing the employment of latest scientific methods, narco analysis tests (truth serum tests) were conducted by the C.B.I. on the suspects. It was at that stage that the petitioner filed Ext.P4 petition before the Chief Judicial Magistrate seeking the aforementioned reliefs. 5. The petitioner who claims to be a public activist and a prominent worker in the field of human rights and who has styled himself as the Convenor of “Sister Abhaya Case Action Council” cannot seek a parallel investigation by the C.B.I. on an independent complaint filed by him as Crl.M.P. No. 2154 of 2007. This is particularly so when oblique motives have been attributed to the petitioner who is characterised as a publicity monger allegedly engaged in amassing money under the pretext of vindicating the death of Sister Abhaya by activating the investigating, prosecuting and adjudicating machineries. There is no reason yet to suspect the bona fides of the further investigation undertaken by the C.B.I. which is a premier investigating agency in the country. Hence, the petitioner cannot have a parallel investigation conducted on a complaint filed by him. The fourth prayer in Ext.P4 petition cannot, W.P. (c ) No. 35590 of 2007 -:5:- therefore, be granted and the same shall stand disallowed. I am sure that the C.B.I. will rise to the occasion and fully utilise this opportunity by taking this case as a challenge and try to refurbish their image on which this case has already inflicted a slur. 6. With regard to the 2nd prayer in Ext.P4 also, the learned Standing Counsel for C.B.I. submitted that the post mortem work book is available and is part of the case diary. If so, the direction sought by the petitioner to produce the same cannot be granted. Regarding prayer 1 in Ext.P4 petition, the learned Standing Counsel appearing for the C.B.I. also admitted that Narco Analysis Tests have been conducted by the C.B.I. more than three months ago. But he objected to the disclosure of the results of analysis on the ground that it will hamper the smooth investigation of the case. I cannot fully agree. Admittedly, at the motion of the newly impleaded 3rd respondent who is the father of deceased Sister Abhaya, the Chief Judicial Magistrate, Ernakulam had issued a direction to the C.B.I. to submit periodical reports regarding the progress of the further investigation every three months. Hence, the C.B.I. is bound to comply with the said direction. There is nothing wrong in W.P. (c ) No. 35590 of 2007 -:6:- producing the narco analysis test report before Court but to avoid leakage of information, it can be produced in a sealed cover before the Chief Judicial Magistrate. It is pertinent to remember that under Sec. 172 Cr.P.C. the Magistrate is entitled to call for the case diary wherein the progress of the investigation is mandatorily required to be recorded by the C.B.I. But as cautioned by the Division Bench of this Court in paragraph 26 of the decision in State of Kerala v. Aboobacker – ILR 2006 (3) Kerala 672, the results of such investigation cannot be permitted to be published at this stage. Hence, prayer (i) in Ext.P4 petition will stand allowed but the result of the narco analysis test shall be produced only in a sealed cover before the Chief Judicial Magistrate, Ernakulam with a copy of the same before this Court in a sealed cover. The said report shall be produced before the Chief Judicial Magistrate as well as before this Court within two weeks from today. It is made clear that the report shall remain with the Chief Judicial Magistrate in the sealed cover without any of the parties having any right of disclosure of the same until the appropriate stage is reached. No person shall be entitled to move any court other than this Court for the purpose of knowing the contents of the report and W.P. (c ) No. 35590 of 2007 -:7:- that too at the appropriate stage unless the report has become part of the record in the supplementary final report to be filed by the C.B.I. In case the narco analysis test report provides a reasonable basis for suspecting the complicity of any person, the C.B.I. shall have the full freedom to proceed further and conduct the necessary investigation in that direction and bring to justice the person or persons, if any, responsible for the gruesome murder of the nun, howsoever high such persons may be. 7. With regard to prayer (iii) in Ext.P4, that is matter within the discretion of the C.B.I. and the petitioner cannot dictate terms to the investigating agency in that behalf. 8. Ext.P4 petition shall stand disposed of rejecting prayers 2, 3 and 4 thereunder but allowing prayer 1 which shall, however, be subject to what has been stated above. 9. The prayer of the petitioner in this Writ Petition to set aside Ext.P7 order dated 26-11-2007 passed by the Chief Judicial Magistrate ordering notice to Sri. Thomas (Sppl. R3 herein), the father of Sister Abhaya, is also misconceived. The real First Informant in this case was one Sister Banicassia who is stated to be unwell and bed-ridden. Hence when the refer reports were filed in court, in due compliance of the mandate of W.P. (c ) No. 35590 of 2007 -:8:- Bhagwant Singh v. Commissioner of Police – 1985 (2) SCC 537, the Court below had virtually recognized the father of the deceased nun as the de facto complainant. By assailing Ext.P7 order, the petitioner has unwittingly laid bare the ulterior motives in him. If at all anybody has got any locus standi in the matter, that is the heart-broken father of the deceased and I uphold Ext. P7 order. 10. I am informed that the next periodical report regarding the progress of the investigation is due only in March 2008. Hence, the 2nd prayer in the Writ Petition cannot be granted. Since as matters now stand, I do not consider it necessary for the Court below to monitor the ivnestigation by the C.B.I., the 3rd prayer in the Writ Petition also cannot be granted. In the result, this Writ Petition is disposed of as above allowing prayer (i) in Ext.P4 petition but subject to the safeguards as indicated above and rejecting the other prayers in Ext.P4 as well as in the Writ Petition. V. Ramkumar, Judge ani W.P. (c ) No. 35590 of 2007 -:9:-