IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 OP.No. 26679 of 2002(A) PETITIONERS: 1. SREEDEVI MOHANAN, W/O.LATE MOHANAN, ILLATHU VEEDU, PARIYARAM MURI, MALLAPPALLY. (NOW RESIDING AT CHANDRALAYAM HOUSE, KOTTANGAL VILLGE, MALLAPPALLY. 2. MEKHAV MOHANAN, (MINOR AGED 3 YEARS) RESIDING AT DO. DO. REPRESENTED BY THE MOTHER AND NEXT FRIEND 1ST PETITIONER. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, TRIVANDRUM. 3. Y.R.RUSTOM, SUB INSPECTOR OF POLICE, KEEZHVAIPUR. 4. THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE SUPERINTENDENT OF POLICE, ERNAKULAM. BY GOVERNMENT PLEADER FOR R1 SRI.P.G.THAMPI, D.G.P. FOR R2 SRI.S.SREEKUMAR, SC FOR CBI FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 26679 of 2002 (A) APPENDIX PETITIONER'S EXHIBITS: Ext.P1: True copy of the news item appeared in the Malayala Manorama daily dated 2-7-1999. Ext.P2: True copy of the news item appeared in the Malayala Manorama daily dated 9-7-1999. Ext.P3: True copy of the news item appeared in the Malayala Manorama daily. Ext.P4: True copy of the news item appeared in the Mathrubhumi daily dated 5-7-1999. Ext.P5: True copy of the news item appeared in the Malayala Manorama daily. Ext.P6: True copy of the FIR in Crime No.122/99. Ext.P7: True copy of the FIR in crime No.123/99 of Keezhvaipur Police Station, dated 30-6-1999. Ext.P8: True copy of the Mahazar prepared by the Sub Inspector of Police, Keezhvaipur on 30-6-1999 at 10.15 a.m. Ext.P9: True copy of the representation submitted before the National Human Rights Commission, dated 9.7.1999. // True copy // P.A. to Judge jes A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P.No.26679 OF 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of February 2008 JUDGMENT This writ petition which is filed by a young widow and her minor son who is hardly 8-9 years old, unravels yet another disturbing instance of law enforcing agency becoming law breaker. 2. Petitioners pray for issuance of a writ of mandamus or such other appropriate writ, order or direction to the Central Bureau of investigation to conduct an investigation into the "custodial murder" of Mohanan, the husband of petitioner No.1 and father of petitioner No.2. They further pray for an order directing respondents 1 to 3 to pay a sum of Rs.5 lakhs as compensation for the custodial death of Mohanan. 3. At the very outset, it may be noted that there is no dispute that Mohanan was taken by some police personnel to the Keezhvaipur police station in the forenoon of June 29,1999. It is also beyond controversy that Mohanan remained in police custody till his death at about 1.30 p.m. on O.P.No.26679 OF 2002 :: 2 :: the next day viz. June 30,1999. 4. According to the petitioners, Mohanan was taken into custody by the police without registering any crime. He was badly tortured and manhandled in police custody, as a result of which he suffered internal injuries in the abdomen, resulting in death on the next day. It has been further alleged by the petitioners that in order to cover up the illegal acts, police had registered a crime against Mohanan on the next day after his death. Several records were falsified and fabricated by the police to make it appear as though Mohanan had suffered the fatal injury in his abdomen at the hands of the public in the forenoon of June 29, 1999. 5. It is in the above circumstances the petitioners pray that the investigation of the case be entrusted to an agency like CBI so that the inhuman and highly illegal acts of the law enforcing machinery is brought to light and the real culprits are appropriately punished. It is further prayed by them that the State, being tortiously liable for the illegal acts of its servants, be directed to make good the loss sustained by the O.P.No.26679 OF 2002 :: 3 :: petitioners by paying adequate damages to them. 6. As mentioned earlier, Mohanan was admittedly taken to the police station by some constables attached to Keezhvaipur Police Station, in the forenoon of June 29,1999. According to the police, Mohanan was taken to the police station at about 1.00 p.m. by the Head Constables, viz. Narayanan (HC 743) and Antoney John (HC 329) and Police Constable Narayanan Chettiyar from Chakkalapady in Mallappally Village. The police party had reached Chakkalappady in response to a phone message received at the station. On reaching the scene of occurrence, the police party was informed that Mohanan had been caught red handed by the local people, after he had snatched away a gold chain from the neck of Mrs.Annamma John. About fifty identifiable people had allegedly chased and caught Mohanan, who was thereafter manhandled by the public. The police version is that Mohanan was taken to the police station in a taxi car along with two local people at about 1 pm. But since Smt.Annamma john was not prepared to come to the police station and lodge a complaint against Mohanan for O.P.No.26679 OF 2002 :: 4 :: the alleged theft, "the police allowed Mohanan to remain in the police station." 7. In the statement dated May 26,2004, filed by Sri.P.B.Vijayan, DYSP, CBCID, Pathanamthitta, it is averred that Head Constable Narayanan, who was in charge of the General Diary in the police station at the relevant point of time had questioned Mohanan, after he was taken to the police station. While being questioned, it was revealed "that Mohanan was manhandled by the public who had caught him." But according to the officer, Mohanan was not hospitalised, since there were no visible injuries on his body and also since he was not prepared to go for treatment. According to the officer, Mohanan was "allowed to remain in the police station" since Smt.Annamma John had not turned up for preferring a complaint. Sri.Y.R.Restum, the Sub Inspector of police who was on duty at Chungappara in connection with a Society election had returned to the police station at 10 p.m. But before the arrival of the Sub Inspector, the statement of Mohanan was recorded by Narayanan(HC 743) at about 9.30 p.m. and Crime O.P.No.26679 OF 2002 :: 5 :: No.122/1999 was registered under Sections 143, 147, 148, 149, 323 and 324 IPC against 50 identifiable persons. 8. It is the case of the police that on the next day viz. June 30,1999 at about 9.30 a.m. Smt.Annamma John had reported at the police station. Sub Inspector had registered Crime No.123/1999 after recording the complaint of Smt.Annamma John, against Mohanan alleging commission of an offence punishable under Section 379 IPC. Smt. Annamma John identified Mohanan who still remained in the police station. After registering the crime, Sri.Mohanan was arrested and the "Sub Inspector took him from the police station for the purpose of investigation". Mohanan was taken to his house and later to two other financial institutions where the accused had pledged "stolen properties". While Mohanan was being taken back to the police station, at about 1.30 p.m. he showed "symptoms of unconsciousness". Therefore he was taken to the George Mathew Memorial Hospital at Mallappally at about 1.45 p.m. The doctor who examined Mohanan referred him to the Medical College Hospital, Kottayam "for better treatment". Though the O.P.No.26679 OF 2002 :: 6 :: Sub Inspector took Mohanan to the Medical College, he was reported "dead". 9. Inquest on the body of Mohanan was conducted by Sri.P.G.Thomas, Sub Divisional Magistrate, Thiruvalla on July 1, 1999. It is averred by the DYSP in the statement that "the Sub Divisional Magistrate had arrived at the conclusion that Mohanan had died consequent to the assault of the members of the public who had chased him after the commission of theft." 10. Postmortem was conducted by a team consisting of Dr.V.T.Augusthy and Dr.P.Babu of Medical College Hospital, Kottayam. In the certificate, opinion as to cause of death was recorded thus: "Died of peritonitis following rupture of intestine due to the blunt injury sustained to the abdomen". 11. It is on record that a magisterial enquiry was conducted by the Sub Divisional Magistrate, Thiruvalla. I will deal with the report of the Sub Divisional Magistrate a little later. O.P.No.26679 OF 2002 :: 7 :: 12. Sri.P.G.Thampi learned Director General of Prosecution, submits that it had come to the notice of the department that Head Constable Narayanan and Sub Inspector Restum, particularly, the former, were guilty of laches and dereliction of duty. A departmental enquiry was instituted against them. The Sub Inspector was exonerated in the enquiry, but Sri.Narayanan (the Head Constable) was found guilty and he was imposed with a punishment of barring of one increment for one year. It is further submitted by the learned Director General that the police had acted in good faith, while "allowing Mohanan to remain in the police station", after he was taken into custody from Chakkalapady. 13. It is contended on behalf of the respondents that Mohanan was in fact rescued from the fury of the public; but, by that time, he had been brutally assaulted and manhandled. The police party had been informed that about 50 identifiable persons had beaten Mohanan mercilessly and he was kicked in the abdomen. Some people had hit Mohanan on his belly with stones wrapped in a cloth. While conceding that there was lapse O.P.No.26679 OF 2002 :: 8 :: on the part of the police in not sending Mohanan to a hospital, after he was taken to the police station, it is contended by the learned Director General that it was yet again an omission or a bona fide mistake on the part of the police. There were no visible injuries on the body of Mohanan. He had also not complained of any particular discomfort. More importantly Mohanan did not want to go to the hospital, though it was suggested to him. 14. To a specific query from the Court as to why a case was not registered against Mohanan for the alleged theft, at least suo motu, even if the de facto complainant (Mrs. Annamma John) had refused to give such a complaint, the response from Mr.Thampi was that it was yet another instance of a bona fide omission. Sri.Thampi fairly conceded that it was not proper on the part of the police "to allow Mohanan to remain in the police station" (as the respondents have chosen to put it) without being implicated in any crime or without arresting him. 15. In this context, it is pertinent to note that the police had for some unknown reason delayed registration of the crime O.P.No.26679 OF 2002 :: 9 :: against the "50 identifiable people" who had admittedly assaulted and brutally manhandled Mohanan in broad day light. According to the police, Crime No.122/1999 was registered against those 50 identifiable persons by Head Constable Narayanan only at 9.30 p.m. on June 29, 1999. A photo copy of the said FIR is on record as Ext.P6. Curiously, the time of occurrence was recorded in the FIR as 4.30 p.m. 16. It may be remembered that the specific case of the police was that Mohanan was “rescued” from the fury of the mob at about 12.15 p.m., after he had allegedly snatched way a gold chain from the neck of Smt.Annamma John. Some of the people who had gathered at the alleged scene of occurrence had informed the police party that Mohanan was manhandled and assaulted by the public shortly before they reached the scene. If that be the position, can it be assumed that the police was unaware or ignorant of the time of occurrence? 17. There is yet another significant or crucial aspect. It is seen from the endorsement on Ext.P6 FIR that it had reached the Court of Judicial Magistrate of First Class, Thiruvalla at 5.05 O.P.No.26679 OF 2002 :: 10 :: p.m. on 30th June. There is no explanation for the delay in sending the FIR to the Court. Similarly, the Sub Inspector had registered Crime No.123/1999 against Mohanan for the offence under Section 379 IPC at 9.30 a.m. on June 30,1999. A true photo copy of the said FIR is available on record as Ext.P7. This FIR had reached the Court of the Judicial Magistrate of First Class, Thiruvalla only at 8.30 p.m. on that day. In this FIR, the time of the alleged occurrence was noted as 4.30 p.m. on June 29,1990. In other words, the time of the alleged occurrence in the two crimes was the same. 18. But it may be noticed that the case of the police is that Mohanan had tried to snatch the gold chain at 11 a.m. in the morning. When Smt.Annamma John cried aloud, Mohanan had run away. The people, on hearing the cries of Smt.Annamma, had chased Mohanan and ultimately he was caught red handed. Therefore the time of occurrence mentioned in the two FIR's could not have been correct. 19. It may also be noticed that in Ext.P7 F.I. statement, Smt.Annamma had allegedly stated that her chain was snatched O.P.No.26679 OF 2002 :: 11 :: at about 4.30 p.m. If the version given by the police that Mohanan had snatched the chain at 11.30 a.m. is to be believed, then the time of occurrence recorded in Ext.P6 is obviously wrong. Thus, apparently, some attempt had been made to fabricate or create documents. 20. It is contended by Sri.MVS Namboothiri, learned counsel for the petitioners that both Exts.P6 and P7 might have been registered after the death of Mohanan. As mentioned earlier, Ext.P6 FIR had reached the Court at 5.05 p.m. on June 30,1999 as Ext.P7 was received by the Magistrate at 8.30 p.m. on that day. Thus both FIR's reached the court hours after the death of Mohanan. 21. In this context, it may also be noticed that the Sub Inspector had allegedly seized the stolen chain from the body of Mohanan under Ext.P8 seizure mahazar on June 30, immediately after registering Ext.P7 FIR. In Ext.P8 mahazar, it was recorded that the chain was found to be intact. In other words, it was not broken into two pieces. But in Ext.P6 FIR (Crime No.122/1999), Mohanan is alleged to have stated that O.P.No.26679 OF 2002 :: 12 :: one piece of the broken chain had been handed over to the police by the public after recovering it from his pocket. Some of the witnesses who were allegedly questioned by the police had stated that one piece of the chain was recovered from the body of Mohanan whereas the other piece was recovered from the scene of occurrence. True photo copy of the statements given by two witnesses are produced as Exts.R1(g) and R1(k). But strangely, the Sub Inspector of Police had found the chain intact, on the next day, when it was recovered from Mohanan who had all along remained in the custody of the police from the previous day onwards. 22. It has been mentioned already that a magisterial enquiry was conducted by Sri.P.G.Thomas, the Sub Divisional Magistrate Thiruvalla. A copy of his report is available on record as Ext.R1(b). The enquiry was held on the next day after the death of Mohanan. In this report, the Sub Divisional Magistrate recorded a finding that "there was no evidence of physical torture by the Sub Inspector or by any police personnel of Keezhvaipur Police Station". Strangely, the Sub Divisional O.P.No.26679 OF 2002 :: 13 :: Magistrate has not recorded any reasons in support of the above finding. But significantly the Magistrate had also recorded that "deposition of the local people (Exts.A11, A12, A13, A15, A16, A17 and A18) do not indicate any evidence of physical torture by the local people who captured Mohanan". Of course, he had also recorded that Exts.A6, A8 and A9 indicated that Mohanan suffered physical torture from unidentified local people before 12 noon on 29.6.1999. 23. Sri.Thampi has invited my attention to the fact that the department had taken prompt action in the matter by entrusting the investigation of the two crimes to the CBCID, on June 30, 1999 itself. The entire CD files relating to the two crimes have been made available before this court, as directed. I have carefully perused the entire files. 24. It is seen that the CBCID had registered Crime 136/CR/1999 and Crime No.183/CR/1999 after taking up the investigation. Sri.Sukumara Kurup, DYSP had initially conducted the investigation. It is seen that he had questioned several witnesses. It is interesting to note that nothing was O.P.No.26679 OF 2002 :: 14 :: apparently done in Crime No.122/1999 registered on the basis of the complaint filed by Mohanan against 50 identifiable persons. It is admitted in the statement filed by Sri.T.C.Mani, Deputy Superintendent of Police, Crime Branch, CBCID, Pathanamthitta on August 14, 2007 that a report naming the accused (9 in number) was filed before the Judicial Magistrate of First Class, Thiruvalla only on November 16,2005, more than 6 years and 5 months after the incident. A copy of the said report has been produced as Ext.R1(m). In the said report, the investigating officer had informed the court that investigation was being continued. It was requested that Section 302 IPC may be deleted and in its place, Section 304 IPC may be incorporated. 25. Reference has been made to the above aspect only to highlight the fact that the investigating agency had been totally lethargic and indifferent. More curiously, it is averred in the statement filed before this Court that no formal investigation had been conducted in the above case during the period between 15.12.2005 and 7.6.2007 since the C.D. file had been O.P.No.26679 OF 2002 :: 15 :: submitted before this Court in connection with this writ petition. The above version cannot be correct for two reasons: a) The C.D. files were made available before this Court only recently. b) There is no explanation as to what prevented the investigating agency in conducting the investigation from 1999 till December 2005. Further, this Court had not at any point of time, interdicted the investigating agency from conducting the investigation or filing the charge sheet. 26. It is seen from the statement filed on behalf of the respondents that Mohanan was taken out from the Police Station in a jeep by Sub Inspector of Police for the “purpose of investigation” after recording his arrest and effecting seizure of the gold chain at about 8.30 a.m. on June 30, 1999. According to the respondents, Mohanan was taken to his residence from where receipts issued by two financial institutions where he had allegedly pledged gold ornaments were recovered. Thereafter, O.P.No.26679 OF 2002 :: 16 :: he was taken back to the Police Station by about 1.30 p.m. This statement further reveals that while coming back to the Police Station Mohanan showed symptoms of unconsciousness. Therefore, he was taken to George Mathew Memorial Hospital at Mallappally at about 1.45 p.m. The doctor who examined him told the Police to take him to Medical College Hospital, Kottayam for “better treatment”. The statement further goes on to say that the Sub Inspector took Mohanan to the Medical College Hospital where he was declared dead by the doctor. 27. But the report of the Sub Divisional Magistrate reveals that Mohanan had passed away by the time he reached the hospital at Mallappally and the doctor had reportedly informed the officer about the death. The doctor had found that the eyes of the deceased were dilated and fixed and the doctor had instructed the officer to take the body to the Medical College Hospital for further proceedings. In the report, it is further stated that the Sub Inspector had reached the Medical College Hospital at about 3.30 p.m. and the doctor who examined the body had confirmed the death. O.P.No.26679 OF 2002 :: 17 :: 28. In this context, it may also be noticed that in the course of the Magisterial enquiry the police did not have a case that Mohanan was taken to his residence from the Police Station in the morning “for the purpose of investigation”. But at a later stage (in 2005) some witnesses who had been allegedly questioned by the Police stated that Mohanan had talked to his brother in law and some others at his residence and at that time he had no complaint of any torture at the hands of the Police. Ext.R1(d) and R1(e) are true copies of those statements allegedly given by the relatives of deceased Mohanan. Significantly, these statements are seen recorded only in November 2005. It has to be at once stated that the attempt now being made by the investigating agency is too ludicrous and transparent. The above exercise also strengthens the case of the petitioners that there had been a concerted effort on the part of the Police to fabricate or create documents apparently in a bid to camouflage or cover up the real incident. 29. The crux of the issue, whether Mohanan died due to the injuries allegedly sustained by him at the hands of the O.P.No.26679 OF 2002 :: 18 :: public, or whether he succumbed to the injuries sustained by him while he was in the custody of the Police, has to be addressed in the backdrop of the facts and circumstances discussed above. 30. At the risk of repetition, it may be stated again that Mohanan was admittedly in the custody of the Police atleast from 12.15 p.m. on 29th June 1999 till his death on the next day at about 1.45 p.m. It is beyond controversy that Mohanan had remained in the Police custody throughout. An attempt has been made by the respondents to advance a case that Mohanan might have suffered injuries 24 to 36 hours prior to his death. A report of an expert committee of doctors has been pressed into service for this purpose. A copy of the said report is on record as Ext.R1(c). The expert committee consisting of four doctors who were incidentally Professors and Heads of Department of Forensic Medicine, Surgery, Pathology and Gastroenterology of the Medical College at Thiruvananthapuram had prepared the minutes of the meeting held on October 30, 2001. The relevant portion of the report is O.P.No.26679 OF 2002 :: 19 :: extracted hereunder for the sake of convenience: “The following was the description of the fatal injury noticed on the body. Contusion 3x1x0.3 cm on the left side of the abdominal wall 10 cm below lower end of sternum and 3 cm outer to midline (seen on dissection). The duodeno jejunal flexure of the intestine showed a rupture 1.5x1 cm at its antemesenteric border. The surrounding areas of the intestinal wall showed infiltration of blood with contusion, bluish black in colour. Peritoneal cavity contained 1000 ml of yellowish brown foul smelling watery fluid. Intestine was lusterless and showed a grayish appearance. Histopathological examination revealed the following findings. Section from margin of rupture in small intestine showed denudation of mucosa with areas of necrosis. Submucosa and wall showed congestion and haemorrhage with diffuse infiltration by neutrophils and few mononuclear cells. Section from adjacent contused area of small intestine showed denudation of mucosa, submucosa and wall shows extensive haemorrhage and diffuse infiltration by neutrophils and mononuclear cells. serosa also showed O.P.No.26679 OF 2002 :: 20 :: haemorrhage and diffuse neutrophilic infiltration. From the available facts such as colour change of contusion and the level of inflammatory reaction the committee is of the opinion that the probable time of sustaining the fatal injury by Sri.Mohanan is approximately 24 to 36 hrs prior to death, i.e., Between 1.30 AM and 1.30 PM on 29.6.1999.” 31. Placing heavy