IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 26TH JULY 2011 / 4TH SRAVANA 1933 WP(C).No. 17861 of 2011(G) ---------------------------------------- PETITIONER(S): ----------------------- C.K. SAIBUNNISA, W/O.LATE MUKKADATH MUHAMMED KUNHI, AGED 40 YEARS, CHITTARIKADAVATH, CHORUKKALA, KURUMATHOOR P.O., THALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 2. THE SUPERINTENDENT OF POLICE, KANNUR. 3. THE STATION HOUSE OFFICER, TALIPARAMBA POLICE STATION, KANNUR DISTRICT. 4. THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, KOCHI. R1 TO R3 BY PUBLIC PROSECUTOR MR.K.J. MOHAMMED ANZAR. MR.T.K. SAJEEV. R4 BY ADV. MR.P. CHANDRASHEKARA PILLAI, SC, CBI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 17861 of 2011(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT DATED 21/01/2011 FILED BY THE PETITIONER BEFORE THE C.I. OF POLICE, THALIPARAMBA. EXT.P2: COPY OF THE REPRESENTATION DATED 29/01/2011 SUBMITTED BY THE ACTION COMMITTEE BEFORE THE HONOURABLE MINISTER WITH COPY TO 2ND RESPONDENT. EXT.P3: COPY OF THE REPLY DATED 20/04/2011 GIVEN BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE REPRESENTATION DATED 11/06/2011 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17861 of 2011 ==================================== Dated this the 26th day of July, 2011 J U D G M E N T This Writ Petition is filed seeking a direction or order to the 4th respondent, the Central Bureau of Investigation (for short, “the CBI”) to take over investigation of Crime No.21 of 2011 of Taliparamba Police Station and conduct proper investigation into the case within a time frame to be fixed by this Court. 2. The incident relates to the death of Muhammed Kunhi, husband of petitioner. According to the petitioner, at a time when herself and her husband were talking in their house on January 13, 2011 at about 8.30 p.m., her husband got a call on his mobile phone and he went outside. Petitioner and C.K. Ummer, brother- in-law of petitioner noticed certain persons standing near the bus waiting shed near the house of petitioner and the deceased talking to them. There was a vehicle near by. After some time another vehicle came to the scene, a few persons came out of that vehicle and talked to the deceased. Thereafter the vehicles left the scene but husband of petitioner did not return. Nor could he be traced. Petitioner and others made frantic search for him but in vain. The next day morning, brother-in-law of petitioner W.P(C) No.17861 of 2011 -: 2 :- lodged a complaint to the Taliparamba police on which Crime No.21 of 2011 was registered for man missing. The Police conducted search in the area where the deceased was last seen on January 13, 2011. On the next day, dog squad of the Police was also pressed into service. But the search did not yield result. On January 16, 2011 body of the deceased was seen near the waiting shed. It is the grievance of petitioner that though some of the youngsters (who are alleged to have been found near the bus waiting shed on 13.01.2011) were arrested and questioned, investigation has not proceeded in the expected pace. It is stated that after the deceased was missing petitioner tried to call him on his mobile phone but it was seen switched off. Later when the body was traced the mobile phone with the sim card was found in tact with the body. Hence this petition to entrust the investigation to the CBI. 3. As directed by this Court the Circle Inspector, Taliparamba Police Station who is investigating the case is present in Court with the CD file relating to the case. I have heard learned Public Prosecutor and perused relevant records in the CD file. Learned Public Prosecutor submitted that investigation revealed that the deceased had some illicit affair W.P(C) No.17861 of 2011 -: 3 :- with a 13 year old boy and it was that boy who had called the deceased over mobile phone on the date of incident. The officer investigating the case suspects that death was due to natural cause, narrowing of the heart valves. 4. I have gone through the report of autopsy prepared by Dr.S.Gopalakrishna Pillai, Professor of Medical Science and Police Surgeon, Academy of Medical Science, Pariyaram. In the report dated January 17, 2011 it is stated that no injuries could be noticed anywhere on the body and that the heart though decomposed, showed calcification of the proximal 2 cms of the anterior descending branch of left coronary artery. Lumen of the artery showed extreme narrowing. Intima of the aorta showed advanced atheromatous changes like calcification, ulceration and pigmentation. No injuries were noticed in the rib cage or long bones. Viscera was collected for chemical examination. The Medical Officer reserved his opinion regarding cause of death pending receipt of report of such examination. 5. I have also gone through the statement of the said Medical Officer recorded by the Investigating Officer where the former has opined that normally it is after two days of the death that worms and other decomposition changes are seen on W.P(C) No.17861 of 2011 -: 4 :- the body and after three days of the death gas will be formed in the body. All these symptoms were found on the body of the deceased and from that, the Medial Officer opined that death was three days before postmortem examination on January 17, 2011. 6. In the above circumstances a question will arise as to when and how body of the deceased was found at the scene wherefrom it was traced. It is seen from the file that when the scientific assistant examined the scene where the body was seen no relevant trace of evidence could be collected. From the above, prima facie two questions arise, whether assuming that the death of deceased was due to natural cause as may be found from the postmortem examination, how and when the body of the deceased came to the scene wherefrom it was traced since decomposed stage? I must bear in mind opinion of the Medical Officer that the death must have been three days prior to the postmortem examination (January 17, 2011). The second aspect which requires consideration is how, in spite of there being a thorough search including with the service of sniffer dogs presence of the dead body (if it were there even at that time) escaped unnoticed? These matters required proper investigation. W.P(C) No.17861 of 2011 -: 5 :- It is seen that the report of chemical examination is not received and the Medical Officer has reserved his opinion on cause of death pending receipt of report of chemical examination. It is seen that the Investigating Officer has addressed a letter dated June 06, 2011 to the Joint Chemical Examiner, Regional Chemical Examiner's Laboratory, Kozhikode requesting for result of chemical examination. But unfortunate to say that in spite of the viscera being sent to the Laboratory some time in January, 2011, the report has not reached the Medical Officer. I am not inclined to think that the Officials of the Regional Chemical Examiner's Laboratory, Kozhikode are unaware of the necessity to provide chemical examination reports at the earliest and the consequence delay will bring about to find out the cause of death and the culprit if any. I am inclined to think that the Regional Chemical Examiner's Laboratory, Kozhikode should have shown more responsibility in this matter whatever be their excuse in the matter. 7. Now the question is whether investigation has to change hands. I am not inclined to think having regard to the facts and circumstances of the case that investigation of the case must be entrusted to the CBI which I am told, is already W.P(C) No.17861 of 2011 -: 6 :- flooded with a number of cases from this State itself for investigation. Learned Standing Counsel for the CBI submitted that if large number of cases are entrusted to the CBI, that agency also may not be able to investigate the cases in the expected manner, ultimately resulting in erosion of its credibility. Having regard to the various facts and circumstances I am not inclined to think that investigation of this case should go to the CBI. 8. Learned Public Prosecutor has submitted that the present Investigating Officer has already questioned several witnesses. It appears to me that the investigation must be done by a still senior hand, an Officer of the rank of Assistant Superintendent of Police/Deputy Superintendent of Police. I am told that there is an Assistant Superintendent of Police working at Taliparamba. Investigation of the case can be entrusted to him. At the same time to avoid discontinuity in the investigation it is made clear that it is open to that Officer to co-opt the present investigating Officer also to his team. 9. I had by judgment dated February 16, 2011 in W.P(C) No.685 of 2011, taking note of the alarming number of petitions being filed in this Court seeking investigation by the CBI made W.P(C) No.17861 of 2011 -: 7 :- certain recommendations to the Government in the matter of forming a State Bureau of Investigation in the model of the CBI with some sort of autonomity to them to investigate major crimes. I made those recommendations bearing in mind what normally happens in the matter of investigation when a major crime occurs - that the investigation will be continued for some time by the local police and then there will be transfer of the investigation to the Crime Branch, followed by another expert wing – Hurt and Homicide Wing of the police. Thereafter comes request for investigation by the CBI and ultimately the court may, having regard to the facts and circumstances of the case entrust investigation to the CBI by which time, enormous time must have elapsed after the incident and any time lapse would only go to the advantage of the culprit. In view of these circumstances and to retain the confidence of the people in the State police, recommendation was made that there must be an expert wing in the State Police, detached from the law and order wing with some autonomity so that major crimes should be entrusted to such expert wing for investigation immediately after such crimes are registered. I had also in that judgment directed learned Public Prosecutor to hand over a copy of that judgment to the W.P(C) No.17861 of 2011 -: 8 :- Government for consideration and necessary action. 10. Shri K.J. Mohammded Anzar, learned Public Prosecutor who was appearing for the State in W.P(C) No.685 of 2011 has given me necessary assistance in this regard today. Learned Public Prosecutor submitted that on receipt of a copy of the said judgment it was immediately handed over to the office of learned Advocate General wherefrom information was given to the State Government regarding the recommendations in that judgment. That was followed by copy of the judgment being faxed to the Secretary, Home Department, Government of Kerala on March 14, 2011. 11. I wanted to get information as to what the Government have done in the matter and what is its response to the recommendations. I directed learned Public Prosecutor to get information in the matter. Shri T.K. Sajeev, learned Pubic Prosecutor has informed me that on July 25, 2011 (i.e., yesterday) the Additional Secretary to the Government has informed the learned Advocate General that the matter has been referred to the State Police Chief for a full-fledged and specific report in the matter and the Government shall take formal decision in the matter on receipt of report of the State Police W.P(C) No.17861 of 2011 -: 9 :- Chief. Shri Mohammed Anzar, learned Public Prosecutor told me that after the gist of the judgment in W.P(C) No.685 of 2011 was conveyed to the Speaker there was a question in the floor of the Legislative Assembly as to what the Government propose to do with respect to the recommendations contained in the said judgment and that the then Home Minister had replied that the Government is looking into the matter. 12. It is appropriate that the Government has its response to the recommendations made by this Court in the judgment dated 16.02.2011 in W.P(C) No.685 of 2011 at the earliest if the Government considered that it is necessary in the ends of justice and to preserve, retain or regain (as the case may be) the confidence of the people in the investigation by the State Police. It is for the Government to take appropriate decision in the matter. Otherwise, a stage may come when almost all the major crimes in the State are being investigated by the CBI or at least a request being made in that way. Resultantly, the Writ Petition is disposed of in the following lines. (a) It is directed that Crime No.21 of W.P(C) No.17861 of 2011 -: 10 :- 2011 of Taliparamba Police Station shall be investigated by an Officer senior in rank to the Circle Inspector who is presently investigating the case. (b) To avoid continuity of the investigation being lost, it is open to the said Officer to co-opt the present Investigating Officer and/or any other Police Officer he deems fit to his team for a proper and thorough investigation of the case. (c) Necessary direction in that regard shall be given by the State Police Chief, Thiruvananthapuram within a week of receipt of a copy of this judgment (which shall be made available by the petitioner). (d) The Joint Chemical Examiner, Regional Chemical Examiner's Laboratory, Kozhikode is directed to forward the report of W.P(C) No.17861 of 2011 -: 11 :- chemical examination (in Crime No.21 of 2011 of Taliparmba Police Station) to the Officer investigating the case as early as possible bearing in mind that considerable lapse of time has already occurred after the viscera reached that office for examination. (e) Petitioner shall give a copy of this judgment to the Joint Chemical Examiner for strict compliance with the above direction. (f) Registry is directed to issue a copy of this judgment to the learned Public Prosecutor to be forwarded to the Home Secretary, Government of Kerala, Thiruvananthapuram. THOMAS P. JOSEPH, JUDGE. vsv