IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 13960 of 2010(Q) ---------------------------------------- PETITIONER(S): ------------------------ 1. KOMATH BEEVI, W/O SALIM, AGED 57 YEARS, RESIDING AT NEW JASEELA MANZIL, KETTINAKAM, POST MUZHAPPILANGAD, TELICHERRY, KANNUR DISTRICT. 2. JASEELA, D/O KOMATH BEEVI, AGED 32 YEARS, RESIDING AT NEW JASEELA MANZIL, KETTINAKAM, POST MUZHAPPILANGAD, TELICHERRY, KANNUR DISTRICT. BY ADVS. SRI.K.P.RAMACHANDRAN SRI.PADMALAYAN.P.P. SRI.SEBASTIAN JOSEPH (KURISUMMOOTTIL) SMT.BINDHU PAULOSE RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY(HOME), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. SRI.U.PREMAN, CIRCLE INSPECTOR OF POLICE, TELLICHERRY POLICE STATION, KANNUR DISTRICT. 4. SRI.K.VINODAN, SUB INSPECTOR OF POLICE, TELLICHERRY POLICE STATION, KANNUR DISTRICT. 5. SRI.HEMARAJAN, ASSISTANT SUB INSPECTOR OF POLICE, TELLICHERRY POLICE STATION, KANNUR DISTRICT. sts 2/- -2- WP(C)NO.13960/2010 6. SRI.VALSAN, GHC 3134, C/O. STATION HOUSE OFFICER, TELLICHERRY POLICE STATION, KANNUR DISTRICT. 7. SRI.VINODKUMAR, AR PC NO.5533, C/O STATION HOUSE OFFICER, TELLICHERRY POLICE STATION, KANNUR DISTRICT. 8. THE SUB INSPECTOR OF POLICE, EDAKKAD POLICE STATION, KANNUR DISTRICT. 9. INSPECTOR GENERAL OF CRIME BRANCH, THIRUVANANTHAPURAM. 10. DETECTIVE INSPECTOR, CRIME BRANCH CID H & H WING III, KOZHIKODE UNIT, CRIME BRANCH CID OFFICE, KOZHIKODE. 11. JOINT DIRECTOR, CENTRAL BUREAU OF INVESTIGASTION, CHENNAI. 12. THE SUPERINTENDENT, CENTRAL BUREAU OF INVESTIGATION -COCHIN UNIT, KATHRIKKADAVU ROAD, COCHIN. 13. SRI.M.K.MOOSSOOTY @ MOOSA, S/O USMAN, MEETHEL KARAKKAL HOUSE, PUNNOL KARIKKUNNU, KODIYERI AMSOM, TELLICHERRY TALUK, KANNUR DISTRICT. 14. SRI.P.V.JAYACHANDRAN, VELIKKOTH HOUSE, GOPALAPETTA, TELLICHERRY TALUK, KANNUR DISTRICT. 15. SRI.K.K.DINAYAN, KUNIYIL KUTTIAM HOUSE, PANNIYANNUR, TELLICHERRY TALUK, KANNUR DISTRICT. *ADDL.R16 IMPLEADED * ADDLR16: KHADEEJA.A., AGED 36 YEARS, W/O.LATE KOMATH NAZAR, RESIDING AT SHA NIVAS, KETTINAKAM, P.O. MUZHAPPILANGADU, KANNUR DISTRICT, KERALA. * IS IMPLEADED AS ADDL.R16 AS PER ORDER DATED 14/6/2011 IN I.A.NO.7798/11 R1 & R2, R8 TO R10 BY PUBLIC PROSECUTOR SRI.V.MANU R11 & R12 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. ADDL.R 16 BY ADV.SRI.V.BIJU JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.13960/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE FIR IN CRIME NO.130/2010 OF TELLICHERRY POLICE STATION. P2 COPY OF THE FIR IN CRIME NO.133/2010 OF TELLICHERRY POLICE STATION. P3 COPY OF THE INTIMATION LETTER DATED 25/01/2010 OF THE ASSISTANT SURGEON, GOVERNMENT HOSPITAL, TELLICHERRY TO THE TAHASILADAR, TELLICHERRY TALUK. P4 COPY OF THE POSTMORTEM CERTIFICATE DATED 27/01/2010. P5 COPY OF THE REPLY GIVEN BY SUB INSPECTOR OF POLICE, TELLICHERRY TO THE 1ST PETITIONER UNDER RIGHT TO INFORMATION ACT 2005. P6 COPY OF THE COMPLAINT SUBMITTED BY THE 1ST PETITIONER BEFORE THE HONOURABLE HUMAN RIGHTS COMMISSION. P7 COPY OF THE REPRESENTATION DATED 26/01/2010 OF THE MUZHAPPILANGAD TOWN MUSLIM LEAGUE COMMITTEE. P8 COPY OF THE NEWS REPORTED IN THE MALAYALA MANORAMA DAILY DATED 26/01/2010. P9 COPY OF THE DECISION IN A CASE OF CUDALURE M.J.CHERIYAN AND OTHERS VS.UNION OF INDIA AND OTHERS, REPORTED IN 1992 (1) SUPREME COURT CASES, PAGE NO.397 TO 400. P10 COPY OF THE DECISION IN A CASE OF MARIYU VS.DEPUTY SUPERINTENDENT, CBCID AND OTHERS, REPORTED IN 2008 (1) KHC, PAGE NO.1041 TO 1047. P11 COPY OF THE DECISION IN A CASE OF J.PRABHAVATHIAMMA AND ANOTHER VS.STATE OF KERALA AND OTHERS, REPORTED IN 2007(4) KHC, PAGE NO.72 TO 90. P12 COPY OF THE DECISION IN A CASE OF KASHMERI DEVI V. DELHI ADMINISTRATION & ANOTHER, REPORTED IN 1988 AIR 1323. RESPONDENT'S EXHIBITS AND ANNEXURES: ANNEX B-1: COPY OF THE INQUEST REPORT PRODUCED BEFORE THE SUB DIVISIONAL MAGISTRATE, THALASSERY. ANNEX B-2: COPY OF THE INQUEST REPORT SUBMITTED TO THE CJM COURT, THALASSERY. ANNEX B-3: COPY OF THE INQUIRY REPORT SUBMITTED TO THE CJM COURT, THALASSERY. 2/- -2- WP(C)NO.13960/2010 R16(A): COPY OF THE DISCHARGE SUMMARY ISSUED BY LAKESHORE HOSPITAL,MARADU. R16(B): COPY OF THE DISCHARGE SUMMARY ISSUED BY A.K.G.HOSPITAL, THALASSERY. /TRUE COPY/ P.S.TO.JUDGE sts THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.13960 of 2010 -------------------------------------- Dated this the 23rd day of June, 2011. JUDGMENT On a plea that it is a case of custodial violence and death, the mother and sister of the deceased, Komath Nazar have come forward with this petition for a direction to respondents 1, 2, 9 and 10 to entrust investigation of Crime No.133 of 2010 of Thalassery Police Station to the Central Bureau of Investigation (for short, “the CBI”) for a detailed investigation under the supervision of this Court, a direction to the third respondent to return to the first petitioner the personal belongings of the deceased including a motor bike and such other reliefs this Court deems just and proper. In the course of proceedings, wife of the deceased got herself impleaded as additional sixteenth respondent, supporting the demand of petitioners. 2. It is the case of petitioners that deceased was arrested by the third respondent, Circle Inspector of Police, Thalassery on January 22, 2010, was kept in wrongful confinement, was brutally assaulted, arrest was recorded as if it was on January 24, 2010 at 8.30 a.m. and while so on January 25, 2010 deceased was found dead in the lock up as if hanging from the lock up bar on a kaily. The Thalassery Police registered Crime No.133 of 2010 under Section 174 of the Code of Criminal Procedure and the FIR was submitted before the Sub Divisional Magistrate concerned. The body was brought to the THQ Hospital, Thalassery where Dr A.K.Vasantha examined the deceased and declared him WP(C) No.13960/2010 2 dead. Thereafter the body was removed to the Pariyaram Medical College where autopsy was conducted by the Professor of Medicine and Police Surgeon, Academy of Medical Science, Pariyaram on January 26, 2010 between 11.15 a.m. and 12.15 p.m. He came out with the opinion that death was due to hanging. The CBCID, H & HW-III, Kozhikode took up investigation of the case on January 26, 2010. According to the CBCID, the materials collected in the course of investigation revealed that it is a case of suicide by hanging. The CBCID has not however submitted a final report in that regard. (Learned Public Prosecutor submitted that the CBCID is awaiting decision of this Court in this Writ Petition). It is while so that petitioners have come up with the prayer to entrust investigation to the CBI. Learned counsel for petitioners submitted that investigation conducted by the CBCID is not in the proper line, the CBCID is only a wing of the Kerala Police and naturally their intention is to save their fellow men in the same department being birds of the same feather. According to the learned counsel there are various suspicious circumstances surrounding the death of deceased and the investigation conducted by the CBCID. It is pointed out that the arrest of petitioner was on January 22, 2010 which is evidenced by a complaint preferred by the mother of deceased on January 24, 2010 to the Edakkad Police complaining that the deceased is found missing. It is pointed out by learned counsel that if Thalassery Police had arrested deceased only on January 24, 2010, it is unlikely that the Thalassery Police functioning in the same District where the Edakkad Police is situated, was unaware of the complaint preferred by the mother of deceased to the Edakkad Police and if the WP(C) No.13960/2010 3 arrest was on January 24, 2010, in the normal course the Thalassery Police would have given information about that to the Edakkad Police. But that did not happen. It is pointed out that Thalassery Police Station was declared as a Model Police Station during the relevant time. It had a closed circuit camera installed in the reception facing the lock up also, the GD entries and duty register of Thalassery Police Station on the relevant day (January 25, 2010) would show that there were 25 policemen on duty at the Police Station on that day but it is said that the deceased committed suicide on that day at 10.15. a.m. unnoticed by any policeman. It is also submitted that the lock up is situated at a very visible part of the Police Station and hence hanging of the deceased would not have gone unnoticed by anybody. According to the Investigating Officer there was an earlier attempt by the deceased while in the custody of Panangad Police to commit suicide but, Exts.R16 (A) and (B) produced by the additional sixteenth respondent would show that there was no such attempt. Learned counsel contended that there was criminal conspiracy between Panangad and Thalassery Police and the CBCID also become part of that in conducting the investigation in a slip shoed manner. Referring to the certificate of postmortem examination, learned counsel though initially contended that as per the direction issued by the National Human Rights Commission autopsy of the victim of custodial violence is to be fully video graphed but learned counsel has not pressed that contention in the light of what the Professor of Forensic Medicine has recorded in Ext.P4, postmortem certificate that postmortem procedures were video recorded completely. Learned counsel pointed out from WP(C) No.13960/2010 4 the certificate of autopsy that the normal nail marks that would be seen in case of hanging are not shown on the body of the deceased which ruled out the possibility of death by hanging. In these circumstances it is prayed that the case may be entrusted to the CBI for further investigation. Learned counsel has referred to various authorities to contend that when the case involves custodial violence and death and Police Officials are suspected of commission of the crime it is only just and proper that investigation is conducted by a separate agency like the CBI. Learned counsel for sixteenth respondent has supplemented argument advanced by learned counsel for petitioners. 3. Learned Public Prosecutor contended that investigation was conducted by an expert agency of the State Police headed by the Superintendent of Police, the investigation was conducted by a Deputy Superintendent of Police of the said wing and that every aspect of the matter has been investigated. It is submitted by learned Public Prosecutor that the certificate of autopsy ruled out possibility of any violence in that except a minor abrasion just below the left knee there was no other external injuries (except the ligature mark). Learned Public Prosecutor invited my attention to the report of chemical examination of the materials collected from the body of deceased to contend that intervention of another person in the death of the deceased could be ruled out. 4. Learned Standing counsel for the CBI submitted that having regard to the facts and circumstances of the case this is not a fit case to be entrusted to the said unit. It is pointed out that a number of cases have already been WP(C) No.13960/2010 5 entrusted to the CBI from this State itself and lack of infrastructure also affects functioning of the CBI, the consequence of which will be ineffective investigation which would affect credibility of the said unit. 5. No doubt, it is a case where the deceased was found dead in the Police lock up. But, it is necessary to refer to the relevant facts and circumstances of the case while deciding whether a further investigation is required and if so by a different agency. It is true that in various binding authorities it has been held that when accusation is made against the Police it is appropriate that investigation is entrusted with a separate wing but, there cannot be any hard and fast rule in that regard. Each case in my view should depend on the facts and circumstances of that case. 6. Learned counsel has argued that though Panangad Police had come with a history of attempt by the deceased to commit suicide Exts.R16(A) and (B) negatived that contention. Ext.R16(A) is the discharge summary issued from Lakeshore Hospital, Ernakulam. According to the petitioners, the deceased was brought to that hospital on December 16, 2009 by the Panangad Police with a history of having hung at the Panangad Police Station. From that hospital, the deceased was got discharged on request on December 23, 2009 and he was admitted in the AKG Memorial Hospital, Kannur on December 25, 2009. In Ext.R16(A) it is stated that the CT scan of the head and cervical spine revealed that the same were normal. In the ICU he manifested (?) seizure activity and hence a neurology consultation was sought and EEG was done. It did not show any epileptiform activity and he was put on prophylactic WP(C) No.13960/2010 6 anticonvulsants. He manifested bradycardia with hypotension warranting ionotropic support. He continued to be agitated but was fully conscious. A psychiatry consultation was also sought and he was started on medication according to their suggestion. It is at that stage that relatives of the deceased got him discharged on December 23, 2009. In Ext.R16(A) the finding on clinical pathology is shown as mild diffuse PLL thickening noted with loss of normal cervical lardosis, mild posterior discosteophyte complex at C3-4 and C4-5 levels indenting thecal sac with no neural compromise. In Ext.R16(b) photocopy of the discharge summary issued from the AKG Memorial Hospital also it is mentioned that deceased was in Police custody and alleged hanging from Police Station. 7. Learned counsel for additional sixteenth respondent has invited my attention to the Writ Petition that brother of additional sixteenth respondent had filed in this Court alleging that Panangad Police wanted the deceased and additional sixteenth respondent to give signed blank papers and seeking protection against harassment by the Police. 8. Apart from the learned counsel stating so, no material is brought before me in that regard. Exts.R16(A) and (B) in my view are not sufficient to show that there was any violence when the deceased was in the custody of the Panangad Police. However that is not a matter which I am required to go at depth in this proceeding. 9. Ext.P4 is the copy of certificate of postmortem examination on the WP(C) No.13960/2010 7 body of deceased. There, neck findings are given. It is stated that there was a linear pressure abrasion on the neck, clearly seen across the midline over the adam's apple and vaguely seen on the left side of front of neck. Other findings regarding injury on the neck are also given. It is stated that soft tissues covering the upper part of oblique line of thyroid cartilage showed infiltration of blood cervical spine was intact. The only antemortem injury that the Medical Officer was able to find was an abrasion 0.7x0.3 cm just below the left knee (True, there is reference to multiple incisions put on the upper and lower limbs, buttocks, soles of feet and palms. The same are not antemortem injuries as revealed from the finding entered by the Medical Officer.) That apart from the abrasion referred to above no injuries were seen on any other part of the body. It is also relevant to note that internal organs were found intact. It is stated that internal organs were congested and otherwise normal. The Medical Officer who conducted autopsy had visited the cite of incident on January 27, 2010 at 10 a.m. as per the request of the Investigating Officer. The Medical Officer ultimately concluded his finding as death due to hanging. 10. It is submitted by learned Public Prosecutor that the deceased was involved in several crimes registered at various Police Stations and even when he was arrested by the Circle Inspector of Police, Thalassery on January 24, 2010 ten blank signed cheques were taken from him concerning which the Thalassery Police registered Crime No.130 of 2010 for offences punishable under Sections 468, 471, 420, 457 and 380 of the Indian Penal Code. 11. I have also gone through the report of chemical examination on WP(C) No.13960/2010 8 the materials collected from the body of the deceased. It is seen from the CD file that with the aid of cello fine tape, fibers were collected from the hands, legs, ligature mark on the neck of the deceased and the ligature allegedly used for hanging. Similar collections were made from the pants which the deceased was wearing at the time of arrest. It is the case of Investigating Agency that the deceased in order to go to the toilet requested for a cloth and the Policeman at Thalassery Police gave him a kaily which the deceased made use of for hanging. Samples were collected from the said kaily also. I have gone through the report of the chemical examiner and find that the fibers collected from the body of the deceased matched with the fibers collected from the pant and kaily above referred. The report of chemical examination does not reveal that any foreign body was found on the body of the deceased. One circumstance that learned counsel for petitioners and additional sixteenth respondent pointed out is presence of 25 Policemen at the Police Station on the relevant day and there being a closed circuit camera installed in the reception of the Police Station. Learned Public Prosecutor submitted that investigation revealed that the closed circuit camera was not functioning on the day of incident. According to the learned counsel, it is intriguing that the closed circuit camera failed to work only on the day of incident. 12. I have gone through the records produced before me and CD file and also heard the arguments advanced by both sides. Having regard to the circumstances I am not inclined to think that on the materials on record investigation by a different agency is required. That request however cannot be WP(C) No.13960/2010 9 accepted. But I make it clear that I have not expressed any opinion regarding the ultimate cause of death of the deceased. The Officer superior in rank to the Deputy Superintendent of Police (in the same investigation wing) who is investigating the case shall verify the investigation and look into every aspect of the matter and find whether there is reason for further investigation in the matter. With the above direction, this petition is closed. THOMAS P.JOSEPH, Judge. cks