IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(C).No. 31031 of 2009(Q) -------------------------- PETITIONER(S): --------------- M.G.GEORGE MUTHOOT, S/O.LATE M.GEORGE, MUTHOOT HOUSE, KOZHENCHERY, PATHANAMTHITTA. BY ADV. SRI.BECHU KURIAN THOMAS SRI.PAUL JACOB (P) SRI.ROSHEN.D.ALEXANDER SMT.INDU SUSAN JACOB SMT.NISHA JOHN SRI.ENOCH DAVID SIMON JOEL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM, KERALA. 3. INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM. 4. SUB INSPECTOR OF POLICE, NEDUMUDI POLICE STATION, ALAPPUZHA. 5. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, NEW DELHI. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R5 DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR& PUBLIC PROSECUTOR SRI.C.K.SURESH FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2010, ALONG WITH WPC NO. 37407 OF 2009 THE COURT ON 21.01.2010 DELIVERED THE FOLLOWING: WP(C).NO.31031/2009 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: COPY OF FIR IN CRIME NO.197/2009 DATED 22.8.2009 OF NEDUMUDI POLICE STATION, ALAPPUZHA. EXHIBIT P1(a): COPY OF FI STATEMENT GIVEN BY SHIBU IN CRIME NO.197/2009 DATED 22.8.2009 OF NEDUMUDI POLICE STATION, ALAPPUZHA. EXHIBIT P1(b): COPY OF INQUEST REPORT DATED 22.8.2009. EXHIBIT P2: COPY OF POST MORTEM REPORT DATED 22.8.2009 CARRIED OUT ON OTHE BODY OF PAUL GEORGE. EXHIBIT P3: COPY OF SEIZURE MAHAZAR OF THE VEHICLE KL-01 AS 8407 DATED 23.8.07. EXHIBIT P4: COPY OF NEWSPAPER REPORT OTHAT APPEARED IN THE MATHRUBHOOMI DAILY DATED 23.8.09. EXHIBIT P(a): COPY OF NEWSPAPER REPORT THAT APPEARED IN THE mATHRUBHOOMI DAILY DATED 23.8.1009. EXHIBIT P4(b): COPY OF REPORT THAT APPEAED IN THE HINDU DAILY DATED 2W3.8.09. EXHIBIT P4(c): COPY OF NEWSPAPER REPORT THAT APPEARED IN THE KERALA KAUMUDI DAILY DATED 23.8.1009. EXHIBIT P4(d): COPY OF NEWSPAPER REPORT THAT APPEARED IN THE SUNDARY EXPRESS DATED 23.8.2009. EXHIBIT P5: COPY OF NEWSPAPER REPORT THAT APPEARED IN THE MALAYALA MANORAMA DAILY DATED 23.8.09. EXHIBIT P5(a): COPY OF NEWSPAPER REPORT THAT APPEARED IN THE MATHRUBHOOMI DAILY DATED 23.8.09. EXHIBIT P5(b): COPY OF REPORT THAT APPEARED IN THE MANGALAM DAILY DATED 23.8.09. EXHIBIT P5(c): COPY OF REPORT THAT APPEAED IN THE KERALA KAUMUDI DAILY DATED 23.8.09. EXHIBIT P6: COPY OF NEWSPAPER REPORT THAT APPEARED IN THE MALAYALA LMANORAMA DAILY DATED 25.8.09. EXHIBIT P6(a): COPY OF REPORT THAT APPEARED IN THE MATHRUBUOOMI DAILY DATED 25.8.09. EXHIBIT P6(b): COPY OF REPORT OTHAT APPEARED IN THE DEEPIKA DAILY DATED 25.8.09. EXHIBIT P7: COPY OF NEWSPAPER REPORT DATED 23.8.09 AS APPEARED IN MATHRUBHOOMI DAILY. EXHIBIT P8: COPY OF NEWSPAPER REPORT OTHAT APPEARED IN THE HINDU DAILY DATED 26.8.09. EXHIBIT P9: COPY OF NEWSPAPER REPORTED DATED 8.9.09 AS APPEARED IN THE INDIAN EXPRESS DAILY. EXHIBIT P9(a): COPY OF NEWSPAPER REPORT DATED 8.9.09 AS APPEARED IN THE MALAYALA MANORAMA DAILY. EXHIBIT P10: COPY OF JUDGMENT DATED 8.9.09 IN W.P(C).NO.25338/2009. EXHIBIT P10(a): COPY OF NEWSPAPER REPORT AS APPEARED IN THE HINDU DAILY DATED 9.9.09. EXHIBIT P11: COPY OF NEWSPAPER REPORT AS APPEARED IN THE MALAYALA MANORAMA DAILY DATED 10.9.09. EXHIBIT P12: COPY OF NEWSPAPER REPORT AS APPEAED IN MALAYALA MANORAMA DAILY DATED 11.9.09. EXHIBIT P13: COPY OF NEWSPAPER REPORT DATED 23.9.09 AS APPEARED IN THE MANGALAM DAILY. EXHIBIT P14: COPY OF NEWSPAPER REPORT THAT APPEARED IN THE INDIAN EXPRESS DAILY DATED 11.9.09. EXHIBIT P15: COPY OF STATEMENT GIVEN BY MANU (PRAVEEN V.S) UNDER SECTION 164 CR.P.C BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, ALAPPUPZHA. EXHIBIT P16: COPY OF JUDGMENT DATED 27.10.2009 IN B.A.NO.5832/2009 ON THE FILES OF THIS OHONOURABLE COURT. EXHIBIT P17: COPY OF CRIME SCENE. EXHIBIT P18: COPY OF WOUND CERTIFICATE DATED 22.8.09. EXHIBIT P19: COPY OF ORDER DATED 6.10.2009 IN CMP.1745/09. EXHIBIT P20: COPY OF ORDER DATED 29.10.09 IN CMP.2057/09. EXHIBIT P21: COPY OF NOTICE DATED 6.11.09 BY DIRECTORATE OF FORENSIC SCIENCE, GUJARAT. EXHIBIT P22: COPY OF ORDER DATED 8.12.2009 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATE, RAMANKARY IN CRIME NO.197/09. EXHIBIT P23: COPY OF ORIGINAL VIDEO OF THE PRESS CONFERENCE DATED 24.8.2009 MADE BY THE THIRD RESPONDENT. RESPONDENTS' EXHIBITS: EXHIBIT R6(a): COPY OF JUDGMENT DATED 8.9.2009 IN WP(C).NO.25338/2009. EXHIBIT R6(b): COPY OF NEWS REPORTED IN THE MALAYALA MANORAMA DAILY DATED 13.9.2009 AND ITS ENGLISH TRANSLATION. /TRUE COPY/ PA TO CJ S.R.Bannurmath, C.J. & Thottathil B.Radhakrishnan, J. ------------------------------------------------------ W.P(C).No.31031 of 2009 & W.P(C).No.37407 of 2009 ------------------------------------------------------ Dated this the 21st day of January, 2010 JUDGMENT The role of a victim, including his family members, of a heinous crime, during investigation and trial in the present criminal justice delivery system and incidentally, the role of higher/superior courts in respect of investigation at the initial stage of filing of final report by the investigating agency are the subject matter of this writ petition. 2. The writ petitioner, unfortunate father of deceased Paul in homicidal attack and death, has approached this Court under Article 226 of the Constitution of India seeking a direction for investigation in Cr.No.197/09 of Nedumudi Police Station, Alappuzha by an independent investigating agency like Central Bureau of Investigation. WP(C).31031 & 37407/09 2 3. Taking into consideration the fact that investigation in this case is complete and final report (charge sheet) is filed by the investigation before the Magistrate, the brief and necessary facts as per prosecution, for our purpose, are as follows: 4. The petitioner, M.G.George Muthoot along with his three sons including deceased Paul are running one of the largest business groups in India hailing from Kerala, having more than 1000 branches all over India with assets estimated at more than Rs.20,000 Crores. It is undisputed that though originally this group was engaged in Gold loan business, over the years has entered into various other businesses. 5. It is stated that the deceased, based in Delhi till April, 2009, had come down to Kerala in May, 2009 to take charge of construction and plantation division. 6. On the night of 21.08.2009 at about 12.30 midnight the family was informed by the driver by name Shibu (driver of Paul's car) that Paul was brutally attacked and lying in WP(C).31031 & 37407/09 3 pool of blood. 7. The eldest son of petitioner rushes to Alappuzha Medical College Hospital, finds Paul dead and also learns that another person Manu, alleged to be travelling with deceased Paul is also injured and admitted to hospital in unconscious state. 8. According to investigation, at 3.00 AM on the basis of first information given by the driver, Shibu a case in Crime No.197/2009 is registered at jurisdictional police station at Nedumudi and investigation is taken up and now final report (charge sheet) is also filed. 9. In order to understand the case, it is necessary to note the contents of the first information (original is in malayalam and we have looked into the uncontroverted translation in English as one of us (S.R.Bannurmath, C.J) is not conversant with Malayalam). 10. The gist of the translated first information reads as follows: “Deposition given by Shibu Thomas, 32 years, residing at rented house Siva Kripa, WP(C).31031 & 37407/09 4 Chakkamadom Line, Kaloor-kathrikadavu Road, Ernakulam coming from Vandanath house, IXth Ward, Kanjiyar Panchayat, Ayyappankovil Village, Udumbanchola Taluk, Idukki District to P.A. Alaphonse, Sub Inspector, Nedumudi Police Station at 03.00 on 22/8/09. I am working as a driver at Cardamom County Hotel of Muthoot at Thekkady. Now I am working at Muthoot Office at Kadavanthara Ernakulam. 3 persons known to Paul sir came from Trivandrum to see the Executive Director Paul sir in KL01-AS- 8407 Ford Endeavour black coloured Car. Thereafter Paul sir along with them from Avenue Regent Hotel to the flat and from there went with them in the car they came and went to Mararikulam the property taken for the resort. All of them consumed liquor there. About 11.30 at night sir and two persons with him got into the car they came. Since one person consumed too much liquor hence he was taken the Scorpio car being No.KL6-D-3174 of the sir driven by me. Sir came in the car they came with, to Pamba Villa resort at Chambakulam. I was directed to take the key of said resort from the office of Muthoot Backwater Cruise (MBC) below the Pallathuruthy bridge. I drove the vehicle from Mararikulam. When I came to Pallathuruthy Office and asked for the key they said that as per the call of sir the keys were taken there. So I went by vehicle to Chambakulam following the sir. Sir was going at high speed. I went after him. When I reached about 2 kms east of Pallathuruthy bridge. I saw the car driven by the sir parked in the left side of the road and I stopped the car. Then I saw that one tempo traveler and about 10 to 15 WP(C).31031 & 37407/09 5 persons are surrounding the car of the sir. On seeing stopping my vehicle they suddenly get into the tempo traveler and drove towards Alappuzha side. Then I and the person with me got down from the car. Then the person with me said that Paul sir is lying there, and I and the person with me lifted the Paul sir and the Paul sir was drenched in blood. And the sir was taken to the car driven by me the Scorpio KL6-D-3174. Deep wounds were seen below the neck and back of the sir. We heard a murmur sound from the road side. We saw that one person along with the sir in the car was trying to get up of the marshy land on the northern side of the road. We helped him up. He was taken in my car and suddenly took to MCH Alappuzha. The person with me and the other person along with the sir came in his vehicle behind me. When we reached Alappuzha SD college they overtook me and went towards south through NH. Even though I sounded my horn and indicator they drove off towards south without stopping. I reached with Paul sir and the other person at the MCH Alappuzha. On reaching hospital, the doctor examined and said that the Paul sir is dead. Then the time was 12.50. The dead body was transferred to mortuary. The accompanying person was admitted there. He was murdered by a group of persons with some deadly weapon stabbing and cutting with intention to kill the sir out of vengeance. The group consisting of 10 to 15 persons. All of them wear pants and shirts. All of them were youngsters. I can recognize some of them. The occurrence was at about 12.15 night on 21.08.09. The car in which I took the sir is at MCH College Alappuzha. The place of occurrence is at about 3 ½ Kms.” WP(C).31031 & 37407/09 6 11. After the registration of the case, investigation procedure like inquest of the dead body of Paul is carried out so also post-mortem is carried out. Statements of various witnesses are recorded and in all, as per final report, 25 persons are accused of having some role in the undisputed homicidal attack and death of Paul. 12. It is interesting to note, as this investigation is going on, on the very next date of incident, i.e., 23.8.2009, it appears, the Home Minister informs media that investigation (?) so far carried out reveals involvement of “quotation gang” and details of investigation will be disclosed by the investigating agency on the next day. 13. On 24.8.2009, the Inspector General of Police, holds press-media conference and reveals entire probable history as to how and why Paul was murdered. (At the request of the petitioner and with consent of learned Director General of Prosecution for State, we have seen the vedio recording of this press conference in the WP(C).31031 & 37407/09 7 open court and as the statement of the Inspector General of Police was in Malayalam, perused the undisputed translation also.) 14. It is somewhat shocking to note that when investigation started rolling hardly 24 hours after the murder of Paul, accused yet to be even identified, the Inspector General who is neither the investigating officer nor in charge of investigation, in the press/media conference, gives vivid picture of how and why the deceased was attacked by 22 persons; how many vehicles were involved; the details of some persons accompanying the deceased in the car and also some persons following in other cars. He also emphatically says that some of the alleged accused were members of quotation gang and A24 - Omprakash and A25 Rajesh - are notorious and wanted criminals who were with the deceased in the car on the fateful night. He also speaks about motive aspect. According to him, Paul was driving a Ford Endeavour car, which hit a motorcycle driven by one Aji at Pallathuruthy and after the accident, without stopping WP(C).31031 & 37407/09 8 Paul sped away; few people (some of the accused – members of quotation gang) travelling in a tempo traveller who came to spot and after helping the motorcycle rider, chased Paul's car and at a distance of 2 ½ km thereafter found Ford Endevour parked by road side; they parked tempo traveller and questioned Paul's conduct in not stopping after accident with motorcycle and after verbal exchange, one of them stabbed Paul; and the passengers in tempo traveller were all drunk and have stabbed Paul under sudden alcoholic intoxication (?). He further states that the assault was due to sudden provocation by deceased himself. He even describes the murder weapon as 'S' shaped sharp weapon. 15. This press/media statement by a responsible higher police officer of the rank of Inspector General, giving minute details of the incident including involvement of two tempo travellers (by some of the accused), Ford Endeavour driven by deceased Paul with two or one person (doubtful) and also a Scorpio and one Santro belonging to quotation group of WP(C).31031 & 37407/09 9 Changanassery team, another Scorpio belonging to deceased Paul, as well as definite statement as to who were in which car, the 'S' shape of weapon used when admittedly no autopsy was conducted and especially, even motive, that is, sudden intoxication reaction or sudden provocation by the deceased resulting in one of the accused stabbing the deceased, etc. when the first information of Shibu, the driver of Paul (alleged to be driving another vehicle) etc, that too, within short time of incident does not even indicate at this definite findings of the Inspector General of Police and when investigation had just begun, appears to be strange and has created doubt in the mind of not only the father of deceased (petitioner) but also with media people and in turn, public. 16. According to petitioner, due to shock of losing his grown up son and as investigation was yet to be completed and having faith in police machinery, he and family members watched and waited for some time, later seeing the strange way investigation is proceeding and especially after filing of final report, as the case put forth by the WP(C).31031 & 37407/09 10 investigation agency is full of inconsistencies, improbabilities and doubtful in nature and in spite of his repeated requests to probe properly as nothing was done, he is forced to approach this Court invoking Article 226 of the Constitution of India jurisdiction seeking investigation by another independent agency like Central Bureau of Investigation. 17. This petition is vehemently opposed by the respondent-State through learned Director General of Prosecution. At the outset relying upon the pronouncements of Apex Court, it is contended that the law regarding jurisdiction and power of police carrying out investigation is well settled. He submits that as investigation is absolute power of police, neither the courts can intervene nor direct the police to reinvestigate or investigate in a particular way. He submits that the present investigating agency has done its best in investigating the crime, after going through all the possible angles and the guilt of the accused has to be proved only during trial and as such, mere suspicion and doubt by looking into or probing the evidence so far WP(C).31031 & 37407/09 11 gathered would hamper the trial of the accused detected or said to be involved in the crime. It is contended that mere discrepancies here and there emerging from various statements of witnesses recorded during investigation, are not sufficient to hold that investigation is faulty or false. He also contended that mere doubts expressed by the victim's father (petitioner) or possible theory put up by him, cannot be basis for interference by courts at this stage. He further drew our attention to the provisions of Delhi Special Establishment Act, especially Section 6, to contend that the Delhi Special Police (CBI) cannot conduct investigation outside its normal jurisdiction unless the concerned State (where crime has taken place, case is registered and investigation carried out by local police) gives its consent. It is submitted that as financial implications like liabilities of payment of compensation to victim or his family, defending prosecution for malicious investigation which may be filed by accused after acquittal by a court, would be with State, it is not proper or justifiable for this Court to order new WP(C).31031 & 37407/09 12 investigation or fresh probe by CBI. It is argued that even before this Court, there is absolutely no material placed on record or no clues are even indicated by the petitioner to show that the investigation so far carried out is either faulty or not proper or malafide and in the absence of any definite material as to any other person being involved in the crime, only on the basis of mere suspicion or surmises, it is not open for this Court to entrust the investigation to CBI. On these, among other grounds, it is contended that the writ petition and prayers therein are not maintainable. 18. Incidentally it is to be noted that after filing of the final report by the police before the jurisdictional Magistrate, the Magistrate noted certain discrepancies and suspicion about the investigation and as such by order dated 8.12.2009 held that there are many missing links and certain areas are to be unearthed and further investigation is required and as such investigation is incomplete. Hence, returned the final report and directed police to complete investigation properly. This order of the Magistrate is WP(C).31031 & 37407/09 13 challenged before this Court in WP(C).No.37407 of 2009 on various grounds questioning the limited jurisdiction of Magistrate under the Code of Criminal Procedure over investigation and illegality of return of final report with further direction to probe further. 19.Since the contentions in both the cases are interlinked we have heard them together. 20. We have heard both petitioner's counsel, learned Director General of Prosecution and Standing Counsel for CBI in detail. 21. Before discussion of rival contentions on the merits of the case, we would like to address ourselves on the legal issues raised. 22. We are in full agreement with learned Director General of Prosecution on following legal aspects well established by various pronouncements of the Honourable Supreme Court: (a) It is statutory obligation and duty of the police to WP(C).31031 & 37407/09 14 investigate into crime and the courts normally ought not to interfere and guide the investigation agency as to in what manner the investigation should be proceeded (emphasis by us). (b) that investigation of a case and further investigation if required is the prerogative of the investigating agency; and (c) that mere suspicion or doubt will not be sufficient to unsettle the investigation so far carried out, by either directing for further probe or reinvestigation by same or another investigating agency like CBI. 23. We have perused various pronouncements relied upon by both the sides. 24. At the outset, as we have no dispute as to the law laid down to the aforesaid position and though we are aware of effect on the present investigation by looking into some factual positions, for the reasons stated below we deemed it proper to look into the investigation material for limited purpose and wherever necessary to find the assertions of WP(C).31031 & 37407/09 15 either side is correct or not. 25. It is to be noted that maintaining law and order in a State is the constitutional obligation of the State. No doubt, investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. If an offence is alleged to have been committed, it is the bounden duty of the executive to investigate into the crime and bring the offender to book. The concept of punishment is deterrent both for the actual criminals involved and also to send warning to those who are nurturing idea of committing similar crimes. There cannot be any dispute that unless the citizens feel safe, assured about criminal justice by proper investigation apprehending and punishing the real criminals, the State obligation is not discharged. 26. If one looks into history of criminal justice delivery system in India especially after independence, the picture is very bleak and sorrowful. The conviction rate in India is hardly 30 to 40%. These figures, when compared to other WP(C).31031 & 37407/09 16 nations like USA, UK, France and Germany where conviction rate is almost 80 to 90%, would definitely indicate that something is wrong somewhere in our criminal justice delivery system. 27. It cannot be disputed that our present day criminal justice delivery system borrowed from British system is partially responsible for the low rate of convictions, increase in crimes and people losing faith in the efficacy of the system. The age old method of investigation, too many restrictions in investigations, appreciation of evidence by the courts with blinkers and with narrow compartmentalised minds, stretching the theory of proof beyond reasonable doubt too far, over-importance given to right of silence to the accused, overzealous attempt to protect only rights of the accused during trial, inordinate delays in completing investigation and trial, have all, in our view, contributed to the problems. It is again the undisputable bitter truth that as people are losing faith in the system, they are leaning towards taking law in their hands, sometimes even WP(C).31031 & 37407/09 17 engaging/hiring goondas or anti-social criminals, who are now given an honourable title “quotation and protection agencies”. 28. Noting all these facts and hue and cry raised by intellectuals, jurists, NGOs and public, in the year 2000, the Government of India constituted a committee headed by an intellectual giant in legal field Dr.Justice V.S.Malimath to suggest and recommend on reforms of the criminal justice system especially for simplification of judicial procedure and practice with main object of restoring the faith and confidence of common man in the criminal justice system, by protecting innocent and victims and by unsparingly punishing the real culprits. The report of the committee with recommendations, was submitted to Government of India in the year 2002. Unfortunately, except here and there, none of the valuable suggestions have been considered or implemented. 29. Be that as it may, the fact of our reference to this report in the present context is regarding the plight of a WP(C).31031 & 37407/09 18 victim and his family members. 30. In the present criminal justice delivery system, except for filing a first information, giving evidence in court and sometimes getting compensation, there is absolutely no major role for the victims including family members especially in heinous crimes like murder, rape etc. 31. As stated and emphasised by Dr.Justice V.S.Malimath Committee, “quest for truth” should be the motto, guiding star and fundamental duty of the investigation agency and the courts. But unfortunately as commented by the Committee, the basic need is to have well trained, well equipped and more importantly, independent investigating agency. Secondly, if criminal proceedings have to be fair for both the parties, i.e., victim and the accused, it is not sufficient only to protect innocents from punishment or punishing the culprits, the aim and object must be basically to give justice to the victim of the crime also. But, unfortunately, as noted above, once criminal investigation starts rolling, the victim has