IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 31371 of 2005(I) ------------------------------------ PETITIONER(S): ---------------------- VISWANATHAN ACHARY,(EXPIRED) PUTHUPARAMBU THUNDIYIL HOUSE, MADHUMOOLA, VAZHAPPALLY, CHANGANACHERRY. *** ADDL.P.VIJAYALEKSHMI, W/O.LATE VISWANATHAN ACHARY, PUTHUPARAMBIL THINDIYIL HOUSE, VAZHAPPALLY P.O., MADHUMOOLA, CHANGANACHERRY-3, KOTTAYAM DISTRICT. (P.Vijayalekshmi, who is the legal representative of the deceased petitioner is impleaded as additional 2nd petitioner as per order dated 20.7.06 in I.A.No.8225/06) BY ADV. SRI.S.JAYAKRISHNAN SMT.S.USHAKUMARI RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, THIRUVANANTHAPURAM. 3. CIRCLE INSPECTOR OF POLICE, CHANGANACHERRY. 4. THE DETECTIVE INSPECTOR, CRIME BRANCH CID, KOTTAYAM. 5. THE SUPERINTENDENT OF POLICE, CBI, KALOOR, ERNAKULAM. 6. THAMPI, CHEMPAKAPARAMBIL HOUSE, THURUTHY, CHANGANACHERRY. 7. SANTHOSH, PUTHUPARAMBIL HOUSE, VADAKKEKARA, CHANGANACHERRY. 8. BIJU THOMAS, KANNANTHARA HOUSE, ETTITHANAM, CHANGANACHERRY. R1 TO R4 BY GOVERNMENT PLEADER SRI.A.J.VARGHESE. R5 BY STANDING COUNSEL SRI.M.V.S.NAMBOOTHIRY SRI.S.SREEKUMAR. R6 BY ADV. SRI.M.P.MADHAVANKUTTY SRI.M.P.MADHAVANKUTTY FOR R8 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.31371/2005: PETITIONER'S EXHIBITS: EXT.P1.TRUE COPY OF THE FIR OF THE POLICE. EXT.P2.TRUE COPY OF THE PAPER REPORT IN MALAYALA MANORAMA DAILY DATED 22.10.1995. EXT.P3.TRUE COPY OF THE CRIME MEMO ISSUED BY THE 4TH RESPONDENT. EXT.P4.TRUE COPY OF THE LETTER DATED 3.10.1995. EXT.P5.TRUE COPY OF THE REPORT TO THE JUDICIAL FIRST CLASS MAGISTRATE COURT OF THE 4TH RESPONDENT. EXT.P6. TRUE COPY OF THE JUDGMENT IN OP NO.9219/2001-V DATED 21.8.2001 OF THE HIGH COURT OF KERALA, ERNAKULAM. EXT.P7.TRUE COPY OF REPRESENTATION FILED BY THE PETITIONER BEFORE THE IST AND 2ND RESPONDENTS DATED 29.7.2005. K.M.JOSEPH , J. ------------------------------------------------------ W.P.(C).No.31371 of 2005-I ---------------------------------------------- Dated, this the 30th day of September, 2010 J U D G M E N T This is an unfortunate case where the petitioner is constrained to come to the Court complaining of the lethargy on the part of the police officers in the matter of tracing out the only son of the petitioner. Pending the writ petition the original petitioner died and subsequently the wife of the petitioner has been impleaded as additional petitioner. Briefly put, the case of the petitioner is as follows: The family of the petitioner consists of his wife, three daughters and one son. On 8.9.95 on the occasion of 'Sree Narayana Guru Jayanthi' celebrations an inaugural function was held at about 4.30 P.M. The only son of the petitioner Mahadevan who was only 13 years old went out of the house and he had a lemon juice from the nearby shop of Sasidharan. Thereafter, the said Mahadevan did not return. Petitioner and his family searched him. Thereafter, they complained on the same day at about 6.30 P.M. On 10.9.1995 petitioner WPC No.31371/2005 -2- received a telephone call demanding heavy amount for the release of Mahadevan. It is stated that the petitioner filed a complaint before the Changanacherry police. Ext.P1 is the FIR. Respondents 6 to 8 are alleged to be the residents in and around the locality and political activists of the present ruling front. Those persons had the background of political manipulations related criminal acts and commissions. They were on bitter enimical terms with the petitioner. They are smugglers selling Narcotic drugs like Ganja etc. They are under the influence of high handed criminals and are in the practice of capturing children and they were transporting to Mumbai and Chennai etc. On several occasions there were threat to the petitioner from these persons. After the incident the 6th respondent came to the petitioner's shop demanding money for the key chain holding by the son of the petitioner. Petitioner was informed that Mahadevan is in Kanyakumari. Petitioner and and his relatives went to Kanyakumari as informed by the 6th respondent, but Mahadevan was not there. The 6th respondent was caught by the local police and after questioning him he was released on WPC No.31371/2005 -3- bail. Ext.P2 is the paper report. The matter was handed over to the Crime Branch. Petitioner had made certain allegations in paragraph 6 in connection with the belongings of Mahadevan being found out. Ext.P4 is the letter. Petitioner filed a writ petition culminating in Ext.P6 judgment. It reads as under: “Petitioner's only son aged 13 years was missing from the residence on 8-9-1995. A statement was filed averring that investigations are being conducted, but, nothing could be traced out so far. A boy of 13 years of age was missing from September, 1995. Police cannot was their hands stating that nothing was traced out in the investigation even after lapse of more than five years. 2. In the circumstances of the case, I direct the Government to entrust the investigation to the Crime Branch and if necessary appoint special officers and complete the investigation as expeditiously as possible.” 2. Petitioner filed representation before the Ist respondent to entrust the investigation to the CBI. Ext.P7 is the representation. 3. Petitioner has approached this Court seeking the following reliefs: “i) to issue a writ of mandamus or other appropriate writ, order or direction, directing the Ist and 2nd respondents to WPC No.31371/2005 -4- conduct a detailed investigation through 3 to 5 respondents, the CBI to trace the whereabouts of the petitioner's missing son, Mahadevan. ii) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 3 to 5 to complete the investigation regarding the mystery petitioner's missing son Mahadevan. Iii) to issue a writ of mandamus or other appropriate writ order or direction directing the Ist and 2nd respondents to entrust the investigation of Crime No.33/CB/96 of Crime Branch (544/96) of Changanacherry Police to the CBI.” 4. A statement is filed by the Detective Inspector wherein it is inter alia stated as follows: “3. As per the Order No.D14-68869/95 dated 21.12.1995 of Director General of Police, Kerala this case was transferred to Crime Branch CID, Kottayam for investigation. Vide Order N.B1-1659/CBK/96 of SP,CB CID, Kottayam in pursuance of order No.D1-34397/CR/95 dated 02-01-1996 of ADGP (Crimes), Thiruvananthapuram, this case was renumbered as CR.33/CR/96 and entrusted with Sri.M.B.Dileep, Detective Inspector, CB CID, Kottayam for investigation. He took over the investigation of this case on 17.01.1996 and CB CID, Kottayam Unit continued the investigation of this case until 31.07.2000. 4. It is submitted that, earnest and sincere efforts were made by the CB, CID, Kottayam to locate the missing person by questioning 65 witnesses and recorded their statements. This unit had again published the photographs and details of missing boy, Mahadevan in television media WPC No.31371/2005 -5- and news papers inside and outside of Kerala in Malayalam, Tamil, Kannada and English medium. This unit had conducted extensive enquiries at several places circulating look-out notices inside and outside Kerala. 6. It is submitted that on investigation it could be seen that Mahadevan was not good in his studies and he was scolded by the petitioner in this regard. It was also revealed that he had so many friends who were having all bad habits like alcohol consumption. He was missing from his residential locality and no clue was received that somebody had kidnapped him. It was also reported that earlier he had on two occasions absconded and returned home voluntarily after some days. It is submitted that Mahadevan was a patient of Dr.V.K.Radhakrishnan, MD, Grace Hospital, Changanacherry for mental disorder for two years and doctor who treated Mahadevan opined that boys of such character is having the habit of absconding.” It is also stated that the complicity of 6th respondent was also investigated but no incriminating evidence was received against him. It is also stated that during the course of investigation some witnesses identified the photograph of the missing boy and some of them had seen the missing boy at Chengannor Railway Station. Mahadevan was not good in his studies and he was scolded by the petitioner in this regard. It is also stated that he had absconded on two occasions and returned home voluntarily WPC No.31371/2005 -6- after some days. It is also stated that Mahadevan was a patient of Dr.V.K.Radhakrishnan for mental disorder and the doctor who treated Mahadevan opined that boy of such character is having the habit of absconding. It is stated that in spite of efforts police could not trace out the anonymous phone calls. It is also stated that police could not trace out Mahadevan and finally it is reported undetected by the then Detective Inspector after getting sanction from ADGP (Crimes). 5. Petitioner filed reply affidavit. It is stated inter alia as follows: Mahadevan was not treated at the hospital. He was never treated for mental disorder. His mental condition was very sound. Police have a duty to find out the missing boy. 6. I heard the learned counsel for the petitioner, learned Government Pleader and also the learned standing counsel for the CBI. Learned counsel for the CBI would point out that this is not a fit case for ordering investigation by CBI. It is not one of the rare cases, according to him, which warrants entrusting the matter to the premier investigating WPC No.31371/2005 -7- agency of the country. Learned Government Pleader, on being asked as to whether pursuant to Ext.P6 judgment the matter was entrusted to senior officer pointed out that it was not done. In other words, investigation was carried out by the Detective Inspector as stated in paragraph 3. 7. This is a case where the only son of the petitioner has been missing since he was 13 years old. He has been missing for the past 15 years. The understandable anxiety of the parents is to be properly borne-in-mind. I feel that while it may not be necessary to order investigation by CBI at any rate at this stage I feel that interest of justice would be met if I order that investigation is to be conducted by a superior officer of the Crime Branch. The matter will be investigated by the higher officer of the Crime Branch. Accordingly, there will be a direction that the investigation will be conducted in the matter by the Superintendent of Police, Crime Branch (Hurt and Homicide Wing), Kottayam under the supervision of ADGP (Crimes). In the circumstances of the case as more than 15 years have gone by I direct that the investigation shall be concluded within an outer period of six WPC No.31371/2005 -8- months from the date on which the copy of the judgment is produced before the Superintendent of Police, Crime Branch (Hurt and Homicide Wing) Kottayam. (K.M.JOSEPH) JUDGE. MS