IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 26487 of 2007(C) -------------------------- PETITIONER: ------------ 1. KANAKA SASIDHARAN, AGED 46 YEARS, W/O.LATE SASIDHARAN, PALLISSERIPARAMBIL HOUSE, PALLISSERI JUNCTION, THAMMANAM, ERNAKULAM DISTRICT. 2. ANEESH, S/O.LATE SASIDHARAN, AGED 24 YEARS, PALLISSERIPARAMBIL HOUSE, PALLISSERI JUNCTION, THAMMANAM, ERNAKULAM DISTRICT. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ------------- 1. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, TRIVANDRUM. 2. THE ASSISTANT COMMISSIONER OF POLICE, ERNAKULAM. 3. THE SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, ERNAKULAM. 4. THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION, ERNAKULAM. BY GOVERNMENT PLEADER SRI.GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT, J. ---------------------- W.P.C.No.26487 of 2007 ---------------------------------------- Dated this the 2nd day of April 2008 J U D G M E N T The petitioners are the mother and brother of one Anoop who has been found missing from 15/8/2007. On that day, he allegedly went to his place of employment, a place where pappads are manufactured. He could not secure work on that day. So he, along with two others, allegedly took the decision to enjoy that day by getting intoxicated along with his friends. They went to a place near the river where there was a bridge to cross the river. They sat there and went on consuming liquor. The liquor bottle that was brought was exhausted and then Anoop allegedly went to a neighbouring shop, purchased liquor and food and returned. They continued to consume liquor and food. At a certain point of time in the course of such enjoyment, the idea appears to have struck that they must prove their prowess in swimming. Anoop allegedly jumped from the bridge into the river. He thought, and may be the friends also thought, that he will be able to swim back to the shore. He allegedly could not. Then a person who was fishing nearby, shouted to his W.P.C.No.26487/07 2 friends and others that the person in the river appears to be unable to swim to safety. Hearing the cries of that person and the two friends of Anoop, who had seen him jump into the river, two persons who were standing by the bank of the river washing their cloths jumped into the river in an attempt to save the said Anoop. One of the persons - the younger one who was present along with the said Anoop in the bent of drinking also made an attempt by jumping into the river. Though they were able to catch hold of the hair of the said Anoop, they did not succeed in bringing him to safety. Anoop could not be saved. Thereafter Anoop was not heard of. The friends who went along with him, the fisherman who was fishing near the scene of the occurrence as well as the two persons who had seen the incident and had tried to save Anoop, did not all think it necessary or did not choose to inform the police or even the relatives of Anoop. They left him to his fate, it would appear. 2. The petitioners were waiting for the return of Anoop. When he did not return, they made frantic enquiries. Seeing the plight of the mother of Anoop, the first petitioner, a kind hearted W.P.C.No.26487/07 3 neighbour went in search of Anoop. Some phone call was also received about the misfortune which Anoop had to face. When they went to the place where Anoop had jumped into the river, his shirt and slippers were found available at the place which he had left there before he jumped into the river. That neighbour went back to the police station and lodged a complaint. Crime was registered under the caption “man missing”. Investigation continues. It is in the course of investigation that the police questioned these witnesses and came to the conclusion that it was a case of Anoop jumping into the river and being not able to swim back to the shore. 3. Petitioners have come before this court with the grievance that no proper investigation has been conducted. The petitioners appear to doubt the theory advanced by the investigating officer on the basis of the statements of witnesses. According to the petitioners, the learned counsel for the petitioners strenuously advances that contention, it would be idle to assume that the real incident took place in the manner explained by the police after their investigation. If really Anoop W.P.C.No.26487/07 4 had got drowned in the circumstances explained by the police, it is extremely improbable, nay impossible, that the friends of Anoop and others who had witnessed the occurrence would have behaved in the manner in which they are alleged to have behaved, that is leaving Anoop to his fate and going back to their house without doing anything further and without even informing the petitioners about the misfortune which Anoop met with. In these circumstances, it is submitted that the investigation being totally unsatisfactory. Appropriate directions may be issued under Article 226 of the Constitution of India to direct a proper investigation. No proper investigation has been conducted. No serious effort was made to recover the body of Anoop. If, as a matter of fact, he had got drowned in the river there, the body has not been traced so far. In these circumstances, it is contended that there is need to issue directions under Article 226 of the Constitution of India. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that everything humanly possible by the investigating officer has W.P.C.No.26487/07 5 already been done by the investigating officer. It is unfortunate that the body could not be traced. All available indications do clinchingly suggest that Anoop got drowned in the river at the scene of the crime. It is not unusual that bodies are not recovered at or near the scene of drowning. Moreover, it is pointed out by drawing my attention to the relevant portions of the case diary that barges carrying on consignments from the port to the F.A.C.T do move along the river at the place where Anoop is alleged to have drowned. The river at that portion has been deepened to facilitate such movement of the barge. The high and low tides played a significant role in that portion of the river. It is possible that the body may have been drawn into the sea during high/low tides and that is the reason for the inability of the investigating officer to trace the body of Anoop. In these circumstances, it is submitted that there is absolutely no necessity to issue any directions under Article 226 of the Constitution of India or to entrust the investigation to any other official or agency. 5. The case diary has been placed before me. Statement W.P.C.No.26487/07 6 has been filed by the investigating officer. I have carefully and exhaustively gone through the case diary as also the statement filed by the investigating officer. I note that the statements of all the five persons have been recorded in the case diary, that is the two who accompanied Anoop, the fisherman who was fishing at the scene who shouted for help for Anoop and two others who were washing their cloths by the side of the river. Many others in the locality have also been questioned. They have seen the efforts made by these five persons to save Anoop. Local persons have been questioned to confirm that the body did not come up in the river thereafter. 6. Having considered all the relevant inputs and having gone through the case diary in detail, I am unable to place my finger on any aspect of the investigation and conclude that a proper investigation has not been conducted. The case diary reveals that the investigating officer had undertaken an honest, serious and purposeful mission and the inability to trace the person or his dead body cannot, in any way, be held to be sufficient to conclude that there has been no proper W.P.C.No.26487/07 7 investigation. It is significant that there is no semblance of an allegation that those who went along with Anoop had any motive, ill-will or strain in their relationship with the said Anoop. I am not, in these circumstances, persuaded to agree that any directions deserve to be issued under Article 226 of the Constitution of India in this crime. 7. The learned Public Prosecutor submits that in view of the pendency of this proceedings, final report has not been filed. The police have confirmed by all means that the said Anoop is no more now and had met with watery grave. It shall be open to the investigating officer now to file an appropriate final report before the learned Magistrate. 8. This writ petition is in these circumstances dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge W.P.C.No.26487/07 8 W.P.C.No.26487/07 9 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007