IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).NO. 3477 OF 2011(H) --------------------------------------- PETITIONER(S): --------------- 1. TEENA, W/O.LATE V.SHASEENDRAN, JAWAHAR NAGAR, KURUDIKKAD, PUDUSSERRY PANCHAYATH, PALAKKAD DISTRICT. 2. VELAYUDHAN MASTER.K., KUNDUKULAM HOUSE, NENMENI.P.O.,KOLLENGODE VILLAGE, CITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN SMT.NITA.N.S. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. CENTRAL BUREAU OF INVESTIGATION, KOCHI UNIT, REPRESENTED BY SUPERINTENDENT, ERNAKULAM. ADDITIONAL RESPONDENT IMPLEADED: ----------------------------------------------------------- 4. SHRI ISSAC VARGHESE, PRESIDENT, ANTI CORRUPTION & HUMAN RIGHTS PROTECTION COUNCIL IS IMPLEADED AS ADDITIONAL 4TH RESPONDENT VIDE JUDGMENT DATED 17.02.2011. BY ADGP SHRI P.N.SUKUMARAN R1 & 2 ADV. SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) FOR R3 SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR ADDL.R4 SRI.MANSOOR.B.H. FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- (W.P(C) NO.3477 OF 2011) PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE NEWS PAPER REPORT DAILY DATED 28.1.2011. EXHIBIT P2 DO. DO. INDIAN EXPRESS DAILY DATED 27.1.2011. EXHIBIT P3(a) DO. DO. MALAYALA MANORAMA DAILY DATED 25.1.2011, 26.1.2011, 28.1.201 & 29.1.2011. EXHIBIT P3(b) DO. DO. DO. DO. MALAYALA MANORAMA DAILY 26.1.2011. EXHIBIT P3(c) DO. DO. DO. DO. KERALAL KAUMUDI DAILY DATED 26.1.2011 & 28.1.2011. EXHIBIT P3(d) DO. DO. DO. DO. MADHYAMAM DAILY DATED 26.1.2011 & 28.1.2011. EXHIBIT P3(e) DO. DO. DO. DO. MATHRUBHUMI DAILY DATED 26.1.2011. EXHIBIT P3(f) DO. DO. DO. DO. THEJUS DAILY DTED 26.1.2011. EXHIBIT P3(g) DO. DO. DO. DO. JENMABHUMI DAILY DATED 26.1.2011. EXHIBIT P3(h) DO. DO. DO. DO. VEEKSHANAM DAILY DATED 26.1.2011. EXHIBIT P3(i) DO. DO. DO. DO. KERALASABDHAM DAILY DATED 26.1.2011. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R4(a) TRUE COPY OF THE JUDGMENT DATED 21.12.2010L IN W.P(C) NO.29581/2010. EXHIBIT R4(b) TRUE COPY OF THE REPRESENTATION DATED 27.1.2011 SUBMITTED BY THE PETITIONER. EXHIBIT R4(c) TRUE COPY OF THE NEWS ITEM APPEARED IN MADHYAMAM DAILY DATED 1.2.2011. EXHIBIT R4(d) TRUE COPY OF THE NEWS ITEM APPEARED IN MALAYALA MANORAMA DAILY DATED 1.2.2011. EXHIBIT R4(e) TRUE COPY OF THE NEWS ITEM APPEARED IN MANGALAM DAILY DATED 1.2.2011. EXHIBIT R4(f) TRUE COPY OF THE COMPLAINT SUBMITTED BY SHRI JOEMON PUTHANPURAKKAL TO THE HONOURABLE HOME MINISTER. EXHIBIT R4(g) TRUE COPY OF THE NEWS ITEM APPEARED IN DESHABHIMANI DAILY DATED 12.02.2011. EXHIBIT R4(h) TRUE COPY OF THE NEWS ITEM APPEARED IN MADHYAMAM DAILY DATED 12.2.2011. EXHIBIT R4(i) TRUE COPY OF THE PRESS NOTE RELEASED BY THE IMPLEADING PETITIONER. ANNEXURE R2(a) A TRUE COPY OF THE ORDER NO.10104/M3/2011/HOME DATED 10.2.2011. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.3477 of 2011 ==================================== Dated this the 17th day of February, 2011 J U D G M E N T One Issac Varghese, President of the Anti Corruption and Human Rights Protection Council has filed I.A. No.2617 of 2011 seeking his impleadment as additional respondent in the Writ Petition. In the affidavit filed in support of that application he states about the valiant fight his Organisation has done against corruption at different levels and in particular, the Malabar Cements Ltd., Valayar in Palakkad District, a Public Limited Company (for short, “the Company”) consequent to which four vigilance cases were registered against various Officials of that Company and how those cases happened to be investigated and final reports filed before the Vigilance Courts concerned. Apprehension of petitioner in I.A. No.2617 of 2011 is that attempt of petitioners in the Writ Petition is to scuttle investigation already conducted with respect to the vigilance cases. Certain allegations are made against the first petitioner as well as her conduct immediately and after the incident on 24.01.2011 in which her husband and two children were found hanging in a room in W.P(C) No.3477 of 2011 -: 2 :- their house. 2. Petitioners have filed counter opposing I.A. No.2617 of 2011. I have heard the application for impleadment while hearing the Writ Petition. Having regard to the circumstances stated in the affidavit in support of I.A. No.2617 of 2011 I am inclined to allow the application. Accordingly I.A. No.2617 of 2011 is allowed and petitioner therein is impleaded as additional respondent No.4 in the Writ Petition. The Registry shall carry out impleadment in the cause title of the Writ Petition. 3. The Writ Petition concerned a request made by the two surviving members of a family for a direction to the Central Bureau of Investigation (for short, “the CBI”) to take up investigation of the case relating to the death of husband of first petitioner and their two children on 24.01.2011. Second petitioner is the father-in-law of the first petitioner. Shaseendran, one of the deceased had been an employee of the Company as Company Secretary, Internal Auditor, etc., for about 12 years and while so on 24.01.2011 the dead body of the said Shaseendran along with his two children was found hanging on ligatures in a room adjoining the kitchen of their house, according to the petitioners under suspicious circumstances. On the information given by W.P(C) No.3477 of 2011 -: 3 :- the brother of deceased Shaseendran, Palakkad Cusba Police registered Crime No.35 of 2011 for offence punishable under Sections 302 of the Indian Penal Code (for short, “the IPC”) and incorporating Section 174 of the Code of Criminal Procedure (for short, “the Code”) as well. The Sub Inspector under the impression gathered from the statement of brother of deceased Shaseendran that Shaseendran caused the death of the children and committed suicide incorporated Sec.302 of the IPC and Sec.174 of the Code in the FIR. Subsequent investigation was conducted by the Circle Inspector. While so the Deputy Superintendent of Police, DCRB, Palakkad took over the investigation. The said Officer recorded signed statement of first petitioner based on which he registered yet another FIR – Crime No.40 of 2011 for offences punishable under Secs.306 and 506(i) read with Sec.34 of the IPC. First petitioner made a representation to the State Government requesting investigation of the case by the CBI alleging that there is no proper investigation of the case and that attempt is to save the culprits behind the death of Shaseendran and the two children. It was her case that it was not a case of either Shaseendran causing death of the children or himself committing suicide but there were certain W.P(C) No.3477 of 2011 -: 4 :- other forces behind the incident who caused the death of Shaseendran and the children. Petitioners filed this petition under Article 226 of the Constitution of India requesting this Court to issue a writ of mandamus or any other appropriate writ, direction or order directing the CBI, Kochi Unit to take over investigation of the case. In the petition certain allegations are made against the State police who has been investigating the case such as inept and improper investigation without reference to the real cause of death. It is also alleged that the Investigating Officer has not adverted to the relevant circumstances which forced Shaseendran to resign from the Company. In support of the allegations petitioners appended to the petition copy of press reports allegedly indicating involvement of certain other persons in the death of Shaseendran and the children. 4. Answering the allegations in the Writ Petition a counter affidavit is filed on behalf of second respondent where the allegations in the petition concerning inept and improper investigation of the case are denied. In paragraph 6 of the counter affidavit it is stated that investigation is going on in the right direction and in a fruitful manner, Investigating Officer has questioned more than 170 witnesses in connection with the case, W.P(C) No.3477 of 2011 -: 5 :- result of viscera examined by the Regional Chemical Examiner's Laboratory has been received and that death due to poisoning has been ruled out. The Investigating Officer and his team have taken all efforts to find out the truth behind the cause of death of Shaseendran and the two children but the Investigation Officer has not yet arrived at a conclusion whether death of Shaseendran and his children is homicide or suicide. It is stated in paragraph 8 of the counter affidavit that in response to the request made by the petitioners to the Government for investigation by the CBI, the Director General of Police has forwarded a proposal to the Additional Chief Secretary to the Government, Home Department vide his letter No.D5/11817/11/PHQ Tvm. dated 08.02.2011 recommending transfer of investigation of the case to the CBI. It is also averred in paragraph 9 of the counter affidavit that based on the above mentioned letter of the DGP, the Government have taken a decision to transfer the case to the CBI. Notification under Section 6 of the Delhi Special Police Establishment Act, 1946 (for short, “the Act”) will be issued shortly, it is averred in paragraph 9 of the affidavit. A copy of order No.10104/M3/2011/Home dated 10.02.2011 is produced and marked as Annexure R2(a). W.P(C) No.3477 of 2011 -: 6 :- The State Government requested that accepting the counter affidavit the Writ Petition may be dismissed. The Additional 4th respondent in the affidavit in support of I.A. No.2617 of 2011 has contended that investigation by the CBI is not required. He contended that the State Government have already spent huge amount for investigation and that without waiting for the present team of Investigating Officers to complete the investigation, it is premature for petitioners to approach this Court with a request for investigation by the CBI. 5. I have heard learned Senior Advocates appearing for the petitioners, additional 4th respondent and the leaned Additional Director General of Prosecution (for short, “the ADGP”). 6. Learned Senior Advocate for petitioners would contend that on the facts and circumstances of the case and considering the wide ramifications and dimensions this case has, it is absolutely necessary that investigation is conducted by a more expertised and specialised agency like the CBI. It is pointed out that until now the State police could not say whether the deaths are suicide or homicide, any further delay would only result in loss of valuable evidence and hence appropriate orders entrusting the investigation to the CBI may be passed W.P(C) No.3477 of 2011 -: 7 :- immediately. Learned Senior Advocate has placed reliance on the decisions in Secretary v. Sanhgoo Ram Arya ([2002] 5 SCC 521 (paragraphs 5 to 7), Nirmal Singh Kahlon v. State of Punjab ([2009] 1 SCC 441 (paragraphs 66) and State of West Bengal v. Committee for Protection of Democratic Rights (2010 [1] KLT 723) (paragraphs 44 to 46). It is also contended by the learned Senior Advocate to buttress his contention regarding inept handling of the investigation of the case that there happened to be a second FIR against two persons alleging offences under Secs.306 and 506(i) read with Sec.34 of the IPC which is under challenge by one of the accused therein in Crl. M.C. No.464 of 2011. According to the learned Senior Advocate that itself indicates the causal manner in which investigation has been conducted. It is pointed out by the learned Senior Advocate from the decisions referred above that having regard to the circumstances involved this is a fit case where investigation has to be handed over to the CBI. 7. Learned ADGP would contend that though the investigation is being conducted in a fair, impartial and transparent manner questioning about 170 witnesses by now the W.P(C) No.3477 of 2011 -: 8 :- investigating agency has not been able to reach any definite conclusion whether death of Shaseendran and the children was suicide or homicide and that the matter required further investigation. It is also submitted that though 9 anti mortem injuries were found on the body of deceased Shaseendran as revealed from the certificate of postmortem examination and the District Police Surgeon who conducted the postmortem examination was able to explain 8 out of those 9 anti mortem injuries, it is yet to be revealed how the two symmetrical contusions were caused on the back of both arms of deceased Shaseendran. It is also pointed out by learned ADGP that of the nine injuries, one was caused about 72 hours prior to death while 8 others were fresh, i.e., caused at the time of incident. In these circumstances and considering the request made by the petitioners the Government have thought it fit and appropriate to entrust investigation to the CBI which is a more specialized and expertised agency and hence Annexure-R2(a) decision was taken. Learned ADGP submits that necessary Notification as required under Sec.6 of the Act will be issued shortly. 8. Learned Senior Advocate appearing for additional 4th respondent has contended that this is not a case where the W.P(C) No.3477 of 2011 -: 9 :- expertise of an agency like the CBI is required. According to the learned Senior Advocate facts and circumstances do not require transfer of investigation to any other agency from the investigation team which is conducting the investigation in an appreciable manner even as the Government would assert in the counter affidavit filed on behalf of the second respondent. It is pointed out that it is only in rare and exceptional cases that this Court is required to interfere with the investigation and transfer investigation to the CBI. Learned Senior Advocate contends that the averments made in the Writ Petition are not sufficient to attract the power of this Court under Article 226 of the Constitution to issue a writ of mandamus in the nature prayed for. Learned Senior Advocate contends that for the issue of a writ of mandamus under Article 226 of the Constitution there must be a legal right for the petitioners with a corresponding duty on the CBI. According to the learned Senior Advocate there is neither any legal right for petitioners nor any corresponding duty on the CBI to take up investigation of the case. Petitioners did not make any request to the CBI nor did the latter reject it, so that a Writ Petition would lie. Learned Senior Advocate has placed reliance on the decisions in Sakiri Vasu v. State of U.P. (2008 [1] W.P(C) No.3477 of 2011 -: 10 :- KLT 724 (paragraphs 27 to 30), Vasanthi Devi v. S.I. of Police (2008 [1] KLT 945) (paragraphs 22 to 30), D.venkatasubramaniam v. M.K.Mohan Krishnamachari ([2009] 10 SCC 488) (paragraph 30) and State of West Bengal v. committee for Protection of Democratic Rights (2010 (1) KLT 723). According to the learned Senior Advocate attempt of petitioners is to camouflage the corruption cases pending before the Vigilance Court concerning Officials of the Company. 9. Learned Standing standing Counsel for the CBI also raised a contention that this is not a fit case where investigation is to be handed over to the CBI. It is pointed out that there is dearth of Officers in the CBI to investigate the large number of cases entrusted to it. Learned counsel pointed out that this Court during the last year has entrusted 19 cases to the CBI for investigation and that being the situation the CBI finds it difficult to cope up with the situation. It is pointed out that the CBI is flooded with cases, that would affect the quality of investigation conducted by it and which in turn would tell upon credibility of the Institution. It is therefore prayed that the CBI W.P(C) No.3477 of 2011 -: 11 :- may not be saddled with the liability to investigate this case. 10. Though various decisions are cited at the Bar on either side as to the circumstances under which this Court could entrust investigation to the CBI invoking power under Article 226 of the Constitution, in my view it is sufficient that reference is made to the latest of the decisions – State of West Bengal v. Committee for Protection of Democratic Rights (supra) rendered by the Constitution Bench of the Supreme Court. There, the question directly concerned was whether in the absence of consent of the State Government under Sec.6 of the Act it is within the power of the High Court to order investigation by the CBI invoking its power under Article 226 of the Constitution. The Supreme Court held that High Court being a court of record is invested with vast power under Article 226 of the Constitution than the power of the Supreme court under Article 32 of the Constitution in that while under Article 32 the Supreme Court can issue a writ of the nature referred to therein for enforcement of fundamental rights the High Court is invested with the power to issue writs of the nature referred to in Article 226 not merely for the enforcement of fundamental rights but for “any other purpose” as well. The Supreme Court held W.P(C) No.3477 of 2011 -: 12 :- that exercise of that power and directing investigation by the CBI even without consent of the State Government will not affect the federal structure of the Constitution and hence it is well within the power of the High Court to issue a writ, order or direction as the case may be entrusting investigation to the CBI even without consent of the State Government. In deciding the case the Supreme Court also referred to the fundamental right of a citizen to have a fair investigation of his case and held that being protectors of the civil liberties of the citizens the High courts have not only the power and jurisdiction but the obligation to protect fundamental rights guaranteed by Part III in general and under Article 21 of the Constitution zealously and vigilantly. It is held that the very plenitude of the power under the said Article requires great caution in its exercise. In so far as question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised, time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has leveled some allegations against the local police. The Supreme Court held: W.P(C) No.3477 of 2011 -: 13 :- “This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and “instill confidence” in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” (emphasis supplied) 11. When the close relatives of the deceased came with a request to entrust the investigation to the CBI, made a representation to the State Government and the State Government in fairness to that request gave its assent to hand over investigation to that agency, stiffest opposition came from W.P(C) No.3477 of 2011 -: 14 :- the additional 4th respondent, President of the Anti Corruption and Human Rights Protection Council. It is contended that now that the Government have decided to entrust investigation to the CBI and has decided to issue a Notification under Sec.6 of the Act there is nothing left for this Court to decide in the matter. I am afraid, I cannot give my assent to that argument of learned Senior Advocate. For, going by the scheme of the Act it is not as if whenever consent is given by the State Government the CBI is bound to investigate a case. Section 3 of the Act deals with the power of Central Government to issue Notification specifying the offence or classes of offences which the CBI is required to investigate. Section 5 of the Act deals with the power of the Central Government to extend the power and jurisdiction of the CBI to areas other than Union Territory. Section 6 of the Act says that nothing contained in Sec.5 (relating to the power of the Central Government to extend jurisdiction of the CBI to areas other than Union Territory) enabled any member of the Delhi Special Police Establishment (the CBI) to exercise powers and jurisdiction in any area in a State not being a Union Territory or railway area without the consent of that State. Hence the consent given by the State Government does not by itself W.P(C) No.3477 of 2011 -: 15 :- enable the CBI to investigate a case which occurred in a State. Nor is the Central Government bound to issue a Notification under Sec.3 of the Act because the State Government have given its assent. Hence merely because State Government have consented to and issued a Notification under Sec.6 of the Act, that by itself is not sufficient for the CBI to investigate the case. That does not also take way the jurisdiction, power or duty of this Court to issue appropriate orders if otherwise it is found that investigation by the CBI is required. 12. Yet another contention learned Senior Advocate for the additional 4th respondent raised is that there is no legal right for petitioners, nor corresponding duty on the CBI to investigate the case. I was not pointed out any provision of law or authority which says that before seeking intervention of this Court under Article 226 of the Constitution petitioners should or could directly approach the CBI with a request to conduct investigation and only on the CBI refusing, petitioners could enforce their right under Article 226 of the Constitution. Petitioners have a fundamental right for a fair investigation of the case. Hence it is idle to contend that in the absence of a corresponding duty on the CBI petitioners could not approach W.P(C) No.3477 of 2011 -: 16 :- this Court with a request to transfer investigation to that agency. Learned Senior Advocate for the additional 4th respondent has referred to certain decisions (referred supra). Those decisions mainly concerned power of the Magistrate under Sec.156(3) or Sec.173(8) of the Code to supervise investigation or issue directions for further investigation after final report is filed. But that power does not extent to directing a different agency to investigate the case. 13. On the question whether it is necessary to direct investigation of the case by the CBI, I have to refer to the relevant facts and circumstances. It is not disputed that deceased Shaseendran had been working in the Company for several years either in his capacity as Company Secretary, Internal Auditor or in any other capacity. It is also not disputed that several corruption cases were registered by the Vigilance and Anti Corruption Bureau (VACB) against some of the Officials of the said Company and allegedly involving a Contractor (whose name is stated in the Writ Petition) and those cases are pending trial in the courts concerned. It is also not disputed that deceased Shaseendran was a prime witness in those cases. According to the petitioners, deceased Shaseendran was very much aware of W.P(C) No.3477 of 2011 -: 17 :- the irregularities and malpractices being carried on in the Company, had been against those activities during the entire tenure of his service in that Company and hence was a speck in the eye of some of the Officials and the Contractor (named in the Writ Petition). It is while so that on 04.09.2010 the said Shaseendran shot of a letter to the Chief Minister of the State allegedly reporting the malpractices that has been or being carried on in the Company and requesting action in the matter. On 09.09.2010, it is alleged, deceased Shaseendran wrote another letter to the Chief Minister stating about the (alleged) high credentials of Officials of the Company about whom he had referred to in his letter dated 04.09.2010 as involving in corrupt practices, that he happened to speak ill of those persons placed in high position in the Company and that he regretted about