IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 WP(C).No. 12814 of 2007(A) ---------------------------------------- PETITIONER(S): ------------------------ KESAVAN, AGED 67 YEARS, S/O.KARUMBAN, KOZHIKKAL NIKARTHIL, KODANTHURUTHU VILLAGE, KUTHIATHODU P.O., CHERTHALA, ALLEPPEY. BY ADV. SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S): --------------------------- 1. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R2 BY GOVT. PLEADER MR.P.R. JAYAKRISHNAN. R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12814 of 2007(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMPLAINT DATED 22/01/2007 FILED BEFORE THE ACJM COURT, ERNAKULAM. EXT.P2: COPY OF THE WOUND CERTIFICATE ISSUED BY THE C.M.O., GENERAL HOSPITAL, ERNAKULAM DATED 22/01/2007. EXT.P3: COPY OF THE F.I.R. IN CR.NO.37/2007 VIYYOOR POLICE STATION. EXT.P4: COPY OF THE POST MORTEM CERTIFICATE DATED 23/01/2007 ISSUED POLICE SURGEON AT THE DEPARTMENT OF FORENSIC MEDICINE AT MEDICAL COLLEGE, THRISSUR. EXT.P5: COPY OF THE COMPLAINT DATED 23/01/2007 BEFORE THE ACJM COURT, ERNAKULAM PREFERRED BY ADV. P.S. VINOD. EXT.P6: COPY OF THE ORDER DATED 23/01/2007 ON THE FILE OF THE ACJM COURT, ERNAKULAM IN CRL.MP.NO.393/2007. EXT.P7: COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE HOME MINISTER DATED NIL. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs P.S.GOPINATHAN, J. --------------------------------------- W.P.(C)No.12814 of 2007 ----------------------------------------------- Dated this the 17th day of December, 2010 JUDGMENT The petitioner's son Shaji was an under trial prisoner in C.C. No.609/2001 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. It is alleged that he was remanded to Central Prison, Viyoor and when brought to the jail on 20.01.2007, one Yohannan, the Writer of the Central Prison brutally tortured him and as a result, he died. Ext.P1 is the copy of the complaint submitted by the prisoner before the Additional Chief Judicial Magistrate Court, Ernakulam. The prisoner was sent to the District Hospital, Ernakulam and later he was again remanded to Central Prison Viyoor. While in custody he expired on 22.01.2007, alleging that, the local police was not properly investigating the cases, this writ petition was filed with the following main prayers: (i) Issue a writ of mandamus directing the first respondent to conduct an investigation into the custodial death mentioned above for the purpose of bringing the real culprits before the law. W.P.(C)No.12814/2007 2 (ii) Direct the second respondent to afford sufficient support in the investigation. The Deputy Superintendent of Police, Thrissur filed a statement on 21.05.2007 narrating that regarding the death of Shaji, a case as Crime No.37/2007 for unnatural death was registered at Viyoor Police Station. Subsequently, the investigation was taken over by the Deputy Superintendent of Police, Thirussur and that the doctor who conducted the postmortem examination opined that, the postmortem findings were consistent with death due to occlusive coronary artery disease and that he had the opinion that any physical or mental trauma or stress could have accelerated or precipitated the death of Shaji and the alleged history of Shaji (beating by jail warden) could have accelerated / or precipitated the death. Thus there is ample evidence to hold the jail warden (Yohannan), liable for Shaji's death. Investigation was almost completed and the learned Public Prosecutor, who perused the case diary, was of the opinion that, the accused Yohannan could be charge sheeted for offences under Section 304 I.P.C. A copy of the opinion submitted by the learned Public Prosecutor was also produced. W.P.(C)No.12814/2007 3 It is seen that on 06.08.2007, an interim direction was issued by this court that the final report should not be filed until further orders. Thereafter, for some time, there was no order issued from this court. When it was posted on 13.12.2010, a direction was issued by this court to the learned Government Pleader to produce the case diary. Accordingly, the case diary was produced. Going by the case diary, it is seen that, the order dated 06.08.2007 was received to the investigating officer on 08.08.2007. He had reported to the then Government Pleader that the investigation was completed and charge sheet was filed on 28.06.2007. The case diary was submitted to the Public Prosecutor and further instruction was sought. However, no instruction is seen given by the Public Prosecutor. Going by the case diary, it is seen that a final report alleging offence under Section 304 I.P.C was filed against the above said Yohannan. It is further seen that, the case was committed to the Court of Session and from there, it was made over to the Principal Assistant Sessions Judge, Thrissur and it is numbered as S.C. 888/08. It appears that the petitioner was not aware of the filing of the charge sheet. He is also not aware as to what all are the materials collected during the investigation and the W.P.(C)No.12814/2007 4 conclusion thereon; and on what basis, the charge sheet was submitted. To put it shortly as against the final report submitted before the committal Magistrate, there is no specific allegation. In this background, I find that unless there are cogent reasons to assail the final report, it is not just and appropriate to order further investigation or to entrust the investigation to the first respondent in exercise of the writ jurisdiction. I find that, in the above circumstances, it would be just and appropriate to dispose the writ petition giving liberty to the petitioner to go through the final report submitted by the Investigating Officer and in the event he is aggrieved of it, to move, this court for assailing the final report, if there is any specific ground available to the petitioner. In the result, the writ petition is dismissed with liberty to the petitioner to assail the final report, if any ground exists. (P.S.GOPINATHAN) JUDGE SS/-