Akhila v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **MONDAY, THE 9TH DAY OF JULY 2018 / 18TH ASHADHA, 1940** **WP(C).No. 14402 of 2018** ## **PETITIONER:** **AKHILA, AGED 24 YEARS, W/O. LATE SREEJITH, SHENOY PARAMBIL HOUSE, DEVASWOM PADAM, VARAPPUZHA VILLAGE, ERNAKULAM DISTRICT.** **BY ADVS.SRI.C.P.PEETHAMBARAN SRI.C.B.SUBHASH SRI.M.X.ANTONY LIJO** ## **RESPONDENTS:** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT POLICE CHIEF (RURAL) ALUVA, ERNAKULAM-683101.** **4. THE STATION HOUSE OFFICER, VARAPPUZHA POLICE STATION, ERNAKULAM DISTRICT-683517.** **5. THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION, ERNAKULAM 682 017.** **R1,R3 & 4 BY SRI.SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION R2,R1 BY ADV. SRI.SUMAN CHAKRAVARTHY, SR.PUBLIC PROSECUTOR R5 BY ADV. SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 14402 of 2018 (A)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** |**EXT.P1:**|**CERTIFIED COPY OF THE FIR & FIS IN CRIME NO.312/2018**| |---|---| ||**OF VARAPPUZHA POLICE STATION.**| |**EXT.P2:**|**TRUE COPY OF THE DEATH SUMMARY ISSUED BY**| ||**ASTER MEDICITY ERNAKULAM.**| |**EXT.P3:**|**TRUE COPY OF THE DEATH CERTIFICATE ISSUED FROM**| ||**ASTER MEDICITY ERNAKULAM.**| |**EXT.P4:**|**TRUE COPY OF THE POST-MORTEM CERTIFICATE DATED**| ||**10/04/2018 ISSUED FROM GOVERNMENT T.D.MEDICAL**| ||**COLLEGE, ALAPPUZHA.**| |**EXT.P5:**|**TRUE COPY OF THE REPORT DATED 10/04/2018**| ||**APPEARED IN MATHRUBOOMI MALAYALAM DAILY.**| |**EXT.P6:**|**TRUE COPY OF THE REPORT DATED 11/04/2018**| ||**APPEARED IN MATHRUBOOMI MALAYALAM DAILY.**| |**EXT.P7:**|**TRUE COPY OF THE REPORT DATED 21/04/2018**| ||**APPEARED IN MALAYALA MANORAMA DAILY.**| |**EXT.P8:**|**TRUE COPY OF THE REPORT DATED 21/04/2018**| ||**APPEARED IN MATHRUBOOMI MALAYALAM DAILY.**| |**EXT.P9:**|**TRUE COPY OF THE REPORT DATED 20/04/2018**| ||**APPEARED IN MALAYALA MANORAMA DAILY.**| |**EXT.P10:**|**TRUE COPY OF THE REPRESENTATION DATED 13/04/2018**| ||**SENT BY THE PETITIONER TO THE 1ST RESPONDENT.**| |**EXT.P11:**|**TRUE COPY OF THE ORDER DATED 21.4.2018 IN**| ||**CRL.M.C. NO.817/2018 OF SESSIONS COURT (VACATION COURT),**| ||**ERNAKULAM**| |**EXT.P12:**|**TRUE COPY OF THE ORDER DATED 21/4/2018 IN**| ||**CRL.M.C. NO.818/2018 OF SESSIONS COURT (VACATION COURT),**| ||**ERNAKULAM**| |**EXT.P13:**|**TRUE COPY OF CMP NO.1211/2018 IN CRIME NO.321/2018**| ||**FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT III, NORTH PARAVUR**| |**EXT.P14:**|**TRUE COPY OF CMP NO.995/2018 IN CRIME NO.321/2018**| ||**FILED BY THE PETITIONER BEFORE THE JUDICIAL FIRST CLASS**| ||**MAGISTRATE COURT III, NORTH PARAVUR**| |**EXT.P15:**|**TRUE COPY OF THE PAPER REPORT DATED 12.4.2018 APPEARED IN**| ||**MATHRUBHOOMI MALAYALAM DAILY.**| ## **RESPONDENTS EXHIBITS:** **VPS PS TO JUDGE** **NIL** **/TRUE COPY/** ## **K.ABRAHAM MATHEW J.** ## **---------------------------------------------** ## **W.P.(C) No.14402 of 2018 --------------------------------------------Dated this the 9[th] day of July, 2018** ## **JUDGMENT** On the information given by one Bineesh that seven named accused along with eight others armed with deadly weapon like sword trespassed into his house at 12.20 in the afternoon of 6.4.2018, committed mischief in the house, the first among them assaulted the informant's father Vasudevan with a sword and also his uncle Ganesan, the informant got injured with a broken glass in the process of his defending his father and the incident caused mental agony to Vasudevan and it resulted in his committing suicide Crime No.312 of 2018 was registered at Varapuzha Police Station for the offences under Sections 143, 147, 148, W.P.(C) 14402/18 **-:2:-** 307, 323, 324, 427 and 450 read with Section 149 IPC and Section 27(1) of the Arms Act. Exhibit P1 is the FIR prepared by the police. The name of Sreejith, husband of the petitioner, did not find a place in Exhibit P1 FIR though he had been known to the informant. The deceased Vasudevan was an activist of CPI(M), the main partner in the ruling front in Kerala. A conspiracy was entered into at the district level of the police force involving District Police Chief (Rural) and some political leaders. Pursuant to it, though the petitioner's husband, Sreejith, was not involved in Exhibit P1 crime, the police took him into custody from his house at 10.30 in the night on 6.4.2018. The civil police officers who arrested him assaulted him at his house, dragged him to the police vehicle and when he resisted their attempt to take him into the vehicle the police officers brutally assaulted him. In order to extract confession the police officers brutally tortured him at the police station. They turned down his request for medical assistance. They recorded his arrest at 9.15 in the night on 7.4.2018 only. Though the police produced the co-accused, who also were arrested, W.P.(C) 14402/18 **-:3:-** before the learned Magistrate at 8 in the morning on 8.4.2018, they could not produce the petitioner's husband, Sreejith, before the learned Magistrate as he was taken to hospital. At the request of the learned counsel for the coaccused the learned Magistrate visited the hospital. But she could not record his statement as he was undergoing surgery and his condition was very critical. On 9.4.2018 at about 7 in the morning he died at the hospital. The doctors noticed 'near circumferential jejunal transection, septic peritonitis, stress induced cardiomyopathy, diffuse multiple contusions in mesentery and small bowel, multiorgan dysfunction syndrome, septicshock.' The cause of death was septic shock, multi organ dysfunction syndrome and stress induced cardiomyopathy. In Exhibit P4 Postmortem certificate issued by the Directorate of Medical Education the cause of death is recorded as 'blunt trauma sustained to the abdomen and its complications (jejunal perforation, peritonitis, septicemia and multi organ failure).' Meanwhile, the Varappuzha police registered Crime No.310 of 2018 first under Section 174 Cr.P.C., and later for the offence under W.P.(C) 14402/18 **-:4:-** Section 306 IPC in connection with the suicide of Vasudevan. In the FIR the petitioner's husband, deceased Sreejith, is shown as an accused. The government constituted a Special Investigation Team to investigate into the death of the petitioner's husband, Sreejith. The investigation revealed that Sreejith was not involved in the incident in which Vasudevan sustained injuries and Sreejith was illegally taken into custody and he was tortured to death. Accordingly, the Special Investigation Team registered Crime No.321 of 2018 at Varappuzha Police Station for the offence under Section 302 IPC. The investigating officers arrested certain police officers including the Inspector of Police during the investigation. But the conspirators are still at large. The Special Investigation Team obtained a report from the Medical Board with the intention of 'manipulating' the evidence. As the culprits are police officers, the petitioner apprehends that there will not be an impartial and honest investigation. She submitted Exhibit P10 representation before the first respondent State of Kerala requesting investigation by the Central Bureau of W.P.(C) 14402/18 **-:5:-** Investigation. But the first respondent has not taken any action. The District Police Chief involved in the incident was removed from his post after he was given sufficient time to destroy the evidence. The petitioner prays that the investigation may be handed over to the Central Bureau of Investigation. She also prays that the first respondent State of Kerala may be directed to pay a sum of Rs.1 Crore as compensation to the petitioner and other dependents of the deceased Sreejith. 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor and the learned Standing Counsel appearing for the Central Bureau of Investigation. 3. Sreejith died in police custody. He had sustained injuries in the intestine. The inquest was conducted by the Revenue Divisional Officer, Muvattupuzha at the hospital where Sreejith died. The investigation was entrusted to Deputy Superintendent of Police, District Crime Branch, Ernakulam. He started the investigation on 10.4.2018. On the very same day autopsy on the body of Sreejith was ## W.P.(C) 14402/18 ## **-:6:-** conducted by a team of Doctors headed by Dr.Sacria Thomas, Forensic Professor and Police Surgeon attached to the Medical College, Alappuzha. Crime No.321 of 2018 was registered at Varappuzha Police Station under Section 174 Cr.P.C. The Government appointed a Special Investigation Team headed by Inspector General of Police (Crimes), who took over the investigation on the third day of the death of Sreejith. In one week the investigating officer sent a report to the learned Magistrate concerned stating that the investigation revealed commission of the offences under sections 302, 323 and 342 read with 34 IPC. The investigating officer arrested three civil police officers (accused Nos.1 to 3) who effected the arrest of Sreejith and Sub Inspector of Police, Varappuzha (accused No.4). They were produced before the learned Magistrate. The police obtained their custody. Later, the Inspector of Police, Paravur (accused No.5) also was made an accused. He was arrested and produced before the learned Magistrate, who released him on bail. Later, four police officers were also arrested (accused Nos.6 to 9) in the course of the ## W.P.(C) 14402/18 **-:7:-** investigation. The Special Investigation Team interrogated the then District Police Chief (Rural) who constituted Rural Tiger Force to which accused Nos. 1 to 3 civil police officers belonged. 4. The investigation of Special Investigation Team revealed the following facts. The constitution of the Rural Tiger Force by the then District Police Chief (Rural) was illegal. Accused Nos.1 to 3 took Sreejith into custody though he was not an accused in the case and they assaulted him. The fourth accused Sub Inspector of Police, Varappuzha assaulted Sreejith at the police station. With the intention of helping the other accused the fifth accused Inspector of Police made false report with regard to the date on which and the time at which Sreejith was taken into custody. Accused Nos.6 to 9 were involved in the incident. 5. The District Police Chief (Rural) formed Rural Tiger Force on 24.2.2017 following sexual assault in a vehicle on a leading actress in Malayalam. The object was to prevent highway robbery, dacoity and kidnapping. The Force was also directed to watch the movements of goondas and other ## W.P.(C) 14402/18 **-:8:-** antisocial elements. The Force consisted of 21 police officers. The prosecution admits that the District Police Chief had no authority to form such a Force. 6. It is nobody's case that the civil police officers who effected the arrest of Sreejith were in uniform. There was flagrant violation of the mandatory provisions contained in Section 41B Cr.P.C. which runs as follows: _**“41B.Procedure of arrest and duties of officer making arrest-** Every police officer while making an arrest shall-_ _(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;_ _(b) prepare a memorandum of arrest which shall be-_ _(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;_ _(ii) countersigned by the person arrested; and_ _(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.”_ 7. After the civil police officers effected arrest of Sreejith, he was handed over to the Varappuzha police. Sreejith was not an accused in the case. The materials collected by the Special Investigation Team disclose that Ganesan, who sustained injuries along with his brother Vasudevan, pointed out Sreejith to the civil police officers. ## W.P.(C) 14402/18 ## **-:9:-** Thus, though Sreejith was not an accused in the case, he happened to be arrested by the civil police officers who did not take pains to verify it. 8. The civil police officers who apprehended Sreejith assaulted him at the time of his arrest at his house and before he was thrown into the police jeep. Though Sreejith was arrested at 10.30 in the night on 6.4.2018, Varappuzha police recorded his arrest only at 9.15 in the night on 7.4.2018. Even thereafter he was not produced before the learned Magistrate because by that time he had been admitted to a hospital. The 6[th] accused Circle Inspector of Police made false records to show that he was arrested only at 9.15 in the night on 7.4.2018. This was brought out in the investigation done by the Special Investigation Team. The investigation of Special Investigation Team has also revealed that at the police station the 4[th] accused Sub Inspector of Police assaulted Sreejith in the lockup. 9. To the above extent the petitioner does not dispute the prosecution version. The petitioner does not dispute the identity of the civil police officers who apprehended Sreejith ## W.P.(C) 14402/18 ## **-:10:-** and the fact that they along with the Sub Inspector of Police assaulted him. She has also no case that any police officer other than the above police officers assaulted Sreejith. But she requests for an investigation by the Central Bureau of Investigation. According to her, Vasudevan's house was ransacked by certain persons and there was political interference in the investigation into the incident and political leaders influenced the police officers including the Superintendent of Police (Rural) and it resulted in a conspiracy involving the Superintendent of Police, Circle Inspector of Police and others and it was pursuant to this conspiracy Sreejith was taken into custody. 10. There is not even a remote suggestion that Sreejith was an activist or even a sympathizer of a political party, the interest of which is opposed to CPI(M). The petitioner emphatically asserts that he was not even a sympathizer of a political party as suggested from certain corners. It is crystal clear that political interest was not a reason for his arrest. If political interest was not involved in his arrest, it is improbable that there was a conspiracy involving the ## W.P.(C) 14402/18 ## **-:11:-** District Police Chief and political leaders to falsely implicate Sreejith and arrest him. 11. The learned counsel appearing for the petitioner has brought to my notice the decisions of the Supreme Court in **R.S.Sodhi, Advocate, People's Union for Civil Liberties v. State of U.P. and Others** (1994 Supp (1) SCC 142), **Sube Singh v. State of Haryana and Others** (2006) 3 SCC 178) **Narmada Bai v. State of Gujarat and Others** (2011) 5 SCC 79) and **Rashmi Behl v. State of Uttar Pradesh and Others** (2015) 12 SCC 531) in support of his argument that in cases in which persons taken into custody by local police die, it is only proper that the investigation is entrusted to Central Bureau of Investigation. 12. In **R.S.Sodhi's case** (supra) the Apex Court observed that however faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them and since the accusations are directed against the local police personnel, it will be desirable to entrust the investigation to an independent ## W.P.(C) 14402/18 **-:12:-** agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. This was in spite of the fact that the State Government entrusted the investigation to Inspector General of Police of the State. That was a case in which ten persons were killed at Pilibhit. The incident was labelled an encounter. 13. In **Sube Singh's case** (supra) the Supreme court has expressed the opinion that in custodial death cases an independent investigating agency (preferably the respective Human Rights Commission or CBI) may be entrusted with adequate power to investigate complaints of custodial violence against police personnel and take stern and speedy action followed by prosecution, wherever necessary. 14. **Narmada Bai's case** (supra) was an alleged fake encounter case. The accused were police officers of the State of Gujarat. The Supreme Court did not accept the investigation done by the State Police. It observed that in ## W.P.(C) 14402/18 **-:13:-** view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States it would not be desirable to allow the Gujarat Police to continue with investigation. The court entrusted investigation to the Central Bureau of Investigation. 15. In **Rashmi Behl's case** (supra) there was allegation of involvement of police officers in the commission of the offences. The Supreme Court observed that _Prima facie_ the State Police acted in a partisan manner to shield the real culprits and investigation of the case was not being conducted in a proper and objective manner. So the investigation of the case was entrusted to CBI. 16. The present case can be distinguished from the above cases decided by the Supreme Court. The investigation done by the State Police cannot be said to be improper or lopsided. Action was taken against the erring police officers with deliberate speed. Admittedly, the police officers who tortured Sreejith's death were apprehended. They were sent to judicial custody by the learned ## W.P.(C) 14402/18 ## **-:14:-** Magistrate. The members of the family of Sreejith claim to have witnessed the assault by the police officers belonging to the Rural Tiger Force who took him into custody at his house. The other persons arrested and lodged in the lockup of the police station are said to have seen the 4[th] accused Sub Inspector of Police assaulting Sreejith. The apprehension of the petitioner that the police may “manipulate” evidence cannot be taken at its face value because the above witnesses cannot be influenced by them. The police cannot tamper with the evidence. The result of the case will depend upon the oral evidence of the family members of Sreejith and the persons who were arrested and lodged in the lockup of the police station along with Sreejith. 17. There are no circumstances warranting CBI investigation. Merely because the wife of the deceased has made a request for such investigation, it cannot be ordered. 18. The petitioner has claimed compensation for the death of her husband. It is an admitted fact that the Government have already paid Rs.10,00,000/- (Rupees Ten lakhs only) as compensation and have given her W.P.(C) 14402/18 **-:15:-** appointment in government service. If she is not satisfied with it, she may agitate her claim in a suit or other proceedings in a proper forum. In the result this writ petition is dismissed. Sd/- ## **K.ABRAHAM MATHEW JUDGE** vps 9/7 /True Copy/ PS to Judge