Andrew Jordan v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940** ## **WP(C).No. 20797 of 2018** ## **CRIME NO.471 OF 2018 OF THIRUVALLAM POLICE STATION** ## **PETITIONER:** **ANDREW JORDAN AGED 42 YEARS, SON OF PAUL JORDAN, PERMANENT RESIDENT OF THE RATH, SWORDS, COUNTRY DUBLIN, IRELAND, NOW RESIDING AT C/O.JOSEPH ANTONY, LITTLE PARADISE, BEACH ROAD, KOVALAM P.O., TRIVANDRUM, KERALA-695027.** **BY ADVS.SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN SRI.DANI J.PAUL** ## **RESPONDENT(S):** **1. STATE OF KERALA REP.BY CHIEF-SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695010.** **3. CITY POLICE COMMISSIONER, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695014.** **4. INSPECTOR GENERAL OF POLICE, SOUTH ZONE, THIRUVANANTHAPURAM-695010.** **5. STATION HOUSE OFFICER, THIRUVALLAM POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695027.** **6. THE SUPERINTENDENT OF POLICE, CENTRAL BUREAU OF INVESTIGATION (CBI), KESTON ROAD, THIRUVANANTHAPURAM-695003.** **R2-R5 BY ADV. SRI.SUMAN CHAKRAVARTHY, SR. GOVT.PLEADER R6 BY ADV. SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I. BY Sr. GOVERNMENT PLEADER: SRI SUMAN CHAKRAVARTHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2018, THE COURT ON 03-08-2018 DELIVERED THE FOLLOWING:** **WP(C).No. 20797 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF HIS PASSPORT ISSUED BY THE EIRE/IRELAND/IRLANDE BEARING THE PASSPORT NO.PU2757972.** **EXHIBIT P2 A TRUE PHOTOCOPY OF A FIR NO.0471/2018 OF THIRUVALLAM POLICE STATION, THIRUVANANTHAPURAM.** **EXHIBIT P3 A TRUE PHOTOCOPY OF THE POST-MORTEM CERTIFICATE DATED 21-42018.** **EXHIBIT P4 A TRUE PHOTOCOPY OF THE PETITION SUBMITTED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA DATED 6-6-2018.** **EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER PASSED BY THEKERALA STATE HUMAN RIGHTS COMMISSION DATED 3-5-2018.** ## **RESPONDENTS EXHIBITS:NIL** **True Copy / P A to Judge** ## **SUNIL THOMAS, J.** ## ================= ## **W.P(C).No.20797 of 2018** ================= Dated this the 3[rd] day of August, 2018 ## **JUDGMENT** Petitioner herein, dissatisfied with the investigation in Crime No.471 of 2018 of Thiruvallam Police Station for offences punishable under sections 366, 328, 376A and 376D, 302, 201 of the Indian Penal Code and Section 20(b) of NDPS Act, involving the death of a Latvian national (hereinafter referred to as the “victim” to maintain anonymity) has approached this Court. 2. The victim came to India along with her sister as a tourist, sometime in March 2018. They joined a treatment programme in an Ayurvedic Centre in Thiruvananthapuram. While so, on 14.03.2018, when her sister went for meditation and treatment, the victim is stated to have voluntarily left the Ayurvedic Centre without informing others. She could not be located thereafter. The sister conducted initial enquiry and thereafter lodged a complaint with the Pothencode police. Crime was registered for man missing. Investigation revealed that the victim had proceeded to Kovalam in an autorikshaw. Extensive search was undertaken thereafter at various places to locate her. Her photographs were affixed at various conspicuous parts of the city W.P(C).20797/18 2 and elsewhere. Intimation was also given to various police stations. In the meanwhile, petitioner herein, who is claimed to be a citizen of Ireland and had a live-in relationship with the victim, joined the sister of the victim in the search. He claimed that, he had been living with the victim in Ireland since July 2014 and as per the common law in Ireland, that relationship is recognized as one of husband and wife relation. On 20.03.2018, the sister of the victim met the DGP and requested him to ensure an effective investigation. Again, the petitioner along with the sister met the DGP on 23.03.2018. A special team of police officers was constituted for search and investigation. While so, the body of the victim, in an advanced stage of decomposition, was located on 20.04.2018, in a marshy mangrove forest in Thiruvallam. The place was about 2.5 kms away from Kovalam and stated to be not very easily accessible to public. Crime was registered by the Thiruvallam police as Crime No.471 of 2018 under section 174 Cr.P.C for unnatural death. Inquest and postmortem were conducted. Postmortem revealed that the victim had died of blunt injuries sustained to her neck. Investigation led to the arrest of two persons, who were locals and stated to be involved in various offences and drug trafficking. W.P(C).20797/18 3 3. On 06.06.2018, petitioner submitted Ext.P4 representation to the Chief Minister, requesting for a CBI investigation on the ground that the investigation conducted till then was not satisfactory to inspire confidence and that, there were several missing links in the course of investigation. According to the petitioner, the present accused alone might not be the real accused. The petitioner relied on five specific grounds mentioned in Ext.P4 as the reasons for doubting the investigation conducted till now. 4. The father of the first accused has filed I.A.No.12127 of 2018 in this writ petition to get himself and the father of the second accused impleaded as additional respondents. It was contended that, the police took the accused into illegal custody and much later, their arrest was recorded. It was alleged that the accused were not the real culprits and they have been falsely roped in after manipulating and fabricating evidence by threatening the witnesses. There was no fair and proper investigation, it was alleged. Contending that the present investigation was only to help the real accused, petitioner sought for handing over the investigation to another agency. W.P(C).20797/18 4 5. Heard the learned counsel for the petitioner, learned counsel for the impleading petitioner, learned senior Public Prosecutor and the learned Special Prosecutor for the CBI. The case diary was made available. The progress report was submitted in a sealed cover by the Inspector General of Police Thiruvananthapuram, who was the Supervisory Officer. It was claimed that, it contained certain classified and sensitive information also. 6. It seems that, petitioner herein had reached India immediately after the victim was reported to be missing. The relation of the petitioner herein with the victim is not seen seriously disputed. The records also indicate that, he was also pursuing the matter and has taken some efforts to locate the missing victim and later to identify the persons, who caused the death of the victim. Hence the petitioner may have an interest in the logical conclusion of the investigation and that, real culprits are apprehended. In this background, the various doubts raised by him will have to be considered, to decide whether the grievance of the petitioner is well founded. Investigating agency has also a duty to ensure that, all reasonable and genuine doubts that naturally emanate or are likely to arise in the course of investigation and in the trial are W.P(C).20797/18 5 satisfactorily answered. However, that does not by itself mean that the investigating agency is to explain each and every doubt, whether illogical or irrational, raised by any person. 7. Immediately after the missing of victim was reported, a special investigating team was constituted with the DySP, Attingal, who investigated the crime for some time. Later, investigation was entrusted to ACP, Fort subdivision. An IG of Police was the supervisory officer. They solicited and obtained the assistance of various agencies including local police, Cyber and forensic experts, Indian Navy and Coast guard. Extensive search is seen undertaken. Several persons are seen questioned and CCTV footages were examined. It was in the course of extensive search that the body of the victim was located. Accused persons are local persons involved in criminal offences and drug peddling. Body was found in a marshy area, which is stated to be not frequented by public and not very easily accessible to outsiders. It seems to be a thickly grown mangrove forest. The body was found in a highly decomposed stage, covered with an over coat/jacket and found hanging from a climber. Immediately after the body was recovered, Autopsy was conducted by a team of doctors and report was obtained. Mahazar was prepared, inquest was done and forensic experts collected W.P(C).20797/18 6 samples from the scene of occurrence. Samples were taken from the body of the sister and sent for DNA test. The sister could identify the body, with few articles found near the body, the dress worn by the victim and the physical features. The identity is also confirmed by the DNA test result. 8. Petitioner herein has mentioned in Ext.P4 and reiterated in the writ petition, five specific circumstances, which according to him, cast serious doubt on the findings arrived at by the investigating agency. It is seen that, though the petitioner herein had raised above doubts and the learned counsel had advanced detailed arguments touching it, those doubts do not appear to be based on any specific scientific, cyber or forensic expert opinion, but, on the basis of general doubts that arose in his mind and those in consultation with few other persons. 9. One of the doubt of the petitioner herein is that, the time of death as stated by the postmortem doctor does not tally with the level of decomposition of the body. According to the investigating agency, the death occurred on the same date of missing of the victim. According to the petitioner, from the photographs shown to several scientists, they are of the opinion that the level of decomposition indicated that the corpse was not more than 25 days W.P(C).20797/18 7 old, when discovered. According to the petitioner, this directly contradicts the assertion of the investigating officers, who claimed that the victim was murdered at the scene of occurrence on the same day on which she went missing. According to the petitioner, it indicates that, there is a possibility that victim was elsewhere, and later brought to the location and murdered or after murder at another place, dumped in the mangrove forest. 10. It seems that investigating agency has addressed this aspect and had obtained specific opinion on it. The expert opinion available on record indicates that the investigating agency was well grounded in its conclusion in this aspect, based on scientific evidence. The expert opinion in this regard indicates that the level of decomposition is conditioned by the environmental conditions of the locality also, which, in this case, was in a shady, marshy, wet area. 11. Another contention set up by the petitioner herein is that, when the body was found, it was covered in a second layer of clothing. It was confirmed that she was not wearing that item when she was last seen. The extra clothing is seen accounted for. The source of the dress has been confirmed from the witnesses and further confirmation of its source, is in progress. W.P(C).20797/18 8 12. According to the petitioner, injuries sustained are not consistent with the allegations of prosecution as to how the victim died. The postmortem report reveals that there were five injuries on the body. The postmortem was conducted by a team of senior surgeons. They have uniformly opined about the cause of death which tallies with the materials gathered by the investigation. The autopsy surgeon has given opinion regarding cause of death, with specific reference to injuries with valid cogent reasons, which seems to be in accordance with the cause of death as suggested by the investigation. 13. Petitioner has a case that the body was hastily cremated instead of buried in accordance with religious rites of the victim. According to the investigating agency, the body was preserved till the DNA report was received. Thereafter, consent was obtained from the sister for its disposal. It was cremated as wished by the sister of the victim and on her confirmed consent. She fully co-operated with investigation and has not raised any doubt on the investigation till now. The order of the Human Rights Commission was received much after the cremation was over. 14. According to the petitioner, accused are locals who are totally uneducated and have very poor ability in verbal English. Hence, they could not have been able to continue a conversation in W.P(C).20797/18 9 order to gain trust of victim and interest her to remain in their company. Normally, she used to avoid contact with others, it is claimed. However, there are materials to suggest that, accused persons were known to interact with tourists, and to communicate in chaste English. Hence, this contention does not also seem to be sustainable at this stage. 15. According to the petitioner, prosecution alleged that the victim had accepted cigarette laced with ganja from the accused. It was stated that, victim who had a history of mental breakdown and was attempting to get rid of its aftereffects was totally opposed to any use of drugs. However, it is on record that, she was a frequent user of cigarettes. 16. Accused are persons who get involved in criminal activities in the locality. Further contention of the petitioner herein was that, police was exclusively relying on the confession statement and the call records to show that the accused and the victim were within the same tower location during the relevant time. Police have enquired the antecedents of the accused. Materials show that they were dealing and involved in drug peddling. There is direct evidence to show that victim was taken to Kovalam. There are substantial materials to show that both the accused used to frequent W.P(C).20797/18 10 the place for various purposes. It is also recorded that, very few people used to visit that area. Incriminating materials touching on the past, contemporaneous and subsequent conduct of both the accused interlinking them with the incident has been collected. Materials suggesting the presence of victim in the location and connection with the accused is also gathered by the investigation. Recovery of a crucial piece of evidence pursuant to the disclosure made is also available. Evidently, prosecution has gathered vital, direct, indirect and circumstantial materials in the form of oral, documentary, forensic and scientific evidence to establish the crime. 17. Learned counsel for the petitioner relied on the decisions reported in **Sasi Thomas v. State and Ors. ((2006)12 SCC 421)** and **Mithilesh Kumar Singh v. State of Rajasthan and Ors. (2015 KHC 5259)** to contend that in appropriate cases, this Court will be justified in ordering an investigation by CBI. It was pointed out that, in Sasi Thomas's case, Honourable Supreme Court has held that proper and effective investigation into the serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence become essential. In Mithilesh's case , it W.P(C).20797/18 11 was held that the discovery of truth is the ultimate objective and that it can be done best by an independent agency, alone cannot be a ground for ordering investigation by the CBI. However, it was pointed out that, in appropriate cases, the investigation can be ordered, if the investigation conducted till then was found to be not satisfactory or sufficient to bring out the truth. 18. Per contra, learned Public Prosecutor contended that, though this Court is armed with sufficient power to order CBI investigation in appropriate cases, it is a jurisdiction which should be sparingly used. To substantiate it, learned Public Prosecutor relied on the decision in **Secretary, Minor Irrigation & Rural Engineering Services, U.P and Ors. v. Sahngoo Ram Arya and** **Another ((2002)5 SCC 521),** wherein, it was held that a decision to direct an enquiry by CBI against a person can only be done, if the High Court has sufficient material to come to a prime facie conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some allegations. 19. In **State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors.** W.P(C).20797/18 12 **((2010)3 SCC 571)** , the Supreme Court had held that while exercising the above powers under Articles 32 and 226 of the Constitution, Court must bear in mind certain self imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. In so far as the question of issuing a direction to 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, but 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 levelled some allegations against the local police. 20. The prosecution has a specific allegation that, several attempts were made by certain persons with vested interest to interfere in the course of investigation and to sabotage the investigation or even to divert the course of investigation. Investigating agency are in possession of few vital materials to indicate such attempts. It seems that, another crime has been registered on an allegation that, few persons had tried to intimidate or influence crucial witnesses. Since the investigation relates to a very serious offence which involve the death of a foreign national, W.P(C).20797/18 13 the investigating agency seems to be proceeding carefully. 21. In the case at hand, as mentioned earlier, the records reveal that substantial materials to link the accused with the crime, and also to rule out the possible involvement of other persons have been gathered by the investigating agency. Further, investigation conducted till now appears to inspire confidence and there is nothing on record at present to show that the investigation was perfunctory or that the apprehended accused have been wrongly implicated without sufficient material. Having considered this, I am satisfied that there is no scope for any interference. Hence, writ petition is dismissed. For the same reason, I.A.No.12127 of 2018 is also dismissed. Sd/- **SUNIL THOMAS Judge** Sbna/ True Copy / P A to Judge