Crl.R.P. Nos. 332 & 333 of 2012

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 6TH DAY OF FEBRUARY 2012/17TH MAGHA 1933** ## **Crl.Rev.Pet.No. 332 of 2012 ()** **-----------------------------CRMP.NO.19/2011 IN SC.991/2011 of ENQ.COMMR. & SPL.JUDGE,TRIVANDRUM** **REVISION PETITIONERS/PETITIONERS : ----------------------------------** **1. C.N.SURENDRAKUMAR, (FATHER OF DECEASED SARI S.NATH, THE VICTIM OF KILIROOR CASE) S/O. LATE NARAYANAN NAIR, AGED 51 YEARS, SABRIGIRI VEETTIL, POST THRIKODITHANAM, CHANGANASSERY, KOTTAYAM DSITRICT 686105.** **2. SREEDEVI (MOTHER OF DECEASED SARI S.NATH , THE VICTIM OF KILIROOR CASE) W/O. SRI.C.N.SURENDRA KUMAR, AGED 49 YEARS, SABRIGIRI VEETTIL, POST THRIKODITHANAM CHANGANASSERY, KOTTAYAM DISTRICT PIN 686105.** **BY ADVS.SRI.K.P.RAMACHANDRAN SMT.SHOBA NAIR SRI.M.M.ABDUL RAHIMAN SRI.K.M.GEORGE HARRISH REJOICE** **COMPLAINANT(S):** - **---------------** **1. CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, CBI HEAD QUATER LODHI ROAD, NEW DELHI 110003.** **2. PRAVEEN, S/O. PRASANNAN, MANNADICHIRA HOUSE, CMC-VII, CHERTHALA POST, ALAPPUZHA DISTRICT, PIN 688524.** ## **3. MANOJ,** **S/O.LATE K.P. MANI, KOOTHUPARAMBIL HOUSE, THIRUVANKULAM POST ERNAKULAM DISTRICT, PIN 682305.** **4. LATHA NAIR, W/O. RAMACHANDRAN NAIR, POONTHALA HOUSE, CHENGANOOR POST, PUDUCHERRY, KALLUPARA ALAPPUZHA DISTRICT, PIN 689 121.** **MG** ## **Crl.Rev.Pet.No. 332 of 2012 ()** ## **------------------------------** ## **5. PRASANTH** **S/O. ARAVINDAKSHAN KUZHIYANATHARAYIL PONNIYATH HOSUE, EROOR WEST POST THRIPOONITHURA, ERNAKULAM DISTRICT, PIN 682306.** **6. BINU @ KOCHUMON, S/O. P.N.APPUKUTTAN, THEKKACHIRAYIL HOUSE, NATTAKOM POST, KOTTAYAM DISTRICT, PIN 686013.** **7. SOMANATHAN @ SOMAN, S/O. PUSHKARAN, THAYIL VEEDU, KUMALI, IDUKKI DISTRICT, PIN 685509.** **8. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM 682031** **R1 BY DR.K.P.SATHEESAN, SPECIAL PUBLIC PROSECUTOR FOR CBI R1 BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **R1 BY DR.K.P.SATHEESAN BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-02-2012, ALONG WITH CRRP. 333/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **MG** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P. Nos. 332 & 333 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27[th] day of February, 2012. ## **ORDER** As common issues arise for consideration in these revision petitions, they are being disposed of by a common order. 2. The court below disposed of Crl.M.A. Nos.17 and 19 of 2011 in S.C. 991 of 2011 by a common order, from which these revision petitions arise. 3. Attracted by the glamour attached to appearing on the small screen and from becoming a pet of the public, a minor girl by name, Sari fell into a trap of flesh trade. Little did she know then what fate had in store for her. 4. The prosecution story is that kindling hope of becoming a star overnight, accused Nos. 1 to 6 lured the poor girl Sari, a minor, and she was transported from place to place and was offered for sexual exploitation. The poor Crl.R.P.332 & 333/2012. 2 girl was molested, raped and she conceived. She delivered a baby. Soon thereafter she developed acute intestinal problems and was taken to various hospitals until she breathed her last. 5. To begin with, Crime No.188 of 2004 of Kumarakom Police Station arraying accused Nos.1 to 4 for offence under Section 366A read with Section 34 IPC was registered. Much fury was generated by what the public called a cold attitude in investigation resulting in tremendous pressure and it became so intense that the Dy.S.P. Narcotic Cell was put in charge of the investigation. His investigation yielded much result in unfolding the cruel crime and participation of more people. He found that there are five more persons involved and therefore arrayed accused Nos.1 to 9 for offences punishable under Sections 120B, 376(2)(g), 306, 420, 102 and 212 IPC. Things did not stop there. Much more remained to be unearthed. Accordingly people revolted against the investigation done Crl.R.P.332 & 333/2012. 3 by the Dy.S.P. and that ultimately landed in the investigation being handed over to the C.B.I. 6. By a clever move, the C.B.I. made the first accused an approver and filed a report against accused Nos. 2 to 7 alleging offences under Sections 120B, 366A, 376(2)(g), and 506(1) IPC. Accused Nos. 8 and 9 are separately charge sheeted under Section 212 IPC. 7. Cognizance of the offence has been taken and they were committed to the Sessions court by the Magistrate court concerned. Before the Sessions Court, the cases were treated as S.C.991 of 2011 and S.C 992 of 2011. Considering the importance of the issue involved, that it generated an open discussion in the media, and the necessity for an immediate trial, the court took up the case for trial. It is seen that in S.C. 991 of 2011, accused Nos. 2 to 6 appeared, charge was framed for the offences and the trial commenced. About 50 prosecution witnesses had been examined and when a good portion of the trial has been Crl.R.P.332 & 333/2012. 4 completed, two petitions, namely, C.M.P. Nos. 17 of 2011 and 19 of 2011 were filed, one of them by a practising lawyer, who is keen on procuring justice to people and to see that justice is properly administered and the culprits are brought before law and the latter petition by the parents of the unfortunate girl, both for further investigation under Section 173(8) of Cr.P.C. 8. Both the petitions contained similar allegations. According to them, the investigation was perfunctory, tainted and motivated. Deliberately some very influential political persons and people enjoying high social status who were actually involved in the crime were avoided due to extraneous consideration and there was no proper investigation. Further allegation was that this case, which is known as Kiliroor case is inseparably intertwined with Kaviyoor case (yet another story of a deceived girl) and the trial in this case ought not to have commenced unless the investigation in the latter case had been completed. Crl.R.P.332 & 333/2012. 5 Further allegation was that material documents were concealed and kept away from the court and there is considerable negligence and lapses in the investigation especially regarding the medical treatment given to the unfortunate girl, who ultimately met with her death. 9. In the petitions, the main complaint was regarding the medical negligence or what is known as deliberate attempt on the part of the doctors who attended to the victim either in not giving proper medical aid or attention, or ensuring that the girl should not survive. The treatment details complained of are narrated in detail by the lower appellate court. Therefore it is unnecessary to repeat those aspects. Suffice to say that the sum and substance of the complaints was that the death of Sari, the unfortunate girl, was deliberately caused and it is infact a murder. There was no proper investigation into the medical treatment given to the girl. Had the investigating agency bothered to look into the relevant documents and make an Crl.R.P.332 & 333/2012. 6 earnest effort to unearth the truth, that would have disclosed the dubious acts done by the doctors ultimately resulting in the death of the victim. It is therefore prayed that a different wing of the C.B.I. be entrusted with the further investigation by a team consisting of senior efficient officers. 10. The court below after carefully considering the materials before it, especially the evidence adduced till then and also the records available and also on going through the allegations in the petitions came to the conclusion and formed an opinion that the petitions were not really intended for the purpose for which they had been purportedly filed but with an oblique motive of upsetting the trial and was infact intended to create loop holes in the case. Accordingly the petitions were dismissed. The said order is challenged in these revision petitions. 11. Learned counsel appearing for the revision petitioners in both these cases contended that the lower Crl.R.P.332 & 333/2012. 7 court was not justified in dismissing the petitions. None of the reasons given by the lower appellate court to hold against the petitions is sustainable. Petitions contained allegations and materials justifying further investigation. There was plenty of materials to show the shallow nature of investigation conducted and the efforts taken by the investigating agency to ensure that influential persons are not made accused. Accordingly, it is contended that a further investigation ought to have been ordered. In support of the contention that the court below is empowered to do so, learned counsel for the revision petitioner relied on the decisions reported in **Zahira Habibulla H. Sheikh v. State of Gujarat** (AIR 2004 SC 3114) and **Prabhavathiamma v. State of Kerala** (2007(4) K.L.T.601). 12. The principle regarding an order for further investigation or in certain cases to the extent of ordering re-investigation are well settled. The court has ample Crl.R.P.332 & 333/2012. 8 powers in appropriate cases to order further investigation and as already noticed, to order re-investigation also. Apart from the power so vested in the court, the investigating agency, after taking orders from the court, go in for further investigation, if circumstances warrant, can take recourse to such a step. 13. But, whether it be re-investigation or further investigation is not a matter of course. Unless there are compelling circumstances and materials to show that the investigation already done is found wanting in some aspects or materials on record call for a further investigation, such a step shall not be resorted to. 14. The complaint in the present petitions is that there was no full fledged investigation by the C.B.I. and they have left out certain vital areas, which need to be probed into to unearth the involvement and active participation of influential persons. Crl.R.P.332 & 333/2012. 9 15. Of course, the court is clothed with sufficient powers, if during trial it is seen that further investigation is necessary to reveal the true state of affairs. If it feels so, it can pass an order to that effect. The fact that trial has commenced as such may not be a bar for directing re-investigation or further investigation. 16. The two reasons given in the case for seeking re-investigation or further investigation are: (i) the court below should have waited till the investigation in 'Kaviyoor case' was completed, (ii) the so-called medical murder of the victim has not been investigated into. The first ground has no basis at all. The present case known as 'Kiliroor case' and the other case known as 'Kaviyoor case' have nothing in common, except that the two unfortunate girls were involved in the incident. Probably there may be common accused. But both are separate and independent incidents and there are no Crl.R.P.332 & 333/2012. 10 common elements between them wanting a joint trial or simultaneous trial. It is true that in Kaviyoor case, further investigation was ordered, but it was under a totally different circumstance, which is not available in the present case. 17. The lower court has noticed that the only common element in the two cases is involvement of 4[th] accused, Latha Nair. But that by itself is insufficient to necessitate the postponement of trial in the present case till the investigation in the other case is completed and final report is laid. As already noticed, there is nothing in common between the two cases. 18. One fact needs to be noticed. The present petitions have been filed long after the trial has commenced and after a good portion of the prosecution evidence has been completed. 19. Suppression of certain documents and the absence of investigation into certain areas are urged as Crl.R.P.332 & 333/2012. 11 reasons for further investigation. The trial court, as noticed earlier, has narrated the first information statement given by P.W.2, the father of the victim . There is no case for P.W.2 that any of the statements have been substituted, altered or manipulated. The other allegations have been considered by the lower court and found that most of them have no basis. The lower court has taken up each of the complaints highlighted by the petitioners and found it to be baseless based on the evidence already before it. 20. Much was said about the negligence of the doctors in treating the victim. It is highlighted that if investigation had been extended to that area, a very shocking conspiracy would have come to light. 21. The above allegations have been considered threadbare by the lower court and found them to be without basis. It is unnecessary to repeat the reasons. It is found that the allegation that there was no effective investigation in this regard was contrary to the facts and Crl.R.P.332 & 333/2012. 12 evidence on record. Several of the doctors who had nothing to do with the victim were examined before court and their evidence have been referred to in detail by the lower court. The members of the Medical Board constituted as per the orders of the District Collector were also examined. Medical records produced were marked. A reading of the order of the lower court shows that the allegations have been gone into in detail and found to be hollow. 22. The court below has also noticed the inconsistencies in the statements of the parents of the victim, i.e.., P.Ws.2 and 3, between the ones now given and at the time of giving evidence before court. The evidence in the case before court have been referred to in detail by the lower court and for cogent and convincing reasons, the lower court felt that the present attempt is to weaken the prosecution case and the lower court was constrained to observe that this is a ploy adopted to help the accused. Crl.R.P.332 & 333/2012. 13 23. It is therefore clear that extraneous matters which have no bearing on the case were sought to be agitated. Moreover, it is seen from the orders of the lower court that the parents of the victim had earlier filed a similar petition and had sought to withdraw the same. 24. If there was any bonafides in the claim made, efforts should have been made long ago and not after the trial is almost completed. Further after these matters were taken up for orders, final judgment in the case has been pronounced. 25. Even assuming that there is medical negligence or deliberate medical laches, that constitutes a separate cause of action and the attempt to drag in such matters into the present case an be viewed only with suspicion. 26. It was after considering elaborately the various aspects highlighted in the petitions, having considering them and analysing them that the court below Crl.R.P.332 & 333/2012. 14 had come to the conclusion that these petitions are misconceived. No grounds are made out to take a different view. These revision petitions are without any merit whatsoever and they are accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.