E.M.Ashraf v. Director, Central Bureau of Investigation & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934** ## **WP(C).No. 18219 of 2011 (B)** ## **--------------------------C.M.P.NO.390/2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KOCHI** ## **PETITIONER(S):** ## **-------------** **E.M.ASHRAF,AGED 59 YEARS, S/O.LATE MUHAMMED, H.NO.XIII/555A, CHITHUPARAMBU KOCHANGADI, KOCHI-2.** ## **BY ADVS.SRI.A.X.VARGHESE SRI.A.V.JOJO** ## **RESPONDENT(S):** ## **--------------** **1. THE DIRECTOR,CENTRAL BUREAU OF INVESTIGATION,NEW DELHI. 110001** **2. THE SUPERINTENDENT OF POLICE,KERALA BRANCH C.B.I,ERNAKULAM. 682 020** **3. SURENDRAN,THE SUPERINTENDENT OF POLICE, CRIME BRANCH.C.I.D,ERNAKULAM. 682 018** **4. STATE OF KERALA,REP.BY HOME SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM. 695 001** **5. INSPECTOR GENERAL OF POLICE,CRIME BRANCH C.I.D,THIRUVANANTHAPURAM. 695 001** **6. SUNILKUMAR,DEPUTY SUPERINTENDENT OF POLICE,CRIME BRANCH C.I.D,ERNAKULAM. 682 018** - **BY GOVERNMENT PLEADER SRI.R.RANJITH BY SRI.P.CHANDRASEKHARA PILLAI, S.C. FOR C.B.I.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2012, THE COURT ON 31-07-2012 DELIVERED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE CERTIFICATE OF THE HOSPITAL AUTHORITIES DATED 14.02.2008.** ## **EXT.P2: COPY OF THE POSTMORTEM CERTIFICATE DATED 29.01.2008.** **EXT.P3: COPY OF THE ORDER DATED 12.03.2008 IN C.M.P.NO.390/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, KOCHI.** **EXT.P4: COPY OF THE JUDGMENT DATED 17.11.2009 IN W.P.(C).NO.11627/2009 OF THE HONOURABLE HIGH COURT.** **//TRUE COPY//** **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------W.P.(C).NO.18219 OF 2011 ----------------------------------Dated this the 31[st] day of July, 2012** ## **J U D G M E N T** Petitioner is the father of one Sherbin, who, at the young age of 23 years, died under suspicious circumstances, after removed to hospital from her matrimonial home. The bereaved father strongly believes that his daughter had a homicidal death, with suspicion pointed at her husband and his brother. He is approaching this Court the second time to seek the exercise of its extraordinary jurisdiction complaining that there is not only soft peddling of investigation but attempts to withhold vital pieces of evidence and deliberate evasion by the investigating agency from charging the accused person with indictment of grave offences disclosed. 2. Sherbin was the mother of a child, aged two and a half years. Over her unnatural death, a crime was registered at **W.P.(C).No.18219/2011** **2** Mattanchery Police station under Section 174 of the Code of Criminal Procedure, for short, the 'Code'. When the investigation proceeded as such, taking exception thereto, petitioner filed a complaint before the Judicial First Class Magistrate Court-II, Kochi imputing that she was murdered by two accused persons named in his complaint, her husband and his brother, to proceed against them for offences under Sections 302 and 498(A) read with Section 34 of the Indian Penal Code. That complaint was referred to the Station House Officer for investigation and report under Section 156 (3) of the Code. Later, the investigation of the crime was taken over by the Crime Branch C.I.D., Ernakulam. When such investigation continued, petitioner filed a writ petition before this Court to hand over the investigation to the Central Bureau of Investigation, for short, the 'C.B.I.' or to constitute a special investigating team alleging that proper investigation was not being conducted. On the materials placed in that writ petition, and more particularly, the statement made in the counter affidavit filed by the investigating officer at a stage where the investigation remained to be **W.P.(C).No.18219/2011** **3** completed with scientific opinion awaited over some of the material objects collected, that the death of Sherbin was not a homicide but a suicide by hanging, this Court found that the continuance of the investigation with such officer, who had prejudged the question, will not be proper and that officer has to be changed. Ext.P4 is the judgment rendered in that writ petition. Paragraphs 5 and 6 of Ext.P4 judgment rendered by this Court read thus: _5. On hearing the learned counsel and the Government Pleader and the view already taken by the investigating officer, it is clear that there will not be a fair and proper investigation by third respondent as he has already formed an opinion that this is not a case of homicide but suicide. Fact that when the deceased was taken to Gawtham Hospital, her husband and relatives of the husband were not prepared to disclose the true facts and suggested false facts is a serious suspicious circumstance. Similarly, before getting report of the FSL, on examination of cellophane which was collected by the Scientific Assistant as stated in paragraph 16 of the counter affidavit, investigating officer should not have jumped into a conclusion that it is not a case of homicide but suicide. If result of examination of cellophane tape taken by the Scientific Assistant discloses that ligature was not present, finding_ **W.P.(C).No.18219/2011** **4** _cannot be in support of the view already taken by the investigating officer. In such circumstances, when the investigating officer has already pre-judged the question and decided that it is not a case of homicide but suicide, for a fair and proper investigation of the case, investigating officer is to be changed._ _6. But I do not find that it is a fit case where investigation is to be handed over to the CBI as sought for. When the CBI is even otherwise crowded with more serious cases, interest of justice will be met, if a direction is issued to the Director General of Police to entrust the investigation of the case to some other senior officer not below the rank of Deputy Superintendent of Police with a direction that the case is to be investigated fairly and properly and expeditiously and it shall be monitored by another officer not below the rank of Superintendent of Police.”_ 3. Petitioner has approached this Court again stating that despite change of the Investigating officer, what is being conducted is only a sham investigation on account of undue influence exerted by the suspected accused persons, who are stated to be highly influential. Initially, a counter affidavit by the then investigating officer narrating various steps taken in the investigation of the crime and, later, a brief report by his **W.P.(C).No.18219/2011** **5** successor in office, are filed. Both the above officers, repudiating the criticism levelled against the investigation conducted in the case, have asserted that the death of Sherbin was a suicide by hanging and it was on account of the matrimonial cruelty inflicted on her by her husband. In the report subsequently filed, dated 01.06.2012, it is stated that draft charge prepared after completion of the investigation indicting the accused person, namely, Rifaz, husband of the deceased Sherbin, for offences punishable under Sections 498(A) and 201 of the IPC has been approved by the Additional Director General of Police, and in view of the pendency of the writ petition, that alone, charge in the case, as indicated, has not been filed before the court. 4. I heard the learned counsel for the petitioner, the learned Standing Counsel for the C.B.I. and also the learned Public prosecutor. Case diary has been produced for my perusal. The learned counsel for the petitioner contends that the circumstance presented in the case would clearly demonstrate **W.P.(C).No.18219/2011** **6** that the indictment to be levelled against the accused person should be for graver offence, if not for murder, atleast for offences under Sections 304B and 306 of the IPC. The learned Public prosecutor submits that a smooth and fair investigation, looking into all aspects, has been conducted and completed in the case, and as such, no further direction by way of a writ/order from this Court in exercise of its extraordinary jurisdiction is called for. The learned Standing counsel for the C.B.I. submitted that since the investigation is practically over, once the report is filed before the Magistrate, if at all the petitioner has any further grievance, it can be canvassed raising objections to the report before the Magistrate as to why it is not acceptable and also the need for further investigation if sustainable grounds are available to canvass as such. 5. Some of the suspicious circumstances surrounding the death of Sherbin have been taken note of by this Court while rendering Ext.P4 judgment. Sherbin was taken in a critical condition from her matrimonial home, initially, to a nursing **W.P.(C).No.18219/2011** **7** home, then, to a local private hospital and later to a better hospital in the City, accompanied by her husband and his relatives. At that point of time when she was gasping for breath, with her condition so critical, false version was given to the doctors how she became ill. Only much later when a doctor in the third hospital after noticing the injuries over the neck of the victim questioned her husband, then, alone a version was given that she tried to commit suicide by hanging. After a wordy quarrel with him, Sherbin ran into the office room and locked the door. He then knocked the closed door and it was not opened. Getting suspicion he went outside the house and looked through the window of office room. He then saw her hanging from a ceiling fan in the living room of the house. He broke open the door, untied the knot and removed her to hospital, is the version purported to have been given by the husband, the suspect during investigation, as to how she became critically ill. Very many questions, in fact, noted by the Assistant Commissioner of Police in the case diary, whether it was possible to see through the curtains, which are stated to be threefold, to see what was inside **W.P.(C).No.18219/2011** **8** the living room, and whether any one, all alone, could have untied the knot and removed Sherbin, who weighed about 65 kgs., from a ceiling fan, it is seen, have not been looked into despite such queries put by a senior Police officer who had examined the case diary. In Ext.P2 postmortem certificate, the doctor has opined death was due to constricted force to neck of Sherbin. Sherbin had several antemortem injuries of her person which are described in her postmortem certificate. Such injuries could be suffered when the body in the hanging condition was brought down and coming into contact on rough surface, is the explanation offered. I do not wish to make any comment thereto with reference to the injuries noted on the person of the victim as noted in Ext.P2 certificate. The doctor, who conducted the postmortem when briefed with the history of death by hanging has later given a statement that death was due to hanging and that opinion is supported by another doctor, is the statement of the investigating officer, who has concluded that death of the victim was by hanging. Strangely enough, the finding of forensic expert as revealed by his report over the cellophane tapes **W.P.(C).No.18219/2011** **9** collected over the fingers of the victim, the shawl, which is alleged to have been used for hanging and, over the ceiling fan, has not been critically examined by the Investigating officer. The Investigating officer, in his affidavit has strongly relied upon the report of that forensic expert, marked as Ext.R2 (v), to state that the shawl alleged to have been used for hanging could withstand the weight of 65 kgs. However, he has failed to take note that the cellophane tapes collected from the palms of the victim did not contain any fibre of that shawl, but, only the cellophane tapes collected from the fan and the shawl contained such fibers. If it was a case of hanging by the victim, tying the knot of the shawl, to commit suicide, chances of some fibre of the shawl retained in her palm, normally, cannot be ruled out. Even the observations made in Ext.P4 judgment that if the result of examination of cellophane tapes discloses that ligature was not present, then it would not support the view already taken by the previous investigating officer that Sherbin's death was a suicide, has not been taken note of in examining the finding given by the forensic expert. During the course of investigation, some of the **W.P.(C).No.18219/2011** **10** relatives of Sherbin had a version that one close-by neighbour to the scene of crime, had witnessed the ill treatment meted out to Sherbin by the suspect a few minutes before the occurrence. The aforesaid neighbour was questioned by the investigating officer but she gave a different version, according to the investigating officer. Statement of that witness was also got recorded through the Magistrate under Section 164 of the Code by the Investigating officer. The object of police proceedings is to collect information as a preliminary step to the production of evidence in a judicial proceeding against an accused person. Statement of a witness is recorded under Section 164 of the Code during investigation to minimise changing of her version at trial from what she has stated on oath before Magistrate for the fear of being involved in perjury. When there is any apprehension of the witness changing her version later her statement is recorded under Section 164 of the Code. What was the need for recording the statement of the above witness through Magistrate under Section 164 of the Code when it was stated to be not incriminatory against the suspected person ? **W.P.(C).No.18219/2011** **11** Has it been done to pin down the witness with the subsequent statement to shield the suspect ? Such questions cause doubt that the investigation was not fair, and that there may be justifiable reason for the father to raise an apprehension over the manner in which the investigation is conducted. 6. This was a case where this Court had previously ordered for changing the Investigating officer taking note that the conclusion formed before completion of the investigation of the crime by the then Investigating officer that death of Sherbin was a suicide in the backdrop of the suspicious circumstances surrounding her death affected the fairness of the investigation. Though investigation thereafter has been entrusted to another Police officer, the circumstances presented as disclosed by the materials covered by the case diary gives enough room to doubt that a fair investigation is not being conducted in the crime. When that be so, what next is to be done to have a fair and impartial investigation to secure the ends of justice, has to be considered. **W.P.(C).No.18219/2011** **12** 7. To my query of entrusting the case to the C.B.I., the learned Standing counsel for that agency pointing out the observations made in Ext.P4 judgment contended that this Court has already held that this is not a fit case for entrusting investigation to the C.B.I., and as such, that finding has to be treated as final. The learned Standing counsel for the C.B.I. also relied on the observations made by the Apex Court in **Kunga Nima Lepcha v. State of Sikkim (AIR 2010 SC 1671)** to contend that interference with criminal investigation by this Court is not advisable. I do not find any merit in the submissions made by the learned Standing counsel. Observation made by this Court while rendering Ext.P4 judgment that it is not a fit case where investigation to be handed over to the C.B.I. was taking into account that C.B.I. is crowded with more serious cases, and also, that entrusting investigation to another Senior Police officer with directions, to conduct the investigation fairly and properly, would be sufficient to advance the ends of justice. Change of circumstance after making such observations in **W.P.(C).No.18219/2011** **13** Ext.P4 judgment, showing that it has not yielded a fair and smooth investigation of the crime despite a direction by this Court for monitoring the investigation by an Officer not below the rank of Superintendent of Police as well, cannot be brushed aside as insignificant. Attempts to gloss over and ignore very many vital aspects and circumstances presented in the case, perhaps, taking a preconceived view that the death of Sherbin was a suicide, in the investigation cause much concern. Was it a case of suicide, and, if so, abetted by anyone, or was it a case of murder, required to be thoroughly probed in the case. Where there is reason to hold that the investigation even after passing Ext.P4 judgment, has not been conducted fairly and reasonably, observations made earlier by this Court that 'this is not a fit case for being handed over to the C.B.I.' cannot be taken as final. What is at stake is fairness of investigation, and if the circumstances demand an investigation by the premier agency, C.B.I., and it is shown that if it is not done, justice may become causality what has been expressed earlier in Ext.P4 judgment cannot be treated as final. The decision relied by the learned **W.P.(C).No.18219/2011** **14** counsel has no application to the case. That was a case where commencement of investigation over statutory offences such as those of 'possession of assets disproportionate of known sources of income' as well as 'criminal misconduct' under the Prevention of Corruption Act, 1988 through the intervention of the Apex Court was sought for filing a writ petition, and in that context, it was held that ordering of such investigation under the writ jurisdiction is not possible. 8. In the aforesaid circumstances, where the investigation continued over the crime even after passing of Ext.P4 judgment is not being done fairly and properly, and that the apprehension expressed by the petitioner, father of the victim that the investigation is not fair, cannot be brushed aside, to secure the ends of justice, the investigation of the crime has to be handed over to the C.B.I. 9. Investigation of the crime is ordered to be handed over to the C.B.I. The 4[th] respondent shall issue necessary orders **W.P.(C).No.18219/2011** **15** within a period of three weeks from today to hand over the investigation of Crime No.104 of 2008 of Mattancherry Police Station to the C.B.I. The 2[nd] respondent, Superintendent of Police, Kerala Branch C.B.I., on taking over the investigation shall take steps to complete it expeditiously. Writ petition is disposed of. **S.S.SATHEESACHANDRAN JUDGE** prp