Faizal T.B. v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** ## **TUESDAY, THE 4TH DAY OF OCTOBER 2016/12TH ASWINA, 1938** ## **WP(C).No. 24645 of 2016 (E)** **-----------------------------------------** ## **PETITIONER(S) :** **-------------------------** **FAIZAL T.B., AGED 21 YEARS, S/O. BASHEER, THERUVATH HOUSE, THIRUVATHRA P.O., CHAVAKKAD, THRISSUR.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** **RESPONDENT(S) :** **----------------------------** **1. STATE OF KERALA, REPRESENTED BY HOME SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. STATE POLICE CHIEF, POLICE HEADQUARTERS, THIRUVANANTHAPURAM 695 001.** **3. SUPERINTENDENT OF POLICE/DISTRICT POLICE CHIEF, OFFICE OF THE SUPERINTENDENT OF POLICE, THRISSUR 680 001.** **4. CIRCLE INSPECTOR OF POLICE, CHAVAKKAD POLICE STATION, THRISSUR DISTRICT- 680 506, (CRIME NO. 1268/2015, 1269/15, 1270/15, 1271/15, 1272/15, 1318/15, 1319/15 AND 1320/15 OF CHAVAKKAD POLICE STATION, THRISSUR DISTRICT).** **5. SUB INSPECTOR OF POLICE, CHAVAKKAD POLICE STATION, THRISSUR DISTRICT- 680 506, (CRIME NO. 1268/2015, 1269/15, 1270/15, 1271/15, 1272/15, 1318/15, 1319/15 AND 1320/15 OF CHAVAKKAD POLICE STATION, THRISSUR DISTRICT).** **BY SRI. C.SREEDHARAN NAIR, DIRECTOR GENERAL OF PROSECUTION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-09-2016, THE COURT ON 04-10-2016 DELIVERED THE FOLLOWING:** **WP(C).No. 24645 of 2016 (E) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1 COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE FIRST INFORMATION STATEMENT IN CRIME NO. 1264/2015. EXHIBIT P2 COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 1270/2015 REGISTERED BY CHAVAKKAD POLICE EXHIBIT P3 COPY OF THE FINAL REPORT IN C.C.NO. 662/2016 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, CHAVAKKAD. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 15.05.2016 SUBMITTED BY THE PETITIONER BEFORE THE STATE POLICE CHIEF.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. # **RAJA VIJAYARAGHAVAN, V., J.** ------------------------------------------ **WP (C) No. 24645 of 2016** ------------------------------------------ -----------------------------------------Dated this the 4[th] day of October, 2016 ## **J U D G M E N T** ## **~~~~~~~~~~** ## 1.This Writ Petition has been filed by the petitioner seeking the following reliefs:- (i) Issue a Writ of Mandamus directing the 2nd respondent to give necessary direction to the investigating agency to conduct further investigation in crime numbers 1268/2015, 1269/2015, 1270/2015, 1271/2015, 1272/2015, 1318/2015, 1319/2015, and 1320/2015 of Chavakkad Police Station. (ii) issue a writ of mandamus directing the 2nd respondent to consider and dispose exhibit P4 representation submitted by the petitioner as expeditiously as possible (iii) issue any other writ or direction which this Hon'be court may deem fit on the facts of the case. W.P.(C) No. 24645 of 2016 **-2-** 2.A.C.Haneefa, a person with whom the petitioner was having close acquaintance, was murdered at 9.45 p.m on 7.8.2016 in the premises of his own house by a group of assailants. The petitioner was an eye witness to the incident and the assailants were persons known to him. According to the petitioner, the heinous act was committed by the henchmen of Mr Gopaprathapan, a prominent politician, who was on inimical terms with the aforesaid Haneefa. - 3.Immediately after the incident, Haneefa was removed to the Hospital by the petitioner and others in a car. His life could not be saved. Petitioner rushed to the Chavakkad Police Station to set the law in motion. His statement was recorded at 11 a.m. and Exhibit P1 crime was registered. He was asked to remain in the police Station till 1.30 a.m. - 4.According to the petitioner, days, and in some cases,weeks after the incident, Mr.Gopaprathpan, who W.P.(C) No. 24645 of 2016 **-3-** according to him, was instrumental in doing away with the deceased, by exercising his massive clout over the Police , managed to get several crimes registered against the petitioner and the other witnesses to the incident with a view to render the eye witness accounts of the witnesses doubtful. Those crimes were registered in order to make it appear that at the time when the petitioner is said to have lodged the FI statement, he along with certain others were on the rampage to avenge the murder of late Haneefa. It is pointed out by the petitioner that any police officer with some amount of sensibility would have come to the conclusion that the said crimes were false and concocted. However, in the case on hand investigation was completed and final reports were laid on its basis. 5.Though as many as eight crimes were registered , in the instant case, the petitioner highlights Crime No 1270 of 2015 and Crime No 1319 of 2016, both registered by the W.P.(C) No. 24645 of 2016 **-4-** Chavakkad Police Station, to highlight the highly deprecatory acts of the Police. 6.The petitioner points out that in the case of Exhibit P1 Crime involving the murder of Haneefa, though the statement was furnished on 7.8.2016 at 11 a.m., the FIR reaches court only on 10.8.2016. It is further pointed out that the inquest was conducted on 8.8.2016 at 8 a.m. by the Deputy Superintendent of Police and there was no reason for delaying the submission of the FIR before Court. - 7.According to the petitioner, Exhibit P2 FIR would reveal that the said crime was registered on 10.08.2015 based on information furnished by a woman by name Mariyathu in respect of an incident which took place on 7.8.2015 at 11 a.m. The prosecution allegation in Exhibit P2 is that immediately after the murder of Haneefa on 7.8.2015, the petitioner along with 10 others had formed themselves W.P.(C) No. 24645 of 2016 **-5-** into an unlawful assembly and with the knowledge that they were members of the unlawful assembly, at 11. a.m., trespassed into the house of the de facto complainant and destroyed the front door and other house hold articles and thereafter committed mischief to the tune of Rs 85,000/-. In the said case, the petitioner and others stand indicted for offences punishable under Section 143, 147, 148, 452, 427 read with section 149 of the IPC. 8.In more or less the same manner Crime No.1319 of 2015 was registered . Exhibit P3 is the charge sheet in Crime No. 1319 of 2015. It would reveal that the said crime was registered on 26.08.2015 in respect of an incident which took place on 7.8.2015. The petitioner is arrayed as the accused No 8 . The allegation is that on 7.8.2015 at 10. 45 p.m., pursuant to the murder of Haneefa, the petitioner and 10 others had trespassed into the house of the _de facto_ complainant had committed mischief to the W.P.(C) No. 24645 of 2016 **-6-** tune of Rs 60,000/-. In the said case the petitioner and others stand indicted for offences punishable under Section 143, 147, 148 , 448 , 427 read with section 149 of the IPC . 9.Much analogy is not required to deduce that the time at which the petitioner and others had committed mischief in Crime No.1270 of 2015 is the exact time at which the statement from the petitioner was recorded by the Additional Sub Inspector of Police Chavakkad. In so far as crime No 1317 of 2015 is concerned, the incident is alleged to have taken place about 15 minutes prior to his lodging the FI Statement in Crime 1264 of 2015. In both these cases final reports were laid by the Police against the accused and the same is pending trial . 10.It has to be mentioned at this juncture that W.P. ( C ) No 28557 / 2016 , W.P. (C) No. 28558 of 2016 , W.P.(C) 25149 of 2016 and W.P. (C) No. 28836 of 2016 have all W.P.(C) No. 24645 of 2016 **-7-** been filed raising grievance similar to what has been raised by the petitioner in the instant case in respect of the very same crimes . In view of the orders that I propose to pass , in this case , it does not appear that a detailed consideration of those petitions are essential . - 11.I have heard the learned counsel appearing for the petitioner and also the learned Senior Government Pleader. - 12.The learned counsel appearing for the petitioner has reiterated the facts and have taken this Court through the Final report in the cases to highlight the highly deplorable acts that has been committed by the Sub inspector of the Chavakkad Police Station. According to the learned Counsel, the Police have acted hand in glove with the accused to demolish the prosecution case involving the murder of Haneefa. No reason has been furnished by the Investigating officer as to how the first informant in Crime W.P.(C) No. 24645 of 2016 **-8-** 1264 of 2015 could have been present at the exact time to commit mischief in the house of Mariyathu, the first informant in Crime No.1270 of 2015 . 13.According to the learned counsel, his credibility as the first informant in Crime 1264 of 2015 would be shattered beyond redemption and the case will be rendered suspect on the sole ground that a responsible Sub Inspector has filed final report after investigation concluding that the petitioner herein was at a different place. The learned Counsel would submit that this is a fit case in which this Court should exercise its powers under Section 482 or under Article 226 of the Constitution of India and order further investigation in all these crimes. - 14.The Senior Government pleader made available the records of the others crimes as well . This chart will reveal the following details:- W.P.(C) No. 24645 of 2016 **-9-** |**Crime No**|**Date**<br>**and**<br>**time **<br>**of**<br>**Incident**|**First**<br>**Information**<br>**furnished on**|**Date**<br>**of**<br>**Registration**<br>**of FIR**|**Fir**<br>**reached**<br>**court on**| |---|---|---|---|---| |1264/2015|07/08/15 @<br>9.45pm|7/8/2016<br>@11p.m.|7.8.2016 @<br>11 a.m.|10/08/15<br>@10.a.m| |1268/2015|07/08/15<br>@10.30pm|10/08/15|10/08/15|12/08/15| |1269/15|07/08/15<br>@10.15pm|10/08/15|10/08/15 @<br>11 a.m|12/08/15| |1270/15|07/08/15<br>@11.00pm|10/08/15|10/08/15 @<br>6.50 a.m|12/08/15| |1272/15|07/08/15<br>@10.00pm|10/08/15|10/08/15 @<br>11 a.m.|13/08/15| |1318/2015|07/08/15<br>@9.45p.m.|26/08.16|26/08/15<br>@3.47p.m.|31.8.2016 @<br>10 a.m.| |1319/16|07/08/15<br>@10.45pm|26/08.16|26/08/15<br>@3.08p.m.|31.08.15 @<br>10 a.m.| |1320/15|07/08/15<br>@11.30pm|26/08/15|26/08/15<br>@6.01p.m|31.08.15 @<br>10 a.m| 15.The learned Special Government would submit that the State after considering the facts and circumstances have expressed that they have no objection in ordering further investigation in Crime No 1264 of 2015 by the Crime Branch CID. According to the learned Counsel, these cases can also be investigated by the same team as the incident appears to be inextricably linked to the main crime . W.P.(C) No. 24645 of 2016 **-10-** 16.It needs no reiteration that investigation is a delicate painstaking and dexterous process. Ethical conduct is absolutely essential for investigative professionalism. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. It needs no emphasis that investigation is to be totally extricated from any extraneous influence. A vitiated investigation is the precursor for miscarriage of criminal justice. - 17.I have considered the rival submissions and I find considerable merit in the submissions of the learned Counsel appearing for the petitioner. It is clear from the records that the same Sub Inspector of Police of the Chavakkad Police Station has registered all these crimes and it appears that the same officer has filed the final report after completion of Investigation. The main W.P.(C) No. 24645 of 2016 **-11-** witnesses in Haneefa Murder case are the accused in all these cases and I have no doubt in my mind that the statement of the witnesses in Crime No.1264 of 2015 will be rendered quite doubtful in view of the final report laid in these cases. These aspects does not appear to have crossed the mind of the Investigating officer. At any rate when a statement is furnished after weeks, the officer concerned ought to have anxiously considered the veracity and genuineness and if the allegations were to militate against the version of the prosecution witnesses in a crime registered earlier, the officer ought to have proceeded with more alacrity and caution. Much discussion is not needed to conclude that the investigation in all these cases has been unfair. The registration of various crimes weeks after the incident to sabotage the case of Murder cannot be taken lightly. As held by the Apex Court in **Vinay Tyagi v Irshad Ali @ Deepak and Others** [2013 W.P.(C) No. 24645 of 2016 **-12-** (5) SCC 762] where the investigation ex facie is unfair, tainted, mala fide and smacks of foul play, the Courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. It has been held that the said power is of wide plenitude and, therefore, has to be exercised sparingly. The said powers are not to be exercised unless the unfairness of the investigation is such that it pricks the judicial conscience of the Court. In the facts and circumstances presented in the instant case, I am of the considered view that exercise of extra ordinary inherent powers are to be issued to secure the ends of justice and therefore, further investigation is to be ordered. 18.This Court has issued directions to the State Police Chief directing further investigation in Crime No 1264 of2015 of the Chavakkad Police Station. I am of the considered view W.P.(C) No. 24645 of 2016 **-13-** that these cases are also to be investigated by the same team which investigates Crime No.1264 of 2015 of the Chavakkad Police Station . 19.In the result this Writ Petition is allowed. The 2[nd] respondent to directed to issue orders to reopen the final report submitted before court in Crime Nos.1268/2015, 1269/2015, 1270/2015, 1271/2015, 1272/2015, 1318/2015, 1319/2015, and 1320/2015 of Chavakkad Police Station and conduct further investigation. The team which conducts the investigation in Crime No.1264 of 2015 shall take over investigation in these cases as well and complete the same expeditiously. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN.V. JUDGE** Ps/3/10/16