JAMSHAN and 5 others v. DIRECTOR GENERAL OF POLICE, TRIVANDRUM and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945** **WP(CRL.) NO. 1005 OF 2022** ## **PETITIONERS:** 1 JAMSHAN, AGED 27 YEARS S/O. HAMZA, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122. 2 JASNA, D/O. HAMZA, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122. 3 SHAJIRA, AGED 47 YEARS S/O. HAMZA, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122. 4 NOUSHAD, AGED 41 YEARS S/O. MUHAMMED, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122. 5 MYMOONA, AGED 37 YEARS W/O. NOUSHAD, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122. 6 KHADEEJA, AGED 68 YEARS W/O. MUHAMMED, MUNDUTHODUKA HOUSE, PARALIKUNNU MADAKKIMALA P.O., MUTTIL NORTH, WAYANAD - 6773122 BY ADV. CELINE JOSEPH ## **RESPONDENTS:** 1 DIRECTOR GENERAL OF POLICE, TRIVANDRUM THIRUVANANTHAPURAM DIST., PIN - 695 001. 2 THE POLICE INSPECTOR GENERAL & COMMISSIONER KOCHI, PIN - 682 011. 2 W.P(Crl.).No.1005 of 2022 - 3 THE DISTRICT POLICE CHIEF, WAYANAD - 673121. - 4 THE DEPUTY SUPERINTENDENT OF POLICE, CRIME BRANCH, WAYANAD- 673121. - 5 THE STATION HOUSE OFFICER, KALPETTA POLICE STATION, KALPETTA, WAYANAD DIST., PIN- 673121. BY ADV. SRI. HRITHWIK C.S,PP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(Crl.).No.1005 of 2022 3 ## **P.V.KUNHIKRISHNAN, J.** **------------------------------** **W.P.(Crl.)No.1005 of 2022 ---------------------------------------------Dated this the 03[rd] day of November, 2023** ## **JUDGMENT** This writ petition is filed by the accused in Crime No.930/2020 of Kalpetta Police Station. The above case was registered alleging offences punishable under Sections 302, 341, 342 and 201 read with Section 34 of the Indian Penal Code. It is the case of the petitioners that they were prosecuted in spite of the fact that they have not committed any offences. Therefore the petitioners prayed for a re-investigation in the above case for removing them from the party of accused. Hence the 5[th] petitioner filed a representation before the 3[rd] respondent praying that necessary orders may be passed to conduct further investigation by a specialized agency and competent higher ranking officer for 4 W.P(Crl.).No.1005 of 2022 rendering justice to the petitioners. The 3[rd] respondent informed the petitioners that the further investigation is not necessary. Hence this writ petition is filed. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 3. Before considering the facts on merit, the short point to be decided is whether an accused in a criminal case can file an application for further investigation. The Apex Court in **Arnab Ranjan Goswami v. Union of India & others** [2020 KHC 6393] observed that an accused person does not have a choice in regard to the mode or manner in which investigation should be carried out or in regard to the investigating agency. It will be better to extract the relevant portion of the above judgment: “44. In assessing the contention for the transfer of the investigation to the CBI, we have factored into the decision - making calculus the averments on the record and submissions urged on behalf of the petitioner. We are W.P(Crl.).No.1005 of 2022 5 unable to find any reason that warrants a transfer of the investigation to the CBI. In holding thus, we have applied the tests spelt out in the consistent line of precedent of this Court. They have not been fulfilled. An individual under investigation has a legitimate expectation of a fair process which accords with law. The displeasure of an accused person about the manner in which the investigation proceeds or an unsubstantiated allegation (as in the present case) of a conflict of interest against the police conducting the investigation must not derail the legitimate course of law and warrant the invocation of the extraordinary power of this Court to transfer an investigation to the CBI. Courts assume the extraordinary jurisdiction to transfer an investigation in exceptional situations to ensure that the sanctity of the administration of criminal justice is preserved. While no inflexible guidelines are laid down, the notion that such a transfer is an "extraordinary power" to be used "sparingly" and "in exceptional circumstances" comports with the idea that routine transfers would belie not just public confidence in the normal course of law but also render meaningless the extraordinary situations that warrant the exercise of the power to transfer the investigation. Having balanced and considered the material on record as well as the averments of and submissions urged by the petitioner, we find that no case of the nature which falls within the ambit of the tests W.P(Crl.).No.1005 of 2022 6 enunciated in the precedents of this Court has been established for the transfer of the investigation.” [Underline supplied] ## 4. Similarly in **Romila Thapar and Others v.** **Union of India and Others** [2018 KHC 6761], the Apex Court considered the question whether the Investigating agency should be changed at the behest of the accused. It will be better to extract the relevant portion of the above judgment: “20. After having given our anxious consideration to the rival submission and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named accused have approached this Court and have asked for being transposed as writ petitioners, the following broad points may arise for our consideration: (i) Should the Investigating Agency be changed at the behest of the named five accused? (ii) If the answer to point (i) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL? (iii) If the answer to question Nos.(i) and / or (ii) above, is in the affirmative, have the petitioners made W.P(Crl.).No.1005 of 2022 7 out a case for the relief of appointing Special Investigating Team or directing the Court monitored investigation by an independent Investigating Agency? (iv) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) that he is an innocent and law abiding person? 21. Turning to the first point, we are of the considered opinion that the issue is no more res Integra. In Narmada Bai v. State of Gujarat and Ors. [2011 KHC 4352 : 2011 (5) SCC 79 : 2011 (1) KLD 716 : 2011 (4) SCALE 469 : 2011 (2) KLT SN 91 : AIR 2011 SC 1804 : 2011 CriLJ 2651 : 2011 (2) SCC (Cri) 526 : 2011 (2) UPLJ 104 : 2011 (106) AIC 106 : 2011 (3) Guj LR 2104], in paragraph 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of Investigating Agency. Further, the accused persons cannot choose as to which Investigating Agency must investigate the offence committed by them. Paragraph 64 of this decision reads thus: "64.... It is trite law that accused persons do not have a say in the matter of appointment of an investigation agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them." 22. Again in Sanjiv Rajendra Bhatt v. Union of W.P(Crl.).No.1005 of 2022 8 India and Ors., 2015 KHC 4694 : 2016 (1) SCC 1 : 2016 CriLJ 185, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Paragraph 68 of this judgment reads thus: "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260, Mayawati v. Union of India, 2012 (8) SCC 106, Dinubhai Boghabhai Solanki v. State of Gujarat, 2014 (4) SCC 626, CBI v. Rajesh Gandhi, 1996 (11) SCC 253, Competition Commission of India v. SAIL, 2010 (10) SCC 344 and Janta Dal v. H.S. Choudhary, 1991 (3) SCC 756." 23. Recently, a three - Judge Bench of this Court in E. Sivakumar v. Union of India and Ors., 2018 KHC 6448 : 2018 (7) SCC 365 : 2018 (2) KLD 73 : 2018 (7) SCALE 656 : AIR 2018 SC 2486 : 2018 CriLJ 3064, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in paragraph 10 observed: "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In paragraph 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki Vs. State of Gujarat (Supra @ Footnote 5), wherein it has been held that in a writ W.P(Crl.).No.1005 of 2022 9 petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed in Narender G. Goel Vs. State of Maharashtra, 2009 (6) SCC 65, in particular, paragraph 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity." 24. This Court in the case of Divine Retreat Centre Vs. State of Kerala and Ors., 2008 (1) KHC 1047 : 2008 (3) SCC 542 : 2008 (1) KLD 437 : 2008 (3) SCALE 532 : ILR 2008 (2) Ker. 163 : 2008 (1) KLT 1042 : 2008 (2) KLJ 105 : AIR 2008 SC 1614 : 2008 CriLJ 1891 : 2008 (2) SCC (Cri) 9 : 2008 (2) Guj LH 105, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own Investigating Agency to investigate the crime in W.P(Crl.).No.1005 of 2022 10 which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Art.226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide. 25. Be that as it may, it will be useful to advert to the exposition in State of West Bengal and Ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors., 2010 (1) KHC 841 : 2010 (3) SCC 571 : 2010 (1) KLD 301 : 2010 (1) KLT 723 : AIR 2010 SC 1476 : 2010 (2) SCALE 467 : 2010 (2) SCC (Cri) 401 : 2010 (2) CHN 24 : 2010 (87) AIC 1 : 2010 (2) KCCR 785 : 2010 (2) CTC 84 In paragraph 70 of the said decision, the Constitution Bench observed thus: "70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Art.32 and Art.226 of the Constitution, while passing any order, the Courts 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. Insofar as the question of issuing a direction to the 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 W.P(Crl.).No.1005 of 2022 11 order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations." [Underline supplied] 5. In the light of the above dictum, this Court is not in a position to interfere with the investigation in the case. Moreover, there can not be any direction to order further investigation at the behest of the accused in a Sessions case as laid down by the Apex Court in the above judgments. 6. Counsel appearing for the petitioners 12 W.P(Crl.).No.1005 of 2022 submitted that, as per Ext.P4, there was an order by the Judicial First Class Magistrate Court, Kalpetta to the Investigating officer to investigate the aspects mentioned in the petition filed by the petitioners under Section 156(3) Cr.P.C. 7. The Public Prosecutor submitted that a detailed investigation was conducted and a report was submitted stating that, no further investigation is necessary. In such circumstances, I am of the considered opinion that, there is nothing to interfere with the investigation. The petitioners are free to agitate all their contentions before the trial court at the appropriate stage. Granting liberty to the petitioners to raise all the contentions before the trial court at the appropriate stage, this Writ petition (Crl.) is dismissed. Sd/- **P.V.KUNHIKRISHNAN JUDGE** JV/DM 13 W.P(Crl.).No.1005 of 2022 ## **APPENDIX OF WP(CRL.) 1005/2022** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE FIR DATED 21.12.2020 IN CRIME NO 930/2020 OF THE KALPETTA POLICE STATION. - EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED 27.5.2022 IN CRIME NO. 930/2020 OF THE KALPETTA POLICE STATION. - EXHIBIT P3 TRUE COPY OF THE PETITION DATED 24.12.2021 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA U/S 91 R/W 156(C) OF CR.PC. - EXHIBIT P4 TRUE COPY OF ORDER ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KALPETTA IN CMP NO.2290/2021. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 2701-22 FILED BY THE PETITIONER NO.5 BEFORE THE 3RD RESPONDENT.. - EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 26.04.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS. - EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 27.04.2022 FILED BY THE PETITIONER NO.5 BEFORE THE HUMAN RIGHTS COMMISSION. - EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 27.01.2022 FILED BY THE PETITIONER NO.5 BEFORE THE CHIEF MINISTER OF KERALA. - EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED 25.02.2022 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS. - RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE