Jomon Puthenpurackal v. Central Bureau of Investigation and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 19TH DAY OF MARCH 2014/28TH PHALGUNA, 1935 ## Crl.Rev.Pet.No. 123 of 2013 () ------------------------- AGAINST THE ORDER DATED 18-9-2012 IN CRL.M.P. NO. 59 OF 2012 IN SC NO. 1114 OF 2011 ON THE FILE OF THE COURTR OF THE SPECIAL JUDGE (SPE/CBI), THIRUVANANTHAPURAM ## REVISION PETITIONER(S)/REVISION PETITIONER: ------------------------------------- JOMON PUTHENPURACKAL PUTHENPURACKAL HOUSE, NEENDOOR.P.O. KOTTAYAM DISTRICT. ## BY ADVS.SRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR ## COMPLAINANT(S): -------------- ## 1. CENTRAL BUREAU OF INVESTIGATION PLOT NO. 5-B, 6TH FLOOR, CGO COMPLEX LODHI ROAD NEW DELHI-110003 REPRESENTED BY ITS DIRECTOR. ## 2. SRI. A.P. SINGH IPS FORMER DIRECTOR OF CBI CENTRAL BUREAU OF INVESTIGATION, PLOT NO. 5-B 6TH FLOOR CGO COMPLEX, LODHI ROAD, NEW DELHI-110003. ## 3. SRI. V.K. REGHU KUMAR SUPERINTENDENT OF POLICE, CBI Crl.Rev.Pet.No. 123 of 2013 () **2** THIRUVANANTHAPURAM BRANCH, NANTHANCODE THIRUVANANTHAPURAM-695003. 4. SRI. NANDAKUMAR NAIR ADDITIONAL SUPERINTENDENT OF POLICE CBI (CHIEF INVESTIGATION OFFICER IN SISTER ABHAYA MURDER CASE) THIRUVANANTHAPURAM BRANCH NANTHANCODE, THIRUVANANTHAPURAM-695003. 5. STATE OF KERALA - REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI-682031. Addl. R6: Fr. Thomas M. Kottoor, S/o. K.T. Mathew, aged 63 years, Kottoor House, Kidangoor P.O. Kottayam District (A1) Addl R7: Fr.Jose PoothrukkayiL, aged 57 years, S/o. Sri. Kora, Poothrukkayil House, Velloor, Kottayam District. (A2) Addl. R8: Sr.Sephy, aged 49 years, D/o. Joseph, Kanjirathummoottil, Kurumulloor, Kottayam District (A3) (Addl. R6 to R8 were impleaded as per order in Crl. Misc. Appli. No. 677/2013 dated 12-3-2014) FOR R1,R2 & R3 ADV. SRI.P.CHANDRASEKHARA PILLAI, STANDING COUNSEL FOR CBI Senior Adv. Sri. B. RAMAN PILLAI, ADV. SRI.R.ANIL ADV.SRI.M.SUNILKUMAR, ADV.SRI.SUJESH MENON V.B. ADV. SRI.T.ANIL KUMAR, ADV. SRI.MANU TOM and ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) for R6 ADV. SRI.J.JOSE for R7 ADV. SRI. ALAN PAPPALI, SRI. GILBERT GEORGE CORREYA FOR R8 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-03-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 123 of 2013 () **3** ## **APPENDIX** Annexure 1: True copy of an application dated 20-62012 before the CBI Court Annexure 2: True copy of the representation dated 8- 2-2012 Annexure 3: Certified copy of the common order dated 18-09-2012 in Crl.M.P. No. 59/2012 in and Crl.M.P. No. 3/2012 in SC 1114/2012. Annexure 4:(a): True copy of the final report submitted by the CBI dated 9-7-1999 Annexure 4 (b): True copy of the reply statement filed by CBI dated 4-10-2012 Annexure 5: True copy of the news report published in the New Indian Express daily dated 12-042007 Annexure 6: True copy of the final Chemical Analysis report dated 24-4-1992 Crl.Rev.Pet.No. 123 of 2013 () **4** Annexure 7: True copy of the relevant page of the Work Register Annexure 8: True copy of the report of the Assistant Government Examiner of Questioned Documents dated 16-5-2007 Annexure 9: Order dated 31-05-2011 in C.C. No. 111/07 of the Chief Judicial Magistrate's Court, Thiruvananthapuram Annexure 10: True copy of the order dated 29-08-2011 in Crl.Rev. Pet. No. 1839/2011 and Crl.M. C. No. 2229/2011. ## **Respondents ' Annexure** Annexure - A : The true copy of the Criminal Miscellaneous Petition filed before the Special Judge, (SPE/CBI), Thiruvananthapuram dated 20-08-2013 /true copy/ ## P.S. to Judge Crl.Rev.Pet.No. 123 of 2013 () **5** ## **N.K.BALAKRISHNAN, J.** **............................................ Crl.Rev. Petition No. 123 of 2013 ............................................** ## **Dated: 19-3-2014** ## **ORDER** This Crl.R.P. is filed challenging Annexure - 3 order dated 18-09-2012 passed by the learned Special Judge (SPE/CBI), Thiruvananthapuram. Two petitions were filed before that Court. One among them (Crl.M.P. No. 59/2012) was filed by the petitioner herein. The request was to order further investigation in the case invoking the power under Sec. 173 (8) of Cr.P.C. in respect of the offence of causing disappearance of evidence which is punishable under Sec. 201 of IPC and also regarding the persons involved in it excluding the four accused who are facing trial before the trial court. The further request is to have further investigation in respect of a question as to whether Sr.Abhaya was subjected to rape or any attempt **Crl.Rev. Petition No. 123 of 2013** **2** made on her for rape before murder without prejudice to the charge-sheet already filed before court. That petition and another petition filed by another private party were dismissed by the learned Special Judge holding that there is no necessity for further investigation and that there are no circumstances which warrant further investigation in the case. It was also observed by the learned Judge that there is nothing on record to show that the investigation conducted by the CBI is tainted or biased. 2. The learned counsel for the petitioner submits that this petition was filed in January, 2013. The fact that this petition was pending before this Court was not brought to the notice of the Hon'ble Judge when Crl.R.P. 265/2013 was heard. Crl.R.P. 265/2013 was filed by a retired I.P.S. Officer for further investigation under Sec. 173 (8) of Cr.P.C. The facts and circumstances of the case were dealt with by that Court while disposing of the Crl. R.P. mentioned above. That Crl.R.P. was disposed of on 19-12-2013. There is nothing on record to show that the **Crl.Rev. Petition No. 123 of 2013** **3** pendency of this Revision Petition was brought to the notice of the Hon'ble Judge, the learned counsel for the petitioner submits. It is submitted that the petitioner and his counsel were not given notice of the pendency of the other case, as otherwise this petition also could have been requested to be considered along with Crl.R.P. 265/2013. Be that as it may, the question now for consideration is whether the request made in this petition is to be allowed. 3. It is true that the petitioner herein was not a party to Crl.R.P. 265/2013. But at the same time, the observations and directions made in that order cannot be allowed to be ignored or circumvented. In paragraphs 29 and 30 of the order in Crl.R.P. 265/2013 it was observed by this Court thus :- _“The further investigation as to destruction of the case would stand as a properties separate compartment unconnected with the other main part of the final report arraigning A1 to A3 as accused, who allegedly caused the death of Sister Abhaya. So, I am of the opinion that a further investigation can be done_ **Crl.Rev. Petition No. 123 of 2013** **4** _as to the points raised above without disturbing the present final report. The petition seeking further investigation is also absolutely confined to the destruction of the case properties only. This court has not considered the final report as to the findings or charge arraigning A1 to A3 as accused, as the same was not within the scope of consideration of this petition under Sec. 173 (8) of the Cr.P.C._ _30. Even though the issue involved in this case stands as a separate compartment, the issue to be investigated is an offence punishable under Sec. 201 read with Sec. 120 B of the Indian Penal Code. If any body has committed such an offence in connection with the main offence, such person shall also be liable to be prosecuted along with the other main accused who allegedly committed the main offence and the same will be proper and convenient to ensure a fair trial. If there is any willful destruction of the case properties, with the intention of screening the principal accused and they also have any role either directly or indirectly, certainly a joint trial of all the accused in a trial will be inevitable a single for successful_ **Crl.Rev. Petition No. 123 of 2013** **5** _prosecution. In short, though the compartments are separate, it must be pulled by one and the same engine to the trial for a proper and successful prosecution”_ 4. In this connection the learned counsel for the petitioner has referred to paragraph 8 of the counter statement filed earlier by the CBI in relation with the request for further investigation. The relevant portion of the counter statement is extracted as follows: _“The petitioner was the first Police Officer who was informed of the incidents of 26-3-92/27-03-92 at the St. Pius Xth Convent Hostel, Kottayam by Sr. Sephy (A3) and 2 other Sisters who visited his house at around 7 am, who had reported that Sr. Abhaya was found missing from the Hostel. The petitioner instead of himself putting the Police into immediate action, which was within his means, surprisingly adviced the Sisters to check up the well in the Hostel for the missing Sr. Abhaya. The dead body of Sr. Abhaya was later extricated from the well by the Fire force Personnel. The investigation has also revealed that the inquest report of the dead body of Sr. Abyaya was fabricated_ **Crl.Rev. Petition No. 123 of 2013** **6** _by Sri. V.V. Augustine (Late), A.S.I. at the behest of Sri. K.T. Michael, the petitioner . In order to verify the veracity of the statement of Sri.V.V.Augustine, and of the Sisters who visited the Petitioner to seek his advice/help at 7 a.m. on 27-3-92, the experiential knowledge he possessed of the death of Sr. Abhaya and the related matters etc. the Petitioner was requested by me, to give the consent for the forensic tests - Polygraph Test Brain Finger Printing Analysis Test and Forensic Narco Analysis Test. The petitioner declined to give the consent for the forensic tests. Therefore, none of the forensic tests could be done on this Petitioner, and the CBI is not in a position to extract the experiential knowledge in him. So also the forensic tests could not be conducted by CBI onSr. Sherly, Ms. Achamma and Ms. Teressiamma, to reveal their experiential knowledge, as they too have not consented for these tests. Moreover, the recent ruling by the Hon'ble Apex Court in_ _**Selvi & Ors v. State of Karnataka (2010) 3 SCC ,** wherein it is ruled that the consent of the subject, his counsel and the Hon'ble Court is mandatory, hence the impossibility to conduct_ **Crl.Rev. Petition No. 123 of 2013** **7** _these forensic tests on the above named persons it has been repeatedly held by every Hon'ble Court, as well as the Hon'ble Supreme Court, that every citizen who has the knowledge of the commission of a crime has a bounden duty to assist the investigation agency so as to unearth the truth. The conduct of the petitioner of his refusal to subject himself for the forensic tests will speak volumes of his experiential knowledge of the heinous crime._ _It revealed that Sri. V.V.Augustine the then Additional S.I. of Police of Kerala Police was the initial investigating officer of the case, who had tampered with the evidence at the scene of crime and did not seize the weapon of offence which was subsequently destroyed. He also had prepared a false inquest report wherein the signatures of witnesses to the inquest report were forged. The handwriting expert from CFSL, New Delhi has confirmed the forgery of the signatures of the witnesses and it has also been corroborated by the two police officials, Shri M.K.Scaria and Shri. M.M. Thomas, Constables who accompanied Shri.V.V.Augustine in their 164 Cr.P.C. statements. The_ **Crl.Rev. Petition No. 123 of 2013** **8** _said Shri.V.V.Augustine could not be subjected to custodial interrogation as he was found dead on 25-112008 near to his residence. Hence, his name has been mentioned in Col. No. 12 of the charge sheet, as accused not sent up for trial. Thus, the role of Shri. V.V.Augustine (A-4) in the destruction of vital evidences of this case of the Scene of Crime, the inquest Report etc. got established through oral, documentary and scientific evidences”._ 5. In view of the stand taken by the CBI as stated in paragraph 8 and 9 referred to above the learned counsel submits that the CBI is also aware of the fact that the police officer at whose instance the further investigation was ordered as per Crl.R.P. 265/2013 was also involved in the concealment or destruction of evidence attracting the offence under Sec. 201 of I.P.C. The apprehension expressed by the learned counsel for the petitioner is that if further investigation is conducted by the CBI the Investigating team is likely to exclude the role of the revision petitioner in Crl.R.P. 265/2013. According to the **Crl.Rev. Petition No. 123 of 2013** **9** petitioner that police officer (the revision petitioner therein) was more responsible for the concealment or destruction of the evidence and in fact he is primarily responsible for the suppression of evidence warranting his implication under Sec. 201 of I.P.C. It is for the CBI to probe into that aspect. The direction issued by this Court in Crl.R.P. 265/2013 cannot be construed to hold that the further investigation directed by this court was against any particular officer or officers or whether it was excluding the petitioner herein. The learned Standing Counsel for the CBI has submitted that the Investigating Agency will have a meticulous examination of all those aspects and would thoroughly investigate into those aspects specifically adverting to the role of each and every police officer and also the officers of the Sub Divisional Magistrate etc. Therefore, there need not be any apprehension that the role if any, of the petitioner in Crl.R.P. 265/2013 would be excluded or that no investigation would be conducted regarding the role of that **Crl.Rev. Petition No. 123 of 2013** **10** police officer. In the light of the submission so made by the learned Standing counsel for the CBI and also in view of the fact that no restriction is seen imposed in the order passed by this Court in Crl.R.P. 265/2013, regarding the role of any particular officer there need not be any apprehension that the role of the petitioner in Crl.R.P. 265/2013 will not be investigated. The role of all officers, including that of the petitioner in Crl.R.P. 265/2013 with regard to the destruction of evidence will certainly be investigated by the CBI. That is the stand taken by the CBI also. It is much clear that this Court has not made any observation inconsistent with the observation made in the order by this Court in Crl.R.P. 265 of 2013. The necessity of expediting the further investigation is also gatherable from the time frame fixed by this Court in Crl.R.P. 265 of 2013. The Investigating Agency will investigate into all those aspects and as to the role of each and every officer involved in the alleged destruction of evidence. It is submitted by the learned Standing Counsel **11** ## **Crl.Rev. Petition No. 123 of 2013** appearing for the CBI that the time originally fixed by the court is to expire on 19-3-2014. Hence the investigating agency has already filed a petition for enlargement of time to complete the investigation. When that application comes up for hearing before the other Bench, the Investigating Agency will bring to the notice of the Hon'ble Judge the order passed in this petition as well. 6. This Crl.R.P. is disposed of as stated above. _Dated this the 19[th] day of March, 2014._ ## **N.K. Balakrishnan, Judge.**