Joshi N. Thomas v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **RP.No.937 OF 2020 IN WA. 1260/2020** **AGAINST THE ORDER/JUDGMENT IN WA 1260/2020 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/S:** **JOSHI N. THOMAS, AGED 71 YEARS 8/68, RETREAT, NAMBIAPARAMBIL HOUSE, MOOKKANNOOR P.O., ERNAKULAM DISTRICT, PIN-683 577.** **BY JOSHI N. THOMAS(PARTY IN PERSON)** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS CHIEF SECRETARY,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695 001.**| |**2**|**STATE OF KERALA**| ||**REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY,**| ||**HOME DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**THE DIRECTOR**| ||**CENTRAL BUREAU OF INVESTIGATION,**| ||**GOVERNMENT OF INDIA, CGO COMPLEX,**| ||**RAMAKRISHNAPURAM, NEW DELHI-110 003.**| |**4**|**THE DIRECTOR GENERAL OF POLICE**| ||**AND STATE POLICE CHIEF**| ||**POLICE HEAD QUARTERS SASTHAMANGALAM,**| ||**THIRUVANANTHAPURAM-695 014.**| _**R.P.937/2020 in W.A. No.1260/2020**_ 2 - **5 THE ADDITIONAL DIRECTOR GENERAL OF POLICE NORTH ZONE, KOZHIKODE-673 010.** - **6 THE DEPUTY SUPERINTENDENT OF POLICE DIRECTOR CRIME BRANCH THRISSUR (RURAL) STATION, AYYANTHOLE, THRISSUR-680 003.** - **7 SUB DIVISIONAL MAGISTRATE CIVIL STATION OFFICE OF THE SDM, THRISSUR-680 003. R1&2 AND R4-7, SRI. SURIN GEORGE IPE, SR.GOVT. PLEADER R3 BY SRI.SASTHAMANGALAM S AJITHKUMAR, SC** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 16-12-2020, THE COURT ON 22-12-2020 PASSED THE FOLLOWING:** _**R.P.937/2020 in W.A. No.1260/2020**_ 3 ## O R D E R Dated this the 22[nd] day of December, 2020 ## Shaji P. Chaly, J Appellant in W.A. No.1260 of 2020 is the review petitioner. The review petition is filed seeking to review the judgment dated 16.11.2020, whereby the writ appeal was dismissed and the judgment of the learned Single Judge was affirmed. The Review Petition is filed by the petitioner-in-person and the subject issue relates to Crime No.172/2011 of Athirappilly Police Station. Several writ petitions were filed seeking investigation through specialized investigating agencies of the State Government, in regard to the death of the review petitioner's son. The investigating agencies have found that there was no criminal act in the death of the review petitioner's son and as per the postmortem report, the death occurred was due to Asphyxia. 2. According to the review petitioner, the Special Investigating Officer did not take into account the vital aspects that were pointed out by the review petitioner in the process of investigation, which persuaded the review petitioner to file W.P(C). No.19237 of 2019, which was the subject matter of Writ Appeal in question. 3. The learned Single Judge dismissed the writ petition holding _**R.P.937/2020 in W.A. No.1260/2020**_ 4 that there are no circumstances for ordering further investigation by constituting any specialized agencies or through the Central Bureau of Investigation. 4. The paramount contention advanced in the writ appeal was that learned Single Judge has not passed the judgment within the time period prescribed by the Apex Court in various of its judgments and even though the guidelines prescribed in such judgments were followed by the review petitioner and filed suitable petitions before the Hon'ble Chief Justice, the parameters and requirements as per the judgments of the Apex Court in Anil Rai v. State of Bihar [(2001) 7 SCC 318] was not adhered to by the learned Single Judge. It was also pointed out that this Court has failed to take note of the said aspect put forth by the review petitioner in the writ appeal in question and therefore, the judgment in writ appeal requires to be withdrawn and the matter is to be heard afresh by yet another Division Bench since petitions in regard to the delay on the part of the learned Single Judge to pass the judgment was considered by the Hon'ble Chief Justice. 5. We have heard Sri. Joshi N. Thomas, who appeared in person and the learned Senior Government Pleader Sri. Surin George Ipe and perused the pleadings and material on record. _**R.P.937/2020 in W.A. No.1260/2020**_ 5 6. In fact, the issue with respect to the delay on the part of the learned Single Judge was taken note of while we considered the appeal and accordingly it was clearly denoted at paragraph 21 of the judgment that the appellant has addressed arguments on the delay of the learned Single Judge to render the judgment after hearing and other consequences and therefore, we elaborately heard the counsel for the appellant and re-appreciated the entire materials on record, apart from perusing the argument notes filed and submitted across the Bar during the course of arguments. Therefore, now the appellant has produced petitions filed before the Hon'ble Chief Justice for due consideration in terms of Anil Rai ( supra). We have accepted the same to the files of the review petition. 7. Even though in the review petition, the petitioner has raised an objection with respect to the hearing of the matter by Bench consisting of the Hon'ble Chief Justice, no such issues were raised at the time of hearing of the writ appeal and we have heard the matter with an open mind also. 8. After going through the grounds raised in the review petition, we are of the considered opinion that the review was sought on the basis of delay on the ground that in the writ appeal, the said aspect was not taken note of by the Bench. But, in our view, it was taking into _**R.P.937/2020 in W.A. No.1260/2020**_ 6 account the said aspect pointed out in the writ appeal alone, elaborate consideration of the matter was made irrespective of the fact that an appellate court considering an appeal under Section 5 of the Kerala High Court Act, 1958 need only to identify as to whether there is any jurisdictional error or other legal infirmity on the part of the learned Single Judge while rendering the judgment. Therefore, that by itself is not a ground to review the judgment rendered in the appeal. Even though other aspects are pointed out in respect of the investigation conducted by the investigating officer and the higher authorities, as directed in the earlier round of litigation by a learned Single Judge of this Court, we are of the view that the entire aspects put forth by the review petitioner in the writ petition and the appeal, were taken note of and the aspects put forth in the argument notes were also considered at length. Yet another aspect put forth by the petitioner is that the petition given to the Chief Justice was numbered as Petition No.207/2020 as is discernible from the judgment, but in fact that was a typographical error and it was corrected suo motu as per order dated 27.11.2020 as Petition dated 20.07.2020. 9. Therefore, in our view, whatever material pleadings made out by the review petitioner in the writ petition and the appeal, were taken into account while pronouncing the judgment in the appeal and also _**R.P.937/2020 in W.A. No.1260/2020**_ 7 bearing in mind that there was delay on the part the learned Single Judge to pronounce the judgment. After assimilating the factual and legal situations, we are of the considered opinion that the review petitioner has not made out any case of error apparent on the face of the record or material illegality in the matter of consideration of appeal requiring us to review the judgment in the writ appeal. Needless to say writ appeal fails and accordingly it is dismissed. Sd/- S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou. _**R.P.937/2020 in W.A. No.1260/2020**_ 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF PETITION DATED 18.6.2020 FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE.** **ANNEXURE II** **TRUE COY OF PETITION DATED 20.7.2020 FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF JUSTICE.**