K. Manikandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **WEDNESDAY,THE 31ST DAY OF OCTOBER 2018 / 9TH KARTHIKA, 1940** ## **WP(C).No. 19163 of 2015** ## **PETITIONER/S:** **K.MANIKANDAN, AGED 45 YEARS M.J.BHAVAN, KANNUMAMOODU P.O., PALUGAL VILLAGE, KANYAKUMARI DISTRICT, TAMILNADU.** **BY ADVS. SRI.DEEPU THANKAN KUM.P.V.JAYALAKSHMY** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT,**| ||**GOVT.SECRETARIAT, THIRUVANANTHAPURAM-695101.**| |**2**|**DIRECTOR GENERAL OF POLICE,**| ||**POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695004.**| |**3**|**CENTRAL BUREAU OF INVESTIGATION,**| ||**REPRESENTED BY ITS DIRECTOR, NORTH BLOCK, NEW DELHI-**| ||**110003.**| |**4**|**TOMIN J.THACHANCKERY,**| ||**ADDL.DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS,**| ||**THIRUVANANTHAPURAM, MANAGING DIRECTOR, CONSUMER FED,**| ||**COCHIN-682020.**| ||**BY ADVS.**| ||**GOVERNMENT PLEADER**| ||**SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN &**| ||**CHILDREN & WELFARE OF W & C**| ||**SRI.ANTONY MUKKATH**| ||**SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.**| ||**SMT.K.RADHAMANI AMMA**| W.P.(C) No.19163/2015 2 **SRI.O.V.RADHAKRISHNAN (SR.)** **SRI.P.CHANDRASEKHARA PILLAI C.B.I. SRI. SASTHAMANGALAM S. AJITHKUMAR SPL.P.P. FOR C.B.I.** ## **OTHER PRESENT:** **SRI.O.V RADHAKRISHNAN(SR.) FOR R4,SMT.AMBIKADEVI S,SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W&C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON 31/10/2018 DELIVERED THE FOLLOWING:** W.P.(C) No.19163/2015 3 ## **JUDGMENT** The writ petitioner stands arrayed as accused No.17 in Crime No.346/2011 of North Paravur Police station for offences punishable under sections 366A, 342,372,373,376 (2)(g), 506(1), 109 read with section 34 IPC, Sections 4 , 5 and 6 of Immoral Traffic Prohibition Act and section 23 of the JJ Act. He also stands arrayed as accused No.11 in Crime No.549/2011 of Varapuzha police station for offences punishable under section 366A, 372, 373, 376, 354, 506(i), 342 read with section 34 IPC and section 26 of the JJ Act. 2. According to the writ petitioner, he is a business man having a granite crusher unit and also undertake Government contract works. He and his wife were the joint owners of 9 acres 72 cents of land in Arumanai village in Kanyakumari District, in Tamil Nadu. He had entered into an agreement for purchase of 25 acres of land lying adjacent to the above 9.72 acres of land. Thereafter, he entered into an agreement for sale of the entire land of 34 acres 61 cents with one M/s APG Developers on 23/11/2010, for a total consideration of Rupees six and half crores. Ext.P1 is a copy of the agreement. According to the petitioner, one crore was received as advance and another sum of Rs.1.5 Crores was received on 31/12/2010. The 4[th] respondent is an IPS officer in the cadre of ADGP, Kerala. His wife held 80% shares in M/s.APG developers evidenced by Exts.P3 and P4 documents. The W.P.(C) No.19163/2015 4 entire transaction in relation to Ext.P1 agreement for sale, the business dealings and the negotiation with the petitioner was conducted by the 4[th] respondent on behalf of M/s. APG Developers. At that time, the petitioner and the 4[th] respondent were maintaining good relationship. After payment of the consideration of Rs.2.5 crores, the 4[th] respondent demanded the petitioner to assign the entire property ignoring the balance consideration. This was refused by the petitioner and relationship got strained. It is alleged that the 4[th] respondent using his official position, tried to coerce and threaten the petitioner herein to budge to his demand for the assignment of property, for less consideration. In the meanwhile, M/s.APG developers filed OS No.45/2011 before the District Court Kuzhitharai and obtained an injunction order against the transfer of property by the petitioner. It was later withdrawn and a suit for recovery of money was filed. 3. Pending the proceedings, the 4th respondent allegedly threatened the petitioner and his wife by making unreasonable demands and threatened to implicate the petitioner in criminal cases in Kerala. Apprehending some action, Ext.P7 complaint dated 28/5/2011 was stated to be submitted to the Chief Minister by the wife of writ petitioner. On 13/6/2011, while the petitioner herein was in Chennai Air Port for his journey to Singapore in connection with business purpose, he was detained by Kerala Police, brought to Kerala and implicated in Crime No. 346/2011 of North Paravur Police station. He was arrested W.P.(C) No.19163/2015 5 on 14/6/2011. The crux of the allegation was that, the petitioner herein along with his friend had committed rape of a young girl against her will at his guest house at Parassala, Thiruvananthapuram. During his period of detention, the police allegedly coerced and threatened him to execute the sale deed. The petitioner was also threatened to implicate in the other criminal case. The jail superintendent allegedly stated that he was called by the 4[th] respondent and required him to prevail upon the petitioner to settle the dispute. This was also conveyed to the wife of the petitioner. Pending the proceedings, he along with his driver was implicated in Crime No. 549/2011 on 20/8/2011. The allegation in both the cases was that, he had raped the victims in both the cases on separate dates at his guest house at Parassala, Thiruvananthapuram. After investigation, final report was filed in both the cases. Crime No.346/2011 is now pending as SC No.244/2015. In Crime No. 549/2011, split charge is filed and is pending as CP No.11/2015. 4. The petitioner claims that he is innocent and has been falsely implicated at the instance of the 4[th] respondent. His name was not disclosed in the FIS in both the cases. According to the petitioner, the 4[th] respondent is a highly corrupt officer involved in several business dealings. He was carrying great clout. Petitioner was falsely implicated in both crimes at the instance of the fourth respondent. Since no action was taken, Ext.P14 complaint was submitted to the government W.P.(C) No.19163/2015 6 requesting for CBI investigation. 5. The wife of the petitioner had filed W.P.(C) N.1403/2013 before this Court seeking the above relief. In the meanwhile, an enquiry was conducted by the Superintendent of police and also ADGP(Intelligence) and filed two reports in the above writ petition. It was claimed by the petitioner that both the reports indicated that the petitioner herein was wrongly implicated in the case. The petitioner thereafter approached this court claiming that no action had been taken by the Government on Ext.P7. Earlier W.P.(C) No.1403/2013 filed by the wife was hence closed by judgment dated 14/7/2013. The report of the Superintendent of police and ADGP were directed to form part of the records in the present case. The relief sought in the present writ petition is to direct the first respondent State to order investigation by the CBI. It was requested that the first respondent shall be directed to hand over the investigation of Crime No. 346/2011 of North Paravour Police station and Crime No.549/2011 of Varapuzha Police station to the CBI. It was also requested to direct the CBI to conduct investigation into the role of the 4[th] respondent in implicating the petitioner in the above case. 6. On behalf of the first respondent, as directed by this Court, the Chief Secretary has filed a statement. It was stated that a complaint was received from the wife of the petitioner alleging that her husband was falsely implicated. Accordingly, a Superintendent of police and an ADGP had conducted two separate enquires into the W.P.(C) No.19163/2015 7 genuineness of the allegation made. It was revealed that, the wife of the 4[th] respondent held 80% shares in the company. It was also revealed that, the 4th respondent was actively involved in the negotiation and fixation of all the agreements and also in the business transactions. It was further stated that, 4[th] respondent himself was carrying on the business, though not as per the records. He had not informed about his wife's business in accordance with the conduct rules. The allegation of false implication was found to be not true. It was stated that, on the basis of the above report, the Government proposes to initiate disciplinary action against the 4[th] respondent for breach of the conduct rules. The financial dealings of the petitioner, his wife and those persons dealing with M/s. APG Developers were directed to be enquired by the Enforcement Directorate. 7. The investigating officer had also filed separate and detailed report traversing all the allegations. It was stated that in Crime No.346/2011, the allegation of the prosecution was that, the 16 year old victim was ravished by about 148 persons including the petitioner. His co-accused was a police officer by name Sakthivel. Initially, the investigation was taken over by CI of North Parvur. Later , special investigating team of the Crime Branch CBCID took over the investigation on 30/5/2011. It was stated that, sufficient evidence to implicate the petitioner herein were unearthed in the course of investigation. The identity of the accused was revealed through the W.P.(C) No.19163/2015 8 statement of the victim, co- accused and other persons. Petitioner was identified by the victim after the arrest. Co-accused also revealed the complicity of the petitioner herein. The vehicle used and the building where the girl was allegedly ravished were also identified. It was further stated that, in Crime No. 549/2011, the victim aged 17 years was ravished by several persons, including the petitioner and his driver. She was taken to the guest house of the petitioner herein and raped on several occasions. Investigation had revealed the complicity of the petitioner herein. The co-accused, who is the driver, had admitted the incident. 8. The 4[th] respondent filed a detailed objection contending that, he is innocent of the allegation and that he was not a party to the business dealings of his wife. It was stated that, the wife was only a shareholder and other decisions were taken by the company. It was stated that, the writ petition itself was not maintainable and no direction to the CBI could be given. The Chief Minister to whom Ext.P5 representation was submitted, was not the authority for ordering investigation by the CBI. The relief sought cannot be granted. The petitioner was arrayed in the crime as accused, on the basis of sufficient materials gathered by the investigation. There was nothing to connect the 4[th] respondent with the allegation made in the complaint. It was stated that the petitioner had filed a petition as Writ Petition(MD)No.7511/2014 before the Madurai Bench of the Madras W.P.(C) No.19163/2015 9 High Court. It was dismissed by order dated 12/3/2014. He had sought identical relief as sought by his wife in W.P.(C) No.1403/2013 before this court. That writ petition was closed on 14/7/2015. It was claimed that, subject matter does not fall within the purview of CBI investigation. He denied the allegations that, he had connection with M/s. APG developers and also that he had falsely implicated the petitioner in the above crimes. He had not threatened the petitioner to implicate in any manner or influenced any police officer. It was contended that, reckless allegations were made against him. 9.Heard the learned counsel for the petitioner, learned special prosecutor for the State and the learned senior counsel for the 4[th] respondent. Both sides were given opportunity to peruse the confidential reports. The case diary in both the crimes in relation to the petitioner were made available at the time of hearing. Perused the records. 10. Learned counsel for the petitioner vehemently contended that, he is absolutely innocent of the crime and has been falsely implicated at the instance of the 4[th] respondent. It was contended that, even the victims did not specifically refer to his name in the FIS in both the cases. He was subsequently added as accused at the instance of the 4[th] respondent. It was further contended that, even in the TI parade conducted in the North Parvur rape case, he was not identified by the victim at the first two rounds. He was identified only thereafter W.P.(C) No.19163/2015 10 by the victim. It is of no relevance, since prior to the TI parade, he was shown to the victim and identified by the police. He relied on the confidential report submitted by two police officers to this Court. 11. Learned counsel for the petitioner on the above basis, sought for a detailed investigation into the role played by the 4[th] respondent to implicate the petitioner in the above crimes. He submitted that the writ petition is perfectly sustainable and the matter is liable to be entrusted with the CBI since the 4[th] respondent is one of the senior most officer in the Kerala Police. To contend that the matter can be referred to the CBI for further investigation at any stage, the learned counsel for the petitioner relied on the decisions reported in **State of Punjab v. Central Bureau of Investigation (2011 KHC 4776)** and **Darmapal v. State Haryana and others (2016 KHC 6123)** . 12. Learned senior counsel for the 4th respondent challenged the maintainability of the writ petition. It was contended that, in the WP (MD) No. 7511/2013 of the Madurai Bench of the Madras High Court, the petitioner herein had sought identical reliefs. The 4[th] respondent herein was arrayed as 3[rd] respondent. It was dismissed by order dated 12/3/2014 evidenced by Ext.R4(C). No liberty was granted to the petitioner herein to challenge the relief in any other proceeding. Learned senior counsel contended that, in the above circumstances, the present writ petition is hit by principle of issue estoppel and also W.P.(C) No.19163/2015 11 res judiciata. To substantiate it, learned senior counsel for the 4[th] respondent relied on the decision reported in **Municipal Corporation** **of Hyderabad v. Hyderabad Race Club (AIR 1987 Supreme Court** **92)** . Learned senior counsel also relied on the decision reported in **Misrilal Jain v. State of Orissa AIR 1977 SC 1686).** 13. It is seen that there was a dispute with the 4[th] respondent on the basis of the agreement for sale. In the W.P.(MD) No.7511/2013 the relief sought was for a direction to the Government of Tamil Nadu to dispose of Ext.P1 representation and also for a police protection on an allegation that the 4th respondent herein was trying to implicate him in different criminal cases. That writ petition was dismissed on the ground that no cogent and convincing reason was given for issuing writ of mandamus and that the petitioner herein had only made bald assertions. It was also noticed that all the criminal cases were registered in Kerala. 14. Evidently, the reliefs sought in the present writ petition are different and hence the question of issue estoppel will not apply. Further, earlier W.P.(C) No.1403/2013 filed by the wife of the petitioner herein before this Court was closed by Annexure R4 (b) order, noting the pendency of the present writ petition. 15. It was further contended by the learned senior counsel for the 4[th] respondent that, Ext.P7representation was submitted by the wife of the petitioner to the Chief Minister and not to the Government. Chief W.P.(C) No.19163/2015 12 Minister is not the authority to order investigation by the CBI. Hence, it was argued that writ petition is not sustainable, since there was no demand to the Government and refusal, as is mandatorily required for seeking a writ of mandamus. 16. In **Saraswati Industrial Syndicate Ltd. v. Union of India (AIR 1975 Supreme Court 460),** it was held that while claiming writ of mandamus, the claimant should show that there was a distinct demand of that which the party seeking mandamus desires to enforce and that demand was met by a refusal. The same principle was followed in **D.N.Jeevaraj v. Chief Secretary Government of Karnataka and Others (2016 ) 2 Supreme Court Cases 653)** , wherein a public interest litigation was filed against a political leader. It was held that, the writ of mandamus is issued to a person who has a legal duty to perform, but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. It was held that, in the case at hand, the Chief Minister was not the person who could have answered. Hence, on a request made to the Chief Minister and assuming that the Government has declined, the writ of mandamus cannot be sought. 17. It seems that, the representation was purported to be submitted to the Chief Minister as the administrative head. It seems that, the wife of the petitioner wanted to set motion the government machinery and the police. In the writ petition relief is sought against W.P.(C) No.19163/2015 13 the Government as well as the DGP who are arrayed as respondents. Hence, there is nothing wrong in submitting the representation to the Chief Minister. 18. Relying on the provisions in Delhi Special Police Establishment Act, 1946, it was contended by the learned senior counsel that offences now alleged against the 4th respondent are not liable to be investigated by CBI. A perusal of the above notification shows that para A refers to the various offences regarding which investigation can be conducted by the CBI. It includes several offences including one under section 420 read with section 34 IPC. 19. Having considered the above, I do not feel that this is not a matter falling within the domain of the investigation by the CBI. 20. Learned senior counsel on the basis of the several authorities laid down by the Supreme Court contended that, normally, the Constitutional courts, though competent to order further investigation at any stage, will sparingly exercise that power, only if definite and substantial grounds are made out. It was also held that investigation, if essentially required, can be entrusted to a specialized agency midway or even at any stage of prosecution, provided sufficient grounds are made out and to meet the ends of justice. To buttress this contention, learned senior counsel relied on **Divine Retreat Centre v. State of Kerala and Others (2008) 3 Supreme Court Cases 542)** . This was reiterated in the subsequent decisions in **Kishan Lal v.** W.P.(C) No.19163/2015 14 **Dharmendra Bafna And Another [(2009) 7 Supreme Court Cases 685]** , **M.R.Engineers and Contractors Private Ltd. v.Som Datt Builders Ltd. [(2009) Supreme Court Cases 696)** and **Punjab and** **Haryana High Court Bar Association, Chandigarh through its Secretary v.; State of Punjab and Others ((1994) 1 Supreme Court Cases 616)** wherein the Supreme Court held that, though the Supreme Court does not re-open the investigation, in the facts and circumstances of the case, to do complete justice and to instil confidence in the public mind the Supreme Court can direct the CBI to make fresh investigation in the matter. In **Gudalure M.J.Cherian And** **Others v. Union of India and others[(1992) Supreme Court Cases** **397],** there was an allegation of unfair police investigation into the allegation of rape of nuns of a christian institution and to support the prosecution, the victims were not coming forward to identify the culprits. To meet the exceptional circumstances arising in that case, the Supreme Court ordered investigation to be handed over to the CBI. ## In **Rubabbuddin Sheikh v. State of Gujarat And Others[(2010) 2** **Supreme Court Cases 200]** , investigation was handed over to CBI after the State Police had completed the investigation and charge sheet has been submitted. It was found by the Supreme Court that high officials of State Police were themselves involved and investigation had not been conducted properly. . 21. The principles covering the entrustment to the CBI for W.P.(C) No.19163/2015 15 investigation in the enforcement of fundamental rights came up for consideration before the Full Bench of the Supreme Court in **State of West Bengal and others v. Committee for protection of Democratic Rights, West Bengal and others[(2010) 3 Supreme Court Cases 571)** . The Supreme Court ordered the investigation to be handed over to the CBI. In **K.V.Rajendran v. Superintendent of Police CBCID South Zone, Chennai and Others[(2013) 12 Supreme Court Cacses 480], K.Saravanan Karuppasamy and Another v. State of Tamil Nadu and Others [(2014) 10 Supreme Court Cases 406)** and in **Sanjiv Rajendra Bhatt v. Union of India and others (2016) 1 SCC 1),** the Supreme Court had ordered the investigation to be conducted by CBI and para meters for entrusting it to the CBI were discussed in the above decisions. 22. Relying on the above decisions, learned senior counsel submitted that, the law is consistent that only in exceptional cases investigation is liable to be entrusted with CBI. No such exceptional circumstances was made out in the case at hand, it was argued. 23. Learned Special Public Prosecutor for cases relating to the Atrocities against Women and Children, asserted that both the crimes involved in the case came to light accidentally. In both the cases, there was a common thread of allegation that the victims involved in the case were sexually abused with the aid of their close relatives, by hundred of persons over a long period. In both cases, it was W.P.(C) No.19163/2015 16 contended that, the victims were taken to distinct places, raped by several persons and were handed over to many persons. Hence, the details of each incident could be brought out only through a consistent questioning of victim and collection of evidence at different places. Hence, the victims could recollect the entire details with sufficient precision only gradually. It was contended that, however, in the case at hand, both the victims have referred to the involvement of the petitioner herein with sufficient precision at the first available opportunity. It was also contended by the learned special prosecutor that there was no false implication. It was contended that, investigation was conducted by a special team and each member of the team was assigned separate work. It was supervised by a senior officer. Hence, it was impossible to influence the team. It was also stated that 4[th] respondent was never in charge of the investigation. He could not have been wielded much clout during relevant period, since he was under suspension during the above period. It was also contended that, there was absolutely no allegation of bias attributed to the police officers of the team, which should have been the natural corollary of any allegation of wrong implication. 24. It was also contended that, the settled legal position was that, investigation could be entrusted with the CBI only in exceptional cases. To substantiate this contention, learned special prosecutor, apart from relying on the decisions relied on by the learned senior counsel for W.P.(C) No.19163/2015 17 the 4[th] respondent further, relied on the decisions reported in **Sakiri Vasu v. State of U.P. And Others (2008 (2) KHC 13), K.V.Rajendran v. Superintendent of Police, CBCID, South Zone, Chennai (2013 KHC 4641)** and **Sudipta Lenka v. State of Odisha and Others (2014 KHC 4161)** . It was contended that exceptional circumstances have not been made out in the case at hand. It was further contended that the petitioner was chargesheeted after due investigation on the basis of the materials gathered, information given by the victims and counter checked through the version of other witnesses involved. 25. Ext.P1 is the agreement between the petitioner and his wife with M/s.APG Developers, for the purchase of the disputed land. It is also not in dispute that, a part of the consideration was paid in advance. Thereafter, the agreement did not take place and resulted in litigation evidenced by Exts.P5 and P6. Ext.P4 indicates that, the wife of the 4[th] respondent held 80% shares in M/s. APG Developers. The specific case of the petitioner herein is that, the 4[th] respondent pressurized and threatened him to assign the entire land for amount allegedly paid. The learned senior counsel for the fourth respondent relying on the decision reported in **Mrs.Bacha R.Guzgar v, Commissioner of Income Tax (AIR 1955 SC 74)** contended that being a shareholder, wife of fourth respondent had only a right to participate in the profit of the company. W.P.(C) No.19163/2015 18 26. That decision has no application to the facts of this case. Here the wife of 4[th] respondent was holding substantial share. The question involved herein is the role, if any, played by the fourth respondent in running of the affairs of the company. The report of the Superintendent of Police clearly shows that, there was a property transaction and there are some materials to indicate the active involvement of the 4[th] respondent in the land deal. Report of the Superintendent of Police, ADGP and the statement filed by the Chief Secretary, clearly show that the 4[th] respondent had played substantial role in the land transaction. Evidently, there are materials to show that the relationship between the petitioner herein and the 4[th] respondent was not co-ordinal, pursuant to the dispute regarding execution of the agreement. 27. The crucial question that next arises is whether even assuming that there was strained relationship between the petitioner and the 4[th] respondent, whether the 4[th] respondent had misused his official power to influence the investigation to wrongly implicate the petitioner herein in the array of accused. Admittedly, the 4[th] respondent was not in charge of the investigation of both the above mentioned crimes. There is nothing to show that the 4th respondent was at any point of time connected with the investigation of the said crimes. Hence, available material will have to be evaluated to ascertain whether there is any indication that the petitioner herein W.P.(C) No.19163/2015 19 was wrongly implicated at the instance of the 4[th] respondent. The petitioner herein heavily relied on Ext.P7 complaint dated 28/5/2011 submitted by the wife of the petitioner herein to the Chief Minister and the report of the Superintendent of Police as well as the ADGP to contend that there are sufficient materials to hold that the petitioner herein was wrongly implicated. 28. It is pertinent to note that,even though a copy of the representation dated 28/5/2011 purported to have been sent to the Chief Minister has been produced, there is absolutely nothing to show that it was ever sent. There is also nothing to show that it was ever received or acknowledged by the adressee or anybody in that office. The case diary produced also do not indicate any reference regarding the receipt of such a document. Hence, the very case of the petitioner herein that wife had sent the letter is not established. However, still on the basis of the submission made by the petitioner herein asserting that Ext.P7 was sent, I am inclined to proceed assuming that it was infact sent and to consider whether there are materials to show that even before the date of Ext.P7, whether the petitioner stood implicated in the above crime. In Ext.P7, the wife had specifically alleged that at that time, the 4[th] respondent was threatening to implicate the petitioner herein in criminal cases in Kerala. It can be presumed that the period of the alleged threat should be some time in the month of May 2011. W.P.(C) No.19163/2015 20 29. In this background, the genesis of the crimes have to be considered to ascertain whether the involvement of the petitioner herein was revealed even much earlier to May 2011to negative the claim of the petitioner that he was wrongly implicated. 30. It is seen that Crime No. 346/2011 was registered on 7/3/2011 at the Parur police station. The victim had gone to the police station and laid a complaint against her father alleging that he had taken her to various places from 3/5/2010 onwards and handed over her to several persons. They allegedly committed rape of her. On 7/3/2011 itself, the FIS was recorded by the SI of police, wherein the girl generally referred to her travel to various places, including Thiruvananthapuram. On 8/3/2011 the detailed statement of the victim was recorded by the CI of police. She had asserted that, she was taken to Trivandrum and from there to Parasala and was taken to the house of one Manikanta Swamy. The father of the victim was arrested on 8/3/2011. He confessed that he had taken her to various places. He admitted that the girl was handed over Manikanta Swamy of Parassala through one Achayan. He had also reiterated about the travel to Parasala in his subsequent statement dated 15/3/2011. It was asserted that, she was handed over to the petitioner herein through one Achayan. The said Manikanda Swamy is seen referred as Accused No.17 even in the application submitted before the Magistrate court, for issuing production warrant to accused No.15 dated 14/3/2011. W.P.(C) No.19163/2015 21 Achayan was arrested on 8/4/2011. He was questioned on 8/4/2011. He had admitted that he had taken the girl to Parasala. He was shown to victim, who identified him. She reiterated that Achayan had taken her to Parasala and handed over to Manikandan. The girl was taken in a Scorpio car. She spent two nights and one day at the guest house at Parasala. One Police officer also joined the company for ravishing the girl. Her section 164 Cr.P.C.statement was recorded on 29/3/2011. She has specifically referred to the involvement of the Manikandan in the incident. On 12/5/2011, investigation was entrusted to SIT of CBCID led by Superintendent of Police. Investigating officer identified the accused, the vehicle used for transportation and the guest house. Petitioner was arrested on 14/6/2011 and shown to the victim. She identified the accused. She identified the petitioner in TI parade also. 31. Crime No.549/2011 of Varapuzha police station was registered on 5/8/2011 under sections 3 and 4 of the ITP Act. The victim and two others were arrested on 4/8/2011 on an allegation that they were engaged in immoral trafficking in a house. The statement of the victim was recorded on 5/8/2011, wherein she revealed that she was forcibly taken from her house to various places, handed over to many people and ravished by several persons. She referred to among other incidents taking her to a guest house at Parasala where she was ravished. The detailed statement of the victim was later recorded wherein she referred to one Mani as a person who took her to guest W.P.(C) No.19163/2015 22 house at Parasala She was raped there for two days and thereafter taken to a stone quarry. She had referred to Mani with reference to physical features. This allegation was reiterated by her in her statement dated 18/8/2011. She stated that she was handed over to Mani through one Zacharia. The said Mani was arrayed as the 11[th] accused along with said Zacharia. The petitioner was formerly arrested while undergoing custody in crime No. 346/2011. He was taken to the police custody , shown to the victim and was identified as Mani. It was revealed that the sister of the victim and her husband, who were arrayed as accused Nos. 7 and 8, had entrusted the victim to one Joshy and Zacharia at Trivandrum., who in turn handed over the victim to Mani. 32. In section 164 Cr.P.C.statement of the victim dated 29/8/2011, she deposed that Zacharia and wife handed over her to one Manikanttan, who took her to Parasala guest house and returned on the next day. After few days, she was again taken to Parasala and raped. In her detailed statement dated 31/7/2013, she revealed that on the second occasion, the driver of Manikantan had also raped her. 33. The above materials show that both the North Parvur rape case and the Varapuzha rape case involving two different victims accidentally came to light and by a strange co-incidence both crimes were registered within a short span of time. There are materials to show that, in the North Paravur rape case, even from the very W.P.(C) No.19163/2015 23 beginning, that too, two months prior to Ext.P7 complaint submitted by the wife of the petitioner, the identity of the petitioner was referred by the victim with reasonable precision. The place where she was allegedly taken by the petitioner was also disclosed. It was confirmed through the other co-accused and the identity was confirmed. Investigation progressed and final reports were laid in both cases, on the basis of the materials gathered in the course of investigation. 34. Definitely, there are some materials referred above, which are not admissible in evidence. However, those materials were referred only for the limited purpose of verifying whether the investigating agency was proceeding on the basis of any material to assure that they were not implicating a wrong person, without any supporting materials. In the TI parade, the victim involved in North Parvur case had also identified the accused. Of course, the petitioner herein has a specific case that, TI parade was of no consequence, since even according to the prosecution, the accused was shown to the victim immediately after his arrest and identity confirmed. Even otherwise, the scope of TI parade is only to enable the investigating agency to assure itself that they were proceeding in the right track. For the limited purpose of considering the question of wrong implication alone, this material is re-evaluated. How far this may stand the test of trial is to be considered at the later stage. 35. The Superintendent of police and the ADGP(Intelligence) in W.P.(C) No.19163/2015 24 their reports have found that there was no direct evidence to indicate that the petitioner herein was wrongly implicated by the 4[th] respondent. The Superintendent of Police had reported that the allegation of wrong implication was baseless. ADGP in his report has also stated that, the allegation of the petitioner that he was falsely implicated by the 4[th] respondent is prima facie not established. However, the ADGP in his report had referred to certain alleged mistakes and defects in the investigation. It was stated that, in section 164 statement as well as in the remand report there were contradictions. TI parade was irregular since the accused was shown to the victim earlier. It was also stated that, initially the accused was referred to as one Manikanda Swami. Whether he is known as Swami and how his name was transformed into Manikandan and how the prosecution narrowed down to the petitioner were not explained. On the basis of the above materials, the ADGP had concluded that investigation of both the cases in which Manikantan was made accused needs to be scrutinized by a woman police officer led investigation team. 36. This court is not very much impressed by the above doubts set up by the ADGP regarding the contradictions Evidently, TI parade was only for the limited purpose of ascertaining the identity of the accused and also to receive assurance to the investigating agency that it was proceeding in the right track. It is also true that, even before W.P.(C) No.19163/2015 25 the TI parade, the accused was allegedly shown to the victim. As mentioned, even at the initial stage in Parvur case on 8/3/2011, the defacto complainant has referred to the alleged offender as Manikanta swami. The victim was taken to Parasala by the above person. The question whether he was known by Manikantan Swami also is a matter of evidence and to be explained by victim at trial. This also pales into insignificance, if she and other persons validly identify the petitioner as the offender. Whether there was contradiction in section 164 statement and the remand report is a matter to be tested against the cross examination of the witness. At this stage, enquiry by this court is limited to whether the petitioner herein has been wrongly implicated at the instance of the 4[th] respondent. 37. It was vehemently contended by the special prosecutor that investigation was conducted by the team of officers and it is impossible to believe that all the members of the team which included senior officers were influenced to conduct investigation against the petitioner herein . Further, it was pointed out that the petitioner herein has no case of bias, or prejudice against any of the team members. 38. Having considered the above facts, I am inclined to hold that the petitioner herein failed to prove that he was wrongly implicated by the 4[th] respondent. Of course, the disciplinary action against the 4[th] respondent for entering into financial dealing in the alleged breach of the conduct rules is the subject matter of the Government and to be W.P.(C) No.19163/2015 26 properly dealt with by the Government in accordance with law. Suffice to say that, there is no sufficient materials to conclude that the petitioner was wrongly implicated in the crimes by the 4[th] respondent. It is made clear that, there is no finding by this court touching on the merits of the case and the discussion above was only intended for the limited purpose of considering the merits of the limited allegation of wrong implication by the 4[th] respondent. Having considered the above facts, I find no merit in the writ petition. Accordingly, the writ petition is dismissed. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** W.P.(C) No.19163/2015 27 ## **APPENDIX OF WP(C) 19163/2015** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE AGREEMENT FOR SALE ON 23-11-2010 BETWEEN M/S.APG DEVELOPERS PVT.LTD AND PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE LETTER FROM THE BANK OF THE PETITIONER DT.22-6-2015.** **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF INCORPORATION AND MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION OF M/S.APG DEVELOPERS PVT.LTD. EXHIBIT P4 TRUE COPY OF THE ANNUAL RETURN AS ON 29-9-12. EXHIBIT P5 TRUE COPY OF THE PLAINT IN OS 45/2011 FILED BY THE M/S. APG DEVELOPERS PVT.LTD., BEFORE THE HON'BLE DISTRICT MUNSIFF COURT, KUZHITHURAI, NAGARKOVIL. EXHIBIT P6 TRUE COPY OF THE PLAINT IN OS 31/2014 IN THE FILE OF DISTRICT COURT, KANYAKUMARI. EXHIBIT P7 TRUE COPY OF THE COMPLAINT FILED BY THE WIFE OF THE PETITIONER ON 28-5-2011. EXHIBIT P8 TRUE COPY OF THE CRIME NO.346/11 OF NORTH PARAVUR POLICE STATION (CRIME NO.111/11 OF CBCID, HHW II EKM) EXHIBIT P9 TRUE COPY OF THE REMAND REPORT DT.14-62011. EXHIBIT P10 TRUE COPY OF THE TEST IDENTIFICATION PARADE REPORT DT.28-6-2011 BEFORE THE JFCM, PERUMBAVOOR. EXHIBIT P11 TRUE COPY OF THE FIR IN CR 549/2011 OF VARAPUZHA POLICE STATION. EXHIBIT P12 TRUE COPY OF THE CHARGE SHEET IN SC 244/15 ON THE FILE OF THE 2ND** W.P.(C) No.19163/2015 28 **ADDL.SESSIONS COURT, ERNAKULAM.** **EXHIBIT P13 TRUE COPY OF THE SPLIT CHARGE SHEET IN CP 11/15 IN CR.549/11 OF JFMC, PARUR III. EXHIBIT P14 TRUE COPY OF THE COMPLAINT SUBMITTED TO THE HON'BLE CHIEF MINISTER OF KERALA. EXHIBIT P15 TRUE COPY OF THE REQUEST SUBMITTED TO THE CHIEF MINISTER OF KERALA TO ENTRUST THE INVESTIGATION TO R3 CBI.** EXT.P16: COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN BA NO. 7320/2011 DATED 5/9/2011. EXT.17: COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 29/8/2011 IN BA NO. 6746/2011. EXT.P18: COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.M.A. NO. 2165/2014 IN B.A.NO.7320/2011 DATED 16/7/2014. EXT. P19: COPY OF THE ORDER OF THIS HON'BLE COURT IN CRL.M.A. NO.2158/2014 IN B.A. NO. 6746/2011 DATED 16/7/2014. EXT.P20. COPY OF THE PASSPORT ISSUED TO THE PETITIONER BY THE REGIONAL PASSPORT OFFICER, MADHURAI. EXT.P21: COPY OF THE REGISTRATION DETAILS ISSUED BY THE REGISTRAR OF COMPANIES AND BUSINESS SINGAPORE DATED 20/1/2018. EXT.P22: COPY OF THE REGISTRATION DETAILS ISSUED BY THE REGISTRAR OF COMPANIES AND BUSINESS, SINGAPORE DATED 19/9/2018. EXT.P23: COPY OF THE MULTIPLE VISA ISSUED TO THE PETITIONER. ## **RESPONDENTS EXHIBITS** : EXT.R4 (A): COPY OF THE FINAL REPORT IN FIR NO. 549 OF 2011 OF VARAPUZHA POLICE STATION. EXT.R4(B): COPY OF THE STATEMENT IN WP(C) NO. 1403/2013 FILED ON BEHALF OF THE 1ST RESPONDENT ALONG WITH ANNEXURE R-1(A) TO( C ) EXT.R4(C): COPY OF THE ORDER DATED 12/3/2014 IN WP(MD) NO. 7511/2013 OF THE HON'BLE MADURAI BENCH OF MADRAS HIGH COURT. EXT.R4(D): COPY OF THE JUDGMENT DATED 14/7/2015 IN WP(C) NO. 1403/2013 OF THIS HON'BLE COURT. EXT.R4(E): COPY OF THE PRINTOUT DOWLOADED FROM THE OFFICIAL WEBSITE OF THE W.P.(C) No.19163/2015 29 REGISTRAR OF COMPANIES, ERNAKULAM.