K.T. Michael v. A P Singh

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **THURSDAY, THE 19TH DAY OF DECEMBER 2013/28TH AGRAHAYANA, 1935** **Crl.Rev.Pet.No. 265 of 2013 () -------------------------------** **AGAINST THE JUDGMENT IN SC 1114/2011 of SPE/CBI COURT, TRIVANDRUM.** **REVISION PETITIONER(S)/REVN.PETITIONER/PETITIONER:** **--------------------------------------------------** **K.T. MICHAEL. IPS., S/O. THOMAS, KARIVELIL HOUSE, PARAMPUZHA P.O. KOTTAYAM-32.** **BY ADVS.SRI.BECHU KURIAN THOMAS SMT.NISHA JOHN** **RESPONDENTS/RESPONDENTS : -------------------------** **1. A P SINGH. IPS., DIRECTOR OF CBI, CENTRAL BUREAU OF INVESTIGATION, PLOT NO.5B, 6TH FLOOR, CGO COMPLEX, LODHI ROAD, NEW DELHI.** **2. V.K.REGHU KUMAR, SUPERINTENDENT OF POLICE, CBI, THIRUVANANTHAPURAM BRANCH, NANTHANCODE, THIRUVANANTHAPURAM-695 001.** **3. NANDAKUMAR NAIR, ADDL.SUPERINTENDENT OF POLICE, CBI (CHIEF INVESTIGATION OFFICER IN SR.ABHAYA MURDER CASE), THIRUVANANTHAPURAM BRANCH, NANTHANCODE, THIRUVANANTHAPURAM-695 001.** **R1-R3 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-12-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------Crl.R.P. No.265 of 2013 -----------------------------------------------------Dated this the 19[th] day of December, 2013** ## **ORDER** The revision petitioner is the petitioner in Crl. M.P. No.104/2012 in S.C.No.1114/2011 on the files of the Special Judge (SPE/CBI), Thiruvananthapuram. The above petition was filed under Sec.173(8) of the Code of Criminal Procedure seeking further investigation in the above Sessions Case. In the above Sessions Case, the Deputy Superintendent of Police, CBI/ACB, Kochi, has filed a charge sheet against the accused persons, three in numbers, alleging the commission of the offences punishable under Secs.302, 449, 201 read with Sec.34 of the Indian Penal Code. In the charge sheet, it is also stated that Sri. V.V. Augustine, the then Additional Sub Inspector of Police, Kottayam West Police Station, who **Crl.R.P. No.265 of 2013** -: 2 :- was the initial Investigating Officer of the case, had tampered with the evidence at the scene of crime; but he was found dead on 25/11/2008. Though he was liable to be prosecuted for the offence under Sec.201 of the IPC, he was not sent up for trial, as he was dead. 2. The prosecution case, in brief, is as follows: Sister Abhaya, a Nun of St. Pious X[th ] Convent, Kottayam, as well as a second year Pre-degree student of B.C.M. College, Kottayam, was found dead on 27/3/92 in the well in the convent premises and a case was registered as Crime No.187/92 of the West Police Station, Kottayam, under the caption “unnatural death”. Subsequently, the investigation was transferred to the CB CID, Kottayam, and a crime No.142/CR/92 of CB CID was registered for the same. On 30/1/93, Sri. K. Samuel, the then Deputy Superintendent of Police, CB CID, Kottayam, filed a final report before the Sub Divisional Magistrate, Kottayam, wherein he reported that the death of Sister Abhaya was a case of suicide by drowning and recommended for closing the file on that reason. **Crl.R.P. No.265 of 2013** -: 3 :- Subsequently, the case was transferred to the CBI on the request of the Government of Kerala. The Cochin Branch of CBI has re- registered the crime as RC 8/(S)/93/SPE/KER. The investigation of the case was entrusted with Sri. Varghese P. Thomas, the then Deputy Superintendent of Police, CBI of Cochin Unit. Subsequently, he opted voluntary retirement and the case was entrusted with his successor. After investigation, the CBI filed the final report before the then learned Chief Judicial Magistrate, Ernakulam, on 5/12/96 praying for closing of the case as 'untraced'. The then Chief Judicial Magistrate, Ernakulam, did not accept that final report of the CBI and by the order dated 20/3/97, the learned Chief Judicial Magistrate, Ernakulam, directed the CBI to conduct further investigation. After conducting the further investigation, again CBI filed a final report before the Chief Judicial Magistrate's Court Ernakulam, on 12/7/99 wherein it is stated that the cause of the death of Sister Abhaya was a homicide; but despite the best efforts of the CBI, the identity of the culprits could not be established and the State **Crl.R.P. No.265 of 2013** -: 4 :- Government was being addressed to take appropriate action against the police and other officials for the irregularities committed by them during the course of their investigation. In that final report, again the CBI prayed for closing the evidence as one being untraced. Then Chief Judicial Magistrate, Ernakulam, did not accept the final report filed by the CBI and by the order dated 23/6/2000, the learned Chief Judicial Magistrate directed the CBI to conduct further investigation. After conducting the investigation, the CBI filed the final report before the learned Chief Judicial Magistrate, Ernakulam, on 25/8/05 wherein it was stated that the involvement of any person in the death of Sister Abhaya could not be established and prayed for treating the case as closed as untraced. The then Chief Judicial Magistrate, Ernakulam, did not accept that final report by the order dated 21/8/06 and the learned Chief Judicial Magistrate directed the CBI to conduct further investigation again. After that order, the CBI has conducted further investigation again. Based on the evidence collected in that further **Crl.R.P. No.265 of 2013** -: 5 :- investigation, the Investigating Officer of CBI, arrested the three accused persons who has been arraigned as accused in the present charge sheet and produced them before the Chief Judicial Magistrate's Court, Ernakulam, on 19/11/08. The inclusion report for arraigning those three persons as A1 to A3 and the inclusion of Sec.302 read with Sec.34 of the IPC was filed before the court. The above said three accused persons were remanded to custody and later they were granted bail on conditions. After completing the investigation, the Deputy Superintendent of Police, CBI, Kochi, has filed the charge sheet before the learned CJM, Ernakulam, which was taken into file as C.P.No.2/09 and the case was committed to the Sessions Court, Ernakulam, and later made over to the CBI Court, Ernakulam. The case was numbered as S.C.No.442/09. Subsequently, the case was transferred to the Court of Special Judge (SPE/CBI), Trivandrum, and there, it is again re-numbered as S.C.No.1141/11. A1 to A3 were appeared before the court and filed objections for discharge. Thereafter, the petitioner **Crl.R.P. No.265 of 2013** -: 6 :- has filed the present petition for further investigation under Sec.173(8) of the Cr.P.C. 3. Now the police charge against the accused Nos.1 to 3 is that on 27/3/92 at 4.15 a.m., A1 to A3 were found in a suspicious circumstance at the cellar floor of the convent building by Abhaya and A1 to A3 thereon entertained a common intention to murder Abhaya in order to prevent her from telling the facts seen by her to others and in furtherance of that common intention, the accused inflicted fatal blow on the rear side and middle of the head of Sister Abhaya with a blunt object say “Kaikodali” to commit murder; whereupon Sister Abhaya fell down unconscious and in furtherance of their common intention to ensure that Sister Abhaya was dead and to dispose of the body from the scene of the crime, dumped the body into the compound well of the Convent Hostel resulting her to die due to drowning. 4. The averments in the petition filed by the petitioner under Sec.173(8) of the Cr.P.C., in brief, are as follows: The **Crl.R.P. No.265 of 2013** -: 7 :- petitioner was the then Superintendent of Police, CB CID, Kottayam, at the time of the death of Sister Abhaya, and the initial investigation was under his jurisdiction and power. Initially, the case was investigated by the local police, thereafter transferred to the CB CID. The petitioner had constituted a team headed by Sri. K. Samuel, Former Deputy Superintendent of Police, Kottayam. The petitioner was the supervising officer of the investigation conducted by Sri. K. Samuel. On 30/1/93, the CB CID had filed a report under Sec. 173(2) of the Cr.P.C. in the SDM's Court, Kottayam, stating that the death of Sister Abhaya was due to drowning. Thereafter, the investigation was transferred to the CBI and now charge sheet has been filed against the three persons - A1 to A3. The crux of the entire averments in the petition is that the petitioner has every reason to believe that the case properties in this case were destroyed as a part of conspiracy and collusion hatched among Sri.Varghese P. Thomas, Clerk Muralidharan of SDM's Court, Smt. Aleyamma, Senior Superintendent, SDM's Court, **Crl.R.P. No.265 of 2013** -: 8 :- Kottayam, and other interested parties best known to Sri. Varghese P. Thomas for satisfying their vested interest. Sri. Varghese P. Thomas, the then Deputy Superintendent of Police of Cochin Unit has undertaken the investigation on 29/3/93. He did not take any steps to collect the case properties even though he visited Kottayam and he had taken the statements of some of the witnesses and the statement of the father of the deceased Abhaya. Sri. Varghese P. Thomas had a duty to collect the case properties in the case which he had investigated. He had to obey the mandatory provision of the CBI Manuel that a person who starts the investigation is bound to collect the case properties as soon as he takes over the investigation and preserve it for arriving at the truth. The casual statement of Sri. Varghese P. Thomas that he was preoccupied in 'Hamsa murder' trial is quite unbelievable. The case properties were destroyed on 7/6/93. Though he had taken over the investigation on 29/3/93, he did not make a request either to call for the case properties or for preserve **Crl.R.P. No.265 of 2013** -: 9 :- the same in the SDM's Court in safe custody. Sri. Varghese P. Thomas questioned Thomas, Ikkarakunnel House, the father of the deceased Abhaya on 21/5/93. Sri. Varghese P. Thomas had occupied a room in the Police Club, Kottayam, which is hardly 200 Mtrs. away from the SDM's Court, Kottayam, but he did not visit the SDM's Court to examine the case properties. As per the general investigation procedure and CBI Manual, in particular, the first priority in such a case where circumstantial evidence alone is available, is to see that the case properties are preserved and kept in safe custody. After the destruction of the case properties, his conduct is very significant as he declared that the case properties in this case were destroyed by the Crime Branch. Even after knowing that the Crime Branch Officials had no role in the act of destruction, Sri. Varghese P. Thomas with malicious intention, continued his false propaganda through media that the case properties were destroyed by the Crime Branch police. He himself has written articles in Mathrubhoomi Daily, Mangalam Daily, Madhyamam Daily **Crl.R.P. No.265 of 2013** -: 10 :- etc., which are evident from Exts.P1 to P3. 5. The nature of the case properties destroyed untimely assumes much significance, in view of the present charge against A1 to A3. It is evident from K-DIS file No.2580/92 that the said case properties were re-deposited by Sri. K. Samuel on 6/7/92, after questioning the witnesses. Among the case properties destroyed in this case, the most crucial and important are the white veil alleged to be worn by the deceased at the time of her death and her personal diary. If the death of the deceased was due to violence, as alleged by the CBI, the wearing apparel, particularly, the veil should have contained blood stains. In order to fabricate a case of murder, its destruction was most essential, particularly, in a case of such nature where there are no eye witnesses and the entire case would depend upon the circumstantial evidence alone and the personal diary was also necessary because the personal diary was the only record containing her hand writing available for the investigating agency for comparison of her hand writing. It is a fact that the case **Crl.R.P. No.265 of 2013** -: 11 :- properties in this case were destroyed as per file No.K-DIS2580/92 initiated by a Clerk Sri. Muralidharan, Sub Divisional Magistrate's Court and approved by the Senior Superintendent Smt. Aleyamma and as per the unwritten orders of the then Sub Divisional Magistrate Sri. S.G.K. Kishore, IAS. It is very curious to find that the case properties in a sensational case like this was destroyed at a time when a letter dated 15/2/93 submitted by Mr. Thomas, Ikkarakunnel House, father of Sister Abhaya was pending consideration in the same court seeking intervention in the matter of the mysterious death of his daughter Sister Abhaya. This reveals the knowledge of the L.D. Clerk and the Superintendent regarding the pendency of the case. This circumstance shows the meeting of the minds of Sri. Muralidharan, Smt. Aleyamma, Sri. Varghese P. Thomas prior to the destruction of the case properties. Sri. Varghese P. Thomas was the Investigating Officer during the relevant time whose act of culpable omission is due to conspiracy with the above mentioned persons. The acts of Sri. Varghese **Crl.R.P. No.265 of 2013** -: 12 :- P. Thomas, Sril. K.N. Muralidharan, Smt. Aleyamma and Sri. Kishore, the then Sub Divisional Magistrate, SDM's Court, Kottayam, are the offences punishable under Secs.120B, 201 and 166 read with Sec.34 of the Indian Penal Code and they are to be proceeded against and punished according to law in S.C.No.1114/11. 6. The CBI filed a reply stating as follows: This case remained clueless for a long period, more than 1 ½ decade. Now the final report has been filed against the three accused persons - Fr. Thomas Kottoor (A1), Fr. Jose Poothirikayil (A2) and Sister Sephy (A3) and it is revealed scientifically with the oral and documentary evidence that the death of Sister Abhaya at St. Pious X[th] Convent Hostel was a murder caused by A1 to A3. 7. Thus, the evidence on record clearly established that Sister Abhaya, who woke up on the fateful day i.e., on 27/3/92 at about 4 p.m. descended down the stairs of the hostel and proceeded to the kitchen area to fetch water from the fridge. At that time, all the three of them were found in **Crl.R.P. No.265 of 2013** -: 13 :- suspicious circumstance, on seeing her, they entertained a common intention to murder Sister Abhaya in order to prevent her telling the facts seen by her to others and in furtherance of the said common intention, they inflicted injuries on the rear side and middle of her head with hard blunt object say “Kaikodali” knowing that the same was sufficient to cause death, whereupon Abhaya fell down unconsciouses, and thereafter they lifted the body through the kitchen door and dumped in the well in the compound resulting her to die due to drowning and thus the accused persons have committed the offence of murder. From the examination of the inmates of the convent, independent witnesses, the documentary evidence, circumstantial evidence and scientific evidence collected during investigation, it is established that A1, A2 and A3 had committed the murder of Sister Abhaya in pursuance of the common intention among themselves and thereby committed criminal offences punishable under Secs.302, 201 and 449 read with Sec.34 of the IPC. **Crl.R.P. No.265 of 2013** -: 14 :- 8. The petitioner was the first police officer who was informed of the incidents of 26-3-92/27-3-92 at the St. Pious X[th ] Convent Hostel, Kottayam. The investigation has also revealed that the inquest report of the dead body of Sister Abhaya was fabricated by Sri. V. V. Augustine, the then Assistant Sub Inspector of Police. The petitioner was requested to give 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. So, none of the forensic tests could be done and thereby the CBI could not extract the experiential knowledge of the petitioner. 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. 9. This case has been transferred from the local police on 12/4/92 to the CB CID, Kottayam of Kerala Police. The investigation revealed that the case properties consist of five personal clothing recovered from the person of the deceased **Crl.R.P. No.265 of 2013** -: 15 :- Sister Abhaya during inquest and the three items viz., one plastic bottle, one pair of lady chappals and one white veil recovered from the place of occurrence by the local police and the same were subsequently produced in the court of Sub Divisional Magistrate, Kottayam. Though these articles were taken back for investigation by the CB CID, Kottayam, they were re-deposited in the said court on 6/7/92. A final report under Sec.174 of the Cr.P.C. was filed before the Sub Divisional Magistrate, Kottayam, on 30/1/93 by Sri. K. Samuel, the then Deputy Superintendent of Police, CB CID, Kottayam, stating that the death of Sister Abhaya was a case of suicide by drowning. The case property was ordered to be destroyed vide the order dated 7/6/93 of Sri. S.G.K. Kishore, the then Sub Divisional Magistrate, Kottayam, as the closure report was accepted in the normal course by the SDM, Kottayam, and thereby the case properties recovered from the scene of crime on 27/3/92 got destroyed, when the case was under investigation by the CBI from 29/3/93. Investigation by the CBI did not unearth any evidence **Crl.R.P. No.265 of 2013** -: 16 :- against any officials of the Court of Sub Divisional Magistrate, Kottayam, in the destruction of case properties or their complicity with any accused in this case. The averments that Sri. Varghese P. Thomas, the then Deputy Superintendent of Police, CBI, Cochin, had conspired with Sri. K.N. Muralidharan and Smt. Aleyamma, both of the were working in the same Office of the Sub Divisional Magistrate, Kottayam, during March 1993, to June 1993 which resulted in the destruction of the case properties seized from the scene of occurrence and deposited by the petitioner before the SDM, Kottayam, are false and baseless. That these case properties were intentionally got destroyed so as to fabricate a case of murder and to forge and fabricate the evidence by the CBI is a wild imagination of the petitioner. The CBI has thoroughly investigated the destruction of the evidence in this case and has recorded the statements of Sri. Varghese P. Thomas, the then Deputy Superintendent of Police on 14/3/99 and 26/12/88, Sri. S.G.K. Kishore, IAS, the former SDM, Kottayam, on 1/7/97 and 21/12/88, Sri. K.N. **Crl.R.P. No.265 of 2013** -: 17 :- Muralidharan, the then LDC, Office of the Sub Divisional Magistrate, Kottayam, on 1/7/97, 19/6/07 and 9/12/08 and Smt. T.M. Aleyamma, former Senior Superintendent of Office of the Sub Divisional Magistrate, Kottayam, on 2/7/97. The detailed investigation could not unearth any motives/ intention/dishonest reasons or on the part of any of the above persons as now falsely alleged by the petitioner, after a span of 19 years. The allegation against Sri. Varghese P. Thomas that he failed to collect the case properties from the SDM's Court, Kottayam, in violation of the CBI Manuel intentionally and with ulterior motive is incorrect. There was also no request made by the petitioner or Sri. K. Samuel to the Sub Divisional Magistrate, Kottayam, for retention and safe custody of the case properties in the final report under Sec.174 of the Cr.P.C. Therefore, after following the existing protocol, the officials of the Court of the Sub Divisional Magistrate, Kottayam, destroyed the same, since the closure report was accepted on 7/6/93. When the case properties were destroyed, the case was under investigation by the CBI **Crl.R.P. No.265 of 2013** -: 18 :- from 29/3/93. No notice was issued to Sri. Varghese P. Thomas from the Court of the SDM, Kottayam, and therefore no motive can be attributed on him that he conspired with the officials of the Sub Divisional Magistrate, Kottayam. Neither the petitioner nor Sri. K. Samuel who had filed the closure report, as stated above, too had made any request to the SDM, Kottayam, to prevent the disposal of the case properties when it was in their knowledge that the case was transferred to the CBI for investigation. The statements of Sri. Varghese V. Thomas, former Deputy Superintendent of Police, CBI, Cochin, Sri. K.N. Murlidharan and Smt. Aleyamma would reveal that none of them had committed any act which was mala fide and criminal in nature, as alleged by the petitioner; nor had they any complicity with any accused persons. The allegations against them are all baseless and false. The final report filed by the CBI will reveal the extensive investigation made in this case, and hence it is baseless to allege that the investigation of the CBI was incorrect and further investigation is required. The **Crl.R.P. No.265 of 2013** -: 19 :- allegations levelled by the petitioner against Sri. Varghese P. Thomas, former Deputy Superintendent of Police, CBI, Cochin, Sri. K.N. Muralidharan and Smt. Aleyamma are all baseless and false and made to mislead the Court in order to delay the trial against the accused in this sensitive and sensational case. 10. Sri. Bechu Kurian Thomas, the learned counsel for the petitioner advanced arguments highlighting the circumstances under which the further investigation is necessarily required and warranted. The crux of the arguments advanced by the learned counsel for the petitioner is that strong suspicious circumstances are surrounding around the destruction of the case properties of this murder case. But the court below without considering the core of the issue, dismissed the petition with an observation that the petition is filed after a long delay and that too filed by an earlier police officer who had supervised the investigation at the early stage of investigation and these two aspects are sufficient to impute lack of bona fides **Crl.R.P. No.265 of 2013** -: 20 :- on the part of the petitioner. The court below failed to note that admittedly at the time when the CBI took over the investigation, the case properties were available with the SDM's Court, Kottayam. It is fundamental that when new investigation agency takes over the investigation, every case property and document will be taken over by them. More importantly, para-18 of Chapter X of the CBI Manual specifically mandates the CBI Investigators to collect the evidence or materials collected during the investigation by the State Police or any other Law Enforcement Agency. The learned counsel for the petitioner drew my attention to para18 of Chapter X of the CBI Manual. If it was a murder as alleged now, by hitting with a weapon on the head and back, the white veil of the Nun and her dress would have thrown light upon it.” Thus, the most crucial evidence was destroyed by the CBI in furtherance of the conspiracy and unless detailed probe is conducted into the said aspect, a fair and proper trial would not be possible. But the learned Judge miserably failed to link the relevancy of the case properties **Crl.R.P. No.265 of 2013** -: 21 :- so as to connect the cause of death. The learned Judge miserably failed to note the fact that the case properties were destroyed in a hasty manner when the District Manual Rule 63 mandates retention of the case properties for a period of three years. The destruction of evidence attains a serious magnitude when such an act is done in total disregard of practice and procedures and the learned counsel further invited my attention to the statements given by Sri. S.G.K. Kishore, Sri. Muralidharan, Sri. Varghese P. Thomas and Smt. Aleyamma. Their statements are contradictory and mutually destructive. At the same time, the statement of S.G.K. Kishore, then S.D.M. indicates that his abovesaid subordinate officers had destroyed the case properties, before getting his permission, and the file was sent to him after destruction for approval. Similarly, another connected file containing the petition filed by Joseph, the father of Sister Abhaya and his further statement informing transfer of the case to CBI was not brought to his notice, when the file, seeking approval for the destruction of the case properties, **Crl.R.P. No.265 of 2013** -: 22 :- was put up before him. In view of the statements, he further submits that the Investigating Officer has put crucial questions so as to unearth the details of the conspiracy. But such statements in answer to those questions were not evaluated and nothing stated in the final report about these statements or the findings at which the Investigating Officer had arrived at, on the basis of these statements. The contradictions in the statements of Sri.Muralidharan, Smt. Aleyamma and Sri.S.G.K. Kishore are sufficient to disclose the conspiracy hatched in the office of the SDM's Court. There are strong suspicious circumstances pointing towards the guilt of Muralidharan and Aleyamma in causing destruction of the case properties to make disappaearane of evidence. 11. Per contra, Sri. P. Chandrasekharan Pillai, the learned Standing Counsel for the CBI advanced arguments to justify the impugned order under challenge. The learned Standing Counsel for the CBI submits that the CBI has questioned all the four officers and recorded their **Crl.R.P. No.265 of 2013** -: 23 :- statements. The properties produced before the SDM's Court, Kottayam, were destroyed as per the order of the SDM dated 7/6/93. The detailed investigation could not unearth any motive, intention or dishonesty on the part of any of the said persons as now falsely alleged by the petitioner, that too after a long span of 19 years. The CBI had thoroughly investigated about the destruction of the evidence in this case and there are no suspicious circumstances surrounding the statements given by the officers worked in the office of the SDM's Court. There is no bona fides in the petition; whereas the further investigation is motivated by ill-will and malice, which are being nurtured by the petitioner towards Sri. Varghese P. Thomas who has allegedly made certain imputation against the petitioner through media. Thus, the petition was filed vindictively to wreak personal vengeance. 12. I have bestowed my anxious considerations to the arguments advanced by Sri. Bechu Kurian Thomas, the learned counsel for the revision petitioner and Sri. P. **Crl.R.P. No.265 of 2013** -: 24 :- Chandrasekharan Pillai, the learned Standing Counsel for the respondents/CBI. In view of the rival contentions, the question that emerges for the decision in this revision petition are: (i) Whether there is any suspicious circumstance surrounding destruction of the case properties, which necessarily requires a further investigation under Sec.173(8) of the Cr.P.C.? (ii) Has the Investigating Officer made a proper and fair investigation to find out whether there had been any willful destruction of the case properties with an intention, to cause disappearance of evidence or of screening the offenders from legal punishment, by the public servants in the Office of the S.D.M., Kottayam, or Investigating Officers or anybody else dealt with the case properties? The case properties collected, deposited and destroyed in this case are of great importance. First of all, let us examine **Crl.R.P. No.265 of 2013** -: 25 :- the case properties: (1) One nightie of yellow colour having black printed flowers on it with the length of 1.20 cms. (2) One shirt of white colour. (3) One brazier of white colour. (4) One underskirt of white colour (length 81 cms.) (5) One underwear (NIT-India) length 80 cms. of blur colour. (6) White veil (one) - (7) Plastic ladies' chappel (one pair of light yellow colour) (8) Plastic bottle one. Going by the Case Diary, it could be seen that the then Investigating Officer had examined Sri. Varghese P. Thomas, the former Investigating Officer of the CBI, Cochin Unit; Sri.S.G.K. Kishore, the Sub Divisional Magistrate, Smt. Aleyamma, the then Senior Superintendent and Sri. **Crl.R.P. No.265 of 2013** -: 26 :- Muralidharan, the Clerk in the Office of the S.D.M., Kottayam. Let us examine their statements to find out any suspicious circumstances surrounding the destruction of the case properties. 13. Mr. Varghese P. Thomas had given statement stating that he had taken over the investigation on 29/3/93 and collected records on 28/3/93. But he has not given any intimation to S.D.M. requesting to keep the case properties in tact and he has not received any notice from the Court of S.D.M. seeking his views about destruction of the case property. As an Investigating Officer, he had investigated Abhaya's case from 29/3/93 to 7/1/94. He had visited the scene of crime at Pious X[th] Convent on 20/5/93. He had come to know about the destruction of the case property by the S.D.M.'s Court, Kottayam, subsequently. However, he didn't raise any objection in this regard. Regarding his failure to collect the case property after taking over investigation during the period from 29/3/93 till 7/6/93, he had stated that he had not written or approached for **Crl.R.P. No.265 of 2013** -: 27 :- collection of the case properties of Abhaya's case, either to the in-charge of the Kottayam West Police Station or to the S.D.M., Kottayam, and the reason for the same was that he was constantly busy during that period in the day-to-day trial of Hamsa murder case. 14. Sri. S.G.K. Kishore, IAS, was examined twice. Firstly on 1/7/97 and secondly on 21/12/08. Firstly, he was examined and the statements were taken by Sri. Surinder Paul, the Deputy Superintendent of Police, CBI SIC.II, New Delhi, and secondly by Sri. Premkumar, the Superintendent of Police, CBI, ACB, Thiruvananthapuram. In the statement given on 1/7/97, he stated that he joined IAS in the year 1989 as Probationary Officer and joined as the Sub Division Magistrate, Kottayam, in the District Collectorate at the end of May, 1992. He was enjoying the powers of the Executive Magistrate at that time. In the case of unnatural death, all the case records as well as the case properties relating to the case were submitted before the Senior Superintendent in the Office of the Sub Divisional Magistrate for taking **Crl.R.P. No.265 of 2013** -: 28 :- necessary action in the matter on behalf of the SDM. The then Senior Superintendent used to verify the case records/case property received in the Office of the SDM during the year 1992-93, when he was posted in Kottayam. All proceedings with the investigating agency, in the case of unnatural death, during the course of investigation, were being handled by the Senior Superintendent assisted by other clerical staff on behalf of the SDM. In case, where a final report is received from the police mentioning that the case is of a suicide, and no further investigation or enquiry are required, after a lapse of five to six months, the orders would be generally sought from the Office by the Senior Superintendent for disposing of all the articles. He further stated that the letter written by Sri. Thomas, Ikkarakunnel House, the father of Sister Abhaya, dated 15/2/93 was received in the Office of the SDM on 16/2/93. The same was put up to him as file No.1148/93/D by the then Clerk Sri. Muralidharan. Sri. Muralidharan gave the details of the petition in the note sheet to the Superintendent of his office **Crl.R.P. No.265 of 2013** -: 29 :- on 5/3/93. The Senior Superintendent of his office had seen the file on 6/3/93 and sought for his instruction in this matter. The aforesaid file brought to the notice of the SDM by Sri. Muralidharan, the Clerk, and he, in turn, directed him to issue notice to the concerned party i.e., Sri. Thomas to appear before him. On receipt of the notice, Mr. Thomas, appeared before him on 16/4/93 and submitted that no further action is required since the case had been transferred to the CBI for further investigation in the matter. When the final report in the FIR No.187/92 dated 30/1/93 filed by the Deputy Superintendent of Police, Crime Branch, Kottayam, was shown to him, he stated that in this regard the concerned Clerk viz., Sri. Muralidharan had brought up the final report with the following note before me: “Ref.- Final Report in Crime No.187/92 dt.3/1/93 Dy.Sp. of Police, Crime Branch, Kottayam. Please see the Final Report. In the Final Report it is stated that the death is due to suicide by drowning and further inquiry is not **Crl.R.P. No.265 of 2013** -: 30 :- necessary. Articles kept in the office are not worthy. Hence, the Articles kept in the office are destroyed and file may be closed as K-Dis. File put-up for orders”. It is seen that on 7/6/93 when the file was put up before Sri. S.G.K. Kishore, the case properties were already destroyed and he sought for the approval of the SDM. The file came before him through his Senior Superintendent as a routine matter and after looking into the approval of the Senior Superintendent, he also approved the closure of the file. Further, he clarified that the final report dated 30/1/93 filed by the Deputy Superintendent of Police, Crime Branch, along with the case properties put up to him for the first time on 7/6/93, that too after the destruction of the case properties, seeking for approval and closure of the file. The Clerk and the Senior Superintendent have also brought out in the note sheet that the articles of the said case kept in the office are destroyed. He clarified that since the action major was already completed by the subordinate staff, his approval was **Crl.R.P. No.265 of 2013** -: 31 :- only a formal one. When sought for his comment on the delay in putting up the said file before him, that too after the destruction of the case properties and also as to why he did not ask for the explanation, he answered that since none of the papers were put up to him which are available at pages 1 to 84 in Case No. 187/92, except page Nos.23 and 24, there was no point, at the time of seeking orders for disposal of the articles on 7/6/93. The facts relating to the existence of Miscellaneous Petition File No.1148/93/D filed by Sri. Thomas, Ikkarakunnel House, was not brought to the notice of the S.D.M., as well as nothing brought to his notice that the related file in which there was a mention that the case has been transferred to the CBI. Hence as a routine matter, as per the practice followed in these cases, he granted approval for disposal of the file. He further stated that it is clearly seen that there was no information from the police or any request that the case has been handed over to the CBI and the case properties are to be retained. If such request would have been received, the case properties would have **Crl.R.P. No.265 of 2013** -: 32 :- been preserved. In short, nothing pertaining to this case was brought up to his notice, except the miscellaneous petition which was registered in a separate file and that was properly dealt with by him as per the procedure. According to him, he was not aware of the existence of any unclaimed case articles related to this case till the file was put up on 7/6/93 and the file was disposed of as per the practice followed in the SDM's office, Kottayam. At the end of the statement, he added that he was a Probationary IAS Officer from Andhra Pradesh and he was not conversant with the language thoroughly at that time. So, it was the duty of the Office Superintendent to bring to his notice any peculiar feature or special feature of the case in noting whenever put up to him. Hence in this case nothing special was pointed out to him by the Senior Superintendent and hence this was treated as a routine unnatural death and orders were issued as per the practice. As he was a junior Probationary Officer, he was dealt with more than 100 files every day also. Hence it would be highly unrealistic for him to remember **Crl.R.P. No.265 of 2013** -: 33 :- that there was a miscellaneous petition filed by Sri. Thomas, Ikkarakunnel House, in which hearing was conducted and directing his staff to put up that file along with this file. The existence of any related file should have been brought to the notice of the SDM by the concerned Clerk or subordinate which have not been done by his subordinates in this case. He has passed the approval for closure as a routine manner as per the practice and there was no specific or special interest in this case. 15. Smt. T.M. Aleyamma was working as Superintendent of the Office of the Sub Divisional Magistrate from June 1992 to 26/3/1995. She said that, during her posting in the said office, she had seen that case properties in the case of unnatural death used to be destroyed after seeking necessary approval of the SDM. The case property used to be destroyed by the concerned clerk of the 'D' Section with the help of some Class-IV employees. When she was asked to comment to the question as to, why the final report in this case was submitted by her on 7/6/93, though the same had **Crl.R.P. No.265 of 2013** -: 34 :- been received in the office on 3/2/93, she stated that there was no hard and fast rule for putting the final report, and this is not the only case in which orders have been sought at a belated stage. A letter dated 15/2/93 sent by the father of Abhaya requesting for action was seen brought to the notice of the SDM on 5/3/93 only. When she was asked to comment, she stated that Muralidharan, who was dealing with the case did not bring the file to her notice. In response to the letter of Thomas, he was called for hearing and heard on 16/4/93. At that time, he informed that further action was not required as the case was transferred to the CBI. The fact that the case was referred to the CBI, came to the knowledge of the office on 16/4/93. When she was asked to comment why didn't restrain herself from disposal of the case property, keeping in view of the transfer for the case to the CBI, she reported that, had Muralidharan, the Clerk, disclosed the fact of transfer of investigation to the CBI, in his note, for securing approval for disposal, she would never have advised for disposal of the property. **Crl.R.P. No.265 of 2013** -: 35 :- 16. There was two proceedings relating to Abhaya's murder case in the Office of the SDM. The file relating to letter dated 15/2/93 of Thomas and its closure on the basis of his statement that the case was transferred to the CBI, was not docketed in the main file, when the main file was put up for approval of the SDM. When she was asked to comment, she stated that there was no practice in her office for, docketing each and every paper through the note sheet of the respective cases. To a query, she herself admitted that the file does not contain any order passed by the SDM Sri.S.G.K. Kishore on the final report and he has not passed any order for closure of the case. 17. It is the admitted case of the prosecution, that the case properties were submitted by the local police on 6/4/92 and after the transfer of investigation to the CB CID, the case properties were received back as per letter dated 18/4/92 of the Deputy Superintendent of Police, CB CID and after investigation by the CB CID, again re-submitted as per the petition dated 6/7/92 of Mr. K. Samuel, the then Dy. S.P. **Crl.R.P. No.265 of 2013** -: 36 :- But when she was again examined in continuation of her earlier statement, on 2/7/97, she admitted that there was nothing on record to suggest that the records and the case properties, which were handed over to the CB CID, were ever received back in the S.D.M.'s Office. 18. She admitted that the retention period of the case properties is three years from the date of commencement of the file. In the instant case the file was raised on 6/4/92 and each file as well as the case properties should have been destroyed on or after 5/4/95 and not before that. But in this case, file as well as the case properties were destroyed earlier. To a query, she commented that it was due to over sight. In 2007, on being asked, she stated that the case properties and file had to be retained for three years from the date of closure. She came to know the destruction of the property in the instant case, when the CBI came with a request for the case properties in the year 1994. When she gave direction to issue the case properties, Muralidharan came to her and informed that the case properties have **Crl.R.P. No.265 of 2013** -: 37 :- already been destroyed. 19. Mr. K.N. Muralidharan, Clerk in the Office of the S.D.M. during the relevant time had given statement that his duties include receipt and despatch of the case properties of unclaimed/unnatural death. There was one Register maintained in his office, in which he used to enter the details of case properties received in a particular case from the police and which is called Register of Unclaimed articles in a case of unnatural death. The case properties used to be destroyed after 5 to 6 months. They had been maintaining separate files for each case in this regard. At first, case property was received in his office on 01/04/92 from Mr. V.V. Augustine, A.S.I., Kottayam West Police Station, and the case properties consist of 8 items as per the list of properties. He admitted that he verified the 8 items of properties, received by the Senior Superintendent and he also identified his signature and signature of Aleyamma. 20. He further stated that on application dated 18/4/92 the case properties had been returned to the Dy. S.P., **Crl.R.P. No.265 of 2013** -: 38 :- Mr. Samuel for investigation by CB CID. Application dated 6/7/92 shows the intimation regarding return of the case properties. Again, he admitted that Senior Superintendent had handed over the aforesaid 8 items returned by the CB CID; but he didn't enter the return of these items in the Register. 21. In his statement, he himself admitted that the connected file relating to the petition filed by Thomas, the father of Abhaya seeking detailed investigation was being dealt with him and monitored by him. That file was closed on the statement of Thomas on 16/4/93 on hearing his petition and he informed that the case was transferred to CBI and no further action was required by the S.D.M. But even after that, he initiated proceedings for the destruction of the case materials. He admitted that the case properties were destroyed and thereafter the file was sent to the S.D.M. on 7/6/93 for his approval. In the file seeking approval for destruction of the case properties, he made a note “death is due to suicide by drowning and further inquiry is not **Crl.R.P. No.265 of 2013** -: 39 :- necessary. Articles kept in the office are not worthy. Hence articles kept in the office are destroyed and file may be closed as 'K-Dis'.” 22. On an analysis of the statements referred above, the following points which would arise from the statements require application of mind and further investigation thereon by the Investigating Officer: (1) Mr. S.G.K. Kishore, the then Sub Divisional Magistrate, in his statement stated that his subordinate officers had destructed the case properties before getting his permission and the file was sent to him on 7/6/93 only for his approval, after destruction of the case properties. (2) There was another connected file, containing petition submitted by Mr.Thomas, the father of Abhaya, seeking further enquiry and action and also his further submission at the time of hearing on the above petition on 16/4/93 that further action is not required since the investigation has been transferred to CBI for investigation. But this file was not **Crl.R.P. No.265 of 2013** -: 40 :- brought to the notice of the S.D.M. when the file seeking approval for the destruction of the case properties put up before him. His statement that when the file was put up for closure, it was not possible for him to recollect the nature of this case, since hundreds of files were dealt with by S.D.M. in a day. He further added that he was a Probationary IAS Officer from Andhra Pradesh and he was not conversant with the language thoroughly at that time. So, it was the duty of the Office Superintendent to bring his notice any peculiar feature or special feature of the case in noting whenever put up to him. In this case, nothing special was pointed out to him by the Senior Superintendent and hence this was treated as a routine unnatural death and orders were issued as per the practice. Was there any willful suppression or omission to bring the connected file to the notice of the S.D.M.? (3) Mr. S.G.K. Kishore, the S.D.M., further stated that final report dated 30/1/93 filed by the Deputy Superintendent of Police, Crime Branch put up to him for the first time on **Crl.R.P. No.265 of 2013** -: 41 :- 7/6/93, that too after destruction of the case properties. He further stated, since the action major was already completed by the subordinate staff, his approval was a formal one only. (4) The facts relating to existence of the Miscellaneous Petition file No.1148/93/D filed by Mr. Thomas, the father of Abhaya, was not brought to his notice, in which there was a mention that the case has been transferred to the CBI. (5) When Aleyamma was asked to comment as to why didn't she restrain herself from disposal of case property, keeping in view of the transfer of the case to CBI, she reported that had Muralidharan, the Clerk disclosed the fact of transfer of investigation to CBI, she would never have advised for disposal of the properties. (6) To a query, she herself admitted that the file does not contain any order passed by the SDM, S.G.K. Kishore on the final report for closure, and S.D.M. has not passed any order **Crl.R.P. No.265 of 2013** -: 42 :- for closure of the case. (7) Initially, the case properties were submitted by the local police before the S.D.M. on 6/4/92. But, on transferring of the investigation to CB CID, the case properties were received back by the CB CID by letter dated 18/4/92 and after investigation, CB CID resubmitted the same; but Aleyamma admitted that there is nothing on record to suggest that those case properties were ever received back in the Office of the S.D.M. (8) Mr. Samuel, then Dy. S.P., the Investigating Officer of the CB CID stated that he obtained the case properties from the S.D.M.,'s Court on 18/4/92 and redeposited the same on 6/7/92 through Mr. K. Sankaran, a Head Constable; but Mr.K. Sankaran flatly denied this. According to him, he had never gone to the S.D.M.'s Court with the properties. Though, this point had been brought to the notice of the Investigating Officer by the order dated 23/6/2000 passed by the then C.J.M., even now the said point stands unexplained. (9) On being asked, Aleyamma stated that the case properties and file had to be retained for three years from the date of closure; but she came to know of the **Crl.R.P. No.265 of 2013** -: 43 :- destruction of the properties in the instant case when CBI came with a request for the case properties in the year 1994. When she gave direction to issue the case properties, Muralidharan came to her and informed that the case properties have already been destroyed. (10) Sri. K.N. Muralidharan, the Clerk, who dealt with the case properties, in his statement, admitted that his duties include receipt and despatch of case properties of unnatural death and he used to make entries in the Register in this respect. But in Abhaya's case, after transferring the case to CB CID, Dy. S.P. Samuel received back 8 items of properties for investigation and thereafter, he re-submitted the same on 6/7/92. But he didn't enter it in the aforesaid Register and there was a laxity on his part. In addition to 8 items, one personal diary of Abhaya, was also deposited by Samuel on 6/7/92 in his office and the entry with respect to that personal diary was made as Sl.No.60 on 30/7/92. Was it a mere casual omission? **Crl.R.P. No.265 of 2013** -: 44 :- (11) Mr. Muralidharan admitted that the final report under Sec.173 Cr.P.C. for closure of the case was received in his office on 3/2/93; but doesn't know as to whether this final report was submitted to S.G.K. Kishore. He does not know whether any order has been passed by the S.D.M. either accepting or rejecting the same. The connected file relating the petition filed by Thomas, the father of Abhaya, was being monitored by Clerk Muralidharan and he was well aware of the fact that the case was transferred to the CBI, from the statement of Thomas on 16/4/93. But in his statement he admitted that after destroying the case properties, he sent the file for approval of the destruction of the material to S.D.M. on 7/6/93. When he was confronted with this situation, he replied, it was a slip of mind and he put up the file as verbally suggested by the Senior Superintendent. (12) When Muralidharan was asked to comment on his noting in the file seeking approval of the destruction of the case properties i.e., “articles kept in the office are destroyed and file may be closed as 'K-Dis.', **Crl.R.P. No.265 of 2013** -: 45 :- he answered, it is a grammatical mistake in my note that instead of writing the fact that the articles kept in the office may be destroyed, he stated that the case properties kept in th office are destroyed.” Factually, it was destructed on 7/6/93. Did the Investigating Officer make any further investigation on his explanation? (13) In the earlier order dated 23/6/2000 refusing to accept the final report and directing further investigation, then learned C.J.M. had observed that a detailed investigation regarding the destruction of the property involved in this case has to be done and reason for destruction is to be found out. But despite the specific direction, in the third final report dated 25/8/2005 the Investigating Officer without mentioning any reason or circumstance made a mere observation that usual and general practice which was being adopted in unnatural death cases was followed and properties were destroyed accordingly. But that report was also rejected by order dated 21/8/2006 on the reason that the prayer to treat as closed and **Crl.R.P. No.265 of 2013** -: 46 :- ## untraced was not acceptable. (14) In the order refusing to accept the third report, then C.J.M. observed that Investigating Officer failed to understand the real intention of the court and conducted a formal investigation with respect to all directions given by the court. CBI has not gone to the matters referred in the order. The last final report was filed on 17/7/2009. In that final report also the Investigating Officer has failed to make any finding as to the alleged destruction of the case property after transferring the investigation to the CBI, even though in between the order rejecting the third final report and order accepting the fourth final report, in the year 2008, the CBI has taken further statements of S.G.K. Kishore, Aleyamma, K.N. Muralidharan and Varghese P. Thomas. But those statements were left omitted as such, without making any reference as to that issue. (15) In the last final report, on which the court took cognizance of the offence against A1 to A3, simply it is observed that the case **Crl.R.P. No.265 of 2013** -: 47 :- properties recovered from the scene of occurrence on 27/3/92 got destroyed in the S.D.M.'s Court, when the case was under investigation by C.B.I. from 29/3/93. It appears that the Investigating Officer has not applied his mind over the statements of S.G.K. Kishore, Aleyamma, K.N. Muralidharan and of Varghese P. Thomas so far. Otherwise, the Investigating Officer would have arrived at any findings in response to the direction of the then C.J.M. in the order dated 23/6/2000. (16) Despite the repeated further investigations by the CBI thrice, the question whether there had been any willful destruction of the case properties by the public servants in the office of the S.D.M. or the then Investigating Officers or anybody else dealt with the case properties, still remains in obscurity. I have no hesitation to conclude that there was no proper and fair investigation to this question, except the recording of the statements of some persons who were dealt with the case properties. (17) Whether the lapses and laches or **Crl.R.P. No.265 of 2013** -: 48 :- negligence culminated in the premature destruction of the case property were the result of a loose and erroneous practice and procedures which were being followed in the Office of the S.D.M. since the last so many years. (18) Was the premature destruction of the case property, a routine burial, without noticing the special significance of Abhaya's case? 23. Unfortunately, 'Abhaya's case', which hit the head lines of media and struck the minds of the people of Kerala, having a chequered history of more than two decades, has again come up for consideration of this Court, that too on a challenge again against the final report. It was so happened that a final report acceptable to the satisfaction of the court was filed only after consecutive rejection of final reports thrice and further investigations ordered thereon by the successive C.J.Ms. Though the first final report was filed by the local police in the year 1992, the last final report **Crl.R.P. No.265 of 2013** -: 49 :- acceptable to the court was filed in the year 2009 only. In such a situation, any further investigation may certainly cause further delay to the commencement of trial. Is a further investigation desirable or justifiable in a belated stage? Can the accused be added further in a belated stage after a further investigation? These are the disturbing issues loom large in the mind of this Court at first. But this Court is justified by the decision of the Division Bench of this Court in Prabhavathiamma v. State of Kerala (2007 (4) KLT 601). The relevant portion of the above decision resolving the above issues is quoted below: “14. The next question is whether further investigation can be ordered during trial. It was argued that it will cause undue delay. In Om Prakash Narang and another v. State (Delhi Admn.) (AIR 1979 SC 1791), it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if **Crl.R.P. No.265 of 2013** -: 50 :- circumstances so permits. It would ordinarily be desirable and all the more so in this case, that police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law notwithstanding the fact that trial was started. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. The above decision is being followed for the last quarter of century by the courts in India. The above decision was followed recently by the Apex Court in Hasanbhai Valibhai Qureshi v. State of **Crl.R.P. No.265 of 2013** -: 51 :- Gujarat and ors. (2004 AIR SCW 2063). 15. The next question to be considered is the power of the court to add further persons as accused under S.319 of Cr. P.C. We have already seen that even after court takes cognizance and trial started, police can conduct further investigation under S.173 (8) and even court can order the same again to conduct further investigation by directing the police to use power under S.173(8). As a result of further investigation, if necessary, further accused can be arrayed as parties or additional charges can be framed. But, the newly arrayed accused should be given full opportunity to meet the charges against them and if necessary witnesses already examined can be recalled by exercising power of S.217 of Cr. P.C. Apart from the above, court has got power to add any person as accused after trial started on contingencies made under S.319 of the Code of Criminal Procedure”. 24. Further, the Supreme Court in the decision reported in Sakiri Vasu v. State of U.P. (2008 (2) KHC 13 = 2008 (1) **Crl.R.P. No.265 of 2013** -: 52 :- KLT 724 (SC) = AIR 2008 SC 907) held that: “When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts.........The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice”. 25. Again, this Court considered the requirement of a further investigation in Joseph and Another v. Antony @ Antu **Crl.R.P. No.265 of 2013** -: 53 :- and Others (2012 (2) KHC 420) and held as follows: “41. A proper and effective investigation is the bedrock of criminal justice. When the court finds that relevant facts are not investigated into and brought on record and hence, it cannot even presume from the facts disclosed in the records produced by prosecution existence of an important ingredient of the alleged offence, it shall ensure that a proper and effective investigation is conducted into the relevant aspects and those are brought on record by issuing appropriate direction. 42. An accused can be convicted or acquitted only after a fair trial. A trial will be fair only if the court is fair to both sides, the victim and the accused, equally. When the court finds that relevant facts are not investigated into, it must exercise its power under S.156(3) of the Code and take all steps necessary for ensuring a proper investigation at the earliest stage itself and direct proper investigation. If the investigation is perfunctory or ineffective, it **Crl.R.P. No.265 of 2013** -: 54 :- is the duty of the court to direct further investigation, in accordance with law. 43. The victim, State and the Society deserve such a fair treatment from court, even if investigator fails to extent such fairness to them. A fair trial can be ensured only if effort is taken to bring in all relevant facts relating to the offence by a meaningful and complete investigation. If this does not happen, the court must see that it happens”. 26. The aforementioned circumstances are suspicious circumstances which require application of mind and conclusion thereon by the Investigating Officer. But needless to say the same is conspicuously absent in spite of specific observations made by successive Chief Judicial Magistrates, who consecutively refused to accept the earlier final reports thrice. In short, suspicious circumstances require further assurances to arrive at a conclusion either positively or negatively. It is to be borne in mind of the Investigating Officer that no innocent shall be prosecuted; similarly, no guilty man shall be allowed to escape from the clutches of **Crl.R.P. No.265 of 2013** -: 55 :- the prosecution. Investigation is a process exclusively within the domain of Investigating Officer alone and at this stage, no court can fix the accused person merely on a reading of Sec.161 statements, without further assurance and the same is possible by a further investigation alone. But certainly court can point out suspicious circumstance which requires application of mind of the Investigating Officer and calls for further investigation, that is what I propose to do. 27. It is also to be borne in mind of the Investigating Officer that public servants in discharge of their official duties, commit several mistakes or wrongs. They may commit wrongs due to ignorance of law or procedures and carelessness or negligence. But, at the same time, some may commit wrongful act with willful dishonest criminal intent and ulterior motives which constitute an offence punishable under law. But it is for the Investigating Officer to read the mind of such culprits and unearth commission of offence, if any. The aim or goal of investigation is two fold: **Crl.R.P. No.265 of 2013** -: 56 :- (1) to obtain evidence definitely connecting the perpetrators with a crime; and (2) to clear innocent suspects with a minimum of trauma. Various provisions under Chapter XII of the Cr.P.C. confer free and independent power of investigation to the Investigating Officer. Now, they are equipped with modern scientific methods also. 28. In State of Bihar and another v. Sh. P.P. Sharma and another (1991 (2) Crimes 113), the Supreme Court has held: “13. The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice of criminal trial rests - an error in its chain of investigation may result in miscarriage of justice and the prosecution entails with acquittal. The duty of the investigating officer, therefore is to ascertain facts, to extract truth from half-truth or grabled version, connecting the chain of events. Investigation is a tardy and tedious process. **Crl.R.P. No.265 of 2013** -: 57 :- Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive forces. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hard-work and attention to the details, ability to sort out through mountainous information, recognised **Crl.R.P. No.265 of 2013** -: 58 :- behavioural patterns and above all, to coordinate the efforts of different people associated with various elements of the crime and the case, are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation. 14. From this perspective, the function of the judiciary in the course of investigation by the police should be complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, viz., the proof of the commission of the crime.” 29. The further investigation as to destruction of the case properties would stand as a 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 as to the points raised above without disturbing the present final report. The petition seeking further investigation is also absolutely **Crl.R.P. No.265 of 2013** -: 59 :- 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 toA3 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.120B 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 principle accused and they also have any role either directly or indirectly, certainly a joint trial of all the accused in a single trial will be inevitable for a successful prosecution. In short, though the compartments are separate, it must be pulled by one and **Crl.R.P. No.265 of 2013** -: 60 :- the same engine to the trial for a proper and successful prosecution. 31. Going by the impugned order, I find that the learned Sessions Judge has failed to consider the crucial question whether there is any circumstance warranting further investigation. I am not satisfied with the reasonings of the learned Special Judge, for denying a further investigation. So, I set aside the impugned order. In the light of the above discussions, for the reasons aforementioned, I am inclined to allow C.M.P.No.104/2012 and I do so. The Investigating Officer is directed to make a further investigation in S.C.No.1114/2011 on the files of the Special Judge (SPE/CBI), Thiruvananthapuram, as to whether there had been any willful destruction of the case properties with an intention to cause disappearance of evidence or screening the offender from legal punishment by the public servants in the Office of the S.D.M., Kottayam, or Investigating Officers or anybody else dealt with the case properties. 32. What is ordered in this order is a further **Crl.R.P. No.265 of 2013** -: 61 :- investigation only and not a fresh/de novo investigation or a re-investigation. The further investigation shall not disturb the last final report and the further report to be filed after further investigation must be a supplementary report only. The difference between the further investigation, fresh/de novo investigation and re-investigation is well distinguished by the Apex Court in Vinay Thyagi v. Irshad Ali ((2013) 5 SCC 762), the relevant portion of th above judgment reads as follows: “22. “Further investigation” is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of Section 173(8). This power is vested with the executive. It is the continuation of previous investigation and, therefore, is understood and described as “further investigation”. The scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary **Crl.R.P. No.265 of 2013** -: 62 :- investigation. It is commonly described as “supplementary report”. “Supplementary report” would be correct expression as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency. This is a kind of continuation of the previous investigation. The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it has to be understood in complete contradiction to a “reinvestigation”, “fresh” or “de novo” investigation”. 33. The court below is directed to return the final report and the documents which the Investigating Officer requires for further investigation on the aspects specifically directed to be investigated. The Investigating Officer is directed to make further investigation on the above aspects and file **Crl.R.P. No.265 of 2013** -: 63 :- further report before the trial court within a period of three months from today and it is made clear that such report shall form as a supplementary report only. Needless to say, the trial will stand postponed till the filing of the further report. This revision petition is allowed in the above terms. Sd/- ## **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge