MANESH.M., S/O.V.A.MOHANAN v. THE STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933** **WP(C).No. 9133 of 2011(N)** **-------------------------------------** **PETITIONER:** - **-------------------** **MANESH.M., S/O.V.A.MOHANAN, `MITHILA', VELLOMKULAM PARAMBU, SOUMYA NAGAR, ALINCHUVADU, EDAPPALLY P.O., ERNAKULAM.** **BY ADVS. SRI.ANIL THOMAS, SMT.RASHMI.K.V.** **RESPONDENTS:** **------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **3. THE CBCID, COCHIN UNIT, ANCHUMANA ROAD, MAMANGALAM, ERNAKULAM.** **4. THE CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY ITS DIRECTOR, KATHRIKADAVU, ERNAKULAM.** **5. THE SUB INSPECTOR OF POLICE, PALARIVATTOM, JANAMYTHRY POLICE STATION, PALARIVATTOM.** **R1 TO R3 & R5 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA, R4 BY SRI. P.CHANDRASEKHARAN PILLAI.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.9133 of 2011 ==================================== Dated this the 06[th] day of April, 2011** ## **J U D G M E N T** Petitioner's father, V.A. Mohanan @ Midhila Mohan while in his house at Vennala on hearing a call from outside and knocking on the outer door of the house opened it to receive a few rounds of gun shots. His daughter-in-law who was in the house raised a hue and cry and those who gathered there took him to the hospital where he was declared dead. The local police on the information given by a neighbour registered Crime No.147 of 2006 under Sections 302 and 449 of the Indian Penal Code and started investigation. They conducted preliminary investigation such as preparing a mahazar for scene of occurrence, getting autopsy conducted on the body of the deceased, conducting inquest on 06.04.2006 and coming to the conclusion that death was due to the injuries suffered by the deceased. It is stated that one of the bullets was recovered from the body of the deceased for which Ext.P5, mahazar was drawn. Investigation did not proceed in the expected line, petitioner contends. At one stage the State Government handed over investigation to the CBCID. Still the **W.P(C) No.9133 of 2011** ## -: 2 :- position continued the same. While so, it is stated that in October, 2010 petitioner's paternal uncle's friend, one Kamal happened to meet one Martin at Dubai in a social gathering where the latter is said to have made a claim to the said Kamal that he could successfully execute a quotation work for assassination of Midhila Mohan (without learning that the listener is a close friend of a relative of the deceased). That information was passed on to the Investigating Officer but even then the Investigating Officer was not able to make a brake through. It is submitted that investigation is groping in dark and the Investigating Officers were not able to identify the culprits or give any clue regarding that. Learned counsel submitted that even the interrogation of Kamal and Martin appeared to have been done in a causal manner as revealed from the statement submitted by the Circle Inspector (CBCID) who is investigating the case. Learned counsel has taken exception to the statement made by the Investigating Officer in paragraph 5 of his statement as to the alleged activities of the deceased and the possibility of the deceased having enemies on account of such activities. Learned counsel submitted that the said allegations are made without any basis and only to help the real culprits. It is contended that the deceased was an Abkari Contractor and had given intimation to the appropriate authorities about persons engaged in illicit brewing of liquor ## **W.P(C) No.9133 of 2011** ## -: 3 :- which created enemies for him. In the circumstances it is requested that investigation may be handed over to the Central Bureau of Investigation (for short, “the CBI”). Learned counsel submitted that fair investigation is a fundamental right of the aggrieved person guaranteed under Article 21 of the Constitution and hence this Court is justified and rather, has to ensure that the said fundamental right of petitioner is protected and enforced. For the said purpose investigation by the CBI is required. Learned counsel has placed reliance on the decision in **State of West** ## **Bengal v. Committee for Protection of Democratic** **Rights** ([2010] 3 SCC 571) to contend under what circumstance investigation should be entrusted to the CBI. It is also contended that the State Government have not complied with the directions issued in **Prakash Singh v. Union of India** ([2006] 8 SCC 1). I have heard learned Public Prosecutor and the learned Standing Counsel for the CBI. Learned Public Prosecutor submitted that investigation is being continued by the Circle Inspector of the CBCID. It is pointed out that the said Officer has taken charge only recently and is investigating the matter further. It is also stated that so many witnesses including suspects were questioned but relevant information could not be collected. **W.P(C) No.9133 of 2011** -: 4 :- 2. Fact remains that in spite of the incident happening on 05.04.2006 and the materials on record indicating that it is a homicide (which is not very much in dispute) investigating agency could not trace the culprits whatever be the reason thereof. For some time, investigation was conducted by the local police and later it was taken over by the CBCID (Learned counsel has taken exceptions to the statements made by the Investigating Officer in paragraph 4 of his statement. I consider that it is not necessary to pronounce verdict on the correctness of the said statements in paragraph 4). It is true that more than 200 witnesses were questioned by the investigating team. Investigation also revealed that shots were fired from a .32 Revolver but the owner or holder of the Revolver could not be traced. It is stated that investigating team has taken all efforts to locate the accused (but without any success). The Deputy Superintendent of Police, CBCID had overtaken investigation of the case in the meantime. It is stated in paragraph 7 that Kamal and Martin (referred to by the petitioner) were also questioned. Martin denied making any such statement or getting involved in the incident. But he was not subjected to any scientific examination as the law permits, to ascertain whether the denial made by him is true or not. I think the Investigating Officer should not have been stopped by the statement of that person ## **W.P(C) No.9133 of 2011** ## -: 5 :- that he is not involved. Nor could the Investigating Officer has been satisfied of the truth of the statement given by the said person without further investigating and cross checking the matter. 3. I am not now burrowing into the reason for the investigating agency not being able to find out the culprits. I am at the question what is required to be done. It appears to me that the investigation has to be conducted by more experienced hands. 4. Next question is whether investigation has to be entrusted to the CBI. Learned Standing Counsel for the CBI repeated his contention as in so many other cases that the CBI is flooded with cases this Court having entrusted a large number of cases to be investigated, with dearth of officials. I have given my reply to that contention earlier - dearth of officials is no excuse and if it is so, it is for the CBI to take up the matter with the Government of India and make necessary amends. 5. As per the decision of the Supreme Court in **State of West Bengal v. Committee for Protection of** **Democratic Rights** (supra) if the case involves interstate ramification or when it is necessary to ensure confidence in the public as to the criminal justice delivery system of which investigation is also a part, it is within the power of High Court to ## **W.P(C) No.9133 of 2011** -: 6 :- entrust investigation to the CBI. Presently I am not inclined to think that there is any interstate ramification involved in this case. 6. Then the next question is whether to ensure confidence in the public investigation has to be entrusted to the CBI. The State Government has a still better agency, the Hurt and Homicide Wing (H&HW) which is headed by a Superintendent of Police and under the supervision of an Officer above the rank of the Superintendent of Police. Having regard to the circumstances placed before me and on hearing submissions of either side I consider it necessary and appropriate that further investigation is conducted by the Superintendent of Police, Hurt and Homicide Wing-II, Ernakulam to be supervised by his superior Officer in that Wing. This Writ Petition is disposed of in the following lines: It is directed that investigation of Crime No.147 of 2006 of Palarivattom Janamythry Police Station now being conducted by the CBCID shall be conducted by the Hurt and Homicide Wing-II, Ernakulam. Investigation shall be conducted by the Superintendent of Police of that Wing. It is open to him to constitute a team of Officials, if necessary including those who are presently investigating the case and investigate the case in all aspects. Needless to say that investigation will include all ## **W.P(C) No.9133 of 2011** ## -: 7 :- scientific tests as permitted by law. The investigation shall be supervised by the Police Officer superior to the Superintendent of Police and attached to the said Wing. The Additional Director General of Police, Crimes shall issue necessary directions in the matter within two weeks from the date of receipt of a copy of this judgment which shall be made available by the petitioner. If monitoring of the investigation is required, it is open to the petitioner to approach the learned Magistrate having jurisdiction over the area by producing a copy of this judgment with appropriate application. ## **THOMAS P. JOSEPH, JUDGE.** vsv