Muhammed Ashraf v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941** **WP(C).No.34959 of 2017** ## **PETITIONER:** **MUHAMMED ASHRAF, AGED 38, S/O. ABDUL RAHIMAN, KARUTHEDATHU PULIYANTHODI HOUSE, KARUKARA POST, PATTARKULAM, MANJERI, MALAPPURAM DISTRICT.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS:** - **1 STATE OF KERALA,** **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695 014.** - **3 THE DIRECTOR GENERAL OF POLICE (CRIMES), POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-676 306.** - **4 THE STATION HOUSE OFFICER TIRURANGADI POLICE STATION, TIRURANGADI P.O., MALAPPURAM DISTRICT-676 306.** - **5 THE ASSISTANT SUB INSPECTOR OF POLICE, TIRURANGADI POLICE STATION (INVESTIGATING OFFICER IN CRIME NO 92/2013 OF TIRURANGADI POLICE STATION) TIRURANGADI P.O, MALAPPURAM DISTRICT-676 306.** - **6 THE STATION HOUSE OFFICER NALLALAM POLICE STATION, NALLALAM P.O., KOZHIKODE DISTRICT-673 027.** W.P(C) No.34959/2017 2 **7 THE SUB INSPECTOR OF POLICE, NALLALAM POLICE STATION, (INVESTIGATING OFFICER IN CRIME NO.1017/2014 OF NALLALAM POLICE STATION, NALLALAM P.O, KOZHIKODE DISTRICT-673 027)** **ADDL.R8 KUMARAN K.K., S/O. LATE CHATHU K.K., AGED 71 YEARS, RESIDING AT KUMAR NIVAS, EDACHERRY NORTH (PO), EDACHERRY VIA, VADAKARA, PIN-673502.** **ADDL.R8 IS IMPLEADED AS PER ORDER DATED 8.12.17 IN I.A.19795/17 BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.K.SURESH** **BY SRI.SUMAN CHAKRAVARTHY SR. PUBLIC PROSECUTOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.34959/2017 3 ## **JUDGMENT** The order passed by the State Police Chief granting sanction to transfer three interlinked crimes to the CBCID for further investigation is under challenge in this Writ Petition filed under Article 226 of the Constitution of India. 2. The petitioner herein, Sri.Mohammed Ashraf, is the de facto complainant in Crime No.92 of 2013 and one of the accused in Crime Nos.405 of 2014 and 1017 of 2014. He has sought for various prayers, which include quashment of Exhibit-P15 order and to declare that the 2[nd] respondent has no power and jurisdiction to transfer the investigation of cases of which investigation has already been completed and cognizance has been taken of by the jurisdictional court. He has also sought for a direction to the respondent Nos.1 to 3 not to meddle with the investigation in Crime No.405 of 2015 of the Malampuzha Police Station. 3. It would be apposite to lay down the prefatory facts at the outset itself. The petitioner herein is working as a sweeper in the Moonniyoor HSS, Moonniyoor. One K.K.Aneesh, who is now no more, was a teacher in the Social Studies Department. An incident involving the petitioner and the aforesaid teacher took place at 12 noon on 5.2.2013. According to the petitioner, he was wrongfully restrained and was assaulted by Aneesh with a wooden plank causing W.P(C) No.34959/2017 4 injuries. On the basis of the information furnished by the petitioner, Crime No.92 of 2013 was registered at the Thirurangadi Police Station for offences, inter alia, under Sections 341, 323, 324, 294(b) and 506(i) of the IPC. After completion of investigation, final report was laid before the jurisdictional Magistrate and the case was taken cognizance of and was numbered as C.C.No.379 of 2013 on the file of the Judicial Magistrate of First Class, Parappanangadi. Immediately thereafter, Sri.Aneesh approached the learned Magistrate and filed a complaint against the petitioner alleging that he was wrongfully restrained and was beaten up. The said complaint was forwarded to the police under Section 156(3) of the Code and the Police, in turn, registered Crime No.148 of 2013 of the Thirurangadi Police Station, inter alia, under Sections 341, 323, 324, 294(b) and 506(i) of the IPC. On completion of the investigation, final report has been laid and the case is pending as CC No.674 of 2013 on the file of the Judicial Magistrate of the I Class, Parappanangadi. While so, on 1.9.2014, Sri. Aneesh K.K. took the extreme step and took his own life. Crime No.405 of 2014 was registered under Section 174 of the Cr.P.C. It appears that materials were received by the Investigating agency that the school management led by the acting manager had a role in instigating Sri.Aneesh to commit suicide. Report was submitted arraying Sri.Saithalavi and six others as the accused and they were alleged to have committed offences punishable under Sections 120B, W.P(C) No.34959/2017 5 ## 192, 193, 195, 211, 476, 306 r/w Section 34 of the IPC. After the unfortunate death of Aneesh, his father Sri.Kumaran, submitted a petition before the Commissioner of Police, Kozhikkode, alleging that the wound certificate issued by Dr. M.M. Koya, Koya’s Hospital, Kozhikkode, on the strength of which, Crime No. 92 of 2014 was registered, was forged and that the same was brought into existence to falsely implicate Aneesh. Based on the said complaint, Crime No.1017 of 2014 was registered under Sections 195, 197 and 468 of the IPC. In the course of investigation, Section 120B r/w. Section 34 of the IPC were incorporated. After investigation, final report was submitted and the case is now pending as SC No. 52 of 2018 on the file of the Additional Sessions Court, Kozhikkode. 4. Certain incidents took place in the meanwhile. Since Aneesh K.K. committed suicide on 1.9.2014, CC No.379 of 2013 pending on the files of the learned Magistrate, Parappanagadi was closed as abated. 5. Dr. Koya, who is the prime accused in SC No.52 of 2018 on the file of the Additional Sessions Judge, Kozhikode, expired and case against him also stood abated. 6. The father of Sri. Aneesh had, in the meanwhile, approached the Human Rights Commission and it appears that certain observations were made W.P(C) No.34959/2017 6 with regard to the authenticity of the medical reports. The same was forwarded to the District Police, who, in turn, passed an order directing that further investigation has to be conducted in CC No.379 of 2013 in which, Aneesh was the accused and CC No.674 of 2013 registered at the instance of Aneesh. However, it seems that the court did not grant permission to conduct further investigation in CC No.379 of 2013, as the case had already been closed as abated. 7. It was thereafter that Exhibit-P15 order was passed by the State Police Chief handing over the investigation of Crime No. 92 of 2013 of the Thirurangadi Police Station, Crime No.405 of 2014 of the Malampuzha Police Station, Crime No.1017 of 2014 of the Nallalam Police Station, to the CBCID and it was ordered that the DGP (Crimes), who is the 3[rd] respondent herein, shall take up the investigation. 8. According to the petitioner, Exhibit-P15 order passed by the State Police Chief is illegal and unsustainable. He contended the impugned order was passed without proper application of mind as it is passed on the strength of a note of the Private Secretary of the Chief Minister. He would further contend that the fact that the investigation in Crime No.92 of 2013 of the Tirurangadi Police Station and Crime No.1017 of 2014 of the Nallalam Police Station were completed and final reports have been laid was not considered while ordering W.P(C) No.34959/2017 7 further investigation. So also, the fact that the accused in Crime No.92 of 2013 had expired was not taken note of. According to the petitioner, passing of Exhibit-P15 order is a mala fide exercise and the same is liable to be quashed. 9. The Deputy Superintendent of Police, Crime Branch, has filed a statement on behalf of the 3[rd] respondent, wherein the sequence of events are detailed. It is stated that the cases have been registered in three separate districts and the incidents are so interconnected and overlapping that unless the same is investigated in a meticulous fashion by a Senior Officer, the actual truth will not be revealed. It is also stated that records reveal that Aneesh was implicated in a criminal case on the strength of forged medical records and traumatized by the same, he had committed suicide. Aneesh was also manhandled for which, a separate case is pending. According to the 3[rd] respondent, the administration, supervision, direction and control of the police through out the State is vested in the State Police Chief and he is well within the powers to issue an order in the nature of Exhibit-P15. 10. Heard Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioner, as instructed by Sri.P.Martin Jose, the learned counsel, Sri.Gopalakrishna Kurup, the learned Senior Counsel appearing for the additional 8[th] respondent, as instructed by Smt.Deepthi, and Sri.Suman Chakravarthy, the learned Senior Government Pleader. W.P(C) No.34959/2017 8 11. Sri.S.Sreekumar, the learned Senior Counsel, would submit with great persuasion that the mandate of Section 173(8) is that further investigation can be conducted only in those cases, wherein the officer in-charge of the police station obtains further evidence, either oral or documentary, and a report to that effect is forwarded to the learned Magistrate. In the case on hand, further investigation has been ordered by the State Police Chief without obtaining any further evidence, which order cannot be sustained. According to the learned Senior Counsel, Exhibit-P15 order if given effect to, would result in abuse of process. 12. The submissions of the learned Senior Counsel is strongly refuted by the respondents. The learned Senior Government Pleader would contend that the accused has no vested right to challenge the order of further investigation by the State Police Chief. He would also contend that Exhibit-P15 order was passed on the representation submitted by the additional 8[th] respondent after proper application of mind. He would refer to Section 36 of the Cr.P.C. and would argue that the State Police Chief is empowered to exercise the same powers as the officer in-charge of the police station, if such a course of action is required. 13. I have considered the submissions advanced and have perused the records. W.P(C) No.34959/2017 9 14. There cannot be any doubt that a common thread runs through the various crimes registered by the police. Two of the crimes have been registered at the Tirurangadi Police Station, two others at the Malampuzha Police Station and Nallalam Police station respectively. As rightly submitted by the learned Senior Government Pleader, to get to the truth of the matter, it would be very much advisable for all these cases to be investigated by the same agency or by the same team of officers. If the same is not done, there is every likelihood that certain aspects of one case, which had some implication in the other will be left out. For instance, though the case in which Aneesh is the accused has abated consequent to his death, it is in the said case that the prosecution alleges that false medical records issued by Dr.Koya were produced by the de facto complainant. Dr.Koya is, in fact, the accused in Crime No.1017 of 2014 of the Nallalam Police Station. The prosecution also has a case that Aneesh had committed suicide as he was falsely implicated in a crime. 15. The power of the police to conduct further investigation, after laying final report is recognized under Section 173 (8) of the Code. The said provision reads as follows: “Section 173. Report of the Police Officer on completion of investigation: - (1) every investigation under this chapter shall be completed without unnecessary delay. Xxxxxxxxxxxxxx W.P(C) No.34959/2017 10 (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).” 16. Thus, there cannot be any doubt that the power of the police to conduct further investigation after laying the final report is recognized under Section 173(8) of the Cr.P.C. Even after taking of cognizance of any offence on the strength of a Police report first submitted, it is open to the Police to conduct further investigation and file supplementary charge sheet on the basis of such further investigation. The only rider is that the approval of the court before which report was submitted earlier should be obtained. The question as to whether there exist sufficient and valid grounds for further investigation is entirely for the consideration of the investigating officer and the courts cannot give any direction restraining the investigating officer from conducting any further investigation. Ordinarily, the disclosure of some new material would be the circumstance which drives the investigating officer to approach the Court and seek permission for conducting a further investigation. However, those circumstances are enumerative and not exhaustive in character. If certain W.P(C) No.34959/2017 11 circumstances surface, which enable the officer to see the materials collected by him in a different perspective and if he feels that the conclusion arrived at by him earlier is not correct, he can certainly approach the Court and seek to further investigate the crime. The permission will have to be sought from the jurisdictional court before embarking upon the said venture. That is the additional safeguard provided. In that view of the matter, I am unable to accept the contention of the petitioner that the order passed by the State Police Chief is a mala fide exercise of power. 17. I am also not impressed with the contention of the learned Senior Counsel appearing for the petitioner that the State Police Chief is not empowered to order further investigation. This contention is advanced on the premise that Section 173 (8) only empowers the Officer in-charge of the police station to take up further investigation on his obtaining, further evidence. 18. To understand the powers of the State Police Chief, it would be apposite to refer to Section 36 of the Cr.P.C., which reads as follows: “36. Powers of superior officers of police:- Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.” 19. Section 18 of the Kerala Police Act, 2011 is in the following terms: W.P(C) No.34959/2017 12 “18. State Police Chief: The administration, supervision, direction and control of the Police throughout the State shall, subject to the control of the Government, be vested in an officer designated as the State Police Chief.” 20. In **State of Kerala v. P.B. Sourabhan and Others** [2016 (4) SCC 102], the Apex Court had occasion to consider the question, whether the State Police Chief/Director General of Police is empowered to appoint a superior police officer to investigate a crime case registered outside the territorial jurisdiction of such officer. The contention of the petitioner before this Court was that the order passed by the State Police Chief was in excess of the powers vested on him under Section 36 of the Cr.P.C. and Section 18 of the Kerala Police Act, 2011. The Apex Court in paragraph No.7 of the report had observed as follows: “7. Section 36 empowers police officers superior in rank to an officer in charge of a Police Station to exercise the same powers as that of an officer in charge of a police station insofar as the territorial/local area within the jurisdiction of such superior police officers is concerned. Section 18(1) of the State Police Act, on the other hand, vests the administration, supervision, direction and control of the police throughout the State in the State Police Chief. The power under Section 36, on a plain reading thereof, is to be exercised by the District Police Chief who, by virtue of the said section, is empowered to W.P(C) No.34959/2017 13 appoint an officer above the rank of an officer in charge of a police station to exercise the same powers as may be exercised by an officer in charge of the police station. This is, however, subject to the condition that such superior officer would be competent to exercise powers within the territorial/local limits of his jurisdiction. We do not see how Section 36 Cr.P.C, in any way, can debar the exercise of powers by the State Police Chief to appoint any superior officer who, in his opinion, would be competent and fit to investigate a particular case keeping in view the circumstances thereof. Section 36 Cr.P.C does not fetter the jurisdiction of the State Police Chief to pass such an order based on his satisfaction. It is the satisfaction of the State Police Chief, in the light of the facts of a given case, that would be determinative of the appointment to be made in which situation the limits of jurisdiction will not act as fetter or come in the way of exercise of such jurisdiction by the superior officer so appointed. Such an appointment would not be hedged by the limitations imposed by Section 36 Cr.P.C. Section 18 of the State Police Act, on the other hand, does not confer any such power and merely recognises the State Police Chief as the head of the police force in the State.” 21. In the case on hand, Crimes have been registered in three separate police stations. The allegations are closely interlinked as well. The provisions of the Cr.P.C. and the Police Act vest the administration, supervision, direction and control of the police throughout the State in the State Police Chief. If on the materials available, the superior police officer comes to a conclusion that it would be advisable to investigate all interlinked crimes by same agency and the W.P(C) No.34959/2017 14 same cannot be faulted with. Nothing would fetter the jurisdiction of the State Police Chief to pass an order in the nature of Exhibit-P15. In the case on hand, the Director General of Police (Crimes) has been ordered to take up investigation in all the cases immediately. I fail to understand as to how the accused would be prejudiced, if such a course is adopted. I am of the view that the petitioner has not made out any ground for interfering with Exhibit-P15 order. This Writ Petition will stand dismissed. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ W.P(C) No.34959/2017 15 ## **APPENDIX** - **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO 92/2013 OF TIRURANGADI POLICE STATION** - **EXHIBIT P2 TRUE COPY OF THE FINAL REPORT DATED 13-022013 IN CRIME NO 92/2013 OF TIRURANGADI POLICE STATION** - **EXHIBIT P2(A) TRUE COPY OF THE ORDER DATED 22-01-2015 IN CC 379/2013 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-1,PARAPPANAGADI** - **EXHIBIT P3 TRUE COPY OF THE PRIVATE COMPLAINAT DATED 26-02-2013** - **EXHIBIT P4 TRUE COPY OF THE FIR IN CRIME NO 148/2013 OF TIRURANGADI POLICE STATION** - **EXHIBIT P5 TRUE COPY OF THE FINAL REPORT DATED 03-052013 IN CRIME NO 148/2013 OF TIRURANGADI POLICE STATION** - **EXHIBIT P6 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO 405/2014 OF MALAMPUZHA POLICE STATION** - **EXHIBIT P7 TRUE COPY OF THE REPORT DATED 10-10-2014** - **EXHIBIT P8 TRUE COPY OF THE REPORT DATED 07-04-2015 OF INSPECTOR OF POLICE PATTAMBI** - **EXHIBIT P9 TRUE COPY OF THE REPORT SUBMITTED ON 12-052015 BEFORE THE LEARNED MAGISTRATE BY THE INVESTIGATING OFFICER** - **EXHIBIT P10 TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE CITY POLCIE COMMISSIONER, KOZHIKODE CITY** - **EXHIBIT P11 TRUE COPY OF THE FIR INC RIME NO 1017/2014 OF NALLALAM POLICE STATION** **EXHIBIT P12 TRUE COPY OF THE FINAL REPORT DATED 07-012016 AND SUBMITTED BEFORE THE COURT ON 1201-2016** W.P(C) No.34959/2017 16 **EXHIBIT P13 TRUE COPY OF THE NEWSPAPER REPORT, DATED 26-09-2014,IN MATHRUBHOOMI DAILY EXHIBIT P14 TRUE COPY OF THE NEWS REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 09-12-2014 EXHIBIT P15 TRUE COPY OF THE ORDER DATED 05-10-2017 OF THE 2ND RESPONDENT** ## **’ - RESPONDENTS EXHIBITS:** **R8(A):- TRUE COPY OF THE PETITION FILED BY THIS RESPONDENT DATED 2-10-2017 BEFORE THE CHIEF MINISTER OF KERALA.**