Prabulla Balakrishnan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941** ## **WP(C).No. 22112 of 2013** ## **PETITIONER/S:** ## **PRABULLA BALAKRISHNAN** **W/O LATE BALAKRISHNAN @ KUNDAR BALAN, POSOLIGE HOUSE, KUNDAR POST, KASARAGOD** **BY ADVS. SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.SAJU WAHAB SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **2 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI 110001** - **3 THE SECRETARY DEPARTMENT OF PERSONNEL AND TRAINING, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, NEW DELHI 110001** - **4 THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS DIRECTOR, NEW DELHI 110001** - **5 THE SUPERINTENDENT OF POLICE CBI/SPE, KATHRUKADAVU, KOCHI 682017** **BY ADVS. GOVERNMENT PLEADER SHRI.P.VIJAYAKUMAR, ASG OF INDIA ASSISTANT SOLICITOR GENERAL SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I. SMT.DIVYA S KUMAR** W.P.(C) No.22112/2013 2 **SMT.K.A.SANJEETHA ASSISTANT SOLICITOR GENERAL SRI.P.CHANDRASEKHARA PILLAI C.B.I. SRI. SASTHAMANGALAM S. AJITHKUMAR SPL.P.P. FOR C.B.I.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.22112/2013 3 ## **JUDGMENT** The petitioner is the wife of T.Balakrishnan @Kundar Balan, who was murdered on 27.3.2008 by a group of persons. Crime No.78 of 2008 of Adhur Police Station was registered inter alia under Section 341, 302 r/w Section 34 of the IPC on the same day itself arraying (1) Oby (2) Kumaran and (3) Jayakara as the accused. Investigation was taken over by the CI of Police, Adhur. The accused were arrested and on culmination of investigation, final report was laid before the Judicial Magistrate of the I Class Kasargode on 30.12.2008. However, in the final report, accused No 3, Jayakara who was named in the FIR, was deleted and in his place Vijayan, S/o. Kannappattali and Dileep Kumar, S/o. Yammoji Rao were arrayed as accused Nos. 2 and 4. The case was committed to the Court of Session and it was numbered as S.C.No.566 of 2010. 2. It is the case of the petitioner that the President of a local political unit lodged a complaint before the superior officer that the investigation conducted by the CI of Police was perfunctory in nature and left a lot to be desired as one of the assailants had been left out. An opinion was sought from the District Government Pleader. After perusing the records, he addressed a letter to the District Police Chief recommending further investigation. Orders were consequently W.P.(C) No.22112/2013 4 issued and Sri.Reghuraman, Dy.S.P. Crime Detachment, Kasaragode was ordered to take up further investigation. 3. The petitioner was however not satisfied. She submitted a representation before the Chief Minister of Kerala and requested that the investigation be made over to the Crime Branch. Her main grievance was that Jayakara, the 3[rd] accused in the FIR was left out by the investigating officer when the final report was laid. To redress her grievance, investigation was made over to the Crime Branch CID. The case was renumbered as CBCID Cr 392/CR HHW II KKD/13 and the investigation was taken over by Sri.K.V. Santhosh, Dy.S.P., CBCID, HHW IIII, Kannur Sub Unit. The said officer again questioned the eye witnesses, the first informant, the Doctor who attended to the deceased, and submitted a report before the Additional Director General of Police (Crimes), Thiruvananthapuram. However, even in the said report, Jayakara was not an accused. 4. Disgruntled by the failure of the Crime branch in bringing Jayakara into the array of the accused, the petitioner approached this Court and filed W.P.(C) No. 7469 of 2013 seeking a direction to hand over the investigation in the crime to the CBI. While the petition was pending consideration of this Court, the State Government issued Ext.P2 notification on 2.1.2013 according sanction to the members of the Delhi Special Police Establishment to exercise powers and W.P.(C) No.22112/2013 5 jurisdiction in the whole of the State of Kerala for investigating into the offences involved in Crime No.78 of 2008 of the Adhur Police Station. 5. The request of the State Government was considered by respondents 2 and 3. The respondent Nos. 2 and 3 were of the view that the case centered around dying declaration of the deceased and had no interstate ramification. The accused had already been identified and due to resource constraints faced by the CBI, it was not a fit case warranting investigation by the elite investigation agency. 6. Being aggrieved by the refusal of the respondents 2 and 3 in issuing a notification handing over the investigation in Crime No.78 of 2008 of the Adhur Police Station to the 4[th] respondent, this writ petition is filed. 7. I have heard Sri.S.Sreekumar, the learned Senior counsel appearing for the petitioner as instructed by Sri.Prijith, the learned counsel and also the learned Government Pleader. 8. The learned Senior counsel appearing for the petitioner submitted that under Article 226 of the Constitution of India, this Court, as the protector of civil liberties of the citizens have not only the power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by Part III of the Constitution in W.P.(C) No.22112/2013 6 general and Article 21 of the Constitution in particular. According to the learned Senior counsel, it was in view of the sensational nature of the case that the State Government had issued Ext.P2 notification according sanction to the 4[th] respondent to take up investigation in Crime No. 78 of 2008 of the Adhur Police Station. In that view of the matter, the respondents 2 and 3 ought to have issued a notification under Section 5 of the Delhi Special Police Establishment Act, 1946, and handed over the investigation to the CBI. The refusal on the part of the aforesaid respondents would infringe the rights of the petitioner preserved under the Constitution of India, contends the learned counsel. 9. The learned Government Pleader would contend that the incident had occurred in the year 2008 and after completion of investigation by the local police, final report was laid. Later, investigation was handed over to the CBCID and a senior officer had conducted the investigation. According to the learned Government Pleader, Jayakara was excluded based on the statements of the two eye witnesses and the other circumstances. The eye witnesses were present inside the car with the deceased and this fact was verified. It is further submitted that even in the 164 statements of the eye witnesses which were recorded, they had not mentioned about the presence of Jayakara. No purpose would be served by handing over W.P.(C) No.22112/2013 7 the investigation to the CBI at this stage is the submission. 10. Sri Sasthamangalam S. Ajith Kumar, the learned retainer counsel for the 4[th] respondent, would strenuously oppose the prayer. It is submitted that the Crime Branch after conducting a meticulous investigation had fixed the identity of the accused and had filed the final report. This is a case which is based on the direct evidence of eye witnesses. There are no circumstances warranting the handing over the investigation to the CBI, contends the learned counsel. 11. I have considered the submissions advanced by the counsel appearing for the parties and have gone through the materials. The solitary contention advanced by the learned counsel is that the respondents 2 and 3 are duty bound to issue a notification under Section 5 of the Act in view of Ext.P2 notification issued by the State Government. I find it difficult to accede to the said contention. While rejecting the request of the State, the respondent Nos. 2 and 3 took note of the fact that the case had no national or international ramification. The case rested on the evidence of two eye witnesses and the dying declaration of the deceased. The local police had conducted investigation and after submission of the final report, based on the request of the petitioner, the investigation was handed over to the CBCID. A senior officer had questioned the eye witnesses yet again and had also took steps to record their 164 statement. W.P.(C) No.22112/2013 8 From the statement filed by the investigating officer, it is evident that the eye witnesses did not speak about the presence of the accused who was left out. ## 12. In **State of West Bengal and Others v. Committee for Protection of Democratic Rights West Bengal and Others** [2010 (3) SCC 571], the Hon’ble Supreme Court had emphasized that even the superior courts, while exercising powers conferred under Article 226 of the Constitution to hand over the investigation to the CBI, must bear in mind certain self imposed restrictions. It was reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. It was pointed out that the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. 13. In this petition, the petitioner has not produced any W.P.(C) No.22112/2013 9 materials nor has she raised a contention that the investigation was wanting in any respect. The petitioner mainly relies on Ext.P5 legal opinion submitted by the District Public Prosecutor to the District Police Chief on 12.6.2012. Reference is also made to Ext.P6 letter issued by the District Police Chief to the State Police Chief on 26.7.2012 recommending investigation by a different agency other than the local police. It is much after submission of Exts.P5 and P6 that investigation was made over to the Crime Branch. I take note of the fact that the crime was registered in the year 2008 and supplementary final report was laid more than half a decade prior to this date. 14. Having anxiously considered all the relevant facts and in the light of the observations of the Apex Court, I am of the view that the order rejecting the request to hand over investigation to the CBI is unexceptionable and warrants no interference. This Writ Petition is liable to fail. I accordingly dismiss this petition. There will be no order as to costs. SD/- ps/10/4/19 ## **RAJA VIJAYARAGHAVAN V., JUDGE** //TRUE COPY// P.S. TO JUDGE W.P.(C) No.22112/2013 10 ## **APPENDIX OF WP(C) 22112/2013** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WPC(CRL) NO 7469 OF 2013 OF THIS HON'BLE COURT DATED 22-07-2013** **EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE NOTIFICATION DATED 02-01-2013 ISSUED BY THE IST RESPONDENT**