Sobhanakumary v. State of Kerala, Director General of Police, Superintendent of Police, Crime Branch CID, and Central Bureau of Investigation (CBI)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH FEBRUARY 2011 / 25TH MAGHA 1932 WP(C).No. 26139 of 2010(Q) -------------------------CRIME NO.CBCID/CR/162/CR/TVPM/08 (CRIME NO.327/2007 OF THIRUVALLAM POLICE STATION) PETITIONER(S): --------------- SOBHANAKUMARY, AGED 54 YEARS, W/O.D.ARJUNAN, SONY NIVAS, PARUTHIKUZHY, KAMALESWARAM, MANACAUD P.O., TRIVANDRUM, PIN 695 009. BY ADV. SRI.THOMAS M.JACOB RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM, PIN -695 010. 3. SUPERINTENDENT OF POLICE, CRIME BRANCH, CID, TRIVANDRUM, PIN 695 003. 4. THE CENTRAL BUREAU OF INVESTIGATION - (CBI), CBI HEAD QUARTERS, NEW DELHI, PIN 110 001, REPRESENTED BY ITS DIRECTOR. GOVERNMENT PLEADER SHRI K.J.MOHAMMED ANZAR FOR R1 TO R3 ADV. SHRI P.CHANDRASEKHARA PILLAI, SC FOR CBI - FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.26139 of 2010 -------------------------------------Dated this the 14[th] day of February, 2011.** ## **JUDGMENT** Petitioner's son, Sonylal, a bachelor aged about 26 years died under suspicious circumstances on October 26, 2007. The Thiruvallom Police registered Crime No.327 of 2007 initially for 'man missing' as if the deceased was swept away by water current while taking bath in Karamana river. Investigation of the case was subsequently conducted by the CBCID. According to the petitioner, even investigation by that expert wing did not yield result as it was not proper and all suspicious circumstances surrounding the death were not explored by the CBCID. Hence this petition requesting to entrust investigation of the case to the Central Bureau of Investigation (for short, “the CBI”). 2. As directed by this Court the Deputy Superintendent of Police, H&HW, Crime Branch, Thiruvananthapuram has submitted a statement detailing investigation conducted so far and the result it has yielded. In answer to that petitioner has filed a reply affidavit meeting the reply of the Investigating Officer. I have heard learned counsel for petitioner and the learned Public Prosecutor. 3. The question that I am required to consider is whether investigation has to be handed over to the CBI as prayed for by the petitioner in the light of the decision of the Supreme Court in **State of West Bengal v.** **Committee for Protection of Democratic Rights (2010 (1) KLT** **WP(C) No.26139/2010** 2 **723)** where is has been held that though it is within the power of the High Court to order investigation by CBI even in the absence of a consent to that effect by the State Government, that extra-ordinary power has to be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. The Supreme Court has also pointed out that otherwise the CBI would be flooded with a large number of cases and with limited resources it may find it difficult to properly investigate even serious cases and in the process, lose its credibility and purpose with unsatisfactory investigations. 4. It is not in dispute that son of the petitioner had an unnatural death on 26.10.2007 and in connection with that the Thiruvallam Police registered Crime No.327 of 2007. Learned counsel for petitioner has submitted that petitioner who hails from poor status of the society, was not even capable of engaging a lawyer and hence the counsel has been engaged by the High Court Legal Services Committee to present the petition on behalf of petitioner. Learned counsel pointed out several circumstances which according to the petitioner are suspicious and which are not explored by the Investigating Officer. Suspicious circumstances pointed out are that though it is the avowed case of the Investigating Agency that the petitioner's son and friends (two suspected persons) had taken drinks (some time before going to the river) in a workshop **WP(C) No.26139/2010** 3 five kilometres away from the place of occurrence, neither the postmortem examination conducted within 24 hours of the death nor chemical examination of viscera on the next day gave any indication as to the presence of alcohol in the stomach/intestine of the deceased. Learned counsel contended that though according to the prosecution the two suspects had made every effort to save the deceased (it is alleged that the deceased was not an expert in swimming), they quietly went away from the scene without informing the incident to anybody in the locality. They were seen by the relatives of the deceased at about 6 p.m. that day when alone they stated that the deceased was found missing after getting into the river. Thereafter relatives of the deceased came to the scene of occurrence but, nothing suspicious could be found there to show that the deceased or any of the suspects had taken liquor at the scene of occurrence. It is pointed out that on the evening of the day of occurrence a lady residing nearby had heard a scream that “do not kill me” but later she became silent, according to the petitioner at the instance of the suspects. It is submitted that the said lady was either not questioned or not effectively questioned by the Investigating Agency. There was no proper polygraph test of the suspects and it would appear that certain irrelevant questions were put to them to suite their convenience. Learned counsel has attacked the opinion given by the expert that there could be no trace of liquor in the stomach or intestine. Learned counsel brought to my attention the relevant portion of the text 'Essential of Forensic Medicine and Toxicology' to contend that in temperate climate postmortem **WP(C) No.26139/2010** 4 blood alcohol determinations are completely valid for 36 hours after death (in the present case postmortem was within 24 hours of death) and false blood alcohol levels in excess of 0.1 mg.% may be produced if autopsy blood samples are stored at room temperature for more than a week. Reference is also made to the observation in the same text that alcohol diffuses (after death) through the intact stomach wall into the surrounding blood and tissues including pericardial fluid and pleural fluid and as such, higher blood levels are found than what actually existed during life if blood samples are taken from parts into which postmortem diffusion has taken place. No appreciable loss of alcohol from body or blood takes place by evaporation or any other means after death and the longer the interval after death and the higher the temperature, the more is produced. Alcohol produced by advanced putrefaction may be as high as 0.2%. 5. Learned Public Prosecutor has invited my attention to the statement filed by the Investigating Officer. The CD file has also been given to me for perusal. In the statement of the Deputy Superintendent of Police it is stated that as per the chemical analysis report diatoms were detected in bone marrow and it was identical to the sample of water given by the Investigating Officer and taken from the river where dead body was found. It is stated that combined perusal of the postmortem certificate and report of chemical examination unambiguously established that death was due to drowning. The Investigating Officer had taken the statement of the Medical Officer who conducted autopsy. After receipt of chemical analysis report the Medical Officer **WP(C) No.26139/2010** 5 opined that the blunt injury noted on the neck of the deceased was likely to be caused at the time of attempt to save the person by others. Investigation did not reveal any other cause for the said injury. In paragraph 7 of the statement it is claimed that the chemical examiner opined about non-disclosure of alcohol either in the viscera or blood, alcohol will eliminate from the body about 15 to 20 mg.% in an hour as an ordinary person and that if the person concerned is a habitual drunkard, percentage of elimination of alcohol will be high to the extent to go double the rate of elimination than in an ordinary man. It is stated that two persons who were with the deceased at the time of incident were subjected to polygraph test. But that test did not reveal that there was any involvement on their part. 6. As I stated above, now the question is whether having regard to the guidelines issued by the Supreme Court this is a case where investigation by the CBI should be ordered. On going through the file it is seen that the alleged suspects were questioned by the Investigating Agency and they were subjected to polygraph test also. It is also seen that the Medical Officer who conducted postmortem examination as well as the chemical examiner who tested the viscera were questioned and their opinion was gathered. 7. Another objection was concerning non-interrogation of the lady who is said to have heard the scream from the site of occurrence at the relevant time. But it is seen that the lady was interrogated. On going through the file, I am not **WP(C) No.26139/2010** 6 satisfied that having regard to the investigation conducted and the nature of the incident alleged, this is a case where following the guidelines issued by the Supreme Court the matter has to go to the CBI for investigation. 8. Learned Public Prosecutor submitted that the Investigating Agency has already prepared a draft final report incorporating Section 304 A of the Indian Penal Code against two persons who were with the deceased at the relevant time. It is also pointed out by the learned Public Prosecutor that the Investigating Agency is awaiting the decision of this Court in this Writ Petition for submission of the final report. 9. It is not as if petitioner is without any remedy in case a final report is filed and if further investigation of the matter is required. I stated that presently I am only considering the question whether investigation has to be handed over to the CBI and, on the facts of the case I am of the view that this is not a fit case where the investigation has to be handed over to the CBI. It is open to the petitioner to approach the learned Magistrate before whom final report is filed and seek further investigation under Section 173(8) of the Code of Criminal Procedure if such a course is warranted. Since such an opportunity is available to the petitioner I make it clear that I am not pronouncing verdict on the contentions raised by either side or the correctness of the investigation conducted so far. I also make it clear that if petitioner is unable to move on her own it is open to her to approach the Legal Service Authority of the place concerned as provided under law for assistance. **WP(C) No.26139/2010** 7 Resultantly this petition is dismissed without prejudice to the right of petitioner to approach learned Magistrate concerned seeking further investigation as provided under law after final report is filed and if such a course is warranted and if any such application is filed, learned Magistrate shall consider that application untrammelled by any observation or even the discussion contained in this judgment. Learned Magistrate shall decide the matter on the merits having regard to the facts and circumstances of the case, nature of the investigation conducted and required (if any) to be further conducted. **THOMAS P.JOSEPH, Judge.** ## **cks**