U. Gopakumar and Others v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** ## **WP(C).No. 1748 of 2019** ## **PETITIONERS:** **1 U.GOPAKUMAR, AGED 36 YEARS, S/O. UNNIKRISHNA PILLAI, RESIDING AT AIKKARA HOUSE, CHANGANKULANGARA, VAVVAKAVU P. O., OCHIRA, KOLLAM, PIN - 690 528.** - **2 O. SREEKUMAR, AGED 38 YEARS, S/O. OMANAKUTTAN, SREE NILAYAM, CHOLA, MUKUNDAPURAM P. O., CHAVARA, KOLLAM, PIN - 691 585.** - **3 SAJEEV KARUNAKARAN, AGED 34 YEARS, S/O. KARUNAKARAN, PARAYANTHOTTATHILMEKKATHIL (H), SC MARKET P. O., KOZHIKODE, KARUNAGAPALLY, PIN - 690 573.** - **4 SEEMAMOL, AGED 36 YEARS, W/O. U. GOPAKUMAR, RESIDING AT AIKKARA HOUSE, CHANGANKULANGARA, VAVVAKAVU P. O., OCHIRA, KOLLAM, PIN - 690 528.** **BY ADVS. SRI.P.G.JAYASHANKAR SHEBA RIVY SIMON SMT.LINTA VARGHESE SMT.T.S.LIKHITHA** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR GENERAL OF POLICE AND STATE POLICE CHIEF, POLICE HEADQUARTERS, VAZUTHUACAUD, THIRUVANANTHAPURAM - 695 010.** - **3 COMMISSIONER OF POLICE, KOLLAM CITY, KOLLAM - 691 001.** WP(C).No. 1748 of 2019 2 - **4 SUPERINTENDENT OF POLICE, ALAPPUZHA, CCSB ROAD, CIVIL STATION WARD, ALAPPUZHA, KERALA - 688 012** - **5 CENTRAL BUREAU OF INVESTIGATION, PLOT NO.5-B, 6TH FLOOR, CGO COMPLEX, LODHI ROAD, JAWAHARLAL NEHRU STADIUM MARG, NEW DELHI - 110 003, REPRESENTED BY ITS DIRECTOR.** - **6 SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM - 690 502** **SASTHAMANGALAM S.AJITHKUMAR SPL.PUBLIC PROSECUTOR FOR CBI, SRI-AJITH MURALI GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No. 1748 of 2019 3 ## **JUDGMENT** The petitioners herein are the de facto complainants in Crime No. 3753 of 2015 of the Kayamkulam Police Station. Final report was laid in the said case on 15.10.2016 and the accused, a travel agent, is alleged to have committed offences punishable under Section 420 of the IPC and Section 26 of the Emigration Act, 1983. This petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of mandamus directing the Central Bureau of Investigation to take up further investigation. 2. Facts germane to the filing of the present petition lie in a narrow compass. A statement was furnished by the 1[st] petitioner, wherein it was asserted that after working for over half a decade overseas, he had come back to India and is working as a tile worker. He had occasion to watch an advertisement in the TV, placed by the accused, who is a travel agent based at Kayamkulam. The accused offered employment overseas in a food processing company. The 1[st] petitioner along with his uncle met him and a sum of Rs. 1 lakh was paid. A Visa offering employment as a cleaner was procured by the accused, with which, he went abroad. He managed to work overseas for three months. In the first month, he worked in a company by WP(C).No. 1748 of 2019 4 name Etisalat and was paid a sum of Rs.12,000/-. When he found that the job offered was not provided, he along with others contacted the Indian Embassy and their case was referred to the Labour Court. Later the petitioners were repatriated back to India. 3. The learned counsel appearing for the petitioners submitted that the 1[st] petitioner was duped into obtaining an employment VISA promising placement with a prominent company in the UAE. The same is the case with the rest of the petitioners as well. On reaching UAE, they were forced to work in menial conditions. They were taken to a labour camp and had to live in poor conditions. Being deprived of a proper salary, they had to fend for themselves. When the petitioners refused to convert to Islam, they were ousted from their accommodation. It was with much effort that they had petitioned the higher authorities and had managed to return back to India. According to the petitioners, the recruitment undertaken by the accused is nothing other than human trafficking. The activities are undertaken in an organized manner and it has inter-state and inter national ramification. According to the petitioner, though the offence under Section 370 of the IPC was also made out, the investigating officer has acted hand in glove with the accused and has included lesser offences. The learned counsel fervently submitted that unless WP(C).No. 1748 of 2019 5 the 5[th] respondent is ordered to investigate the case, the interest of justice would suffer. 4. The Inspector General of Police, Kochi Range, has filed a factual report controverting the contentions of the petitioner. In the said report, he has stated that though the investigation was meticulously conducted, no evidence was obtained to substantiate the commission of offences under Sections 370 and 370A of the IPC. The investigation revealed that the accused offered a job overseas and he failed to provide the assured job. It is also stated that another crime has been registered against the 1[st] accused at the Kayamkulam Police Station under Sections 406 and 420 of the IPC. 5. The learned Government Pleader has also opposed the prayer. He would point out that the 1[st] petitioner is a person, who had worked abroad for over five years. He would point out that Exhibit P1 VISA is one as a cleaner in the UAE and hence, the contention that an elite job was offered overseas is not correct. 6. The retainer counsel appearing for the fifth respondent submitted that the investigation having completed and final report having been laid, further investigation by the CBI is not warranted. 7. I have considered the submissions and have perused the records. WP(C).No. 1748 of 2019 6 8. The grievance of the petitioners essentially is that Section 370 of the IPC though was made out, the investigating agency has not incorporated the said penal provision. Section 370 deals with trafficking of person and Section 370A deals with exploitation of a trafficked person. Explanation (1) to Section 370 provides an inclusive definition for the term exploitation to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery servitude or the forced removal or organs. In the facts and circumstances, I find it difficult to accept the contention of the learned counsel that Section 370 of the IPC is attracted in the facts and circumstances 9. Even otherwise, I do not think that the petitioner has made out a case for ordering further investigation by the CBI. In **Secretary, Minor Irrigation and Rural Engineering Services, U.P. and Ors.** **v. Sahngoo Ram Arya and Ors** [AIR 2002 SC 2225], it was observed by the Apex Court that a decision to direct an inquiry by the CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by the CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such WP(C).No. 1748 of 2019 7 allegations. ## 10. In **State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors** [AIR 2010 SC 1476], it was held in paragraph No 43 as follows:- “Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been 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. This does not appear to be one such case.” 11. Applying the principles laid down by the Apex Court in the instant case, I am of the considered view that the petitioners have not WP(C).No. 1748 of 2019 8 made out a case for ordering further investigation by the CBI. As held by the Apex Court, the extra-ordinary power of entrusting the investigation with the CBI will have to 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. This petition will stand dismissed. There will be no order as to costs. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP WP(C).No. 1748 of 2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE EMPLOYMENT VISA ISSUED TO THE 1ST PETITIONER AS HANDED OVER BY THE ACCUSED** **EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE MEMBER OF PARLIAMENT, KOLLAM CONSTITUENCY** **EXHIBIT P3** **TRUE COPY OF THE FIR IN CRIME NO.3753 OF 2015 OF KAYAMKULAM POLICE STATION** **EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 11.01.2018 IN WPC NO. 39799 OF 2018 OF THIS HON'BLE COURT** **EXHIBIT P5 TRUE COPY OF THE FINAL REPORT IN CC NO.85/2017 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM** ## **RESPONDENTS' EXHIBITS:** NIL