V.M. Thomas v. Director General of Police, Police Headquarters, Thiruvananthapuram & Others

## **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. 29190 OF 2010(Q)** **-----------------------------------------** **PETITIONER(S):** **-----------------------** **V.M.THOMAS,S/O.MATHAI,POONNANPARAMBIL HOUSE,ARUVITHARA PO, ERATTUPETTA,KOTTAYAM DISTRICT 686 122.** **BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE** **RESPONDENT(S):** **------------------------** **1. THE DIRECTOR GENERAL OF POLICE,POLICE HEAD QUARTERS,THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM.** **3. THE CIRCLE INSPECTOR OF POLICE, THIRUVANANTHAPURAM.** **4. THE STATION HOUSE OFFICER, THIRUVANANTHAPURAM.** **5. THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM.** **6. THE CENTRAL BUREAU OF INVESTIGATION, KERALA STATE OFFICE,KATHRIKADAVU,ERNAKULAM.** **ADV. SRI. M.V.S. NAMBOOTHIRY, SC, C.B.I. FOR R6 BY PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA R1 TO 5** **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.29190 of 2010 ==================================== Dated this the 14[th] day of February, 2011** ## **J U D G M E N T** Petitioner’s son, Thomas Mathew aged about 30 years died allegedly under suspicious circumstances on 16.08.2009 while working as Gold Purchase Manager at Thiruvananthapuram Branch of a Jewellery shop. Till December, 2008 he was working though in a different capacity at the Chennai Branch of that jewellery. On the previous day of death the deceased had decided to go to his house at Erattupetta and told his sister by telephone that he is arriving at the house (presumably on the date of death). Petitioner states that on the fateful day morning with intend to go home after work on the evening he packed up his baggage and brought it to the shop. At noon he had been for meals along with one Praveen, a co-worker. But after some time he collapsed. He was immediately taken to a nearby hospital at about 1.30 p.m. One Joy who was accompanying the deceased to the hospital stated that the deceased was brought dead to the hospital. The Sub Inspector, Fort, Thiruvananthapuram registered crime No.738 of 2009 under Section 174 of the Code of Criminal **W.P(C) No.29190 of 2010** ## -: 2 :- Procedure and started investigation. That investigation, according to the petitioner is not proper and is not likely to bring out the real culprits. Hence petitioner made Ext.P4, representation to respondent Nos.1 to 5 stating his grievances and suspicion in the matter and requesting to entrust the investigation to the Central Investigating Agency (obviously referring to the Central Bureau of Investigation - the CBI). Since there was no response to that representation petitioner has approached this Court seeking the same relief. 2. In answer to the petition, the Sub Inspector who has investigated the case has filed a statement detailing the investigation so far conducted. He has stated that investigation is continuing and that he will take all efforts to continue investigation. But the investigation so far conducted according to him revealed that death was due to poisoning and the manner by which the deceased consumed poison could not so far been detected. I have heard learned counsel for petitioner, learned Public Prosecutor and the learned Standing Counsel for the CBI. 3. Learned counsel has invited my attention to Exts.P1 and P2, the Postmortem examination certificate and the final report given by the Surgeon who conducted the autopsy which ## **W.P(C) No.29190 of 2010** ## -: 3 :- according to the learned counsel indicated the contradiction in the opinion given by the Surgeon. It is also the contention of learned counsel that relevant witnesses are not questioned by the investigating agency. It is pointed out that there is apparent difference in the time of death as propounded by the investigating agency and as stated by one of those who accompanied the deceased to the hospital. Learned counsel pointed out that though the postmortem examination revealed that there was fracture of the sternum, investigating agency was not able to find an answer how that fracture was caused. In the circumstances it is requested that investigation may be entrusted with the Central Investigation Agency referred to above. 4. Learned Public Prosecutor opposing the prayer submitted that investigation has proceeded in the correct line and there is no reason to suspect the steps taken in the course of investigation. It is also submitted that the investigation of the case is not completed. 5. The Supreme Court in **State of W.B. v.** ## **Committee for Protection of Democratic Rights** (2010 [1] KLT 723 (SC) has held that though even notwithstanding the opinion of the State Government it is within ## **W.P(C) No.29190 of 2010** ## -: 4 :- the power of the High Court to entrust investigation to the Central Agency, that extraordinary power has to be exercised sparingly, cautiously and in exceptional situation where it becomes necessary to provide credibility and instill confidence in investigation or where the incident may have national and international ramification or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. It is pointed out that otherwise the Central Investigating Agency 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. Learned Standing counsel for the CBI points out that this is not one of the cases coming within the guidelines stated above and hence investigation may not be handed over to the CBI. 6. I have gone through Exts.P1 and P2, certificate of postmortem examination and the final result (opinion) that the Professor and Police Surgeon have given in the matter. In Ext.P1 it is stated that there was brownish frothy fluid seen at mouth and nostrils, tip of the tongue was bitten and all other external body orifices were normal. Finger nails were blue, injection marks ## **W.P(C) No.29190 of 2010** ## -: 5 :- seen on both sides of neck and both groin with infiltration of blood around. The ante mortem injuries stated in Ext.P1, certificate is an abraded contusion 13x11.5x1 cm on the front of chest across midline just below upper end of breast bone. Underneath the sternum was fractured between Manubrium and body and on the left side III to V ribs were fractured on the front aspect close to costochonodral junction. The Police Surgeon opined that postmortem findings are consistent with death due to poisoning and that additional report would follow on receipt of report on chemical examination. Exhibit P2 is the final report where it is stated that report of chemical examination revealed no poison but the Police Surgeon stuck to his opinion that postmortem findings are consistent with death due to poisoning. 7. In the statement filed by the Investigating Officer he has stated that petitioner’s son expired by 6.30 p.m on the date of incident (while according to the petitioner it was at about 1.30 – 1.45 p.m.) and that the Police Surgeon was questioned with reference to the result of chemical examination as well as his opinion as to the cause of death. The Police Surgeon explained the reason for absence of trace of poison in the viscera or other internal organs sent for chemical examination. **W.P(C) No.29190 of 2010** -: 6 :- 8. It is not clear from the statement of Investigating Officer as to whether, assuming that death was due to poisoning it was suicidal or homicidal. According to the petitioner neither he nor his daughter (to whom the deceased is said to have conveyed the intention to go home on the evening of the day of incident) was interrogated by the police. There is also reference to certain other persons in Ext.P4, who who according to the petitioner were able to give information as to the cause of death. It is the grievance of the petitioner that those persons were either not questioned or effectively questioned. As I stated certain aspects requires consideration - as to how the fracture of the sternum and ribs were caused, assuming that death was due to poisoning whether it was homicidal or suicidal and was there any circumstance which provoked or persuaded the deceased to commit suicide on the relevant day. Petitioner has a case that the versions as to whether the deceased had his meals at noon on the fateful day is contradictory even as per the prosecution case. Having regard to these aspects of the matter I am inclined to think that a more expertised agency has to conduct investigation though not I am not expressing any opinion as to the propriety of investigation so far conducted. **W.P(C) No.29190 of 2010** -: 7 :- 9. Then the question is whether that expert agency must be the CBI. I referred to the guidelines issued by the Supreme Court to be borne in mind while considering request for investigation by the CBI. Having gone through the petition, relevant documents appended to it, statement of the Investigating Officer and hearing counsel for petitioner, learned Public Prosecutor and the learned Standing Counsel for the CBI I am not persuaded to think that this case falls within the four corners of guidelines issued by the Supreme Court. As such request to entrust investigation of the case to the Central Investigating Agency cannot be accepted. 10. But, as I stated a more expertised agency has to investigate the case. Having regard to the facts and circumstances of the case I am inclined to think that investigation can be entrusted with the Hurt and Homicide Wing of the Crime Branch CID Unit, Thiruvananthapuram. Investigation shall be conducted by an Officer not below the rank of Deputy Superintendent of Police and it shall be monitered by the Superintendent of Police of that Wing. The Additional Director General of Police, Crimes shall issue necessary orders in that regard. ## **W.P(C) No.29190 of 2010** ## -: 8 :- This Writ Petition is disposed of directing that investigation of the case shall be conducted by the Hurt and Homicide Wing of the CBCID Unit, Thiruvananthapuram. Investigation shall be conducted by an Officer not below the rank of a Deputy Superintendent of Police and shall be monitered by the Superintendent of Police of that Wing. It is open to the Deputy Superintendent of Police to select his team of officers if found necessary. The ADGP, Crimes is directed to issue necessary orders in the above lines within two weeks from the date of receipt of a copy of this judgment which petitioner shall make available to the Officer concerned. ## **THOMAS P. JOSEPH, JUDGE.** vsv