Kerala High Court
E.K.Narayanan vs State Of Kerala on 8 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
WP(C).No.25175 OF 2011(S)
PETITIONER:
E.K.NARAYANAN, SECRETARY,ALL INDIA LAWYERS UNION,
KERALA STATE COMMITTEE, DWARAKA BUILDING,
P.O.BADAKARA,KOZHIKODE DISTRICT.
BY ADVS.
SRI.C.P.SUDHAKARA PRASAD (SR.)
SRI.N.MANOJ KUMAR
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
695 001.
2 THE DIRECTOR GENERAL OF POLICE AND
STATE POLICE CHIEF,, STATE OF KERALA,POLICE HEAD QUARTERS,,
THIRUVANANTHAPURAM-695 001.
3 THE SUB INSPECTOR OF POLICE
KASARAGOD POLICE STATION, KASARAGOD 670 001.
4 SRI.M.A.NASSAR, RETIORED DISTRICT JUDGE,
(COMMISSIONER OF INQUIRY APPOINTED UNDER, GOVT. NOTIFICATION
NO.84500/SS AS/2009/HOME., DT.12-1-2011) YASMIN
COTTAGE,THANA,KANNUR-12.
R1-3 BY GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
ALONG WITH WP(C).25570/2011(S), WP(C).30981/2011(S), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
WP(C).No.25570 OF 2011
PETITIONER:
VIJAYAN THUNDIYIL, S/O.CHATHU,
THUNDIYIL HOUSE, KIDANHI POST,
KANNUR DISTRICT.
BY ADVS.
SRI.P.M.HARRIS
SRI.E.NARAYANAN
RESPONDENT:
THE STATE OF KERALA
ADDITIONAL CHEIF SECRETARY TO GOVERNMENT
THIRUVANANTHAPURAM-1
R1 BY GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
ALONG WITH WP(C).25175/2011(S), WP(C).30981/2011(S), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 08TH DAY OF JANUARY 2021 / 18TH POUSHA, 1942
WP(C).No.30981 OF 2011
PETITIONER:
P.RAGHAVAN, S/O.RAMAN NAIR, RAMANILAYAM,
MUNNAD, KASARGOD-671 541
BY ADVS.
SRI.SHAIJAN C.GEORGE
SRI.JOHN VIPIN
RESPONDENTS:
1 STATE OF KERALA
REP. BY CHIEF SECRETARY TO GOVERNMENT,,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE DIRECTOR GENERAL OF POLICE AND
STATE POLICE CHIEF, STATE OF KERALA,
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.PIN.695 001
3 SUB INSPECTOR OF POLICE,
KASARAGOD POLICE STATION, KASARAGOD-670001
4 THE DIRECTOR CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
5 SRI.M.A.NIZAR RTD.DISTRICT JUDGE
(COMMISSIONER OF INQUIRTY APPOINTED UNDER GOVERNMENT
NOTIFICATION NO.84500/SS/A2/2009/HOME,
DATED 12/1/2011) YASMIN COTTAGE, THANA, KANNUR-12
6 MR.RAMADASAN POTHEN IPS, SUPERINTENDENT OF POLICE,,
KASARAGOD (THROUGH 2ND RESPONDENT)
R1-R3 BY GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
R4 BY SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.
BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.01.2021,
ALONG WITH WP(C).25175/2011(S), WP(C).25570/2011(S), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 4 ::
JUDGMENT
[ WP(C).25175/2011, WP(C).25570/2011, WP(C).30981/2011 ]
Dated this the 8th day of January 2021
S.MANIKUMAR, C.J.
These three writ petitions relate to the police firing incident on
15.11.2009 in Kasaragod town, leading to fatalities and damage to
properties. Under circular dated 12.1.2011, Government or Kerala have
constituted a Commission of Inquiry, but thereafter the Commission of
Inquiry was withdrawn by notification dated 1.3.2011. The writ petitions
are filed with a prayer to set aside the decision of the Government
declaring the cessation of Shri.M.A.Nissar, Commission of Inquiry on
Kasaragod police firing, and to declare that the Commission of Inquiry
continues to exist.
2. Short facts leading to the filing of the writ petitions are as
under:
On 15-11-2009, a public meeting was arranged by the District
Committee of Indian Union Muslim League (for short IUML), to accord
reception to the newly elected State President and other leaders of the
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 5 ::
party. At the venue of the meeting and the nearby places, about 500
IUML activists, who came to attend the meeting, started pelting stones,
without any provocation, towards the shops belonging to Hindus and
their temple at Amey Colony, predominantly inhabited by Hindus. When
the police tried to prevent the miscreants, they pelted stones and brick-
bats at the police also. A massive violence followed and the mob shouted
abusive slogans against members of other communities. There was a
large scale destruction of public and private properties. Several police
personnel, including the Superintendent of Police and other Senior Police
Officers, sustained serious injuries. Though the police resorted
lathicharge and hurled grenades, the unruly mob continued their violent
activities. When all the steps taken by the police failed, the
Superintendent of Police fired three rounds, as a last resort to prevent a
communal violence and to bring the situation under control. In the
firing, one Sri.Mohammed Shafeeqe, a member of the unlawful assembly,
died. Even after the police firing, violence continued in some parts of the
town in which, another person was stabbed to death. In connection with
the violence, 36 cases were registered in Kasaragod Police Station,
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 6 ::
alleging offences punishable under the provisions of Indian Penal Code,
1860 and the Prevention of Destruction to Public Property Act.
3. Material on record discloses that in exercise of the powers
conferred by Section 3 of the Commissions of Inquiry Act, 1952,
Government appointed Smt.M.K.Premalatha, District Judge and Motor
Accidents Claims Tribunal, Kasaragod, as Commission of Inquiry in May,
2010. On retirement from service, Smt.M.K.Premalatha expressed her
unwillingness to take up the assignment, due to personal difficulties and
health problems. Therefore, the Government, by a Notification dated 12-
1-2011, appointed Sri.M.A.Nissar, Retired District Judge, as the
Commission of Inquiry. The new Ministry assumed office on 18-5-2011.
One month thereafter, by notification dated 21-6-2011, the time
stipulated for submission of report by the Commission was extended upto
11-1-2012. The decision to withdraw the Commission of Inquiry was
taken, subsequently, on 26.7.2011.
4. Prayers sought for in writ petitions are as follows:
W.P.(C)No.25175 of 2011:
i) to call for the records leading to Ext.P3 notification and Ext.P4
order, peruse the same and to quash Exts.P3 and P4 by the
issuance of a writ of certiorari.
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 7 ::
ii) to declare that the Commission of Inquiry constituted by the
Government as per notification No/84500/SSA2/2009/ Home dated
12th January 2011, marked as Ext.P1 in the writ petition, continues
to exist.
iii) to issue a writ in the nature of mandamus directing the 4 th
respondent to continue to exercise and carry out his functions as
the Commission of Inquiry by virtue of his appointment as such as
per Ext.P1 notification.
W.P.(C)No.25570 of 2011:
a) issue a writ of mandamus or any other appropriate writ or order
directing the respondent to cancel/withdraw the notification
Exhibit P5;
b) declare that the notification in Exhibit P5 is per se illegal,
against the principles of natural justice and a gross violation of the
fundamental rights guaranteed under the Constitution of India
and quash the same.
W.P.(C)No.30981 of 2011:
i) to call for the records leading to Ext.P6 notification and Ext.P7
order, peruse and quash Ext.P6 and P7 by the issuance of a writ of
certiorari.
ii) to declare that the Commission of Inquiry constituted by the
Government as per notification Ext.P2 continues to exist.
iii) to issue a writ of mandamus or any other writ, order or
directions to the 5th respondent to continue the office and function
as the Commissioner of Inquiry as empowered by Ext.P2 and P5
notifications.
iv) to issue a writ of mandamus or any other writ, order or
directions to the respondents 1 and 2 to entrust the investigation
of Crime No.816/09 of Kasaragod police station with Central
Bureau of investigation forthwith.
v) to issue a writ of mandamus or any other writ, order or
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 8 ::
directions to the respondent 4 to investigate into the crimes with
Crime No.85/10 and Crime No.816/08 of Kasaragod police station
by constituting Special Investigation Team headed by two superior
officers.
5. We have heard learned counsel for the parties and perused the
materials available on record.
6. A detailed counter affidavit has been filed on behalf of the
Government wherein, it is stated that the Government had no malafide
intention in issuing the notification for discontinuing the existence of
Shri M. A. Nissar, Commission of Inquiry, and the decision of the
Government was not influenced by any extraneous or collateral
considerations. It is the State Council of Ministers, the highest decision
making authority in the State, which took this decision, duly taking into
consideration the necessity of continuance of the Commission of Inquiry
in the context of a CBI investigation in the matter. Pursuant to the
issuance of the notification declaring the cessation of the Commission of
Inquiry, Government have requested the Director, Central Bureau of
Investigation to take immediate steps, to take over the investigation in
the matter. Relevant portion of the counter affidavit reads thus:
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 9 ::
"9. It is worthwhile to mention that, in the meantime, Shri
M. K. Musthafa Haji, father of Mohammed Shafeeque who was
killed in the incidents of 15.11.2009 at Kasaragod Town, filed CMP
No. 413/2010 dated 25.01.2010 before the Judicial First Class
Magistrate Court, Kasaragod. The learned Magistrate forwarded
the complaint under Section 156(3) of the Code of Criminal
Procedure to the Station House Officer, Kasargod. Accordingly,
Crime No. 85/2010 of Kasaragod Police Station was registered on
25.01.2010 in which Shri Ramadasan Pothen was arrayed as the
accused. This case was also transferred to CBCID, Kannur Unit as
Crime No. 101/CR/2010/HHWIII/KKD.
10. Later, Shri M. K. Musthafa Haji, filed WP(C) No. 11304/10
before this Hon'ble Court and this Hon'ble Court in its judgment
dated 24.09.2010 inter alia directed the Director General of Police
to hand over the investigation of Crime No. 85/2010 of Kasaragod
Police Station to the Central Bureau of Investigation. Further, the
State was directed to pay a sum of Rs. 5,00,000/- (Rupees Five Lakhs
only) as compensation to the petitioner within three months. State
filed Writ Appeal No. 1964/2010 before this Hon'ble Court against
the judgment in WP(C) 11304/2010.
11. However, Government decided to withdraw the Writ
Appeal and to comply with the judgment of this Hon'ble Court; (i)
by handing over the investigation of Crime No. 85/2010 of
Kasaragod Police Station to the Central Bureau of Investigation and
(ii) by payment of Rs.5,00,000/- (Rupees Five Lakhs only) as
compensation to the petitioner in the Writ Petition. Accordingly,
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 10 ::
orders were issued by virtue of G.O.(Rt) No. 2300/2011/Home dated
05.08.2011 requesting the learned Advocate General to withdraw
Writ Appeal No. 1964/2010 and also directing the State Police Chief
to hand over investigation of Crime No. 85/2010 of Kasaragod
Police Station to the Central Bureau of Investigation.
12. It is pertinent to point out that, simultaneously to the
decisions taken as explained above, Government re-examined the
question of existence of Shri M. A. Nissar Commission of Inquiry
and found that the continued existence of Shri M. A. Nissar
Commission of Inquiry is unnecessary, if a CBI investigation is held
in the matter. As per Section 7 (1) (a) of the Commissions of Inquiry
Act, 1952, Government may, by notification in the Official Gazette,
declare that a Commission shall cease to exist, if it is of the opinion
that the continued existence of the Commission is unnecessary.
The Commission of Inquiry was declared to cease to exist by virtue
of Notification No. 52809/ SSA2/2011/ Home dated 04.08.2011 and
published in the official Gazette (Kerala Gazette Extraordinary) as
S. R. 0. No. 476/2011 dated 06.08.2011. Thus the Commission of
Inquiry ceased to exist with effect from 06.08.2011 i.e. the date of
publication of the Notification.
13. It is worthwhile to mention that, the decision to withdraw
Writ Appeal No. 1964/2010 and the decision to withdraw the
Commission of Inquiry are closely related and cannot be seen as
separate events. Both decisions were taken by the State Council of
Ministers on 26.07.2011. The term of the Commission of Inquiry
was extended through a Government Notification dated 21.06.2011.
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 11 ::
The decision to withdraw Writ Appeal No. 1964/2010 and to
withdraw the Commission of Inquiry was taken subsequently on
26.07.2011. The decision to extend the term of the Commission of
Inquiry and the decision to withdraw the Commission of Inquiry
arose out of different premises. The latter was a result of the
Government decision to withdraw an appeal filed by Government
in the High Court and to comply with the judgment of the Hon'ble
High Court.
14. It is submitted that, Under Section 7(1) (a) of the
Commissions of Inquiry Act, 1952, Government have ample
discretion to discontinue the Inquiry if it is of the opinion that
continuance of the said Inquiry is unnecessary, as held in State of
Gujarat Vs Consumer and Education Research Centre and others;
(1984) 1 SCC 684. Section 3 of the Commissions of Inquiry Act lays
down that the appropriate Government may by a notification in
the Official Gazette; appoint a Commission of Inquiry for the
purpose of making an inquiry into any definite matter of public
importance. In exercising the power under Section 3, the
appropriate Government forms an opinion as to the necessity of
appointing a Commission. The formation of opinion is based on the
subjective satisfaction of the appropriate Government; in this case
the State Government. After formation of opinion it is within the
discretion of the appropriate Government to appoint or not to
appoint a Commission. Similarly, the power to discontinue the
existence of a Commission of Inquiry, when if becomes
unnecessary, can also be exercised by the issuance of a notification
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 12 ::
in accordance with Section 7 of the Act, which results in rescinding
the notification issued under section 3 constituting the
Commission. Thus, the power of the appropriate Government to
rescind any notification, conferred generally in Section 21 of the
General Clauses Act is clearly applicable in the scheme of the
Commissions of Inquiry Act, which expressly provides for the
exercise of this power in relation to a commission constituted
under Section 3 of the Act.
15. It is submitted that, powers under Section 7 can be
exercised on the formation of opinion that the continued existence
of a Commission of Inquiry is unnecessary. Since, the formation of
opinion is to be based on the subjective satisfaction of the
appropriate Government, a notification to this effect can be
challenged only on the ground that the exercise of that power is
vitiated by malafides. Petitioner has no case that the opinion
formed by the appropriate Government is not based on its
subjective satisfaction. It is a fundamental principle of law that
when an authority has powers to do an act, necessarily, the
authority has the power to cancel that act, by procedure
established by law. The provisions of the Act must receive proper
construction. There is no substance in the contention that
Government does not possess the power to declare cessation of a
Commission of Inquiry. It is submitted that Government have
complied with all statutory procedures as laid down in Section 7 of
the Commissions of Inquiry Act, 1952. Therefore, issuance of
notification declaring the cessation of Shri M. A. Nissar
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 13 ::
Commission of Inquiry is in accordance with law and in order.
16. It is specifically pointed out that, Government had no
malafide intention in issuing the notification for discontinuing the
existence of Shri M. A. Nissar Commission of Inquiry, and the
decision of the Government was not influenced by any extraneous
or collateral considerations. It is the State Council of Ministers,
which is the highest decision making authority in the State that
took this decision, duly taking into consideration the necessity of
continuance of the Commission of Inquiry in the context of a CBI
investigation in the matter. Pursuant to the issuance of the
notification declaring the cessation of the Commission of Inquiry,
Government have requested the Director, Central Bureau of
Investigation to take immediate steps to take over the
investigation in the matter. The CBI has registered the case as RC
21 (S) 2011/CBI/SCB/TVPM on 28.11.2011 and has taken up the
investigation.
17. It is submitted that the two cases viz. Crime Nos. 816/2009
and 85/2010 of Kasaragod Police Station, emerged out of the same
incident. The brief of the case in Crime No. 816/2009 of Kasaragod
Police Station is that on 15.11.2009, at about 18.30 hours, about 500
workers of Indian Union Muslim League who came to attend a
meeting organised at Kasaragod New Bus Stand, unlawfully
assembled and started to pelt stones towards shops, vehicles and
the police party on duty. Though police resorted to lathi charge
and grenades to control the mob, the violence continued. As a last
resort, Shri Ramadasan Pothan, the then Superintendent of Police,
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 14 ::
Kasaragod, was forced to fire using his pistol to disburse the mob.
Muhammed Shafeeque died in the firing. The brief of the case in
Crime No. 85/2010 of Kasaragod Police Station [registered
following the directions of the Hon'ble JFMC, Kasaragod in CMP No.
413/2010 filed by Shri M. K. Musthafa Haji] is that on 15.11.2009, at
about 18.30 hours, shri Ramadasan Pothan, the then
Superintendent of Police, Kasaragod, opened fire on Muhammed
Shefeeque leading to the latter's death.
18. Pursuant to the handing over of investigation in Crime
No. 85/2010 of Kasaragod Police Station (CBCID Crime No.
101/CR/2010/HHWIII/KKD) to the CBI, the State Police Chief has
submitted a proposal to hand over the investigation in Crime No.
816/2009 of Kasaragod Police Station (CBCID Crime No.
238/CR/KNR/2009) also to the Central Bureau of Investigation
since both the cases were registered in connection with the same
incident. Government have examined the proposal in detail and
found that the facts and circumstances of the case in Crime
No.816/2009 of Kasaragod Police Station (CBCID Crime No.
238/CR/KNR/2009) are the same as that of Crime No. 85/2010 of
Kasaragod Police Station since both the cases have been registered
in connection with the same incident occurred at the same place,
date and time. Since the investigation of one of the above two cases
(Crime No. 85/2010 of Kasaragod Police Station) has already been
taken up by the CBI, Government have now decided to hand over
the investigation in Crime No. 816/2009 also to the CBI.
Consequential notification handing over the investigation of Crime
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 15 ::
No. 816/2009 to CBI would be issued soon.
19. In W.P(C) No.30981/2011 the petitioner has stated that
Crime No. 816/2009 of Kasaragod Police Station pertains to the
entire state of affairs which led to the Police firing in which the
deceased in Crime No. 85/2010 happened to get injured and on a
single look it can easily be considered or termed as these cases as
case and counter case. The contention of the petitioner that the
investigation of Crime No.816/2009 of Kasaragod Police Station also
needs to be investigated by the Central Bureau of Investigation, has
now become irrelevant as Government have already decided to
hand over the investigation of the case in Crime No.816/2009 to the
CBI.
20. It is humbly submitted that, narration of events in the
Writ Petition as to the incidents that led to Police firing in
Kasaragod Town on 15.11.2009 are only the petitioner's version and
figments of imagination. Such narration are only on the basis of
surmises and conjunctures. Such statements are not corroborated
by any substantiating facts or evidence. The incidents occurred in
connection with the Kasaragode Police firing were examined by
this Hon'ble Court in W.P(C)No.11304 of 2010. Judgment dated
24.09.2010 in this Writ Petition has been rendered after a judicial
evaluation of the incidents occurred and legal questions raised
ordered among other things to hand over the investigation in
Crime No.85/2010 of Kasaragode Police Station to the CBI and to
pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as
compensation to the petitioner. Government have complied with
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 16 ::
all the directions contained in this judgment.
21. Shri M. A. Nissar, retired District Judge and the erstwhile
Commission of Inquiry has now informed that on winding up of the
Commission, all records, depositions and other materials are ready
to be handed over to Government. The District Collector, Kannur
has been authorized to receive the articles and materials from Shri
M. A. Nissar, Retired District Judge.
22. It is humbly submitted that the contentions in the above
Writ Petition are devoid of merits and the Writ Petition is liable to
be dismissed. The allegations and averments in the Writ Petition
contrary to what is stated above are not correct and hence hereby
denied. Petitioner is not entitled for any of the reliefs prayed for in
the Writ Petition."
7. After investigation, CBI has filed a final report in RC21/
(S)2011/CBI/SCB/TVPM dated 19.7.2013, which is produced as Exhibit P4
in W.P.(C)No.30981 of 2011, and closure report was accepted by the Chief
Judicial Magistrate, Ernakulam, by order dated 26.6.2014. But, later on,
Crl.R.P.No.76/2014 was filed against the said order. The learned Sessions'
Judge, Ernakulam, by order dated 12.2.2015, set aside the order of the
Chief Judicial Magistrate and directed to consider and pass orders afresh.
The Chief Judicial Magistrate considered the matter afresh and passed
orders accepting the closure report by order dated 29.6.2015.
W.P.(C).Nos.25175/2011, 25570/2011, 30981/2011
:: 17 ::
8. Subject matter of all the three writ petitions have been
investigated into by the CBI and final report filed under Section 173
Cr.P.C. has been accepted by the learned Chief Judicial Magistrate,
Ernakulam. Therefore, at this distance of time, interference of this Court
will not serve any useful purpose.
Writ petitions are disposed of.
sd/-
S.MANIKUMAR
CHIEF JUSTICE
sd/-
SHAJI P. CHALY
JUDGE
jes
