Kerala High Court
P.K.Abdul Sathar vs State Of Kerala on 7 July, 2021
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
WP(C) NO. 30716 OF 2017
PETITIONER/S:
P.K.ABDUL SATHAR
AGED 1 YEARS
AGED 50 YEARS, SAPNAS MANZIL, PARAPPURAM PO,ANDALLUR
KADAVU, THALASSERY, KANNUR DISTRICT,RKERALA.
BY ADVS.
SIDHARTH LUTHRA (SR.)
SRI.AKHIL S.VISHNU
SMT.APARNA SUKUMARAN
SUKUMARAN P.N.
RESPONDENT/S:
1 STATE OF KERALA
REP.BY HOME SECRETARY, GOVT.OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM -69500.
2 CENTRAL BUREAU OF INVESTIGATION
REP. BY THE DIRECTOR, NEW DELHI.
3 INSPECTOR OF POLICE SCB CBI SPE
THIRUVANANTHAPURAM.
4 DEPUTY SUPERINTENDENT OF POLICE
KANNUR.
5 DEPUTY SUPERINTENDENT OF POLICE
THALASSERY.
6 DEPUTY SUPERINTENDENT OF POLICE
CB, CID, KANNUR.
7 SUBEESH E. SO.VIJAYAN
AGED 30 YEARS, EBRANTAVIDA HOUSE, CHEMBRA, P.O.PARAL,
THALASSERY TALUK, KANNUR.
WP(C) 30716/2017
-2-
*Addl.R8 MARIYU
AGED 40 YEARS
W/O LATE MUHAMMED FAZIL, NAFEEZA MANZIL,
MADAPEEDIKA, THALASSERY, NOW RESIDING AT FIDHA
QUARTERS, OPPOSITE MADHEENA MANZHIL, ACHARATH
ROAD, TEMPLE GATE P.O., THALASSERY, KANNUR DIST-
670001.
*Addl.R8 IS IMPLEADED AS PER ORDER DATED 16.7.18 IN IA
NO.12765/2018
BY ADVS.
DIRECTOR GENERAL OF PROSECUTION
SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
M.P. ABDUL LATHEEF
SANDEEP T.K.
ARJUN SREEDHAR
SRI.P.K.MOHAMED JAMEEL
JOSEPH GEORGE(MULLAKKARIYIL)
SRI.SASTHAMANGALAM S. AJITHKUMAR
ARUN KRISHNA DHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) 30716/2017
-3-
'CR'
ASHOK MENON, J.
------------------------------------
W.P(C). No.30716 of 2017
-------------------------------------
Dated this the 7th day of July 2021
JUDGMENT
A writ petition under Article 226 of the
Constitution of India.
2. At daybreak, about 3:30 AM, on 22/10/2006
at the J.T.road, Thalasseri, P.K.Fasalu @ Muhammad
Fazal, a distributor of 'Thejus' newspaper, was
allegedly hacked by his arch-rivals members of the
C.P.M, and mortally wounded with twenty-odd stab
injuries. Responding to an anonymous phone call,
the jurisdictional Circle Inspector of Police
reached there and took him to the Government
Hospital, Thalasseri, only to be declared dead by
the doctor on duty. Crime No.442/2006, was
registered at the Thalasseri Police Station for an
offence punishable under Section 302 of the Indian
WP(C) 30716/2017
Penal Code, initially against unnamed assailants.
On 03/11/2006, the investigation was handed over to
the C.B.C.I.D., Kannur District. On 08/10/2007 A2
and A3 were arrested, followed by the arrest of A1
on 10/10/2007. As the investigation progressed, the
accused were subjected to polygraph tests and
reports obtained. In the meanwhile, Mariyu, the
wife of the deceased, filed Writ petition No.
11228/2007 before this Court for handing over the
investigation to the Central Bureau of
Investigation alleging that the investigation
conducted by the C.B.C.I.D. was neither sufficient
nor proper. She alleges that the deceased who had
gone to collect 'Thejus' newspaper of which he was
the distributor, was brutally murdered in the wee
hours of 22/10/2006.
3. The deceased who was earlier an ardent
follower of the C.P.M. switched allegiance to
N.D.F. Several Muslim supporters of the C.P.M.,
followed the deceased to join N.D.F. The deceased
WP(C) 30716/2017
was also instrumental in persuading several
subscribers of the C.P.M party newspaper and
journals to terminate their subscription and
instead, subscribe to 'Thejus', the newspaper
espousing the cause of N.D.F. The aforesaid
activities of the deceased, irked the C.P.M.
activists and invited their wrath, and led to his
brutal murder. The accused had even planted
tridents (thrisuls) near the body to mislead the
investigation and create an impression that the
members of the Rashtriya Swayam Sevak Sangh (RSS)
were the actual perpetraters. It was alleged that
the then Home Minister was from that constituency
wielded considerable influence on the Police. After
considering the allegations made by the wife of the
deceased, pointing accusing fingers at the members
of C.P.M., and the ground realities at Kannur, and
that no investigation appears to have been
conducted to pinpoint and confirm the identity of
the accused numbers 1 to 3, as the assailants of
WP(C) 30716/2017
the deceased and the recovery alleged to have been
made under S.27 of the Evidence Act from an open
compound adjacent to the Pankaj Talkies after
months of the occurrence was found too good to be
believed, this Court allowed the Writ Petition and
directed the investigation to be handed over to the
C.B.I., vide Ext.P2 judgement. The State of Kerala
challenged Ext.P2 judgement in Writ appeal
No.654/2008. A Division Bench of this Court
dismissed the writ appeal and confirmed Ext.P2
Judgement vide Ext. P3 judgement.
4. The Central Bureau of Investigation took
over the investigation, re-registered the case as
RC2 (S)/2008/Chn, on 05/04/2008 vide Ext. P4 F.I.R,
and proceeded with the investigation, which
continued for long four years. Accused Nos.4 and 5
were arrested on 15/03/2012, A6 was arrested on
16/03/2012, while A7 and A8, against whom
conspiracy is alleged, surrendered before the
jurisdictional Court, and arrested. On completion
WP(C) 30716/2017
of the investigation, Ext.P5 final report was
submitted by the 2nd respondent, Director of the
C.B.I., alleging offences punishable under sections
120-B, 143, 147, 148, 149, 341 and 302 of the
Indian Penal Code, and under Section 27 of the Arms
Act, reserving their right to file supplementary
charge sheet on identification of the remaining
conspirators in this crime.
5. The jurisdictional Magistrate committed
the case and it has been taken on the files of the
Sessions Court-IV, Ernakulam (C.B.I Court II) as
S.C. No.405/2012. While the trial was in progress,
Ext.P6 supplementary final report was filed by the
investigating officer on 04/03/2013, stating that
despite thorough investigation, the remaining two
accused and a bike that allegedly was used in the
commission of the offence, could not be identified.
However, the investigating agency still reserved
its right to continue with the investigation with
the permission of the Court, as and when any
WP(C) 30716/2017
evidence in lead about the identity of the two
conspirators believed to be involved in the crime,
and the motorcycle used was established.
6. Things take a dramatic turn consequent to
the arrest of the 7th respondent, alleged to an
erstwhile member of the R.S.S., on 18-11-2016, in
Crime No.1706/2016 of Koothuparamba Police Station,
registered in connection with the murder of one
Mohanan, a member of the C.P.M. During his
interrogation, he allegedly gave Ext.P7 statement
to the police confessing his involvement in two
other murders. He admitted that he was involved in
the murder of one Pavithran, in a pending Crime
No.43/2009 of Kannavam Police Station, and further
confessed his involvement in the present Crime
No.442/2006 of Thalasseri Police Station, for
murdering Fasal, the brother of the petitioner. The
confession statement of R7 was video recorded by
the investigating officer in Crime No.1708/2016.
The investigating officer reported the fact to
WP(C) 30716/2017
superior police officials. The District Police
Chief, Kannur sent Ext.P8 letter to the State
Police Chief, on 24-11-2016, informing of the
information about the confession of R7 and
requesting the matter to be taken with the C.B.I
who are entrusted with the investigation of the
instant Crime. Crime 43/2009 of Kannavam Police
Station was at that time pending as SC No.362/2011
before the Addl. Sessions Court- III, Thalasseri. A
report was filed by the investigating officer
therein, for further investigation, and on being
convinced, permission was granted to conduct
further investigation under S.173(8) Cr.P.C., as
per Ext.P9 order. R7 was produced before the JFCM,
Koothuparamba, in Crime No.1708/2016, with a
request for remand. Ext.P10 is that remand report.
He gave Ext.P11, a statement. It is contended by
the petitioner that R7 did not raise any complaints
of police harassment during custody, to the
Magistrate. It was only at a later stage that R7
WP(C) 30716/2017
retracted from his confession and raised all sorts
of complaints against the police about extracting a
confession from him which was not voluntarily made
by him. Moreover, R7 has allegedly admitted about
his involvement to his friend, over the phone, two
years before his confession to the police. The
recordings of that conversation are also produced
by the police in a pen drive. Shinoj, a co-accused
has also confessed about his involvement in the
crime with R7 for murdering Fasal.
7. Under the above circumstances, the
petitioner states that the real culprits are not
yet arraigned as accused. He, therefore, filed
Crl. M.P No.877/2017 at Ext.P12, before the
jurisdictional Court, requesting a further
investigation by the C.B.I under S.173(8) Cr.P.C.
The 3rd respondent investigating officer opposed the
application for further investigation and filed
Ext.P13 objections. The petitioner states that R3
is determined to proceed against C.P.M leaders
WP(C) 30716/2017
presently arraigned as accused in this Crime.
Crl.M.P.No.877/2017 was dismissed by the
jurisdictional Court vide Ext.P14 Order.
Aggrieved by the order refusing further
investigation, the petitioner has approached this
Court with this Writ Petition seeking a further
investigation by a special investigation team
constituted by the 2nd respondent.
8. The 7th respondent had got himself impleaded
in Crl.M.P.No.877/2017 by filing Crl.M.P.No.
1501/2017 opposing the further investigation of
this Crime based on an alleged confession given by
him. He states that he was taken into illegal
custody and forced to give a confession statement
and made to admit about his involvement in Fasal's
murder. He was subjected to brutal torture for two
days at Azhikal Coast Guard Station, Kannur, by two
Dy.S.Ps. According to him, all this was done to
weaken the case against the C.P.M leaders who
are presently arraigned as accused, at the
instance of the C.P.M led L.D.F., presently in
WP(C) 30716/2017
power in the State. R7 has filed a written
complaint against the two officers, before the
JFCM, Koothuparamba. Complaints were also made
before the Human Rights Commission and Police
Complaints Authority. The State Police is
attempting to foist a case against R.S.S workers
including R7 alleging that they had murdered Fasal
and that no C.P.M members are involved. The
petitioner who is the brother of the deceased is
himself an active C.P.M worker, and he has
therefore been made a pawn to dance to the tunes of
the State Police and the C.P.M leaders. The
petitioner had opposed the impleadment of R7 in his
application for further investigation because he
has no Locus Standi. The objection was however
disregarded by the jurisdictional court and R7 was
impleaded and heard because further investigation
is sought based on a purported confession made by
him. Ultimately, vide Ext.P14 Order, the request
for further investigation was declined.
WP(C) 30716/2017
9. Heard Sri Sidharth Luthra, the learned
Senior counsel for the petitioner, Sri Suman
Chakravarthy, the learned Senior G.P. for the
State, Sri Arjun Sreedharan the learned counsel for
the seventh respondent and Sri Sasthamangalam S.
Ajithkumar, the standing counsel for the C.B.I.
Records perused.
10. It is argued for the petitioner that the
Police has the right to file a supplementary charge
sheet even after a final report under Section 173
Cr. P.C was filed. If the Police officer after
having laid the charge sheet, gets further
information, he can still investigate and lay
further charge sheets. Even the
Magistrate's/Court's permission is not necessary
for further investigation. All that is to be done
by the investigating officer is to inform the
jurisdictional Court about the fresh facts which
have come to light. The learned counsel submits
that Police has the right to reopen the
WP(C) 30716/2017
investigation even after the filing of the charge
sheet under Section 173 (1), Cr.P.C. The learned
counsel relies on the decision of the Kerala High
Court, In the Matter of State Prosecutor, [1973 Cri
LJ 1288] in which several decisions of various High
Courts have been referred to. The Apex Court has
in Ram Lal Narang and Ors vs. State (Delhi
Administration) [AIR 1979 SC 1791] held that
notwithstanding the Magistrate taking cognizance of
the offence upon a Police report submitted under
Section 173 Cr. P.C, the right of the Police to
further investigate was not exhausted and the
Police could exercise such a right as often as
necessary when fresh information came to light.
Relying on the decision Mani M.M Vs. State of
Kerala and Others, [2012 (3) KHC 36], the learned
counsel argues that investigation of the crime is
within the domain of the Police. For the reason
that once a crime has been investigated and charge
sheet filed against one or more accused persons and
WP(C) 30716/2017
the trial proceeded against him, ending in his
conviction/acquittal, it is not postulated that
where fresh evidence, throwing light on the crime
previously investigated and tried by the Court
comes to the notice of Police, it cannot be probed
at all. In that case, speech made by the district
secretary of a political party, wherein a
declaration was made that some of the murders that
have taken place in the district were part of a
design after preparing a list naming such
adversaries and finishing them off. It was held
that registration of an F.I.R based on the speech
was proper and further investigation in those
murder cases could be conducted under Section 173
(8), Cr.P.C. The learned counsel submits that the
constitutional courts are empowered to direct
further investigation or even de novo or fresh
investigation or reinvestigation by some other
investigating agency. Commencement of trial and
examination of some witnesses cannot be an absolute
WP(C) 30716/2017
impediment for exercising the said constitutional
power. (See Dharam Pal vs. State of Haryana and
others, [(2016) 4 SCC 160]). The learned counsel
submits that the power of ordering further
investigation would be available at all stages and
that the Court is not denuded of the power to order
further investigation, even in the post-cognizance
stage. If fresh facts come to light, which would
lead to inculcating or exculpating certain persons,
arriving at the truth in doing substantial justice
in a criminal case is more important than avoiding
further delay being caused in concluding the
criminal proceedings. (See Hassanbhai Valibhai
Qureshi vs. State of Gujarat [(2004) 5 SCC 347]).
This view has also been upheld in a later decision
of the Apex Court in Vinubhai Haribhai Malaviya and
others vs. State of Gujarat and another [2019 SCC
OnLine SC 1346]. It is submitted that the
petitioner being the brother of the deceased is an
interested party who can question the nature of the
WP(C) 30716/2017
investigation made in this case.
11. The learned Sessions Judge relying on the
decision of the Apex Court in Amrutbhai Shambhubhai
Patel v. Sumanbhai Kantibhai Patel and Ors
[(2017(1) KHC 867(SC): AIR 2017 SC 774], held that
further investigation under S.173(8) Cr.P.C., after
taking cognizance by the Court can be ordered only
on the request of the investigating agency and it
cannot be ordered at the request of the defacto
complainant/informant or any other person. Hence
the trial court refused to order further
investigation on the request of the petitioner
solely based on a retracted confession allegedly
made by the 7th respondent while in police custody,
or an alleged extra-judicial confession made by him
to his friend. The investigating agency has not
considered the alleged confession statement to be
valid or admissible. The wife of the deceased, at
whose instance the CBI investigation was ordered by
this court, has also no opinion favouring a further
WP(C) 30716/2017
investigation in the case.
12. The learned counsel for the petitioner
submits that the decision in Amrutbhai Shambhubhai
Patel has been overruled by a Three-Judge Bench of
the Apex Court in Vinubhai Haribhai Malaviya and
Ors v. State of Gujarat and Another [2019(5)KHC
352: AIR 2019 SC 5233] and observed thus:
"38. There is no good reason given by
the Court in these decisions as to
why a Magistrate's powers to order
further investigation would suddenly
cease upon the process being issued,
and an accused appearing before the
Magistrate, while concomitantly, the
power of the police to further
investigate the offence continues
right till the stage the trial
commences. Such a view would not
accord with the earlier judgments of
this Court, in particular, Sakiri
(supra), Samaj Parivartan Samudaya
(supra), Vinay Tyagi (supra), and
Hardeep Singh (supra); Hardeep Singh
WP(C) 30716/2017
(supra) having held that a criminal
trial does not begin after cognizance
is taken, but only after charges are
framed. What is not given any
importance at all in the recent
judgments of this Court is Art.21 of
the Constitution and the fact that
the Article demands no less than a
fair and just investigation. To say
that a fair and just investigation
would lead to the conclusion that the
police retain the power, subject, of
course, to the Magistrate's nod under
S.173(8) to further investigate an
offence till charges are framed, but
that the supervisory jurisdiction of
the Magistrate suddenly ceases mid-
way through the pre-trial
proceedings, would amount to a
travesty of justice, as certain cases
may cry out for further investigation
so that an innocent person is not
wrongly arraigned as an accused or
that a prima facie guilty person is
not so left out. There is no warrant
for such a narrow and restrictive
view of the powers of the Magistrate,
WP(C) 30716/2017
particularly when such powers are
traceable to S.156(3) read with
S.156(1), S.2(h), and S.173(8) of the
CrPC, as has been noticed
hereinabove, and would be available
at all stages of the progress of a
criminal case before the trial
commences. It would also be in the
interest of justice that this power
is exercised suo motu by the
Magistrate himself, depending on the
facts of each case. Whether further
investigation should or should not be
ordered is within the discretion of
the learned Magistrate who will
exercise such discretion on the facts
of each case and in accordance with
law. If, for example, fresh facts
come to light which would lead to
inculpating or exculpating certain
persons, arriving at the truth and
doing substantial justice in a
criminal case are more important than
avoiding further delay being caused
in concluding the criminal
proceeding, as was held in Hasanbhai
Valibhai Qureshi (supra). Therefore,
WP(C) 30716/2017
to the extent that the judgments in
Amrutbhai Shambubhai Patel (supra),
Athul Rao (supra) and Bikash Ranjan
Rout (supra) have held to the
contrary, they stand overruled.
Needless to add, Randhir Singh Rana
v. State (Delhi Administration), 1997
KHC 247: 1997 (1) SCC 361 and Reeta
Nag v. State of West Bengal and
Others, 2009 KHC 4942: 2009 (9) SCC
129 also stand overruled." (emphasis
supplied)"
Given the above finding of the Larger Bench of the
Apex Court, it is argued that there is scope for
further investigation despite the objection raised
by R7 and the CBI. The CBI has not made any
investigation concerning the alleged confession
statement given by R7 wherein he has stated that
Fasal was murdered by RSS gangsters including
himself and three others, namely Proneesh,
Prabheesh and Shinoj. It is also pointed out that
some of the witnesses who claim to have witnessed
WP(C) 30716/2017
the occurrence, have later retracted from their
earlier version. The confession statement of the
present accused leading to recovery is also found
to be faulty. The final report suggests that there
was an existing RSS-NDP clash in the area on the
eve of the murder of Fasal. RSS worker Shinoj was
allegedly assaulted by NDF activists who had barged
into the RSS office. The attack on Fasal is alleged
to be in retaliation to the said attack on RSS
workers.
13. The learned Senior Government Pleader
representing the State Government also points out
the need for a further investigation in the case.
The 6th respondent, Dy. Sp Kannur has also filed a
detailed statement explaining the requirement for a
further investigation in the case.
14. After having gone through the submissions
made by the petitioner and the respondents, and on
perusal of the materials placed, there is
undoubtedly a need for examination of the
WP(C) 30716/2017
confession statement of R7 and the attending
circumstances. Without an examination of those
materials by the investigating agency, it is not
proper to discard them altogether. When some fresh
facts come to light leading to inculpating and
exculpating certain persons, arriving at the truth
and doing substantial justice in a criminal case
are more important than avoiding further delay
being caused in concluding the criminal proceeding,
as observed by the Apex Court in Vinubhai (Supra).
15. It may be true that the CBI may not be
satisfied with the materials now collected by the
local police during the investigation in some other
case involving R7. But there is no harm in
examining those materials also, as a part of a
further investigation under section 173(8) Cr.P.C.
Such further investigation can, no doubt be sought
by the petitioner, who is interested in seeing the
real culprits of his brother are proceeded against.
16. The Learned Sessions Judge had dismissed
WP(C) 30716/2017
the request of the petitioner vide Ext P14, based
solely on the decision of the Apex Court in
Amrutbhai (supra) holding that once the final
report is filed, the de facto complainant or
aggrieved cannot seek further investigation
invoking the provisions under S.173(8) Cr. P.C,
without the investigating officer asking for it.
This finding cannot be justified given the
subsequent dictum of the Hon'ble Supreme Court in
Vinubhai (Supra) and has to be set aside.
The Writ Petition is allowed. The second
respondent is hereby directed to constitute a
special team of the CBI to further investigate
Crime No.RC2(S)/2008/Chn pending as S.C. 405/2012
on the files of the Sessions Court-IV(CBI-II),
Ernakulam.
Sd/-
ASHOK MENON
JUDGE
jg
WP(C) 30716/2017
APPENDIX OF WP(C) 30716/2017
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE FSL REPORT DATED
01.01.2008
EXHIBIT P1(A) TRUE COPY OF THE FSL REPORT DATED
04.01.2008
EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WRIT
PETITION NO.11228/2007.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL
NO.654/2008 IN WRIT PETITION
NO.11228/2017.
EXHIBIT P4 TRUE COPY OF THE FIR NO.RC2
(S)/2008/CHN, DATED 05.04.2008
REGISTERED BY THE CBI.
EXHIBIT P5 TRUE COPY OF THE FINAL REPORT DATED
08.06.2012 SUBMITTED BY THE CBI.
EXHIBIT P6 SUPPLEMENTARY FINAL REPORT DATED
02.02.2013, SUBMITTED BY CBI
EXHIBIT P7 TRUE COPY OF THE CONFESSIONAL STATEMENT
OF RESPONDENT NO.7
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 24.11.2016
SEND BY THE DISTRICT POLICE CHIEF,
KANNUR TO THE STATE POLICE CHIEF.
WP(C) 30716/2017
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 23.11.2016
PASSED BY THE ADDL. DISTRICT AND
SESSIONS COURT-III, THALASSERY. GRANTING
PERMISSION FOR FURTHER INVESTIGATION.
EXHIBIT P10 TRUE COPY OF THE REMAND REPORT.
EXHIBIT P11 TRUE COPY OF THE STATEMENT OF 7TH
RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE APPLICATION FILED BY
THE PETITIONER AS CRL. M.P.NO.877/2017
IN SC NO.405/2012, BEFORE THE ADDL.
DISTRICT AND SESSIONS JUDGE-IV,
ERNAKULAM.
EXHIBIT P13 TRUE COPY OF THE OBJECTION FILED BY THE
INVESTIGATING OFFICER - CBI IN CRIMINAL
MP NO.877/2017
EXHIBIT P14 TRUE COPY OF THE ORDER, DATED 15.06.2017
PASSED BY THE ADDL DISTRICT AND SESSIONS
JUDGE-IV (CBI-II) ERNAKULAM IN CRL.M.P.
NO.877/2017
