Xxx vs State Of Kerala
2021 Latest Caselaw 9367 Ker

  WP(C).2919/21                      1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR.JUSTICE V.G.ARUN

    FRIDAY, THE 19TH DAY OF MARCH 2021 / 28TH PHALGUNA, 1942

                        WP(C).No.2919 OF 2021(L)


PETITIONER/S:

                XXX
                XXXXX

                BY ADV. SRI.C.RAJENDRAN

RESPONDENT/S:

      1         STATE OF KERALA
                REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
                SECRETARIAT, THIRUVANANAHTHAPURAM-695001.

      2         THE ADDITIONAL CHIEF SECRETARY
                HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-
                695001.

      3         THE STATE OF POLICE CHIEF
                POLICE HEAD QUARTERS, VELLAYAMBALAM,
                THIRUVANANTHAPURAM-695010.

      4         THE CENTRAL BUREA OF INVESTIGATION
                REPRESENTED BY ITS SUPERINTENDENT OF POLICE,
                KADAVANTHARA, ERNAKULAM-682020.

      5         THE STATION HOUSE OFFICER
                WALAYAR, PALAKKAD-678621.

                R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER

OTHER PRESENT:

                ASGI P.VIJAYAKUMAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
   WP(C).2919/21                      2



                              V.G.ARUN, J.
               -----------------------------------------------
                      W.P(C).No. 2919 of 2021
               -----------------------------------------------
              Dated this the 19th day of March, 2021

                               JUDGMENT

The minor daughters of the writ petitioner died under suspicious

circumstances on 13.1.2017 and 4.3.2017. This resulted in Crime

Nos.43 and 240 of 2017 being registered at the Walayar Police Station.

The crimes were initially registered under Section 174 Cr.P.C, the

information received being of the girls having committed suicide.

During the course of investigation it was revealed that, offences

punishable under Sections 376(2)(i) and (n), 377, 305, 354 of IPC,

Sections 5(l) read with Sections 6 and 7 read with Section 8 of the

PoCSO Act and Sections 3(1)(w)(i) and 3(2)(va) of the SC/ST (POA) Act

had been committed against the elder girl and offences punishable

under Sections 376(2)(i) and (n), 377, 305, 354 of IPC, Section 5(l) and

(m) read with Sections 6 and 7 read with Section 8 of the PoCSO Act

and Sections 3(1)(w)(i) and 3(2)(va) of the SC/ST (POA) Act, against

the younger girl. After investigation, two final reports were filed. The

accused faced trial in S.C.Nos. 398 and 401 of 2017 before the First

Additional Sessions Court (Special Court under PoCSO Act), Palakkad

and were acquitted. Aggrieved, the State as well as the writ petitioner

preferred appeals and a Division Bench of this Court allowed the

appeals vide Exhibit P1 judgment and remanded the case for re-trial

and disposal. The trial judge was directed to consider the plea, if any,

raised by the investigating agency for permission to conduct further

investigation into the case. Various other directions were also issued

to ensure proper conduct of the re-trial.

2. This writ petition was filed thereafter, praying for the further

investigation to be entrusted with the Central Bureau of Investigation.

Pending the writ petition, the Government of Kerala decided to entrust

the further investigation with the CBI and issued notification under

Section 6 of the Delhi Special Police Establishment Act, 1946. On

receipt of the notification, the Central Government informed the State

that the notification was not in accordance with the guidelines issued

vide letter No.270/37/2018-AVD-II dated 22.11.2018.

3. Today, the learned Senior Public Prosecutor submitted, on

instructions, that all requisite documents, as stipulated in the

guidelines, have been handed over in person to the competent

authority in the Central Government.

4. Learned ASGI submitted that the documents have been

received and that the Central Government has sought a feasibility

report from the CBI. It is informed that on receipt of the feasibility

report, the Central Government will take appropriate decision

regarding taking over of the further investigation.

5. The submission of the learned Senior Public Prosecutor and

learned ASGI reveals that the State is keen in entrusting the further

investigation with the CBI and the Central Government is not averse to

the CBI taking over the investigation.

6. Having gone through the records produced and having read

the findings in Exhibit P1 judgment, I am of the considered opinion

that there cannot be any further delay in commencing the

investigation. Hence, the Central Bureau of Investigation (4 th

respondent) is directed to take over the further investigation in Crime

Nos.43/2017 & 240/2017 of Walayar Police Station forthwith. The State

of Kerala and the State Police Chief shall take immediate measures for

entrusting all files, records and materials pertaining to the crimes with

the 4th respondent. The State Government shall provide all logistical

support to the CBI for enabling its officers to conduct the further

investigation in an unhindered manner.

Writ petition is disposed of with the above directions, reserving

the petitioner's liberty to approach this Court at a later stage, if so

warranted.

Sd/-

V.G.ARUN, JUDGE

vgs

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE PHOTOCOPY OF THE COMMON JUDGMENT OF THIS HON'BLE COURT IN CRIMINAL APPEAL NO.1357/2019, 1159/2019 ETC, DATED 06.01.2021.

EXHIBIT P2           A TRUE PHOTOCOPY OF THE GOVERNMENT
                     NOTIFICATION NO. GO (MS) NO. 21/2021/HOME
                     DATED 25/01/2021.