Kerala High Court
Arshika S vs State Of Kerala on 5 May, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
THURSDAY, THE 5TH DAY OF MAY 2022 / 15TH VAISAKHA, 1944
WP(CRL.) NO. 509 OF 2021
PETITIONER:
ARSHIKA S.,
AGED 26 YEARS, W/O. LATE SANJITH A.,D/O. SIVAN K.,
MAMBARAM, KINASSERY POST, PALAKKAD-678701.
BY ADVS.S.SREEKUMAR (SR.),P.MARTIN JOSE,R.GITHESH, P.PRIJITH
THOMAS P.KURUVILLA, AJAY BEN JOSE, MANJUNATH MENON,
SACHIN JACOB AMBAT,HARIKRISHNAN S.
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
HOME (SECRET SECTION A) DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE STATE POLICE CHIEF,
POLICE HEAD QUARTERS, TRIVANDRUM, PIN - 695001.
3 THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF PERSONAL,
PUBLIC GRIEVANCES AND PENSIONERS, DEPARTMENT OF PERSONNEL
AND TRAINING, NORTH BLOCK, NEW DELHI-110 001.
4 THE CENTRAL BUREAU OF INVESTIGATION,
6TH FLOOR, LODHI ROAD, PLOT NO.5-B,
JAWAHARLAL NEHRU STADIUM MARG,
CGO COMPLEX, NEW DELHI, DELHI-110003,
REPRESENTED BY ITS DIRECTOR.
5 THE STATION HOUSE OFFICER,
PALAKKAD TOWN SOUTH POLICE STATION,
PALAKKAD-678013.
R1, R2 & R5 BY SRI. GRACIOUS KURIAKOSE, ADDL.DGP
SRI.C.K. SURESH, SENIOR PUBLIC PROSECUTOR
R3 & R4 BY SRI. MANU S., ASG OF INDIA
SRI.SUVIN R.MENON, CENTRAL GOVERNMENT COUNSEL
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
07.04.2022, THE COURT ON 05.05.2022 DELIVERED THE FOLLOWING:
W.P(Crl). No. 509/2021 2
JUDGMENT
This is a writ petition filed under Article 226 of the Constitution
seeking the following reliefs:
i. entrust the investigation of Crime No.1989 of 2021 of Palakkad
Town South Police Station and Crime No.457 of 2020 of
Palakkad Kasba Police Station with 4 th respondent CBI for
further investigation;
ii. issue such other Writ, order or direction as may be necessary in
the interest of justice.
2. Petitioner is the widow of late Sanjith who was attacked and
brutally killed by a group of five identifiable persons on 15.11.2021 while
he was moving on a motor cycle with the petitioner on the pillion seat, for
dropping her at her workplace. The attack was made at a place by name
Mambaram Pudugramam within Palakkad Town South police station
limits. While they were moving on the motor cycle, as there were gutters
on the road, the vehicle had to be slowed down and at that time a group of
five persons was found standing beside a white Maruti car on the side of
the road. When the motor cycle was slowed down, they unleashed attack
against Sanjith; both of them fell on the road along with the motorcycle.
At that time, one of the assailants dragged the petitioner from the spot and
they brutally attacked Sanjith using dangerous weapons, swords carried by
them. When people gathered, they left the scene in the car. Sanjith was
immediately taken to the District hospital, Palakkad. The Doctor declared
him dead. On 15.11.2021 Palakkad Town South police registered the crime
on the basis of the first information furnished by her.
3. According to the petitioner, her husband Sanjith was the
Secretary of Rashtriya Swayamsevak Sangh (RSS), Thenari Mandalam in
Elappully panchayat. He was an eye-sore to the Popular Front of India
(PFI) and Social Democratic Party of India (SDPI), both are known
organisations indulging in propagating extremist ideologies throughout the
country. Deceased Sanjith had tried to maintain peace between various
communities and was against extremist groups as there were sharp
differences in ideologies among RSS, SDPI and PFI; both SDPI and PFI
have roots outside India. They are engaged in conversion of people from
other communities to Islam by threat, coercion and intimidation. Their
activities have caused tensed situations in that area. The husband of the
petitioner and his co-workers opposed the extremist ideologies of SDPI
and PFI who wanted to suppress the growth of RSS and propagated
terrorism in the minds of innocents. On 27.06.2020 an attack was made
against Sanjith by SDPI and PFI workers following which crime 457/2020
of Kasba police station was registered alleging offence under Sections 452,
324, 326, 307 read with 34 of the Indian Penal Code. The investigation in
that crime is moving at a snail's pace, that no final report is filed yet, the
attempt of the police is to shield the real culprits. Even thereafter there
were constant threats against the life of Sanjith from SDPI and PFI
activists. The death of Sanjith is the result of a larger criminal conspiracy
hatched among the activists of SDPI and PFI. But the investigating agency
has not conducted proper, effective and timely investigation in crime
457/2020, which resulted in the unfortunate death of her husband. The
larger conspiracy involved in these attacks is not being investigated by the
police. The brutal attack was conducted in broad day light, in front of her,
at 8.45 am on 15.11.2021. Even though she had made repeated requests to
respondents 1 and 2 to investigate the larger conspiracy, those were not
considered at all. Even when crime 1989/2021 was registered, they were
reluctant in naming the organisations SDPI and PFI, in the FIR. These
organisations have roots all over India and abroad, that there are national
and international ramifications in the commission of the ghastly murder.
The SDPI and PFI activists have indulged in attack against RSS workers in
different parts of the country. On 05.02.2019 they had killed one
Ramalingam in Tamil Nadu and the investigation was taken over by the
National Investigation Agency and a final report was laid against 18 PFI
and SDPI activists. The death of her husband is the result of interference
of the deceased with the propagators of extremist activists. Accused had
travelled out of the State and the vehicle used by them was found in a
demolished condition in Tamil Nadu. The murder of Sanjith was the result
of a larger conspiracy hatched among the national leaders of SDPI and PFI.
It is only a sequel of murders that had taken place in the last few months in
which at least four people were killed by the extremist organisation.
Earlier, even though attempts were made against the life of Sanjith, which
led to registration of Ext.P2 crime, effective and proper investigation was
not conducted so far. Even though Ext.P4 final report was laid during the
pendency of the Writ Petition, investigation was conducted in a
perfunctory manner. It is also pointed out that a top police official of the
rank of Additional Director General of Police had revealed in a recent
interview that after the commission of such crimes the assailants go
underground and have backing of terrorists and difficult to book them. So
far accused Nos.8 to 11 and 15 to 19 have not been arrested; many of the
accused might have left the country and sought asylum in terrorist
countries. Considering the fact that there is a larger conspiracy in the
murder of Sanjith and having regard to the national and international
ramifications and the perfunctory manner of conducting investigation by
the local police, it is only appropriate that investigation of the cases be
handed over to the CBI, which agency alone can unfold the truth and take
the case to a logical end.
4. The Writ Petition was filed on 21.12.2021. The final report in
crime 1989/2021 was filed on 10.02.2022. When that fact was revealed,
the petitioner carried out certain amendments to the Writ Petition and an
amended Original Petition has been filed. At first the 5 th respondent had
filed a statement negating the contentions of the petitioner. Later, the
Investigating Officer, Dy.SP Palakkad also filed a statement. According to
him, the investigation has been conducted on proper lines, that there is
absolutely no basis in the contentions of the petitioner, that further
investigation should not be handed over to the CBI.
5. According to him, immediately on registering the crime on the
basis of the first information furnished by the petitioner, the SHO, Town
South police station had started investigation, the weapons of offence used
by the culprits were found abandoned in a sack about six kilometres away
from the place of occurrence at Kannanoor on the National Highway and
retrieved by the police. The items were sent to the Regional Forensic
Science Laboratory, Thrissur for examination. The five persons who had
executed the murder of Sanjith were moving in an old Maruti 800. On
their return from the place of occurrence some mechanical flaws developed
and the car had to be shown in two workshops between Kannanoor and
Kuzhalmannam. Verification of the CCTV footages revealed that the 1 st
accused had reached there on KL-70-7945 motorcycle for taking the car
from the workshop. The motorcycle belonged to one Sakkir S/o
Mohammed, an employee of the 1st accused, and thus the police arrested
the 1st accused and arrest of other accused was also made without further
delay. Considering the gravity of the situation, a special investigation team
was constituted on the directions of the Additional Director General of
Police, L & O, Thiruvananthapuram. They could arrest five persons who
had actually executed the crime, besides prime persons who had hatched
the murder conspiracy. Moreover, material objects are also seized. The
accused persons are the activists of the SDPI. The persons who attacked
Sanjith which led to the registration of crime 457/2020 of Kasba police
station are also sympathizers of the SDPI. Earlier, one Sakeer Hussain, an
SDPI sympathizer was attacked which led to the registration of crime
487/2021 of Kozhinjampara police station alleging offence under Sections
143, 147, 148, 341, 324, 307 read with 149 of the IPC; that was committed
with the knowledge of deceased Sanjith. The motive behind the brutal
attack against Sanjith was the said attack against Sakeer Hussain. The
police unravelled the entire conspiracy hatched by the accused persons.
They have already identified the actual persons who committed the act of
murder and also persons who hatched the criminal conspiracy. Main
culprits have already been booked. The investigation has been conducted
at Kozhikode, Malappuram, Wayanad, Ernakulam and Tamil Nadu; about
450 witnesses have been questioned, recoveries have been effected, 25
CCTV footages were verified, three tower dumps were collected and
analysed, six vehicles including two cars, one autorikshaw and three
motorbikes were seized, 780 CDRs have been verified and analyzed and
material objects have been sent to Rajiv Gandhi Centre for Biotechnology
for DNA extraction. Now the charge sheet has been laid against accused
Nos.1 to 8 and 12 to 14. All accused persons have been identified and
steps are taken for apprehending the remaining accused; telephonic calls of
all suspects are monitored. As the names of SDPI and PFI organisations
were not disclosed in the first information statement, that could not be
incorporated in the FIR. But the subsequent reports indicate that their roles
were established. The accused persons belong to Palakkad and
Malappuram districts. There is no evidence to establish the role of other
leaders of the SDPI and PFI of the State or inter-State.
6. I heard the learned Senior Counsel Sri. S. Sreekumar, assisted
by Adv.Sri. P. Martin Jose for the petitioner, Sri. Gracious Kuriakose, the
learned Senior Counsel and Additional Director General of Prosecution
assisted by Sri.C.K.Suresh, Senior Public Prosecutor for the State and also
Sri. Suvin R. Menon, the learned Central Government Counsel on behalf of
the Assistant Solicitor General of India.
7. The learned Senior Counsel for the petitioner reiterated the
contentions in the Writ Petition. According to him, Ext.P4 is the testimony
of lack of effective investigation. At the time when the Writ Petition was
filed, the prosecution had booked only three accused persons and the final
report was not laid. From Ext.P4 it is evident that the final report is not
complete. The investigating agency is groping in the dark and actual
persons who have worked behind the curtain have not been identified or
arrested. It is a known fact that SDPI and PFI are involved in the murder.
Even though they had made attempts against the life of Sanjith earlier,
those were not taken seriously and that led to the unfortunate death of a 27
year old youth in front of his wife. Both SDPI and PFI are extremist
organisations having deep roots beyond the territory of the State and also
abroad; they are getting regular funds from abroad. If only the case is
investigated by the premier investigating agency of the country, entire truth
will come out. Therefore, he pressed for transferring the investigation to
the CBI.
8. The learned Additional Director General of Prosecution
strongly opposed the Writ Petition. He raised a preliminary objection that
such a Writ Petition is not maintainable without taking the accused into
confidence. In this connection, he relied on the decisions reported in State
of Punjab v. Davinder Pal Singh Bhullar and others (2011 KHC 5083)
which has been followed by a Division Bench of this Court in State of
Kerala and others v. C.P. Mohammed and others [2019 (4) KHC 359].
According to the learned ADGP, the investigation has been conducted by
the State police in a most effective manner, they have already identified the
persons who had executed the heinous act and also persons who had
hatched criminal conspiracy; prime accused have already been arrested and
the final report was laid with least possible delay, which prevented the
accused getting released on statutory bail. Considering the gravity of the
allegations, a special investigation team was constituted and they have
worked arduously and laid charge sheets; consistent efforts are taken for
arresting the remaining accused as well, who had played only lesser roles.
The first and the sixth accused, who were the main conspirators, have
already been arrested and are in jail. At this stage, if investigation is
handed over to the CBI, there is likelihood of causing further delay and the
accused persons getting released on bail. According to the learned ADGP,
the very intention of the petitioner is to conclude the criminal proceedings
at the earliest. If the investigation is handed over to the CBI, further delay
is imminent and in that gap the accused may get released on bail.
9. According to the learned ADGP, valid grounds are not urged to
hand over the investigation to the CBI. There is absolutely no pleadings in
the Writ Petition to support the prayer for handing over the investigation to
the CBI. There is no allegation by the petitioner that the investigation is
conducted in an arbitrary or biased manner. Referring to the first
information statement of Sanjith, which led to the registration of crime
No.457/2020 of Kasba police station, he said that even though he had no
allegation that any SDPI and PFI activist was behind the attack, during
investigation the police traced the actual culprits and found that SDPI and
PFI activists were behind the attack; the actual culprits have already been
identified. The contention that there are national and international
ramifications for the case, has no basis. There is no evidence that the
accused had received money from outside the State or from abroad. The
weapons used are indigenous weapons like swords which have already
been recovered and sent for forensic examination. According to the
learned ADGP, the CBI has been constituted for the purpose of
investigating given classes of offences like under the Prevention of
Corruption Act, serious cases involving defalcation of accounts, etc. In the
absence of valid reasons, if investigation is handed over to the CBI, that
would adversely affect the morale of the local police who have effectively
conducted investigation with least possible delay and identified the
culprits. If at all the activities of the SDPI and PFI have to be investigated,
that can be done separately. Referring to the first information statement
given by the deceased which led to the registration of Ext.P2 crime, he said
that Sanjith had no case that such organisations were involved in the act,
that was why the statement was suppressed, the petitioner is guilty of
suppression of material facts. Still investigation revealed that SDPI/PFI
workers were behind the attack.
10. According to him, the State Police is far more in advantageous
position either in terms of men and materials or logistics whereas the CBI
is working on the strength of officers working on deputation. The State
Police have the expertise to unravel the mystery, except the fact that the car
was taken to Pollachi, there is no inter-State or international ramifications
for the case. According to the learned Additional Director General, the
State Police will be able to apprehend the remaining accused as well,
within no time. He also relied on the decisions reported in Shaji T. G. v.
Kerala Public Service Commission and Others [2017(3) KHC 459],
Bharat Singh and Others v. State of Haryana and Others[1988 KHC
1062], K.C.T. Steel Pvt. Ltd. Palakkad v. State of Kerala and Others
[2016 (4) KHC 336] and Rajasthan State Industrial Development and
Investment Corporation and Another v. Diamond and Gem
Development Corporation Ltd. and Another [2013 KHC 4116].
Regarding the prayer for transferring investigation to the CBI, he said that
it cannot be granted by the mere asking. In this connection, he placed
reliance on the decisions reported in State of W.B. and Others v.
Committee for Protection of Democratic Rights West Bengal and
Others [2010 (1) KHC 841], Secretary, Minor Irrigation and Rural
Engineering Services U.P. v. Sahngoo Ram Arya [2002 KHC 1280],
Sakiri Vasu v. State of U.P. and Others [2008 (2) KHC 13], Director
General of Police ( W.B.) and Others v. Gopal Kumar Agarwal and
Another [2021 KHC 2579], Prof. K.V. Rajendran v. Superintendent
of Police, CBCID South Zone, Chennai and Others [2013 KHC 4641],
Sajina T. v. State of Kerala and Others [2008 (2) KHC 301] and Shree
Shree Ram Janki Ji Asthan Tapovan Mandir and Another v. State of
Jharkhand and Others [2019 KHC 6519].
11. In reply, the learned Senior Counsel for the petitioner
extensively relied on the decision of the Division Bench of this Court in
State of Kerala and Others v. Krishnan and Others [2020 KHC 623]
which stands confirmed by the Supreme Court in 2020 (6) KHC 682.
12. The learned Central Government Counsel, referring to the
decision reported in Dinubhai Boghabhai Solanki v. State of Gujarat
and Others [(2014) 4 SCC 626] said that the decision of the Supreme
Court in Davinder Pal Singh Bhullar, quoted supra, stands distinguished
and clarified by the Supreme Court.
13. As rightly stated, in Dinubhai Boghabhai Solanki, quoted
supra, the Apex Court has stated in paragraph 45 thus:-
"45. Davinder Pal Singh Bhullar is a very peculiar case. This Court
examined a situation where the High Court suo motu re-opened the
proceedings which had been closed, and the High Court had
become functus-officio. This Court after noticing the peculiar fact
situation, observed as follows:
"90. The impugned order dated 5.10.2007 though gives an
impression that the High Court was trying to procure the
presence of the proclaimed offenders but, in fact, it was to
target the police officers, who had conducted the inquiry
against Mr. Justice X. The order reads that particular
persons were eliminated in a false encounter by the police
and it was to be ascertained as to who were the police
officers responsible for it, so that they could be brought to
justice."
14. Moreover, referring to the decision of the Apex Court in
Narender G. Goel v. State of Maharashtra [2009 (6) SCC 65], the
Supreme Court held that it is well settled that accused has no right to be
heard at the stage of investigation. That means the preliminary objection of
the learned Additional Director General that the writ petition is not
maintainable without giving notice to the accused persons cannot be
accepted. Moreover, it is the settled proposition of law that accused has no
say in such matters especially when investigation is continuing. Here, the
question agitated is that due to faulty investigation and national and
international ramifications of the acts of the accused, investigation should
be handed over to the CBI. In such a matter, it cannot be heard to say that
accused will be given an audition before taking a decision. Therefore, such
an objection cannot be accepted.
15. The facts of the case are not in dispute. While the petitioner
was moving along with her husband, the said Sanjith, on the motor cycle,
at about 8.40 A.M., when they reached at Mambaram in Pudugramam, the
motor cycle had to be slowed down in view of the gutters on the road
ahead, the accused persons unleashed attack with swords and caused fatal
injuries to Sanjith. He was immediately rushed to hospital where he was
found dead. He had 34 cut wounds on his person. The crime was
registered on the first information furnished by the petitioner. It is also
evident that a Special Investigation Team under the Dy.S.P., Palakkad was
constituted and 20 accused persons are identified. Accused Nos. 1 to 5,
who are the persons who had actually accomplished the task have been
arrested; accused Nos. 6 to 14 are the persons who had hatched criminal
conspiracy along with accused Nos. 1 to 5, out of them, two are remaining
to be arrested. In other words, accused Nos. 1 to 7, 12 to 14 and 20 have
already been arrested and who remain to be arrested are A8 to A11 and
A15 to A19. According to the prosecution, they are having lesser role like
harbouring the offenders etc., in the commission of the crime.
16. It has also come out that fierce rivalry is existing in the area
between the RSS in which the deceased was an office bearer and the
activists of the SDPI/PFI, series of attacks and counter attacks have been
taken place between them. Earlier on 27.06.2020, deceased Sanjith was
brutally attacked by men of SDPI/PFI and caused him grievous hurt for
which Crime 457/2020 was registered in Kasba police station alleging
offence under Sections 326, 307 etc. of the IPC; he had been in hospital for
nearly one month. At this juncture, it has been pointed out that, perusal of
the first information statement furnished by the deceased which led to the
registration of crime 457/2020 of Kasba police station does not reveal the
involvement of any extremist organisation in the murderous attack. It was
the investigating agency that brought out their involvement. Later also he
was under constant threat of attack from the rival gang of SDPI/PFI
activists. It appears that thereafter, one Sakkir Hussain was attacked by
some of the RSS workers for which Crime No. 487/2021 was registered in
Kozhinjampara police station. The prosecution has a definite case that
attack against Sanjith was the continuation of the assault made against the
said Sakkir Hussain. Whatever it may be, the petitioner complained that the
investigating agency was lackadaisical and was not at all serious in
investigating Crime No. 457/2020 or the conspiracy behind both the
crimes; if it was promptly and properly investigated, such an attack against
her husband would not have taken place. She also complained that
investigation is being conducted in a perfunctory manner, larger conspiracy
behind it are not being investigated; as there is national, international
ramifications, only CBI can investigate the matters properly.
17. It has been pointed out that charge sheet has been filed on
23.12.2021 in Crime No. 457/2020 of Kasba police station before the
Judicial First Class Magistrate - I, Palakkad. Similarly, charge sheet has
been laid in Crime No. 487/2021 in Kozhinjampara police station on
07.09.2021 before the Judicial First Class Magistrate - I, Chittur.
18. At the time when the writ petition was instituted only three
accused persons were apprehended by the investigating agency. Most of
the remaining accused were arrested during the pendency of the writ
petition. Similarly, final report was laid on 10.02.2022, after the filing of
the writ petition. But the learned counsel for the petitioner complained that
it is a truncated final report, that many important aspects remain to be
investigated.
19. The report of the Investigating Officer clearly indicates that on
conclusion of investigation, all the culprits and the respective roles played
by them have been identified, although accused Nos. A8 to A11 and A15 to
A19 are not arrested. In other words, out of the 20 accused, A1 to A7 and
A12 to A14 have already been arrested and charge sheet was laid against
them. Except A20, all are remaining in judicial custody. Accused Nos. 1 to
5 were the culprits who had translated the criminal conspiracy into action
and actually committed the violent act. They have been identified by the
petitioner who is the defacto complainant, who is an eye witness to the
occurrence. It is also evident from the statements and argument note that
about 550 witnesses were examined by the prosecution and large number
of documents were seized, material objects were also seized and produced
before court and sent for chemical examination report. All the prime
accused are arrested and the Ext.P4 final report was laid well within the
statutory period which prevented the accused from getting default bail.
There are reasons to believe that investigating agency had acted promptly
with a determination that the culprits should not get default bail.
20. Secondly, it is the common case that activists of the SDPI/PFI
were behind the attack. There were clashes between the activists of the
SDPI/PFI on the one hand and activists of the RSS on the other. There are
series of attacks and counter attacks between them. This Court take
judicial notice of the fact that even after this incident, after completing
arguments in this case, two such incidents have happened in Palakkad.
Consequently, one person each of the rival groups have been killed.
Learned Additional Director General of Prosecution submitted that Sanjith
was a history sheeter, that he was accused in numerous cases. Whatever it
be, merely for the reason that the accused are activists of the SDPI/PFI,
investigation cannot be handed over to the CBI, as a matter of course. The
Hon'ble Superme Court in State of W.B., quoted supra has summarised the
principles thus:-
"46. Before parting with the case, we deem it necessary to emphasise that
despite wide powers conferred by Art. 32 and Art. 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 extra-ordinary power must be
exercised sparingly, cautiously and in exceptional situations where it
becomes necessary to provide credibility and instil 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. Otherwise the CBI 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."
21. These guidelines have been followed by the Division Bench of
this Court in Krishnan, quoted supra, in Periya double murder case relied
on by the learned counsel for the petitioner. The facts of the case are
distinguishable. That case related to murder of two youngsters by the men
of the CPI(M); when a call was made for transferring investigation to CBI,
the learned Single Judge after going into the materials, quashed the final
report laid by the Crime Branch and directed the investigation to be handed
over to the CBI for de-novo investigation. When the State preferred the
appeal, the Division Bench found that even though there are material flaws
on the part of the investigating agency, the Court did not favour quashing
of the final report. Thus the appeal was allowed in part on facts and
allowed the CBI to conduct further investigation and to lay supplementary
final report. Even there, basing on the decision in State of W.B., quoted
supra, the Division Bench held that investigation cannot be handed over to
the CBI by mere asking.
22. After considering the materials placed before Court and
hearing counsel on both sides, I am also of the opinion that overwhelming
reasons are not set out for transferring investigation to the CBI. As stated
earlier, the Special Investigation Team, with least possible delay, identified
the culprits and arrested the main accused and also main conspirators and
laid the charge sheet, so that their release on default bail has been
successfully pre-empted.
23. Secondly, all the culprits have been identified. What remains is
to apprehend accused Nos. 8 to 11 and 15 to 19. Even though it was stated
that there is larger conspiracy involving leaders of SDPI/PFI, materials are
wanting to rope-in other persons. For the reason that the SDPI/PFI activists
were behind the killing, there is no justification in seeking transfer of
investigation to the CBI. Moreover, allegation that investigation was
conducted in a most ineffective and defective manner etc. are lacking
particulars. Only vague and sweeping contentions have been raised on the
score. If investigation of a crime is transferred to the CBI in a light hearted
manner that would adversely affect the morale of local police. There is no
allegation that the investigating agency had acted in a biased manner, so
that CBI cannot be asked to step in.
24. The decision in Krishnan, quoted supra, has turned upon its
own facts. As noticed earlier, it was a double murder case and both the
Single Judge as well as the Division Bench had reasons to find that there
were lapses in the investigation conducted by the Crime Branch. Such a
view cannot be taken in the present case.
25. The arguments of the learned Additional Director General of
Prosecution that the CBI is intended to investigate only corruption cases
and falsification of accounts etc, unless a notification is issued under
Section 6 of the Delhi Special Police Establishment Act, they cannot
investigate the case etc., do not warrant serious consideration. It is settled
that in appropriate cases a Constitutional Courts are entitled to handover
investigation to the CBI. Moreover, it does not seem that the State has any
scruples in the matter. As pointed out by the learned Senior Counsel for the
petitioner, the State of Kerala had even recently handed over a case
allegedly committed under Section 376 of the IPC for investigation by the
CBI.
26. No doubt, SDPI and PFI are extremist organisations indulging
in serious acts of violence. All the same, those are not banned
organisations. The Investigating Officer has denied the involvement of
State level or national level leaders in the commission of the crime. Given
the fact that police have taken care to file a final report within 90 days adds
to their credibility and prove bona fides. Merely for the reason that some
of the culprits remain at large, CBI cannot be asked to conduct
investigation. Here investigating agency does not appear to have special
interest in the case or interested in shielding the culprits. In other words,
partisan attitude could not be inferred.
27. Question of transferring investigation to the CBI arises only if
overwhelming reasons are made out. In other words, it cannot be done by
the mere asking. Here all the culprits have been identified and many of
them have been arrested. If investigation is handed over to the CBI, that
would result in further delay in the proceedings. It is not in public interest.
That may also pave way for raising demand by the accused persons for
releasing on bail. Given the mind set of the rival groups, if the accused
persons are released on bail that would entail further clashes and may lead
to law and order situation.
On evaluation of the totality of the circumstances, it does not seem
that the petitioner is justified in seeking transfer of investigation to the
CBI. The petitioner is not entitled to get any relief and the writ petition is
dismissed. However, it is noticed that some more accused are at large.
Even though the roles allegedly played by them are less important, still
they have to be apprehended and brought before Court. Therefore, the
second respondent is directed to personally review the progress in
apprehending the remaining accused and will file fortnightly reports to this
Court till the last accused is arrested.
The matter is posted to 30.05.2022, for report.
Sd/-
K.HARIPAL
JUDGE
Okb/DCS/27.04.2022
/true copy/
P.A. to Judge
APPENDIX
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF FIR IN CRIME NO.1989/2021 DATED
15/11/2021 OF PALAKKAD TOWN SOUTH POLICE
STATION.
EXHIBIT P2 TRUE COPY OF FIR IN CRIME NO. 0457/2020 DATED
27/06/2020 PALAKKAD CUSBA POLICE STATION.
EXHIBIT P3 TRUE COPY OF NEWS ITEM APPEARED IN INDIA
TODAY ONLINE DATED 03/08/2019.
EXHIBIT P4 TRUE COPY OF FINAL REPORT DATED 10.02.2022 IN
CRIME NO. 1989 OF 2021 OF PALAKKAD TOWN
SOUTH POLICE STATION.
