Kerala High Court
Joy Kutty K. K vs State Of Kerala on 6 March, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
WP(CRL.) NO. 154 OF 2023
CRIME NO.1798/2020 OF ADOOR POLICE STATION, PATHANAMTHITTA
PETITIONERS:
1 JOY KUTTY K.K
AGED 60 YEARS, S/O.KUTTY
KOCHUMUVALIL,
MALANKAVU, NELLIMUKAL P.O.,
ADOOR, PATHANAMTHITTA, PIN - 691551
2 KUNJAMMA K.K
AGED 55 YEARS, D/O.KOCHUKUNJU KUTTY
KEEZHEDATHU HOUSE,
KANNAMKOD MURI, ADOOR VILLAGE,
PATHANAMTHITTA DISTRICT, PIN - 691523
BY ADVS.
SRI.SANTHAN V.NAIR
SMT.CHRISTEENA P GEORGE
SRI.SAFAL P. SALIM
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, SECRETARIAT,
STATUE, THIRUVANANTHAPURAM, PIN - 695305
2 STATE POLICE CHIEF
POLICE HEAD QUARTERS,
THIRUVANANTHAPURAM, PIN - 695002
3 DISTRICT POLICE CHIEF
OFFICE OF THE DISTRICT POLICE CHIEF
AZHOOR, PATHANAMTHITTA, PIN - 695305
4 CENTRAL BUREAU OF INVESTIGATIONS
REPRESENTED BY ITS DIRECTOR,
CGO COMPLEX, LODHI ROAD,
NEW DELHI, PIN - 110003
BY ADVS.
W.P.(Crl.) No.154/23 -:2:-
SRI.ASHI M.C., PUBLIC PROSECUTOR
DR.K.P.SATHEESAN, (SR)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 27.02.2024, THE COURT ON 06.03.2024 DELIVERED
THE FOLLOWING:
W.P.(Crl.) No.154/23 -:3:-
BECHU KURIAN THOMAS, J.
------------------------------------
W.P.(Crl.) No.154 of 2023
------------------------------------
Dated this the 6th day of March, 2024
JUDGMENT
Petitioners' son - Sri. Joel M.J., died on 22.05.2020. Petitioners
allege that the death is attributable to brutal assault by the police. Hence
they seek for a writ of mandamus to handover the investigation in Crime
No.1798/2020 of Adoor Police Station, Pathanamthitta to the Central
Bureau of Investigation (for short 'CBI') for a proper investigation.
2. On 01.01.2020, the motor car driven by the petitioners' son met
with an accident as it collided with another car whose driver assaulted
their son in public apparently under the influence of alcohol. On being
informed about the incident, the police reached the scene of the accident
and took both the drivers to the police station. Later, at the intervention of
mediators, the matter was settled. When the petitioners, along with their
son, were about to leave the police station, it was intimated that Sri. Joel
can leave after meeting the Circle Inspector of police. Petitioners' son had
to wait till 7 pm on the said day to meet the Circle Inspector. Petitioners
allege that after the Circle Inspector reached the police station, he brutally
assaulted their son. As a witness to the assault, the second petitioner even
fainted and had to be taken to the hospital. Petitioners further allege that
while the second petitioner was being attended to at the hospital, she
overheard a conversation between the doctor and the Circle Inspector,
with latter directing the doctor not to admit the second petitioner.
Petitioners also allege that in the meantime, Sri.Joel, who was subjected
to severe assault, was asked to keep his mouth shut during the medical
examination and fearing criminal cases being lodged against him,
petitioners' son did not report the incident. Later, Sri.Joel had to be
subjected to various treatments due to the ill-treatment inflicted upon him
and while so, on 22.05.2020, he fainted, and later passed away on the
way to the hospital.
3. The death of petitioners' son resulted in the registration of Crime
No.1798/2020 before the Adoor Police Station under section 174 of
Cr.P.C. Petitioners raised doubts about the cause of death of their son, as
they believed that it was on account of police brutality. Therefore, W.P.(C)
No.11907/2020 was filed before this Court for a direction to handover the
investigation to CBI. Since this Court noticed that representation had been
filed before the State Police Chief, the writ petition was disposed of
directing the representation to be considered. Later, pursuant to judgment
dated 20.10.2020, petitioners were called for a hearing before the State
Police Chief and when they went to the police headquarters, they were
instructed to meet some other officer and not the second respondent.
Even thereafter, no concrete steps have been initiated. Since the
petitioners have lost their faith in the manner and nature of the
investigation being conducted, they have approached this Court to
handover the investigation to the CBI.
4. A memo has been filed by the respondents producing an action
taken report prepared by the Additional Director General of Police on
behalf of the State Police Chief wherein it is stated that in compliance with
the direction of this Court in W.P.(C) No.11907/2020, the petitioners were
called for a personal hearing by the State Police Chief on 18.01.2023 and
after hearing them in detail and on scrutiny of the enquiry report of the
Deputy Inspector General of Police, Ernakulam Range, the allegations
raised by the petitioners were found to be without any merit and therefore
the petition was closed without recommending any further action. The
report also mentions that police had enquired with the doctor who
conducted the postmortem, and a Senior Cardiologist of the Medical
College Hospital was also consulted for expert opinion regarding the
cause of death of the petitioners' son, apart from verifying all the
connected records. According to the respondents, the opinion of the
experts revealed that Sri. Joel died due to occlusive coronary artery
disease, and the petitioners' son even had a history of cardiac arrest and
was suffering from Hepatitis A. It was also opined that death could not
have occurred due to any alleged assault on 01.01.2020.
5. I have heard Sri. Santhan V.Nair, the learned counsel for the
petitioners as well as Sri.Ashi M.C., the learned Public Prosecutor.
6. Petitioners allege that their son Sri. Joel was assaulted on
01.01.2020 and he died on 22.05.2020. The postmortem report revealed
that death was due to occlusive coronary artery disease. There is no
indication or reference to any assault in the postmortem report, as is
noticed from the pleadings in the writ petition as well as the action taken
report submitted by the respondents. Concededly, no complaints were
ever filed between 01.01.2020 and 22.05.2020 alleging any police brutality
on the said Sri. Joel. The petitioners have not produced any medical
treatment records to indicate that their son was subjected to any medical
treatment between 01.01.2020 and 22.05.2020. Though it was submitted
by the counsel for the petitioners that Sri. Joel was treated before some
Ayurveda Physician, no records have been produced to substantiate even
those contentions. There is nothing on record to indicate any police
brutality having been inflicted on Sri.Joel at any point of time. There is a
total dearth of any material which could indicate the possibility of police
brutality on petitioners' son. Other than mere allegations, petitioners have
not been able to produce any material to create even a doubt on the action
taken report submitted by the Additional Director General of Police before
this Court.
7. Though the learned counsel for the petitioners alleged that
Ext.P2 was a report prepared by the same officer against whom
allegations were levelled, it was contradicted by the learned Prosecutor
pointing out that the said report was not filed pursuant to the directions of
this Court in W.P.(C) No.11907/2020 but was a report filed before the
Human Rights Commission wherein also petitioners had filed a complaint.
Thus, every report and every enquiry conducted indicated that petitioners'
son was not subjected to any police brutality.
8. In the decision in Vishal Tiwari v. Union of India and Others
[2024 SCC Online SC 15] Supreme Court held that power to transfer
investigation must be exercised sparingly and in extraordinary
circumstances. It was also observed that unless the authority statutorily
entrusted with the power to investigate portrays a glaring, willful and
deliberate inaction in carrying out the investigation the court will ordinarily
not supplant the authority which has been vested with the power to
investigate. Such powers must not be exercised by the court in the
absence of cogent justification indicative of a likely failure of justice in the
absence of the exercise of the power to transfer. The Court further held
that the petitioner must place on record strong evidence indicating that the
investigating agency has portrayed inadequacy in the investigation or
prima facie appears to be biased.
9. In the instant case, there is nothing on the record to indicate any
doubt regarding the credibility of the investigation carried out by the local
police. Hence this Court is of the view that this is not a case which falls
within the exceptional circumstances warranting investigation by the CBI.
Therefore, there is no merit in this writ petition, and it is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE JUDGEMENT PASSED BY
THIS HON'BLE COURT IN WPC NO. 11907/2020
DATED 20.10.2020
EXHIBIT P2 A COPY OF THE INVESTIGATION REPORT DATED
NIL PREPARED BY THE DY.S.P, ADOOR
EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED
22.2.2021 FILED AS CMP NO. 479 OF 2021
BEFORE THE JUDICIAL FIRST CLASS
MAGISTRATE COURT, ADOOR
EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 21.11.2022
ISSUED TO THE 2ND RESPONDENT
EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 16.1.2023
ISSUED BY INSPECTOR OF POLICE, ADOOR
