Murukeshan vs State Of Kerala on 25 May, 2010

[Cites 25, Cited by 3]

Kerala High Court

Murukeshan vs State Of Kerala on 25 May, 2010

......................................... W.P. ( C) No. 13426 of 2010 .......................................... Dated: 25th day of May, 2010 Judgment In this Writ Petition filed under Article 226 of the Constitution of India, the petitioner who is the younger brother of one Sampath (aged 26 years) who died in police custody in the night of 29-3-2010 , seeks a direction from this Court to the 4th respondent, namely the Director, Central Bureau of Investigation, ("C.B.I." for short), New Delhi to investigate Crime No. 251 of 2010 of Town North Police Station, Palakkad by an efficient officer of the C.B.I.

2. According to the petitioner deceased Sampath who had nothing to do with the murder of Sheela on 23.3.2010 at Puthoor in Palakkad was taken into custody by the Police on 28.3.2010 midnight from the house of his sister at Coimbatore and brutally tortured to death while in Police custody and the present investigation is only an "eye-wash" to salvage the bigwigs in the State Police who are the real culprits. It is the case of the W.P. ( C) No. 13426 of 2010 -:2:- petitioner that the on-going investigation is influenced by unseen hands with the aim of sabotaging the real truth coming out. The petitioner, therefore, requests that the investigation be entrusted with an efficient officer of the CBI. Respondents 1 and 2 are the State of Kerala represented by the Chief Secretary and the Home Secretary respectively. The 3rd respondent is the Director General of Police, Kerala. The 4th respondent is the Director, C.B.I, New Delhi. The 5th respondent is the present Investigating Officer under the Crime Branch Police (CB CID), Kerala.

3. Respondents 1 and 2 have filed a joint counter-affidavit and the 5th respondent has filed a separate counter affidavit. While the counter-affidavit dated 21.5.2010 filed by the respondents 1 and 2 (State of Kerala) does not in express terms admit that the custodial death of Sampath was as a result of torture by the team of Police officers who had interrogated him, the counter affidavit dated 21.5.2010 filed by the 5th respondent has clearly admitted in no unmistakable terms that Sampath died as a result of continuous torture while in the Police custody of a team of Police Officers at the River Side Cottage, W.P. ( C) No. 13426 of 2010 -:3:- Malampuzha. Both counter-affidavits, however, maintain that the investigation of Sheela murder case has revealed that Sampath was the prime accused in that case that the stolen articles have been subsequently recovered from the suspects and that the investigation of the Sampath murder case is carried on impartially, effectively and that there is no necessity for entrusting the said investigation with the CBI, Two Sub Inspectors and 10 lower level police officers have already been arrayed as the accused in the Sampath murder case. All of them are absconding and they could not be arrested. The Dy.S.P. and the Circle Inspector have also been implicated and they have been placed under suspension.

4. I heard Advocate Sri.Vijayabhanu, the learned counsel appearing for the writ petitioner as well as his father Raman (who was impleaded as the Addl.6th respondent as per the order passed in I.A.No.6359/2010); Advocate Sri.K.K.Raveendranath, the learned Addl. State Public Prosecutor (who is also the Addl. Director General of Prosecutions) and Advocate Sri.K.Ramachandran, the learned counsel appearing for deceased Sheela's mother, Karthiayani who was impleaded as W.P. ( C) No. 13426 of 2010 -:4:- the Addl.7th respondent as per the order passed in I.A.No.6338/2010. I also perused the case diary pertaining to the case.

ARGUMENTS FOR THE PETITIONER

5. Advocate Sri.Vijaya Bhanu appearing for the petitioner and his father made the following submissions before me:-

Deceased Sheela is the sister of a senior officer in the State Tourism Department of which the Minister concerned is none other than the Home Minister. There has been high level interferences in the investigation of Crime No.246/2010 (Sheela murder case). The man hunt for the culprits in Sheela murder case was planned and engineered by none other than the Superintendent of Police who was physically present in civil dress at the Police Commissioner's Office, Coimbatore and he was seen giving directions. Later on also he was giving orders through the phone to the Dy.S.P and those below him. After Sampath(who had no role behind the murder of Sheela) was brutally tortured to death, the above high ranking Police Officer was clearly manipulating the records and fading away from the scene. There is a conscious attempt to salvage the said officer W.P. ( C) No. 13426 of 2010 -:5:- and certain other higher-ups who have managed to escape by means of their political clout. The brother and parents of deceased Sampath will not get justice if the State Police were to continue the one-sided and biased investigation.

CONCERN OF THE MOTHER OF SHEELA

6. Advocate Sri.K.Ramachandran appearing for the Addl.7th respondent (mother of deceased Sheela) submitted that if the Sampath murder case were to be investigated by the CBI, then there was every possibility of the investigation of Sheela murder case suffering a set back and serious prejudice due to the intervention of an outside agency like the CBI. The counsel would submit that the morale and credibility of the officers who investigated the Sheela murder case would be adversely affected by the proposed investigation by the CBI.

THE STATE PROSECUTOR'S ARGUMENT

7. The learned Addl. Director General of Police made the following submissions before me:-

It is only in exceptional cases that the High Court or the Supreme Court will entrust the investigation of a case from the State Police to the CBI. Such a power will not be exercised as a W.P. ( C) No. 13426 of 2010 -:6:- matter of routine unless the credibility of the investigation by the State Police is clearly at stake (vide paras 46 and 47 of State of W.B. v. Committee for Protection of Democratic Rights -

(2010) (1) KLT 723 (SC) and paras 6 and 7 of Secretary v.

Sahngoo Ram Arya - (2002) 5 SCC 521). A mere allegation that the petitioner's brother was murdered and the petitioner has discovered some corruption, is not enough to entrust the investigation with the CBI (vide para 34 of Sakiri Vasu v. State of U.P. and others- (2008) 2 SCC 409). After the filing of the counter affidavits two more Police Officers including C.K.Ramachandran, the Dy.S.P have been arrayed as additional accused. In paragraph 10 of the writ petition, the petitioner himself has acknowledged the efficiency, integrity and the investigative skills of the 5th respondent who is at present in charge of the investigation . He is conducting the investigation efficiently and impartially. Unless this Court finds that the investigation conducted by the 5th respondent is unsatisfactory and one-sided, the case cannot be made over to the CBI for investigation.

W.P. ( C) No. 13426 of 2010 -:7:-

THE BACKGROUND FACTS

8. The following is the chronological narration of the facts as revealed by the records:-

23-3-2010 At about 11.30 a.m. certain assailants who had entered a house called "Sayoojyam" in Gangothri Nagar, Puthoor, Palakkad brutally murdered the house wife Sheela in the course of a burglary . Her neck was slit with a sharp-edged weapon resulting in the cutting of her trachea and blood vessels causing her instantaneous death. The above lethal injuries were inflicted on her who had initially put up a tough fight during which hearing her noise her mother Karthiyayini came rushing and she was also brutally attacked by the assailants. The above murder was for gain and the assailants took away gold ornaments worn by both the ladies, three mobile phones and other jewellery kept in the almirah. The above gruesome daylight murder of Sheela and the brutal attack on her mother was discovered by Jayakrishnan, the husband of Sheela at about 1.40 p.m. when he came home for lunch. Eventhough Sheela and Karthiyani were rushed to the District Hospital, Palakkad, Sheela was pronounced dead by the doctors and Karthiyayini was referred to Kovai Hospital, Coimbatore from where she survived.

Crime No. 246 of 2010 was registered by the Town North Police, Palakkad for offences punishable under Sections 449, 302, 307and 397 I.P.C. against unknown persons. (Vide the counter affidavit by R1 and 2).

W.P. ( C) No. 13426 of 2010 -:8:-

THE TAMIL NADU SCENARIO 28-3-2010 At about 8.30 p.m. certain policemen of Kerala Police and Tamil Nadu Police apprehended Kanakaraj (subsequently arrayed as A2 in Crime No. 246 of 2010) from his wife's house at Shornur Desamangalam and took him to Coimbatore as part of the man hunt for two of the other culprits.

At about 11 .30 midnight they reached the house of Manikandan (Subsequently arrayed as A3) at Gounderpalayam in Coimbatore. They took into custody Manikandan and his brother-in-law Sampath (who was subsequently arrayed as A1) from that house.

The police party took the suspects (A1 to A3) to the office of the Police Commissioner, Coimbatore. On the way, A2 could gather from the conversation of the policemen that the Palakkad S.P. had already reached Coimbatore and that they should reach Coimbatore immediately.

There at the office of the Commissioner of Police, Coimbatore, a high ranking Police Officer from Kerala in plain clothes speaking Hindi and Malayalam and who did not appear to be a Malayalee and who was being addressed as "Sir" and saluted by all the policemen there, was sitting beside the Coimbatore Police Commissioner in his room and was giving directions.

That night the suspects were kept in the police lock-up at Saravanampetty Police Station, Coimbatore. (Vide Section 164 statement of Kanakaraj (A2) given to J.F.C.M. Chittur).

29-3-2010 The suspects (A1 to A3) in Crime No. 246 of 2010 were taken to Ukkadam Police Station in Tamil Nadu. Eventhough the vehicle W.P. ( C) No. 13426 of 2010 -:9:- was parked inside the compound of the police station the suspects were not taken inside the police station.

At about 3 p.m., based on a phone call received by a policeman of the Kerala Police, the suspects along with 5 policemen of Kerala Police were taken in an Innova Car to Palakkad. The policemen of Tamilnadu Police did not thereafter accompany them. After the vehicle crossed the Walayar Checkpost the five police men who were accompanying the suspects started manhandling them from inside the vehicle. (Vide 164 statement of Kanakaraj).

THE KERALA SCENARIO 29-3-2010 At 9.30 a.m. when Purushothaman Pillai the Grade A.S.I. of Town North Police Station took G.D. charge duty, there were six persons including one Velmurugan and Devadas detained in police custody as suspects presumably in some other case. (Vide the 164 statement of Purushothaman Pillai).

CORPORAL TORTURE IN AN ISOLATED CAMP At about 5.15 p.m. the suspects were brought to a river side cottage owned by the Irrigation Department at Malampuzha for interrogation in a private Scorpio Car by P.V. Ramesh and Unnikrishnan, Sub Inspectors of Palakkad Town North and Town South Police Stations respectively along with other policemen. At the Malampuzha Cottage the suspects were brutally tortured continuously in order to extract their confession. (Vide paras 8 and 10 of the counter affidavit of R5).

At about 9.30 p.m. on the directions of the Principal Sub Inspector two police constables by name Byju and Vijayan attached to that police station came to the Police Station and told Purushothaman Pillai who was in G.D. charge him that 3 of the W.P. ( C) No. 13426 of 2010 -:10:- culprits in "Puthoor Sheela murder case" had been nabbed and they are at Malampuzha and that these two constables were proceeding to Malampuzha to "deal with" Sampath and the other two suspects. Subsequently another police constable by name Pradeep also proceeded to Malampuzha on his motor cycle . (Vide Section 164 statement of Purushothaman Pillai).

A policeman called Madhu, another policeman by name Johnson having a prominent mustache, yet another policeman with a gymnastic physique and three other policemen were the main participants of the corporal torture on the three suspects till about 10 '0 clock in the night.

After 10.30 p.m. Sampath complained of chest pain and asked for some water.

At about 11.30 p.m. Sampath dozed into a sleep. A fair complexioned and well-built officer with a mustache and bearing three Stars and whom even the Sub Inspector was addressing as "Sir" was at the helm of affairs there giving directions to the policemen to torture the suspects. (Vide the 164 statement of Kanakaraj).

At about 11.30 in the night the suspects were taken to Puthoor the place of occurrence of Sheela murder case for investigation. When Sampath and the two other suspects reached Puthoor along with the police party, Sampath collapsed. (Vide counter affidavit of R5 - Para 10). Since Sampath did not get up even after repeatedly calling him a policeman banged forcefully on his chest, but in vain. Water poured into his mouth did not enter his gullet but instead returned. His body was ice cold. His pulse could not be felt. (Vide 164 statement of Manikantan). Sampath was taken to the nearby Co-operative Hospital and thereafter to the District Hospital, Palakkad but all in vain. (Vide para 10 of the counter affidavit of R5). W.P. ( C) No. 13426 of 2010 -:11:- At about 11 .45 p.m. Circle Inspector Vipin Das called Purushothaman Pillai over the phone and after ascertaining from him that diary entries were recorded only till 4 p.m., directed Purushothaman Pillai not to make any further entries in the G.D. At 11.50 p.m. Circle Inspector Vipin Das again called Purushothaman Pillai and asked him to shift Velmurugan and Devadas who were in the police lock-up to Mankara Police Station and to let free the other four suspects detained in the lock- up. Puruhothaman Pillai complied with the direction. (Vide the 164 statement of Purushothaman Pillai).

At about 15 minutes past midnight C.K. Ramachandran, Dy.S.P. Palakkad came to the police station in plainclothes and asked Purushothaman Pillai and other policemen on duty whether they were aware of the apprehension of the culprits in Sheela murder case. The Dy.S.P. then told them that an "incident" had happened and certain matters will have to be recorded in the G.D. Purushothaman Pillai and others who got the cue, agreed. At that time the Dy.S.P. was receiving several phone calls and he was addressing the caller as "Sir". The Dy.S.P. then told Purushothaman Pillai and the other policemen (Abdhul Khayoom and Shameer) that higher officers up to the A.D.G.P. were already aware of the "incident" and that nothing would happen to Purushothaman Pillai and others if they obeyed his directions and that the Dy.S.P. would protect them. (Vide 164 statement of Purushothaman Pillai).

30-3-2010 At 15 minutes past midnight of 29-3-2010 (i.e. at 00.15 hours on 30-3-2010) Sampath aged about 26 years was brought dead in the District Hospital, Palakkad.(Vide Ext.P1 postmortem report as well as para 10 of the counter affidavit of R5). At 1.00 a.m. C.I. Vipin Das of Town North Police Station , P.V. Ramesh, Principal S.I. of that Police Station and T.N. W.P. ( C) No. 13426 of 2010 -:12:- Unnikrishnan, Principal S.I. of Town South Police Station came to the Town North Police Station. They discussed with Dy.S.P. (C.K. Ramachandran) who was already there. The G.D. Book and Sentry book were demanded by C.I.Vipin Das and accordingly Purushothaman Pillai handed them over to the Circle Inspector.

At 2.30 a.m. on the directions of C.K. Ramachandran, Dy.S.P. officers of the Crime Squad brought two of the suspects (Kanakarajan and Manikantan) to the North Police Station and took their fingerprints etc. Thereafter the two suspects by name Kanakarajan and Manikandan were sent for medical examination and brought back and detained in the lock-up. At 5.15 a.m. C.I. Vipin Das asked Purushothaman Pillai to take over G.D. charge and make entries to the effect that Kanakaraj was arrested at 8.30 a.m. and Sampath and Manikandan were arrested at 5.15 p.m. on 29-3-2010. The Circle Inspector himself recorded the above entries. The Circle inspector then returned the Sentry Book to Purushothaman Pillai who noticed that two pages therefrom had been torn off and false entries were seen recorded in the handwriting of the Circle Inspector to the effect that all the three accused persons in Sheela murder case were brought to the Town North Police Station at 5.15 p.m. on 29-3- 2010.

On the directions of Ramachandran, Dy.S.P. false entries were made by the police constable-Abdul Khayoom in the Sentry duty book at 5.15 a.m. on 30-3-2010 to the effect that from 5.15 p.m. on 29-3-2010 onwards the policemen of the Crime Squad were also additionally posted on sentry duty in the Town North Police Station.

On the directions of Ramesh, the Principal S.I., false entries were caused to be made by Purushothaman Pillai at 6.30 AM on 30- 3-2010 in the G.D. to the effect that 5 minutes past midnight on 29-3-2010 Sampath developed chest pain and when he was taken to the District Hospital, Palakkad at 00.15 hours on 30-3-2010 W.P. ( C) No. 13426 of 2010 -:13:- the doctors after examining Sampath pronounced him dead. Crime No. 251/2010 of Palakkad Town North Police Station under Section 174 Cr.P.C. though purportedly registered at 12.30 AM on 30-3-2010 was actually registered only at 6.30 AM and the Principal S.I. had put his signature and had also made G.D. entries to that effect. Actually Sampath was never brought to the Town North Police Station either on 29-3-2010 or on 30-3-2010 when Purushothaman Pillai was in G.D. charge in that Police Station and Purushothaman Pillai has never seen Sampath in his lifetime. C.K. Ramachandran (Dy.S.P.), Vipindas (C.I.) and Ramesh (S.I. who are his superiors gave assurance to Purushothaman Pillai and the other policemen that there will be absolutely no problem for them and that all of them should stand together at any cost. Purushothaman Pillai meekly obeyed the illegal directions of the above officers because they were his official superiors under whom he had to continue his services in future also. None of the suspects in "Sheela Murder Case" had been brought to the Town North Police Station. He had never seen the arrest or death of Sampath nor has he affixed his signature in any hospital record to the effect that it was he who brought the dead body of Sampath to the District Hospital. (Vide Sec. 164 statement of Purushothaman Pillai). One of the policemen who had tortured the suspects accompanied Kanakaraj and Manikantan when they were produced before the Magistrate. The said policeman reminded them about their experience at Malampuzha and asked them not to divulge anything to the Magistrate. As they were so scared they did not make any complaints when produced before the Magistrate. They were, therefore, remanded to judicial custody initially to the Sub Jail, Palakkad and later to the Central Jail, Kannur. (Vide 164 statement of Manikantan).

Preliminary investigation of Crime No. 251 of 2010 was conducted by T.S. Joseph, Dy.S.P. Alathur on 30-3-2010. Inquest over the deadbody of Sampath was conducted by the R.D.O. Palakkad on 30-3-2010. J.F.C.M. II, Palakkad conducted a W.P. ( C) No. 13426 of 2010 -:14:- magisterial enquiry under Section 176 (1A) Cr.P.C. on 30-3-2010. (Vide para 5 of the counter affidavit of R5). On 30-3-2010 itself, investigation of Crime No. 251 of 2010 of Town North Police Station, Palakkad was transferred to the Crime Branch Police which re-registered the case as CB CID Crime No. 259/CR/HHW-II/EKM/2010. (Vide paras 6 and 2 of the counter-affidavit of R5).

At 3.05 p.m. on 30-3-2010 a team of three doctors consisting of Dr. K. Prasannan M.D., Professor and Head of Department and Police Surgeon, Dr. P.S. Sandhya M.D. Senior Lecturer and Assistant Police Surgeon and Dr. V.K. Rajendra Prasad , M.D. also Senior Lecturer and Assistant Police Surgeon conducted autopsy over the dead body of deceased Sampath. Ext.P1 is the Postmortem Certificate issued by the said doctors. Ext.P1 shows that deceased Sampath aged about 26 years was brought dead to the District Hospital, Palakkad at 12.15 a.m. on 30-3-2010. He had 63 ante-mortem injuries on his body . The cause of death was due to internal bleeding inside the tissues and the brain due to the blunt injuries sustained. Some of the injuries showed marks of trampling with shoes some others showed marks of fisting, kicking with shoe tip. Seven of the injuries showed signs of multiple hits with blunt objects or rolling compression. Still others showed hitting with the tip of a lathi or some cylindrical objects with a projecting rim. There were marks of tying together of ankles with a rough material. There were injuries indicative of beating with a cane with one end having three paired projecting portions . There were injuries consequent on hitting against hard surface or banging. (Vide Ext.P1 post mortem report) 31-3-2010 A Special Investigation Team under the leadership of Vijayan IPS, Superintendent of Police, CB CID with K.K. Aji, W.P. ( C) No. 13426 of 2010 -:15:- Dy.S.P., HHW-II, Palakkad as Investigating Officer, was constituted. During the course of investigation the Crime Branch Police collected evidence to the effect that the death of Sampath was as a result of continuous torture in police custody at the River Side Cottage at Malampuzha. (Vide para 6 of the counter affidavit of R5).

17-4-2010 A report was filed before the Magistrate to delete Sec. 174 Cr.P.C. from the F.I.R. and to incorporate Sec. 302 read with Sec. 34 I.P.C. (Vide paragraph 7 of the counter affidavit of R5). 18-4-2010 P.N. Unnirajan, Superintendent of Police CB CID, Thrissur Range (5th respondent) took over the investigation. (Vide para 8 of the counter affidavit of R5).

19-4-2010 This Writ Petition was filed 21-5-2010 The two counter-affidavits were filed. So far, the following Police officers have been implicated in the Sampath Murder Case:-

1 C.K.Ramachandran, Dy.S.P. 2 Circle Inspector (Name not mentioned) 3 P.V. Ramesh, S.I. of Town North Police Station, Palakkad 4 P.Unnikrishnan, S.I. of Town South Police Station, Palakkad 5 Ramachandran, ASI (G), 2945, Town North Police Station, Palakkad 6 Johnson Lobo, P.V. 4024,Town North Police Station, Palakkad W.P. ( C) No. 13426 of 2010 -:16:- 7 Syamprasad, P.C. 4025, Traffic Police Station,Palakkad 8 Abdul Rasheed, PC 4065, Town North Police Station, Palakkad 9 Madhavan, HC (G) 3774,Town North Police Station, Palakkad 10 Shillan, P.C. 3923, Traffic Police Station, Palakkad 11 Brijith, PC 4959, Town North Police Station, Palakkad 12 Vijayan, HC (G) 3721, Town North Police Station, Palakkad 13 Pradeep Kumar, PC 4683, Town North Police Station, Palakkad 14 Baiju, PC 4285, Town North Police Station, Palakkad All the above police officers are absconding and earnest efforts are made to apprehend them. ( Vide paras 12 and 13 of the Counter-affidavit of R5).

JUDICIAL EVALUATION

9. The fact that Sampath the brother of the Writ Petitioner died while he was in police custody is admitted . Ext.P1 postmortem report dated 30-3-2010 shows that deceased Sampath aged about 26 years was brought dead to the District Hospital, Palakkad at 12.15 a.m. on 30-3-2010. He had 63 ante-mortem injuries on his body . The cause of death was due to internal bleeding inside the tissues and the brain on account of the blunt injuries sustained. Some of the injuries showed marks of trampling with shoes. Some others showed marks of fisting and kicking with shoe tip. Seven of the injuries showed signs of multiple hits with blunt objects or rolling W.P. ( C) No. 13426 of 2010 -:17:- compression. Still others showed hitting with the tip of a lathi or some cylindrical objects with a projecting rim. There were marks of tying together of ankles with a rough material. There were injuries indicative of beating with a cane with one end having three paired projecting portions . There were injuries consequent on hitting against hard surface or banging .

10. In paragraphs 4, 6 and 7 of the counter affidavit of the 5th respondent he has stated as follows:-

"The investigation so far conducted clearly reveal that the death of Sampath was caused due to the intolerable torture and other third degree methods inflicted on him by the police team who interrogated him".

"During the course of investigation, the Dy.S.P. Crime Branch collected valuable pieces of evidences which assertively revealed that the death of Sampath was the result of severe and continuous torture in the police custody by a team of police officers and personnel at River Side Cottage, Malampuzha"

"During the investigation, it was very well established that the custodial death of Sampath was not a natural death, but a homicide".

11. This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in the State Police which is supposed to protect the life and liberty of citizens and maintain law and order. With regard to custodial violence in W.P. ( C) No. 13426 of 2010 -:18:- police lock-ups, way back in 1997 the Apex Court observed as follows:-

"Custodial violence, including torture and death in the lock-ups, strikes a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. it is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society.

* * * * Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become lawbreakers,it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchy. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him ? Can the right to life of a citizen be put in abeyance on his arrest ? ......... The answer, indeed, has to be an emphatic 'No'.

* * * * Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of an offence but it must be remembered that the law does not permit use of third-degree methods or torture of accused in custody during interrogation and investigation with a view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make the investigation effective. By W.P. ( C) No. 13426 of 2010 -:19:- torturing a person and using third-degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No society can permit it".

12. The investigation in this case by the State Police has turned out to be a mockery with only perfunctory attempts to weave a seemingly plausible story of torture while in police custody. Much strain is not necessary to infer that there has been an orchestrated attempt to shield certain officers in the higher echelons of police and to make certain officers of relatively lower rank scapegoats.

13. In State of M.P. v. Shyamsunder Trivedi - (1995) 4 SCC 262 the Supreme Court took judicial notice of the fact that evidence of police torture is difficult to come to light since there will always be an attempt by the police brethren to salvage their fellow policemen. This is what the Apex Court observed:-

"Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available, ....Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues,......."

W.P. ( C) No. 13426 of 2010 -:20:-

The above observation was noted and re-iterated in Shakila Abdul Gafar Ghan v. Vasant Reghunath Dhoble - (2003) 7 SCC 749 and Munshi Singh Gautam v. State of M.P. (2005) 9 SCC 631.

14. Custodial torture of helpless and defenceless captives/detenues /arrestees by the guardians of law who turn out to be perpetrators of crime exhibits the most barbarous and savage degeneration of a civilized society . It is shocking to realise that police lock-ups in the State turn out to be death chambers. Custodial crime is a species of man-made malady which is escalating in alarming proportions. By resorting to such excesses the law enforcers are actually creating a congenial atmosphere for fostering terrorism. No civilised society can afford to support this transformation of man into a beastly animal .

15. In cases where officers of the State Police are accused of custodial violence it is not only desirable but is also the felt public necessity to entrust the investigation with an independent investigating agency, preferably, the C.B.I. In R.S. W.P. ( C) No. 13426 of 2010 -:21:- Sodhi v. State of U.P. - AIR 1994 SC 28 the Apex Court observed as follows:-

"We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice to entrust the investigations to the Central Bureau of Investigation forthwith and we so hope that it would complete the investigation at an early date so that those involved in the occurrences one way or other other may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice".

In Ramesh Kumari v. State (NCT of Delhi) and Others - (2006) 2 SCC 677 the Supreme Court came to the following conclusion in paragraph 8 of the decision:-

"We are also of the view that since there is allegation against the police personnel, the interest of justice would be better served if the case is registered and investigated by an independent agency like C.B.I.":

16. Courts have been reluctant to entrust the investigation with a different agency in cases where a final W.P. ( C) No. 13426 of 2010 -:22:- report under Sec. 173 (2) Cr.P.C. has already been filed . This is presumably because once a final report is filed, then what the Code of Criminal Procedure 1973 contemplates is only a further investigation under Sec. 173 (8) Cr.P.C. and going by the interpretation placed on Sec. 173 (8) Cr.P.C., a further investigation cannot be conducted by an agency different from the agency which conducted the earlier investigation. (Vide K.Chandrasekhar and Others v. State of Kerala and Others - AIR 1998 SC 2001 = Mariam Rasheeda v. State of Kerala - 1998 (1) KLT 835 (SC) and Rajesh and Others v. Ramdeo and Others - (2001) 10 SCC 759. With utmost respect, I feel that in an appropriate case, it could be argued that Sec. 173 (8) Cr.P.C. does not place any fetter on the Court or the Government to decide the agency which should conduct further investigation of the case. This question, however, does not arise for consideration in this case since the Crime Branch Police has not so far filed the final report under Sec. 173 (2) Cr.P.C. and there is an interdict against the filing of a final report by virtue of the interim order passed by this Court. In spite of the above interpretation to W.P. ( C) No. 13426 of 2010 -:23:- Sec. 173 (8) Cr.P.C., the Apex Court in Kashmeri Devi v. Delhi Administration - (1998) SCC Crl. 864 directed the Magistrate before whom the charge-sheet was filed to exercise his power under Sec. 173 (8) Cr.P.C. and direct the C.B.I. to take over the investigation from the Crime Branch Wing of the Delhi Police. The Supreme Court gave the following direction in paragraph 7 of the judgment:-

"7. Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge-sheet has been submitted to exercise his powers under Section 173 (8) Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law".

In Gudalure M.J. Cherian and others v. Union of India and Others - (1992) 1 SCC 397 in spite of noticing that a charge-sheet had been filed by the local police, in order to do justice between the parties and to instill confidence in the public mind the Supreme Court directed the C.B.I. to take up the investigation of that case. The following observations are apposite :-

W.P. ( C) No. 13426 of 2010 -:24:-

"The investigation having been completed by the police and charge-sheet submitted to the court, it is not for this Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like C.B.I. We are also conscious that of late the demand for C.B.I. investigation even in police cases is on the increase. Nevertheless-in a given situation,to do justice between the parties and to instill confidence in the public mind - it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency or the independence of the agency.

xxxx xxxx xxxx

10. We, therefore, direct the CBI to take up the investigation of the case immediately. We further direct the Senior Superintendent of Police, Moradabad and the Station House Officer, Gajraula Police Station to assist the CBI in conducting the investigation. The State of Uttar Pradesh through its Chief Secretary and the Home Secretary is further directed to provide all assistance to the C.B.I. in this respect".

In C.B.I. v. Rajesh Gandhi- 1997 Crl.L.J. 63 (SC) , after the local police had filed the final report before the Magistrate the State of Bihar, on being convinced that the investigation by the local police was not satisfactory issued a notification under Sec. 6 of the Delhi Special Police Establishment Act, 1946 and authorised the C.B.I. to investigate the said case . This was challenged by the accused in the case. After holding that the accused cannot have any say regarding the decision to investigate or the decision on the agency which should W.P. ( C) No. 13426 of 2010 -:25:- investigate, the Supreme Court observed as follows:-

"If investigation by the local police is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. in fact the local police had filed a final report before the Chief Judicial magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, the C.B.I. has been directed to further investigate the offences registered under the said F.I.R. with the consent of the State Government and in accordance with law. Under Section 173 (8) of the Cr.P.C., 1973 also, there is an analogous provision for further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate".

The facts of the above case show that Section 173 (8) Cr.P.C. did not stand in the way of the State Government ordering further investigation by the C.B.I.

17. All the aforementioned decisions were adverted to in a recent ruling of the Supreme Court in Rubabbuddin Sheikh v. State of Gujrat- (2010) 2 SCC 200 wherein the Apex Court has observed as follows:-

"Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like C.B.I. It cannot be said that after the charge-sheet is submitted the court is not empowered, in an appropriate case, to hand over the investigation to an independent W.P. ( C) No. 13426 of 2010 -:26:- agency like C.B.I."

xxxx xxxx xxxx The scope of this order, however, cannot deal with the power of this Court to monitor the investigation, but on the other hand in order to make sure that justice is not only done, but also is seen to be done and considering the involvement of the State police authorities and particularly the high officials of the State of Gujarat, we are compelled even at this stage to direct the CBI Authorities to investigate into the matter. Since the high police officials of the State of Gujarat are involved and some of them had already been in custody, we are also of the view that it would not be sufficient to instil confidence in the minds of the victims as well as of the public that still the State police authorities would be allowed to continue with the investigation when allegations and offences were mostly against them.

81. In the present circumstances and in view of the involvement of the police officials of the State in this crime, we cannot shut our eyes and direct the State police authorities to continue with the investigation and the charge-sheet and for a proper and fair investigation, we also feel that C.B.I. should be requested to take up the investigation and submit a report in this Court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them".

In J. Prabhavathi Amma v. State of Kerala - 2007 (4) KLT 601 a Division Bench of this Court in the Udayakumar murder case, held that even if the State Police filed the charge sheet before Court and even if the trial of the case had commenced before the Court of Session, in an appropriate case, either the High Court or the State Government could refer the case to the W.P. ( C) No. 13426 of 2010 -:27:- C.B.I. for further investigation.

18. It is true that Sri. Unnirajan who is a Superintendent of Police and preently in charge of the investigation of Sampath murder case is widely acclaimed as an officer of integrity and proven ability. Eventhough the petitioner has also acknowledged Sri., Unnirajan's investigation skills and impartiality, the petitioner has expressed a serious apprehension that those in power will not allow the officer to conduct an impartial investigation. The above apprehension does not appear to be totally unfounded. It is said that the Superintendent of Police, Palakkad was one Vijay Sakre who was piloting the "operation man-hunt" for deceased Sampath. The case diary also makes a reference to a Hindi and Malayalam speaking but a non-Malayalee police superior from Kerala who was seen in the office of the Commissioner of Police, Coimbatore in Tamil Nadu and giving directions. The said officer was found giving orders through the phone during the subsequent stages of investigation as well. It is pertinent to note that even in the case diary, the active involvement of the above high-ranking officer surfaced only when persons mustered sufficient courage W.P. ( C) No. 13426 of 2010 -:28:- to give statements before the Magistrate under Sec. 164 Cr.P.C. In paragraph 13 of the counter -affidavit of the 5th respondent there is an assurance given as follows:-

"It is submitted that during the course of investigation, if any person or any officer irrespective of their rank but involved in this serious and heinous crime directly or indirectly will definitely be apprehended and brought before the court of law without any delay".

(emphasis supplied) But, we find that for obvious reasons, no investigation appears to have been made in that direction and the name of the S.P. Palakkad does not figure even as a suspect in the case diary files . It has already been seen that the Crime Branch police had detected that there has been falsification and manipulation of entries in the G.D. and other contemporaneous Registers in the local police station. In paragraph 13 of the counter affidavit of the 5th respondent he has deposed as follows:-

"It is submitted that during the course of investigation , as per the version of various witnesses and on collecting other valuable pieces of evidence , it is revealed that certain valuable official records like General Diary, Sentry Relief Book, Prisoners Search Register and F.I.R. are seen manipulated by the Circle Inspector of Police, Town North Police Station with the help of some other accused and policemen at the instance of the Dy.S.P. Sri.C.K.Ramachandran, Palakkad".

W.P. ( C) No. 13426 of 2010 -:29:-

Was it really at the instance of the Dy.S.P. ? Was it not part of an orchestrated attempt to shield the above high-ranking official who was allegedly spearheading the "operation man-hunt" and who was allegedly giving frequent directions even thereafter ?

Strangely enough, respondents 1, 2 and 5 want this Court to believe that all the 14 police officers who have subsequently been arrayed as accused in this case after the Special Investigation Team specially constituted took charge, are absconding and they could not, therefore, be arrested.

19. Change of the investigating agency in Sampath murder case does not mean lack of faith or trust in the State Police. The change is to ensure credibility in the system and to dispel the fear or anxiety, if any, in the public mind. Justice should not only be done but should also appear to have been done. But, the verdict in this case should not even remotely affect the zeal, enthusiasm or morale of the State Police in the proper investigation of Sheela murder case. The feeling that this W.P. ( C) No. 13426 of 2010 -:30:- verdict may demoralise the State Police itself stems from the misconception that the persons who were in charge of the investigation in Sheela murder case were strictly conforming to the norms of investigation. They were not. If a feeling that this verdict will dampen the morale and enthusiasm of the State Police has gained momentum, the State and its agencies alone are to be blamed. Investigation of sensational murder cases should be entrusted with level- headed officers and not with dare devils. The question as to whether Sampath was the person responsible for the gruesome murder of Sheela is beyond the scope of this writ petition. Even if he was really the prime culprit, the Police had no business to brutally torture him in flagrant violation of law including the human rights which are zealously guarded by our Constitution. When a confession by an accused person to a Police Officer is totally inadmissible in evidence, what is the earthly purpose served by torturing an accused person for extracting confession? The State Police is paying the price for the inhuman treatment meted out to Sampath. But this should not in anyway slacken the investigation of Sheela W.P. ( C) No. 13426 of 2010 -:31:- murder case . The officer in charge of the investigation of that case should be an officer of proven record and adept in investigation skills. It is the expectation of the public that as in any other case the assailants of Sheela and her mother also should be brought to justice through a faultless and scientific investigation.

CONCLUSION

20. After giving my anxious consideration to all aspects of the matter, I am of the view that it is necessary in the interests of justice and to enhance the credibility of the State Police and more particularly, to instill public confidence in the system, that the investigation of the Sampath murder case should be entrusted with the C.B.I. Accordingly, this Writ Petition is disposed of with the following directions:-

a) The investigation of the Sampath murder case (Crime No. 251 of 2010) of Town North Police Station, Palakkad and re-registered as CB CID Crime No. 259 /CR/HHW-II/EKM/ 2010 shall be transferred to the C.B.I. for a detailed, impartial and meaningful investigation.

b) The investigation files of the above case shall be immediately handed over to Superintendent of W.P. ( C) No. 13426 of 2010 -:32:- Police (SPE, C.B.I., Thiruvananthapuram Branch ) who shall entrust the charge of investigation with one or more officers of proven record . It shall be within the discretion of the C.B.I. to conduct a de novo investigation of the case or to continue the investigation from the stage where the Crime Branch Police had reached. Every person directly or indirectly involved in the custodial torture of Sampath, howsoever high he may be, shall be brought to justice.

             c) The        State  Government           shall  extend      all
                  infrastructural and other facilities to the        officers
                  of the C.B.I. investigating the above case.

             d) Entrustment of           the investigation     of "Sampath

murder case " with the C.B.I. shall not in any way affect the proper , meaningful and efficient investigation of "Sheela murder case" and, if need be, the State Government may entrust the investigation of that case with an officer of unquestionable integrity and having the proper investigation skills.

Sd/-V. RAMKUMAR, JUDGE.

Dated this the 25th day of May, 2010.

/true copy/ P.S. to Judge ani/ W.P. ( C) No. 13426 of 2010 -:33:- ani/

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