Kerala High Court
Niyamavedi And Etc. Etc. vs Director, Cbi And Ors. on 27 January, 1999
Equivalent citations: 2000(1)ALT(CRI)176, 1999CRILJ2231
JUDGMENT C.S. Rajan, J.
1. The ghost of Varghese who met his tragic end in an alleged encounter with the Police 28 years back is still haunting the people of the State. The startling revelations of the additional 5th respondent (in O. P. No. 21142/98) who is a retired Police Constable that he shot Varghese compel1ed by his superior officers stirred up the hornets' nest and these original petitions are the outcome of those self-styled confessions of the police constable. All these original petitions (except O. P. No. 22485/98 filed by the kith and kin of Varghese) are Public Interest Litigations. The prayers in these Original Petitions are :
(1) for a direction to the Government to conduct "a confidence inspiring threadbare investigation" into the custodial murder of Varghese and to book the culprits and launch prosecution against them; and (2) to pay compensation to the kith, and kin of late Varghese to the tune of Rs. 10 lakhs.
After issuing notice to the State, the learned Additional Advocate General fairly submitted that the Government have no objection in ordering any kind of enquiry into the circumstances and causes of the death of Varghese. It was also submitted by the learned Additional Advocate General that the Government is taking steps to get a judicial officer appointed for a judicial enquiry. Sri. P. Balagangadhara Menon, learned Senior counsel appearing in O. P. No. 22485/98 for the relatives of Varghese submitted that his clients are satisfied with the proposed enquiry under the Commission of Enquiries Act, 1952. It was further submitted that the relatives of Varthese are not interested in getting compensation from the State.
2. Sri A. X. Varghese, learned Counsel for the petitioner in O. P. No. 21142/98 with his usual forensic flavour and forthrightness strongly urged that an investigation by the Central Bureau of Investigation (CBI) is absolutely necessary to bring out the truth about the custodial murder of Varghese.
3. Sri K. S. Madhusoodanan, learned Counsel appearing for the petitioners in O. P. No. 21463/ 98 also requested this Court to direct the C.B.I, to treat the counter-affidavit filed by the additional 5th respondent as the First Information Statement and to lodge F.I.R. in the above case.
4. The Universal Declaration of Human Rights identifies several rights as basic human rights which are inalienable. The Declaration affirms that all human beings are born free and equal in dignity and rights. They should act towards one another in a spirit of brotherhood. The two rights which are relevant to decide this case are (1) right to protection from arbitrary arrest or detention and (2) right to life, liberty and security of persons.
5. The provisions of human rights are made an integral part of the Indian Constitution. Article 21 of our Constitution which states that no person shall be deprived of his life or personal liberty except according to procedure established by law is hailed as a most productive cardinal safeguard in the Constitution for the protection of human rights.
6. The Supreme court had dealt with the above aspect in a number of decisions. Suffice to mention two landmark judgments of the Supreme Court viz., Nilabati Behera v. State of Orissa AIR 1993 SC 1960 : 1993 Cri LJ 2899 and D.K. Basu v. State of West Bengal (1997) 1 SCC 416 : 1997 Cri LJ 743.
7. In Nilabati Behera's case (1993 Cri LJ 2899) (SC) Suman Behera, son of Nilabati Behera was taken from his home in Police custody in connection with the investigation of an offence of theft and was detained at the Police Station. On the next day, it came to the notice of Nilabati Behera that the dead body of her son was found on the Railway track. There were multiple injuries on the body of Suman Behera. The police as usual put forward the story of escape from police custody and committing suicide thereafter. But on enquiry by the District Judge as directed by the Supreme Court it was found that Suman Behera died on account of multiple injuries inflicted on him while he was in police custody in the police station. Thereafter the Supreme Court considered the question of the liability of the State to pay compensation and as to whether the State can claim sovereign immunity in such cases. The Supreme Court also considered the question as to the nature of the relief to be granted to the petitioner therein. Justice J. S. Verma (as he then was) dealt with the above question in the following words (at p. 290 of Cri LJ):
17. A useful discussion on this topic which brings out the distinction between the remedy in public law based on strict liability for violation of a fundamental right enabling award of compensation to which the defence of sovereign immunity is inapplicable and the private law remedy, wherein vicarious liability of the State in tort may arise is to be found in Ratanlal and Dhirajlal's Law of Torts, 22nd Edition 1992 by Justice G. P. Singh at pages 44 to 48.
18. This view finds support from the decisions of this Court in the Bhagulpur blinding cases : Khatri (11) v. State of Bihar (1981) 1 SCC 627 : AIR 1981 SC 928 : 1981 Cri LJ 470 and Khatri (IV) v. State of Bihar (1981) 2 SCC 493 : AIR 1981 SC 1068 : 1981 Cri LJ 597, wherein it was said that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty; and it should be prepared 'to forge new tools and devise new remedies' for the purpose or vindicating these precious fundamental rights. It was also indicated that the procedure suitable in the facts of the case must be adopted for conducting the inquiry, needed to ascertain the necessary facts, for granting the relief, as the available mode of redress, for enforcement of the guaranteed fundamental rights. More recently in Union Carbide Corporation v. Union of India (1991) 4 SCC 584 : AIR 1992 SC 248, Misra C.J. stated that we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to a rise in future...there is no reason why we should hesitate to evolve such principle of liability... to the same effect are the observations of Venkatachaliah J. (as he then was), who rendered the leading judgment in the Bhopal gas case, with regard to the Court's power to grant relief.
A more elaborate and useful discussion is available in the concurrent judgment of Dr. A. S. Anand (as he then was), which is as follows :
30. Apart from the police, there are several other governmental authorities also like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, RAW, Central Bureau of Investigation (CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to detain a person and to interrogate him in connection with the investigation of economic offences, offences under the Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulation Act etc. There are instances of torture and death in custody of these authorities as well. Death of Sawinder Singh Grover Re (to which Kuldip Singh J. was a party) this Court took suo motu notice of the death of Sawinder Singh Grover during his custody with the Directorate of Enforcement. After getting an enquiry conducted by the Additional District Judge, which disclosed a prirna facie case for investigation and prosecution, this Court directed the CBI to lodge an FIR and initiate criminal proceedings against all persons named in the report of the Additional District Judge and proceed against them. The Union of India/Directorate of Enforcement was also directed to pay a sum of Rs. 2 lakhs to the widow of the deceased by way of ex gratia payment at the interim stage. Amendment of the relevant provisions of law to protect the interest of arrested persons in such cases too is a genuine need.
...
34. In additional to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest at the time of arrest in the presence of at least one witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in the memo which must also be countersigned by the arrestee.
8. In D. K. Basu's case (1997) 1 SCC 416 : (1997 Cri LJ 743) the Supreme Court had to consider the seriousness of the issue regarding torture, custodial violence and custodial death. According to the Supreme Court, in almost every State there are allegations and these allegations are now increasing in supremacy of deaths in custody described generally by the newspapers as "lockup deaths". Since there is no machinery to effectively deal with such a situation and this is an All India question concerning everybody, the Supreme Court formulated certain guidelines to be followed in cases of arrest or detention. The Supreme Court also cautioned the Police Officers that failure to comply with the requirements mentioned in the judgment will render the officers concerned liable for departmental action and also liable to be punished for contempt of court. A paragraph in the above judgment is reproduced here to show the alarming nature of this kind of custodial torture/death (at p. 749 of Cri LJ):
18. However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and adopts techniques' of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society's cry for justice becomes louder.
9. In this case the death of Varghese was explained by the Police at that time as an encounter death wherein when Varghese was apprehended by the Police he fired a shot at the Superintendent of Police and in self-defence the Superintendent of Police fired back and Varghese was dead. Therefore the situation now we are experiencing in 1999 was no longer different from the situation about a quarter of a century back. The salutary provisions in the Constitution for safeguarding the fundamental rights were vibrant in those days also. Article 21 providing for absolute personal liberty, described as the "sacred and cherished right" under the Constitution was also very much there. Article 22 guarantees protection against arrest and detention in certain cases. It also declares that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest. He shall not be denied the right to consult and to be defended by a legal practitioner. Article 22 further ensures the production, of the accused before the nearest Magistrate within a period of 24 hours. In tune with the constitutional guarantee, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizen. Chapter V of the Code of Criminal Procedure deals with the powers for arrest of a person and safeguards which are required to be followed by the Police to protect the interest of the arrested persons.
10. If the claim of the petitioners in this case is with regard to the payment of compensation, this Court would not have hesitated for a moment to award the same in view of the unequivocal pronouncements of the Supreme Court in Nilabati Behera's case (1993 Cri LJ 2899) and D. K. Basu's case (1997 Cri LJ 743). Though the petitioner in O. P. No. 21142/98 has prayed for payment of compensation, the relatives of the deceased Varghese do not want any compensation. This Court is now confronted with the counter affidavit filed by the additional 5th respondent who swears that he killed Varghese by shooting. The above counter affidavit states that the facts disclosed in the counter affidavit are voluntarily made without any inducements, threats or coercions or promises from any source. It further says that the deponent is well aware that any disclosures are likely to be used against him in any subsequent judicial proceedings or trial for the offence of murder. The deponent swears that he is fully aware of the repercussions and consequences of the contents of the affidavit. The incident is described in the affidavit in the following words of the deponent:
7. The officers told us to remain in the jeep and thereafter the Commander and another officer told us to bring out Varghese. Some policemen, on direction tied the eyes of Varghese with some clothes and thereafter, we along with Varghese went upwards through the forest. While going in somewhat distance, on the top we were directed to make him sit in the shade of a tree. There we sat a considerably long time. At 4 O' Clock food was brought to us. We shared that with Varghese. During these time the officers were roaming somewhere in the forest. After some time, Dy. S.P. Lakshmana, D. I. G. Vijayan and the Kannoor SP and some other officers came near to us. DIG Vijayan and Dy. S. P. Lakshmana questioned Varghese for a while. All negative answers were given by Varghese and then Dy. S. P. Lakshmana told Varghese that if truth is not told, Varghese will not see the next morning. Thereafter we the CRP constables were called to a nearby place by the DIG and the Dy. S. P. asked us who will shoot dead Varghese.
8. Two Constables along with me expressed their willingness. Another constable reluctantly expressed his willingness. I did not express my willingness. Then the Dy. S. P. asked me 'Can't I do that? Then I had been intimidated by the Dy. S.P. that I will be killed in a Naxalite action. Then I Sensed that my life is in danger. In order to secure my life I had to shoot Varghese and accordingly at 6.55 p.m. I shot dead Varghese by shooting at his left chest.
11. On these disclosures the learned Counsel for the petitioners wanted a direction to the C.B .I. to lodge F.I.R. and to investigate the crime. For that purpose the learned Counsel cited a precedent of the Supreme Court reported in Kulwant Rai Sharma v. Union of India 1995 Supp (4) SCC 451. In the above case how the death of one S awinder Singh happened was the subject matter. It was contended by the Union of India/Directorate of Enforcement that Sawinder Singh committed suicide by jumping from the office of the Directorate. But the above version was not believed by the Supreme Court. There was evidence to show that Sawinder Singh was wrongly confined by the officers of the Directorate of Enforcement. A report of the District Judge was called for by the Supreme Court. On the basis of the above report the C.B.I, was directed to ensure that an F.I.R. is registered on the facts as emanate from the order of the Supreme Court and the report of the learned Additional District Judge.
12. Therefore the question is whether it is desirable to have a judicial enquiry under the Commission of Enquiries Act as contemplated by the Government, or whether an investigation into the offence of murder committed by the additional 5th respondent is to be ordered. The judicial enquiry though laudable in its object, always involves time, money and energy. The result can only be certain recommendations or findings regarding the cause of the death of Varghese. The Government are not bound to accept those recommendations. Instances are not wanting when Governments have completely rejected the report of such Enquiry Commissions, if those recommendations do not satisfy their view or ideology. If the Government accepts the recommendations in toto, further criminal action has to be initiated thereafter. Thus, according to me, no useful purpose would be served in ordering a judicial enquiry. Perhaps such a decision may set at right, for the time being, the controversy erupted by the disclosure of the additional 5th respondent. At the same time, a police investigation into the death of Varghese will lead to prosecution of the real accused. Under these circumstances I think that the more .effective step that is warranted in this case is to direct the police to investigate the crime, for which the counter affidavit of the additional 5th respondent can be the basis. The next question is as to which must be the agency to investigate the above crime. The counter affidavit of the additional 5th respondent accuses the then D.I.G., S. P. and Dy. S. P. of the Kerala Police. Therefore it will be embarrassing for the Kerala Police to investigate into the above allegations against top officers of the police force in this State. It is better that such cases are dealt with by the C.B.I, so that nobody can accuse of any partiality or favouritism.
13. Thus I adopt the method Which the Supreme Court did in Sawinder Singh's case 1995 Supp (4) SCC 450. The Central Bureau of Investigation is directed to register a First Information Report on the facts disclosed in the counter affidavit filed by the additional 5th respondent. Such a F.I.R. must be registered by the C.B.I, within two weeks from the date of receipt of a copy of this Judgment. The investigation into this case must be completed at least within six months from the date of registering the F.I.R. If the C.B.I. encounters any difficulty in complying with the direction within the above time frame, it is free to seek further time from this Court, on furnishing the grounds for it.
The Original Petitions are disposed of as above. Order accordingly.