Kerala High Court
Court vs By Advs.Sri.P.K.Varghese on 12 September, 2016
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 30TH DAY OF JULY 2018 / 8TH SRAVANA, 1940
Crl.MC.No. 1040 of 2018
RC/5S/2009/CBI/SCB/CHENNAI PENDING BEFORE THE CHIEF JUDICIAL MAGISTRATE
COURT, ERNAKULAM
PETITIONER(S)/PETITIONER
K.GOPINATHAN
"ANUPAMA", KAVILPAD POST,
PALAKKAD DISTRICT, PIN-678017.
BY ADVS.SRI.P.K.VARGHESE
SMT.M.B.SHYNI
SRI.DEEPAK RAJ
RESPONDENT(S)/RESPONDENTS:
1. CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY THE DIRECTOR,
NEW DELHI REPRESENTED BY THE STANDING COUNSEL,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. SUPERINTENDENT OF POLICE
CENTRAL BUREAU OF INVESTIGATION,
CBI.SCB/CHENNAI-600100.
3. MINISTRY OF HOME AFFAIRS
REPRESENTED BY ITS SECRETARY,
GOVERNMENT OF INDIA, NORTH BLOCK,
CENTRAL SECRETARIAT, NEW DELHI-111001.
R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R1 BY ADV. SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.06-2018, THE COURT
ON 30.07.2018 PASSED THE FOLLOWING:
Crl.MC.No. 1040 of 2018 ()
APPENDIX
PETITIONER(S)' EXHIBITS:
ANNEXURE A1 A TRUE COPY OF THE JUDGMENT IN WPC NO.4558/2009 FSYRF
2/4/2009.
ANNEXURE A2 A TRUE COPY OF THE ORDER PASSED BY THE HON'BLE CHIEF
JUDICIAL MAGISTRATE COURT, ERNAKULAM IN CMP NO. 4942/2010 DATED 12/9/2016.
ANNEXURE A3 A TRUE COPY OF CMP NO. 216/2016 FILED BY THE PETITIONER
BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM 25/4/2015.
ANNEXURE A4 A TRUE COPY OF THE COUNTER FILED BY THE CBI DATED 1/2/2016.
ANNEXURE A5 A TRUE COPY OF THE ORDER IN CMP NO.216/2016 OF CHIEF JUDICIAL
MAGISTRATE COURT, ERNAKULAM DATED 5/2/2016.
ANNEXURE A6 A TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT
DATED 21/3/2017 IN CRMC NO. 5809/2016.
ANNEXURE A7 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE
PETITIONER BEFORE THE DIRECTOR CBI, DATED 18/5/2017.
RESPONDENTS EXHIBITS:NIL
True Copy / P A to Judge
SUNIL THOMAS, J.
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Crl.M.C.No.1040 of 2018
=================
Dated this the 30th day of July, 2018
ORDER
Unfortunate father of Anitha Pathiyil, who died on 03.09.2004, consequent to burn injuries sustained by her, at her house at California USA, is the petitioner herein.
2. Anitha was married to Santhosh and they lived in California. While so, she sustained burn injuries on her body in August 2004. She was rushed to the hospital where, she succumbed to injuries on 03.09.2004. On getting information about the accident, on 18.08.2004, the petitioner and his wife flew to California. It was found that Anitha was in a critical stage and hence, details could not be elicited from her. After her death, the body was cremated in California. The parents of Anitha returned to India. According to the petitioner, son-in-law had informed that Anitha sustained burns, while removing her nail polish. According to the petitioner, this was not convincing and was doubtful. Hence, a complaint was laid, pursuant to which, on 19.06.2007, Hemambika Nagar Police, Palakkad registered Crime No.91 of 2007 against the husband Santhosh and his parents, arraying them as accused Nos.1 to 3, for offences punishable under section 304 B r/w 34 of the Indian Penal Code.
Crl.M.C.1040/182
3. Alleging that the investigation into the crime was not properly undertaken and since the first accused was abroad and substantial part of the incident had taken place abroad, local police was unable to investigate into the allegations properly, petitioner sought for entrustment of the investigation with the CBI by filing W.P(C).No.4558 of 2009. It was allowed and CBI was directed to take over the investigation. Accordingly, RC/5S/2009/CBI/SCB/Chennai was registered and investigation was taken over by the Special Crime Branch CBI, Chennai on 18.05.2009.
4. It seems that, there were several proceedings thereafter. In C.M.P.No.4942 of 2010, learned Chief Judicial Magistrate, Ernakulam directed CBI to conduct further investigation under section 173(8) Cr.P.C, rejecting the closure report filed by the CBI. It was taken note of by the court below that the investigating agency did not visit the place of occurrence, that it did not attempt to trace out the evidence and failed to approach the competent authority to get the custody of the accused for interrogation. It was also noticed that, without resorting to the provisions under the Treaty of Mutual legal assistance between India and USA in criminal matters, investigating agency has blindly stuck to certain Crl.M.C.1040/18 3 technical reasons, instead of questioning the prime accused in this crime. Letters Rogatory was also issued and answers obtained. The Crl.M.C is filed for a direction to the CBI to question the accused directly by visiting place of occurrence without any delay, to conduct speedy investigation and to file final report within a time frame.
5. According to the petitioner, first accused had informed him that Anitha had a lighted cigarette with her, while removing the nail polish. It allegedly ignited the nail polish remover, leading to the accident. However, an expert arson investigator in California, who had seen the photograph of Anitha obtained from coroners office, had informed the investigator in USA that he did not believe that, normal line of finger nail polish remover could have resulted in burn pattern seen on Anitha. It was also opined that, finger nail polish remover was a very flammable compound, which required an open flame to ignite. It was concluded that an ignition source such as a cigarette would not be enough to ignite it. The records made available at the time of hearing clearly indicate that, there are other reasons to cast doubt on the circumstances that led to the death of Anitha. Divergent versions regarding how she got fire burns seem to be available on record. In one version, she had a cigarette with her Crl.M.C.1040/18 4 and in another version, she was holding a cigarette lighter or matchbox. First accused was questioned by CBI on Skype. It appears that he could not cogently subscribe to the cause of death. First accused had not returned to India, after 2007. Definitely, these suspicious circumstances clouding the death of Anitha require to be clarified.
6. While so, CBI officials attempted to travel abroad for questioning the first accused. Pursuant to the execution report of the supplementary Letters Rogatory filed by the police authorities, CBI had approached the third respondent for permission to proceed abroad and interrogate the first respondent. In the meanwhile, the petitioner herein moved this Court by filing Crl.M.C.No.5809 of 2005, for a direction to the CBI to question the first accused and to conduct speedy investigation. It was reported by the Special Prosecutor for the CBI that, CBI has decided to sent a special investigation team and permission was sought from the Ministry. Recording the above submission, Crl.M.C was closed. It is now reported that the Ministry of Home Affairs has refused the permission on a premise that, at this length of time, there is less scope for questioning of the accused abroad.
Crl.M.C.1040/185
7. This stand of the third respondent seems to be not justifiable. The delay is not attributable to any of the latches on the part of the petitioner herein, his family members or even the CBI. The third respondent may review its decision and consider whether permission is liable to be granted in the peculiar facts of this case. Definitely, CBI being the prime investigating agency in the country on whom people trust for effective investigation cannot raise its hand in despair in a case of this nature. Definitely, CBI seems to have undertaken considerable effort. However, considering the nature of allegations, the first accused needs to be brought to India for effective interrogation.
8. It now emerges that, regarding the passport stated to have been issued to the first accused, there is some confusion. The passport stated to be issued for the travel of first accused in 2007 as informed by the concerned office is stated to be one issued to another person. If he has used another passport, it is also a matter of serious concern. This also needs to be investigated into. After ascertaining the passport details of accused, steps shall be taken for revoking or impounding the passport of first accused. Since the Extradition Treaty is in existence between the Republic of India and United States of America, it shall be effectively utilized by the CBI. Crl.M.C.1040/18 6 Further, CBI shall also consider issuing of look out notice or red corner notice against the first accused for ensuring that the accused is brought to India. Effective steps as above shall be taken by the CBI as expeditiously possible.
Crl.M.C is disposed of as above.
Sd/-
SUNIL THOMAS Judge Sbna/29/6/18 True Copy / P A to Judge