Kerala High Court
Malayala Vedi vs State Of Kerala on 1 November, 2019
Equivalent citations: AIRONLINE 2019 KER 636, (2019) 4 KER LT 731 (2020) 1 KER LJ 152, (2020) 1 KER LJ 152
Author: S.Manikumar
Bench: S.Manikumar, C.T.Ravikumar
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941
WP(C).No.29369 OF 2019(U)
PETITIONER/S:
MALAYALA VEDI
REG.NO.182/09, REPRESENTED BY ITS PRESIDENT
MR.GEORGE VATTUKULAM, S/O.JOSEPH AGED 56 YEARS
RESIDING AT VATTUKULAM HOUSE,
R.V.PURAM THRISSUR-680631
BY ADV. SMT.SANDHYA RAJU
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY
HOME DEPARTMENT, THIRUVANANTHAPURAM-695001
2 CENTRAL BUREAU OF INVESTIGATION
REPRESENTED BY DIRECTOR, CBI ROAD KATHRIKADAVU,
KALOOR, ERNAKUAM-682017
3 KERALA STATE COMMISSION FOR PROTECTION OF CHILD
RIGHTS, REP BY ITS CHAIRPERSON SREE GANESH,
VANROSS JUNCTION, PUNNEN ROAD, VANROSS, PALAYAM,
THIRUVANANTHAPURAM-695034
4 DIRECTOR GENERAL OF POLICE
KERALA POLICE HEADQUARTERS, TRIVANDRUM-695010
5 INSPECTOR GENERAL OF POLICE
VELIYANNOOR, THRISSUR-680001
6 SUPERINTENDENT OF POLICE KALYAN NAGAR,
AYYANTHOLE, THRISSUR-680003
BY SRI.V. TEK CHAND, GOVERNMENT PLEADER
BY SRI. SASTHAMANGALAM S. AJITHKUMAR,
SPL. PUBLIC PROSECUTOR, CBI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.29369 OF 2019(U) 2
CR
JUDGMENT
Dated this the 1st day of November 2019 S.MANIKUMAR , C.J.
Malayala Vedi, an organisation registered under the Kerala Scientific, Literary and Charitable Endowments Act, has filed the instant Writ Petition for a mandamus directing a fresh investigation through the Director, Central Bureau of Investigation, New Delhi(Respondent No.2) in Walayar case. The petitioner has sought for a further direction to the Director General of Police, Kerala State (Respondent No.4) to provide witness protection to the prime witnesses in Walayar case. Petitioner has also sought for a direction to the Kerala State Commission for Protection of Child Rights, represented by its Chairperson (Respondent No.3) to conduct an emergent monitoring and audit into the functioning of the child protection systems relating to child sexual abuse.
2. The petitioner seems to have filed the instant Writ Petition on the basis of the articles in the online publications dated 21.05.2017 and 11.01.2019 and also based on the reports published in The Indian Express newspaper dated 27.10.2019, WP(C).No.29369 OF 2019(U) 3 and 30.10.2019 respectively. It is reported in Indian Express newspaper that in Walayar case two minor sisters who were found dead, had been sexually exploited. Based on the newspaper reports, petitioner has submitted that sequence of events leading to the death of two sisters revealed the absolute failure of the system in dealing with the extreme grave cases of sexual abuse. Learned counsel contended that on 13.01.2017, the elder minor girl committed suicide. According to the petitioner, despite the minor child's mother reporting and apprehending threat to the body of her younger daughter, no action was taken. It is submitted by the petitioner that after 52 days, the nine year old minor girl also committed suicide and according to the petitioner, she was also found to have been sexually exploited.
3. Regarding the incident, supporting affidavit of the Writ Petition states as follows:-
''5. The petitioner submits that Reports claim that the police had termed it to be a case of suicide. It was further reported that the Post Mortem report had clearly stated that the two sisters were sexually assaulted before their death. It is that the Forensic report clearly revealed the brutal nature of sexual assault the 13 year old was subjected to. It is submitted that the statement of the 9 year old sibling and her mother was also disregarded. It is submitted that from the inception of the WP(C).No.29369 OF 2019(U) 4 investigation the political pressure prevailed in diluting the case from the stage of the investigation, to that of the, Child Protection systems which were mandated to protect children in need of care and protection and eventually leading to the infamous acquittal of the accused. A true copy of the Newspaper report in Indian Express dated 27 th October 2019 is produced herewith and marked as Exhibit P3.
6.The petitioner submitted the Child Welfare Committee under the Juvenile Justice Act 2015 is mandated to protect the child in need of care and protection. It is submitted that a child who is a victim of sexual abuse is a child in need of care and protection. It is submitted that serious allegations have been raised against the Child Welfare Committee, Palakkad in colluding to dilute the case. A true copy of the Indian Express Newspaper report dated 27.10.2019 is produced herewith and marked as Exhibit P4.
7. The Petitioner further submits that the State Commission for Protection of Child Rights are mandated to monitor the sexual abuse cases under the Protection of Children from Sexual Offences Act as per section 44. The petitioner submits that despite this being a case which was much publicised, the outcome of the case reveals that the Kerala Sate Commission had also foregone its responsibility in monitoring the case to ensure justice. It is submitted that the Statistics reveals that the conviction rate is extremely low. Out of 2093 cases booked between January to December 2016, only 387 cases reached trial and conviction happened only in 34 cases which is a rate of 8%. A true copy of the online article dated 21 st May 2017 is produced herewith and marked as Exhibit P5.''
4. Relying on the above facts, Smt.Sandhya Raju, learned counsel for the petitioner submitted that there is a gross lapse in the investigation. She further submitted that it is the mandatory WP(C).No.29369 OF 2019(U) 5 obligation of the State to provide assistance to the victims. In sum and substance, she submitted that the police investigation conducted is not fair and it was a casual approach bringing loss of confidence to the public in effectiveness of criminal justice system.
5. At this juncture, it is apropos to state a crucial aspect. Despite our careful scrutiny of the entire pleadings in the writ petition and the appended documents, we could not see the numbers of the crime/crimes registered in connection with the incidents in question. The details regarding the station in which crimes were registered, stage of investigation, whether after the investigation and laying of final reports trial was conducted, if it was conducted, where it was conducted and what is the verdict, are all lacking in this writ petition. Nonetheless, we propose to proceed with the case further. As noticed hereinbefore, the petitioner described the case concerned only as 'Walayar case'. Since there is a cause celebre commonly known in that name we got verified the details. In fact, both sides would admit that reference 'Walayar Case' made in the writ petition pertains to the same. Inviting the attention of this Court to the judgments rendered in S.C. Nos.396/2017 to 401/2017 on the file of the 1 st WP(C).No.29369 OF 2019(U) 6 Additional Sessions Judge (Special Judge), Palakkad Division, Sri.Sasthamangalam S. Ajithkumar, learned Special Public Prosecutor for CBI submitted that, following the registration of Crime Nos.43/2017 and 240/2017 at Walayar Police Station after investigation and adhering to the prescribed procedure on receipt of the final reports, the case was made over to the Court of the learned 1st Additional Sessions Judge (Special Judge), Palakkad Division. Thereupon, the learned Sessions Judge framed appropriate charges, conducted trial and that after analysing the evidence, both oral and documentary adduced by both sides, acquitted the accused therein.
6. Sri.Tek Chand.V., learned Public Prosecutor appearing for the State submitted that Crime Nos.43/2017 and 240/2017, were registered at Walayar Police Station and after investigation eight final reports were filed. Out of them, two were filed against a minor accused before the Juvenile Justice Board in terms of the provisions of Juvenile Justice Act. To be precise, cases against the juvenile were numbered as S.T.Nos.29/2017 and 30/2017 and the cases against the other accused were numbered as S.C. Nos.396/2017, 397/2017, 398/2017, 399/2017, 400/2017 and 401/2017.
WP(C).No.29369 OF 2019(U) 7
7. Learned Special Public Prosecutor for CBI, Sri.Sasthamangalam S. Ajithkumar and State Public Prosecutor, Sri. Tek Chand submitted that now the trial in all the six cases against the adult accused ended in acquittal and hence the prayers sought for in the instant Writ Petition to direct fresh investigation through the Director of CBI, and further direction to the Director General of Police, Thiruvananthapuram/State Police Chief (Respondent No.4) to provide witness protection to the prime witnesses in the Walayar case, are not sustainable and therefore prayed for dismissal of the Writ Petition.
8. By way of reply, Smt. Sandhya Raju, learned counsel for the petitioner made an attempt to expose the case of sexual abuse. According to her, minors who were put to mental and physical trauma, ended up their lives and in the said circumstances, prayed the Court to exercise the extraordinarily jurisdiction under Article 226 of the Constitution of India.
9. Heard the learned counsel appearing for all the above parties and perused the materials available on record.
10. Firstly, instant Public Interest petition has been filed solely on the basis of the news published in the newspaper. Let us consider few decisions on Public Interest Litigations based on WP(C).No.29369 OF 2019(U) 8 News items. On the aspect of a Public Interest Litigation purely based on newspaper report, In Vikas Vashishth v. Allahabad High Court reported in 2004 (13) SCC 485, the Hon'ble Supreme Court held as follows:
"At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation.
5. After affording the full opportunity of hearing, we are satisfied that what purports to have been filed as a public interest litigation is nothing more than a "publicity interest litigation". It is writ large that it has been filed without any effort at verifying the facts by the petitioner personally."
11. In Rohit Pandey v. Union of India reported in 2005 (13) SCC 702, Hon'ble Apex Court held as follows:
""1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the WP(C).No.29369 OF 2019(U) 9 army according to reports published in two newspapers, to the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 16-2-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.
2. We expect that when such a petition is filed in public interest and particularly by a member of the legal profession, it would be filed with all seriousness and after doing the necessary homework and enquiry. If the petitioner is so public-spirited at such a young age as is so professed, the least one would expect is that an enquiry would be made from the authorities concerned as to the nature of investigation which may be going on before filing a petition that the investigation be conducted by the Central Bureau of Investigation. Admittedly, no such measures were taken by the petitioner. There is nothing in the petition as to what, in fact, prompted the petitioner to approach this Court within two-three days of the second publication dated 12-2-2004, in the newspaper Amar Ujala. Further, the State of Uttar Pradesh had filed its affidavit a year earlier i.e. on 7-10-2004, placing on record WP(C).No.29369 OF 2019(U) 10 the steps taken against the accused persons, including the submission of the charge-sheet before the appropriate court. Despite one year having elapsed after the filing of the affidavit by the Special Secretary to the Home Department of the Government of Uttar Pradesh, nothing seems to have been done by the petitioner. The petitioner has not even controverted what is stated in the affidavit. Ordinarily, we would have dismissed such a misconceived petition with exemplary costs but considering that the petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner."
Although, in the matters of grave importance, concerning life, liberty of women, children and weaker sections of the society or in larger public interest, High Courts and the Hon'ble Supreme Court have taken up suo motu writ petitions and issued directions by way of continuous mandamus, on the facts and circumstance of this case, when the trial already has ended in acquittal by the learned 1st Additional Sessions Judge (Special Judge) Palakkad Division, such exercise cannot be undertaken by this Court, even under Article 226 of the Constitution of India.
12. The following tabular column would reflect the nature of cases registered against the accused in various crime numbers on the file of Walayar Police Station:-
WP(C).No.29369 OF 2019(U) 11
Sl. Crime S.C.No Dt.of Complainant Accused Charges Framed MOs Final No No. Judg- identi Verdict Walayar ment fied P.S. 1 43/17 396/17 25.10.19 State Madhu @ Valiya U/ss.450, 354, 376(2) Acquitted represented by Madhu, (f), (I) and (n), 377, u/s.235(1) the Deputy S/o.Vellappan, 305 of IPC and 1-12 Cr.P.C.
Superintendent aged 28years, Sec.5(I) and (n) of Police, Kallankadu, r/w.Sec.6 and Sec.7 Narcotic Cell, Attapallam, r/w.Sec.8 of the Palakkad Pampampallam.P. Protection of Children O, Pudussery East from Sexual Offences Vilage, Palakkad Act,2012.
2 43/17-A 397/17 25.10.19 State Shibu, U/ss.376(2)(i), 377 Nil Acquitted
represented by S/o. Narayanan, and 305 of IPC, u/s.235(1)
the Deputy aged 45 years, Sec.5(n)r/w.Sec.6 of Cr.P.C
Superintendent Naluthaikkal the Protection of
of Police, House, Children from Sexual
Narcotic Cell, Valiyamullakkana Offences Act,2012
Palakkad m,Rajakkad and Sec.3(I)(w)(i) and
village, 3(2)(va) of the
Udumbanchola Scheduled Castes /
Taluk, Idukki. Scheduled Tribes
Now residing at (Prevention of
C/o.Shaji & Atrocities) Act
Bhagyavathy,
Selvapuram,
Attapallam,
Pampampallam.P.
O., Palakkad.
3 43/17- 398/17 30.09.19 State Pradeep Kumar, U/ss.376(2)(i) and (n), Nil Acquitted
B represented by S/o.Muraleedhara 377, 305 and 354 of u/s.235(1)
the Deputy n Nair, aged 32 IPC, Sec.5(I) Cr.P.C
Superintendent years, Kadappallil r/w.Sec.6 and Sec.7
of Police, House, Nagam r/w.Sec.8 of the
Narcotic Cell, Kulangara, Protection of Children
Palakkad Wayalar East from Sexual Offences
Village, Cherthala Act,2012 and Sec.3(I) Taluk, Alappuzha (w)(i) and 3(2)(va) of District. the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act 4 43/17- 399/17 25.10.19 State Madhu @ Kutti U/ss.450,354 and 305 Nil Acquitted C represented by Madhu, of IPC, Sec.7 r/w.Sec.8 u/s.235(1) the Deputy S/o.Manikandan, of the Protection of Cr.P.C Superintendent aged 26 years, Children from Sexual of Police, Pallikkad House, Offences Act,2012 Narcotic Cell, Attappallam, Palakkad Pampampallam.P. O, Puthussery East Village, Palakkad 5 240/17 400/ 25/10/19 State Madhu @ Valiya U/ss.450, 354, 376(2) 1-5 Acquitted 17 represented by Madhu, (f), (i) and (n), 377, u/s.235(1) the Deputy S/o.Vellappan, 305 of IPC and Sec.7 Cr.P.C Superintendent aged 28years, r/w.Sec.8 and Sec.5 of Police, Kallankadu, (l), (m) and (n) Narcotic Cell, Attapallam, r/w.Sec.6 of the Palakkad Pampampallam.P. Protection of Children O, Pudussery East from Sexual Offences Vilage, Palakkad Act,2012.
WP(C).No.29369 OF 2019(U) 12 Sl. Crime S.C.No Dt.of Complainant Accused Charges Framed MOs Final No No. Judg- identif Verdict Walayar ment ied P.S. 6 240- 401/ 30.09.19 State Pradeep Kumar, U/ss.376(2)(i) and (n), 1-3 Acquitted A/17 17 represented by S/o.Muraleedhara 377, 305 and 354 of u/s.235(1) the Deputy n Nair, aged 32 IPC, Sec.5(I) and (m) Cr.P.C
Superintendent years, Kadappallil r/w.Sec.6 and Sec.7 of Police, House, Nagam r/w.Sec.8 of the Narcotic Cell, Kulangara, Protection of Children Palakkad Wayalar East from Sexual Offences Village, Cherthala Act,2012 and Sec.3(I) Taluk, Alappuzha (w)(i) and 3(2)(va) of District. the Scheduled Castes / Scheduled Tribes (Prevention of Atrocities) Act
13. Perusal of the copies of the judgment taken from the website shows that in each Sessions case referred to above, several witnesses have been examined and many documents have been marked as exhibits. Material Objects have also been produced. Defence has also produced documents in support of their plea for acquittal. After analysing the case of the prosecution as well as the defence, evidence adduced by both sides, learned 1st Additional Sessions Judge (Special Judge) Palakkad Division has acquitted the accused in the above mentioned Crime Nos.43/2017, 43/2017-A, 43/2017-B, 43/2017- C, 240/2017 and 240-A/2017 of Walayar Police Station which culminated into S.C.Nos.396/2017, 397/2017, 398/2017, 399/2017, 400/2017 and 401/2017. As of now, it is reported that the crimes registered against the juveniles are numbered as S.T. Nos.29/2017 and 30/2017, which are stated to be pending. WP(C).No.29369 OF 2019(U) 13
14. First prayer sought for in the Writ Petition is to direct a fresh investigation through the Director of Central Bureau of Investigation, New Delhi. Pursuant to the registration of crime Nos.43/2017, 43/2017-A, 43/2017-B, 43/2017-C, 240/2017 and 240-A/2017 on the file of Walayar Police Station, investigation has been done, final reports have been laid, learned 1st Additional Sessions Judge (Special), Palakkad Division has charge sheeted the accused and after trial, acquitted all the accused therein. In such circumstances, the first prayer viz., for a direction for granting fresh investigation through the 2 nd respondent in Walayar case would amount to indirectly setting aside the judgment of a court of competent jurisdiction, which exercise cannot be done on the facts and circumstances of this case in exercise of the power under Article 226 of the Constitution of India. Such course is impermissible in law.
15. Section 378 of the Code of Criminal Procedure speaks about appeal in case of acquittal. Sri.Tek Chand.V, learned Public Prosecutor submitted that the State has already contemplated to prefer appeals against all the judgments of the learned 1st Additional Sessions Judge (Special Judge), Palakkad Division, passed in the aforementioned Session Cases. WP(C).No.29369 OF 2019(U) 14
16. Section 2(wa) of the Code of Criminal Procedure code defines ''victim'' to mean a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ''victim'' includes his or her guardian or legal heir;]
17. As per Section 372 of the Code of Criminal Procedure, no appeal shall lie from any judgment or order of a Criminal Court except as provided for this Code or by any other law for the time being in force provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.
18. On a conjoint reading of Section 2(wa) and Section 372 of the Code of Criminal Procedure, it can be seen that these provisions enable the guardian or legal heir of the victim also to prefer an appeal, to the Court where an appeal ordinarily lies. From the above provisions in the Code of Criminal Procedure, it is evident that adequate remedy is provided thereunder to the WP(C).No.29369 OF 2019(U) 15 victim besides right to prefer an appeal, in case of acquittal, to the State, the prosecuting agency under Section 378(2)Cr.P.C. Following the materials on record, it can be seen that, when the petitioner has filed the instant Writ Petition for the prayers stated supra have been on the grounds, inter alia stating that the news items published revealed improper investigation. Sri. Sasthamangalam. S Ajithkumar, learned Special Public Prosecutor for CBI submitted that the decision of the learned 1 st Additional Sessions Judge(Special Judge), Palakkad Division acquitting the accused therein was also published in the newspapers. Instant writ petition, has been filed on 31.10.2019. Though in Ext.P2, there is a recital to the effect that one Sri.V.Madhu and one Sri.Shibu were acquitted in Walayar case, from the said paper clipping it is not evident as to which is the Session Case concerned. That apart, it is not known as to why the Writ petition did not disclose the factum of acquittal specifically in the pleadings. Crimes have been registered in the year 2017. No allegation was raised regarding improper or unfair investigation during the stage of investigation or even at the time of filing of the charge sheet in the above Sessions cases. Only after the conclusion of trial in the Sessions Cases, the petitioner has come WP(C).No.29369 OF 2019(U) 16 forward to make an allegation stating that the investigation conducted by the State Police, reflects gross lapse and lackadaisical attitude. We are not inclined to accept the contentions of the writ petitioner. As stated supra, remedy is provided to the victims and the State.
19. Thus stated supra, it is an indisputable fact that at any stage of the criminal cases, right from the inception to conclusion, petitioner has not raised any complaint over the investigation. Now, after acquittal, a prayer is sought for to direct the CBI to conduct a fresh investigation, and this is not permissible in law. So also, the prayer sought of the Director General of Police/State Chief of Kerala to provide witness protection to the prime witnesses is also infructuous. In respect of the 3rd prayer, seeking a direction to the Kerala State Commission for Protection Of Child Rights, to conduct an emergent monitoring and audit into the functioning of the child protection systems relating Child Sexual abuse cannot be granted, on the facts and circumstances of this case for the reason that the averments are solely based on newspaper reports. As discussed above, we are not inclined to allow the Writ Petition.
WP(C).No.29369 OF 2019(U) 17
In the result, the Writ Petition is dismissed.
Sd/-
S.MANIKUMAR, Chief Justice Sd/-
C.T.RAVIKUMAR, Judge ajt WP(C).No.29369 OF 2019(U) 18 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE INDIAN EXPRESS REPORT DATED 30TH OCTOBER 2019 EXHIBIT P2 A TRUE COPY OF THE INDIAN EXPRESS NEWSPAPER REPORT DATED 27TH OCTOBER 2019 EXHIBIT P3 A TRUE COPY OF THE NEWSPAPER REPORT IN INDIAN EXPRESS DATED 27TH OCTOBER 2019 EXHIBIT P4 A TRUE COPY OF THE INDIAN EXPRESS NEWSPAPER REPORT DATED 27TH OCTOBER 2019 EXHIBIT P5 A TRUE COPY OF THE ONLINE ARTICLE DATED 21ST MAY 2017 EXHIBIT P6 A TRUE COPY OF THE ONLINE ARTICLE RECORDING THE INCREASING CRIMES AGAINST CHILDREN, DATED 11TH JANUARY, 2019