Karnataka High Court
Nusrath Jahan W/O Late Naushad Kashimji vs State Of Karnataka on 13 September, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
WRIT PETITION NO.40282/2010 (GM-RES)
Between:
Nusrath Jahan
W/o late Naushad Kashimji
Aged about 24 years
R/at Sweet Home Apartments
Britto Lane
Mangalore-575 001. ...Petitioner
(By Sri Sandesh J Chouta, Adv.)
And:
1. State of Karnataka
Rep. by its Secretary
Department of Home
Vidhana Soudha
Bangalore-560 001.
2. Central Bureau of Investigation
CBI Road, Ganganagar
Bangalore
Rep. by Director. ...Respondents
(By Sri K.M. Nataraj, Addl.A.G. &
Sri Indiresh, GA. for R1
Sri C.H. Jadhar, Adv. for R2)
This writ petition is filed under Articles 226 and 227 of
the Constitution of India, praying to direct the respondent to
handover further investigation of the case in Crime
No.144/09 now numbered as CC No.3328/09 pending on
the file of II J.M.F.C. Mangalore, to the Central Bureau of
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Investigation and direct the said agency, i.e., CBI to conduct
a detailed investigation in the case and file a further final
report.
This Writ Petition is having been reserved for orders,
coming on for pronouncement this day, the Court
pronounced the following:
ORDER
The petitioner is before this Court seeking for issue of writ in the nature of mandamus and direct the first respondent to handover further investigation of the case in Crime No.144/2009 presently numbered as C.C.No.3328/2009 to the second respondent - Central Bureau of Investigation (the 'CBI' for short). Further, a direction is sought to be issued to the CBI to conduct a detailed investigation and file a further final report in the said case.
2. The petitioner who is a practicing Advocate is the wife of late Naushad Kashimji who was also a practicing Advocate in Mangalore. She had married her Advocate husband on 13.04.2003 and has two children. Her husband was practicing under his Senior Lawyer Sri K Purushotham Poojary, under whom the petitioner is presently practicing. Her husband was brutally 3 murdered on 09.04.2009 at Mangalore by unknown assailants. The same resulted in an uproar not only in the lawyer fraternity but all over which lead to protests and demand for investigation by independent agencies. The petitioner contends that the real culprits for the gruesome murder of her husband are to be punished for their crime. The petitioner has referred to some of the sensitive cases which were being handled by her husband wherein he had relentlessly fought against false cases being foisted against innocent persons and had opposed police custody to avoid torture of such persons. Similarly, he had also opposed the accused being subjected to Narco Analysis, Brain Mapping and Polygraph test. Such activism on the part of her deceased husband had earned the wrath of the Police Officers. It is contended that four such Police Officers viz., (i) Sri Venkatesh Prasanna, D.C.I.B. Bunder, Mangalore (ii) Sri Jayanth Shetty, Dy.S.P. Mangalore
(iii) Sri P.S. Shivaprakash, CSI, Ullala P.S. and
(iv) Sri Valentine D' Souza, Panambur Circle Inspector 4 had openly expressed their displeasure for opposing their method of investigation.
3. In that context, it is contended that it reached a flash-point in the case of one Abdul Rasheed Hassan (Malbari) wherein he had opposed the police custody as sought by Ullal Police. After the learned Magistrate had granted partial custody with stringent conditions, the said Police Officers were annoyed and it is alleged that they, especially Sri Jayanth Shetty issued a threat which had been informed by her deceased husband to his senior Sri Purushotham Poojary and on the same day, he was murdered. It is therefore contended that the said Police Officers also have connived in eliminating her husband and as such, the investigation would not be fair unless it is carried out by an independent agency such as CBI.
4. The first respondent has filed detailed objection statement disputing the contentions of the petitioner and seeking dismissal of the petition. It is stated that with regard to the incident on 09.04.2009 wherein the 5 husband of the petitioner was shot-dead, one Sri Prasanna, an eyewitness to the incident had lodged the complaint before the Mangalore South Police Station, which was registered in Crime No.144/2009. Immediately thorough investigation was carried out and charge sheet has been filed against 12 accused in the Court of JMFC, II Court, Mangalore, which was registered in C.C.No.3328/2009 and it was thereafter committed to the III Addl. Sessions Court, Mangalore which is registered in S.C.No.60/2011, the same is pending trial. On the following day after the incident i.e., on 10.04.2009, Sri Purushotham Poojary who is stated to be the Senior of the deceased Advocate had lodged a complaint before the Mangalore South Police Station alleging that the Police culprits have brought about the murder. The complaint was registered in N.C.R. No. 158/2009. The Investigating Officer of Cr.No.144/2009 after taking note of the same issued an endorsement dated 02.06.2009 stating that the complaint has been investigated and nine accused have been arrested and recoveries have also been made. The 6 allegation against the Police Officers was found to be unfounded.
5. The first respondent has also referred to an earlier Public Interest Petition in W.P.No.12778/2009 wherein the filing of charge sheet was taken into consideration and the petition was closed. Further, reference is made to the Private complaint filed by Sri K. Purushotham Poojary, the Senior of the deceased under Section 200 of Cr.P.C. seeking to add the said four Police Officers as Accused No.13 to 16 which was numbered as P.C.No.274/2009 before the JMFC II Court, Mangalore. Though it was pending at the stage of filing the objection statement, it is subsequently dismissed by the order dated 26.06.2012. Insofar as the allegation in the petition that in certain of the cases mentioned, the deceased Advocate was defending the accused who were being unnecessarily harassed by the said four Police Officers the further details have been pleaded with regard to the nature of the offence and the involvement of the accused therein. Each of the 7 allegation made against the said four Police Officers has been adverted to in detail and the allegation has been specifically denied by stating as to how the earlier cases were proceeding and the investigation carried out therein.
6. With regard to the case against Abdul Rasheed Hassan Malbari which is stated as the basis for the murder of the petitioner's husband, it is pointed out that Sri Shivaprakash, S.I. had sought for 15 days Police Custody in Crime No.84/2009 and Sri Valentine D'Souza, PI had sought Police Custody for 15 days in Crime.No.62/1998 and the detention was not illegal but the Court had permitted Police Custody till 5.00 pm on 09.04.2009. The allegation that the Police Officers had threatened the deceased Advocate and he had reported it to the Senior is denied as false. The further allegation that the said four Police Officers were present in the Court when Rasheed Malbari was produced on 09.04.2009 at 4.45 pm is termed as false and baseless. Only Sri Valentine D'Souza the Investigating Officer was 8 present to produce Rasheed Malbari on 09.04.2009 and the other three officers were not present. Reference is made to the claim made by a gangster in Mumbai viz., Ravi Poojary for having arranged the killing of the Advocate as he had defended persons of his rival Dawood gang. The conversation with the TV Channel is referred to point out that the murder is an inter-gang rivalry and the Police officers cannot be blamed for the same. Hence, it is contended that in the instant case, on the eyewitness lodging the complaint, the investigation has been carried out in all earnestness and the culprits have been brought to book. To each of the lacuna sought be pointed out in the investigation as referred in the petition, the respondents have provided the explanation for the same and have asserted that the investigation and filing of charge sheet is as per law. Reference is also made to the Test Identification Parade and the report thereto.
7. The allegation that the investigation is carried out by an officer who is subordinate to the said four 9 Police Officers has also been adverted to in detail by pointing out that Sri Jayanth Shetty is Dy.S.P. of Udupi District and the instant murder case being tried is of Dakshina Kannada. The other three officers Sri Valentine D'Souza, Sri Venkatesh Prasanna and Sri Shiva Prakash, though working in Dakshina Kannada are subordinate to the Investigation Officer and as such the question of interference does not arise. It is therefore contended that the investigation has been carried out as per law and the charge sheet has been filed and there is no lapse in the investigation and no case has been made out for entrusting the matter to the CBI. If any further investigation is required, the jurisdictional Court would have the power to order the same. It is also contended that the concerned Police Officers have not been impleaded despite making allegations against them. The dismissal of the petition has been sought for all the said reasons.
8. The second respondent -CBI has filed its separate objection statement. They have stated that the 10 offence committed is not of the technical nature which require investigation by the CBI unlike organised crimes having interstate and international ramification. They have stated that they are already overburdened. The case has no complexity and the same can be investigated by the State Police. However, the second respondent has expressed its readiness to take up the investigation if this Court directs them to do so.
9. The rejoinder filed by the petitioner is also noticed. In addition to reiterating the petition averments, the applications, the objection statement and the order passed in the above referred earlier proceedings and conditional remand order in the case of Rasheed Malbari are produced.
10. In the light of the above, I have heard Sri Sandesh J. Chouta, learned counsel for the petitioner, Sri K.M. Nataraj, learned Additional Advocate General for the first respondent and Sri C.H. Jadhav, learned counsel for the second respondent and perused the petition papers.
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11. At the outset, it is to be noted that this petition had been disposed of on 14.07.2011 with a direction to the second respondent-CBI to investigate into the matter as sought. The first respondent, had at that stage not yet filed their objection statement. However, the first respondent assailed the order of the learned Single Judge by filing an appeal in W.A.No.15328/2011. The Hon'ble Division Bench after referring the decisions of the Hon'ble Supreme court on the point under consideration had set aside the order dated 14.07.2011 passed by the learned Single Judge and has remanded the matter for fresh and detailed consideration keeping in view the decision of the Hon'ble Supreme Court after permitting the objection statement and rejoinder to be filed. That is how the instant petition has arisen for consideration. In that view, it is necessary to notice the legal position and thereafter find out as to whether in the instant facts, the prayer sought for could be granted or not. 12
12. The reliance placed on behalf of the first respondent-State is on the case of State of West Bengal and Others -vs- Committee for Protection of Democratic Rights, West Bengal and Others (2010 (3) SCC 571) wherein it is held that despite wide powers being conferred by Articles 32 and 226 of the Constitution, the Courts must bear in mind certain self imposed limitations and order should not be passed as a matter of routine or merely because a party has levelled some allegations against the local police. The extraordinary power should be exercised sparingly, cautiously and in exceptional situations to provide credibility and instill confidence in investigations or where it has national and international ramification. The caution is that, otherwise the CBI would be flooded with large number of cases with limited resources. In the said case, the Hon'ble Supreme Court has further concurred with its earlier decision that an order directing CBI enquiry should be passed only when the High Court after considering the material on record comes to a conclusion that such material disclose a 13 prime facie case calling for an investigation by CBI or any other similar agency. The learned counsel for the petitioner has also referred to the very same decision to point out that the Court has the power to direct the CBI to investigate a cognizable offence committed in any State without the consent of the State Government. Hence, it is contended that such power should be exercised in the instant facts.
13. The other decision relied upon by the State before the Hon'ble Division Bench and reiterated herein which needs consideration is in the case of Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others -vs- Sahngoo Ram Arya and Another (2002 (5) SCC 521) which was referred and concurred in State of West Bengal (supra). It is held therein that though none can dispute the power of the High Court to direct inquiry by CBI, the said power can be exercised only when there is sufficient material to come to a prima facie conclusion. Reference is made to an earlier decision wherein it is held that a direction for 14 investigation can be given only if an offence is prima facie found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given.
14. The learned counsel for the petitioner on the other hand has relied on the decision of the Hon'ble Supreme Court in the case of Narmada Bai -vs- State of Gujarat & ors (2011 (5) SCC 79) wherein the contention of the State of Gujarat was rejected and the CBI was directed to investigate. In the said case, the earlier decisions wherein CBI inquiry was ordered without expressing any opinion on allegations was noticed and to meet the ends of justice and in public interest CBI inquiry was directed. It was held therein that when there is improper investigation by State Police and high State Police Officials are involved, in order to do complete justice, direction for investigation is permissible since justice must not only be done but also seem to have been done. Having considered the said 15 decision, what is also to be kept in view is that as against this decision which is rendered by a Division Bench, the decision in the case of State of West Bengal (supra) is by the Constitution Bench of the Hon'ble Supreme Court. That apart, in the case of Narmada Bai, it is a case of Police encounter wherein the son of the petitioner therein was killed, which according to her was termed as a fake encounter since her son long before had addressed a letter to the Collector about threat to his life and had also stated about the Crime Branch being notorious about staging fake encounters. In that view, allegations were made against senior police officers and a senior politician. It is in that context, the Hon'ble Supreme Court had observed as noticed above.
15. From the above referred decisions, the legal position is clear that though this Court has the power to direct investigation by CBI even without the consent of the State notwithstanding the provision contained in Section 6 of the Delhi Special Police Establishment Act, 16 1946, the extraordinary power should be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility to investigations or where the incident may have national and international ramifications and to do complete justice where the material discloses a prima facie case calling for investigation by CBI but it can only be directed if a person's involvement is prima facie established. The direction to CBI cannot be legally given to investigate whether any person has committed an offence or not since the concept and philosophy of 'Life' and 'Liberty' guaranteed under Article 21 of the Constitution to such person also has to be borne in mind.
16. Keeping in view the said settled position of law, the instant facts needs to be considered. The factual position at present is that the investigation is completed, recoveries are made and 12 accused have been charge sheeted and the matter is pending before the Sessions Court. The learned counsel however 17 referred to certain defects which according to him is committed in the process of investigation. Reference is made to the manner in which the alleged statement of the Senior of deceased Advocate is shown to be recorded under Section 161 of Cr.P.C and endorsement issued to him about his complaint. The manner in which the Test Identification Parade was conducted is referred to allege that a base had been created to help the accused without calling CWs-3 and 4. The four Police Officers are not implicated despite the Senior Lawyer complaining about their involvement in committing the offence. It is therefore contended that the investigation in such shabby manner is conducted due to the interference of the four Police Officers. The learned Additional Advocate General, on the other hand, has however referred to the details made available along with the objection statement to show that the investigation is as per law. Since the basis regarding improper investigation is alleged because of the interference of the four Police Officers who were allegedly baying for the blood of the deceased Advocate, 18 that aspect of the matter is to be considered only after adverting to the issue as to whether there is any prima facie material to connect the said four Police Officers to the killing of the deceased Advocate as alleged by his Senior which is echoed by the petitioner.
17. The basis of the allegation as brought out in the petition is the words stating "Ninna arguments mugithu" (Your arguments are over) said to have been uttered by Sri Jayanth Shetty, one of the Police Officers to the deceased Advocate on 09.04.2009 since he had opposed the remand of an accused Abdul Rasheed Hassan (Malbari) to the Police custody. The said utterance by the Police Officer is said to have been conveyed by the deceased Advocate to his Senior, Sri Purushotham Poojary on the way to their office at 5.30 p.m. and subsequently, he was murdered on the same evening at 7.30 p.m. Hence, it is alleged that the said four Police Officers are involved and in order to fortify such allegation, the role played by the deceased Advocate in defending the different accused in certain 19 other sensitive cases such as Mulki Rafiq encounter; Ullal Police - alleged terrorist case; opposing Narco Analysis, Brain Mapping and Polygraph Test on the accused, which has incurred the wrath of the said four Police officers is stated by the petitioner.
18. Certainly, if in fact an Advocate appearing for the Accused and discharging his professional obligation towards his client or is taking up public cause is threatened, be it by the Police officer or any person whosoever, the same cannot be countenanced or tolerated but, the question is, what is the material on record in the instant case to atleast prima facie accept such allegation so as to call for investigation. Even if it is accepted that deceased Advocate had appeared for the accused in the above noted cases and had taken up their cause, that in itself cannot suggest animosity inasmuch as in every criminal case, the Advocate and the Police officer would be performing their respective duties as per the call of their profession which would naturally conflict with each other's cause but that in 20 itself cannot lead to assumption of personal animosity. Those cases were of earlier point in time and there is nothing to indicate that the said Police officers had issued threats therein and that had been brought to the notice of the Senior; to any other person or any complaints were lodged with the higher officers or any other authorities. The Senior Lawyer who has presently made the complaint does not refer to any earlier such complaints or the action taken by him, if in fact there were such complaints. Instead, the complaint refers to the case of Abdul Rasheed Hussain (Malbari) Cr.No.84/2009, wherein the deceased Advocate is said to have argued that the said police officers are likely to eliminate the accused in the guise of encounter. Regrettably, though the Senior Lawyer states about his junior having told him about the utterances of the Police Officer and if he actually perceived that as a threat to life, no action was taken at his end to secure the junior to file a complaint nor did he himself take steps in lodging a complaint at that stage or take any other steps. Therefore, such material is also not available at 21 this juncture to take a call in that regard except for the claim being made to that effect subsequently.
19. In that background, the allegation is also not that the said four Police Officers themselves are directly involved in committing the murder but, the investigation sought from the CBI is about the conspiracy in bringing about the murder of the deceased Advocate for which the said four Police Officers have aided. Such enquiry is not permissible to be ordered in the absence of any material is what the Hon'ble Supreme Court has held in the case noticed supra. Further, in the instant case, the petitioner herself has referred the news that was flashed in TV that a gangster from Mumbai-Ravi Poojary had claimed responsibility for the murder. In that regard, the first respondent along with their objection statement have enclosed Annexure-R9 i.e., the statement of the Managing Director of "Namma TV' stating the manner in which he received the message from Ravi Poojary soon after the murder was committed and the way in which it 22 was telecast with a telephonic interview. The transcription of the interview is produced at Annexure- R10 indicating the reason for which such murder was committed at his instance. The complicity of the Police Officers is not indicated anywhere therein. But, about the persons involved in committing the murder for whatever reason they have done it, the law will take its course.
20. Thus, in the instant case, except for the allegation of the Senior Lawyer after the murder was committed, there is no other material about threats which had been issued by the Police Officers earlier as in the case of Narmada Bai (supra). The utterance allegedly made on the evening of the same day, even if it is assumed as having been made and is taken in the background of the claim made by a gangster for having organised the murder for different reasons, it cannot give an indication that the Police Officers had pre- meditated the murder when there is no material to prima facie indicate their involvement. The private 23 complaint filed by the Senior Lawyer has also been considered on merits and dismissed. Though the learned counsel for the petitioner contends that it is not material inasmuch as the Magistrate does not have the power to order CBI which is only to be considered by this Court, what cannot be lost sight is that even the direction seeking for CBI probe is based solely on the statement of the Senior Lawyer to whom the deceased is said to have confided about the alleged threat. When that itself has not been accepted by the learned Magistrate, it can only be assailed in higher forum.
21. Certainly, this Court is sensitive to the feeling of the petitioner who has lost her young husband while performing the call of the profession and also about the apprehension of the lawyers fraternity but such apprehension alone cannot be the basis. As ruled by the Hon'ble Supreme Court, when the Life and Liberty of persons against whom such serious allegations are made is also involved and the allegation is not backed by materials to prima facie indicate complicity of such 24 persons, it would not be open for this Court to issue direction for investigation only with a view to allay the apprehension of a person seeking for such investigation. In that context, though allegation of improper investigation being conducted is made, the first respondent has filed objection and provided details of the nature of the investigation. When the matter is at the stage of trial, it would not be appropriate to pick out holes, more particularly when the involvement of the said Police Officers in derailing the investigation would not be a possibility when their involvement is not shown. Such exercise would only aid the accused. On the other hand, it would be open for the petitioner, if need be to seek the first respondent to exercise its power under Section 24(9) of the Cr.P.C. in the present facts of the case to appoint a Special Public Prosecutor and conduct the trial appropriately wherein the necessity of further investigation if warranted could also be secured.
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For all the above said reasons, I am of the opinion that the direction sought for by the petitioner cannot be acceded to in the instant case.
In the result, the petition is dismissed with no order as to costs.
Sd/-
JUDGE Akc/bms