State Of Kerala Represented By The Chief vs Mariyu on 4 September, 2008

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Kerala High Court

State Of Kerala Represented By The Chief vs Mariyu on 4 September, 2008

A learned Single Judge of this Court has allowed the Writ Petition filed under Article 226 of the Constitution of India by the first respondent in the Writ Appeal (hereinafter referred to as the writ petitioner) and directed the appellants to transfer the investigation files relating to the murder of the husband of the writ petitioner to the Central Bureau of Investigation. The learned Single Judge has directed the Central Bureau of Investigation to continue the investigation and bring to justice the culprits behind slaying of late Shri Muhammed Fasal, the husband of the writ petitioner (hereinafter referred to as Shri Fasal). The learned Single Judge has also made certain observations. It is feeling aggrieved by the aforesaid Judgment that the State of Kerala, the Director General of Police, The Superintendent of police, Special investigation Team of Crime No.313/CR/KNR (for short, Kannur)/ 2006 and the Deputy Superintendent, CBCID, Thalassery, Kannur have preferred this Writ Appeal.

2. The Writ Petition came to be filed on 29.3.2007. Briefly put, the case of the writ petitioner is as follows;

At about 3/30 A.M. on 22.10.2006, Shri Fasal who was distributing the newspaper daily by name "Thejus" came to be brutally murdered near the liberty quarters. He received as many as twenty stab injuries. The injuries suggested that the assailants were professionals, and that it was a pre- WA. NO. 654/08 2 planned cold blooded murder. Investigation was taken up by the Superintendent, CB CID, Thalassery and no person was arrested. The deceased was a supporter of National Democratic Front (hereinafter referred to as NDF). He was a good behaved man, and he had no enemies. He was earlier an hardened supporter and worker of the Communist Party of India (Marxist) (for short, CPM). But, he later shifted his alligience and joined the NDF. It is the further case of the writ petitioner that many members of the Muslim Community defected to the NDF at the instance of her husband. He was instrumental in many a person terminating subscription to the CPM Party and subscribing to the Thejus newspaper. The investigation was proceeding in an unusual manner. The police dog attached to the Dog Squad has got into the houses of certain members of the CPM Party. One Shri Radhakrishnan, Dy. S.P. of the DCRB, Kannur, who had made considerable progress in the investigation, was withdrawn from the team. The murder, it is pointed out, took place in the constituency of Shri Kodiyeri Balakrishnan who is none other than the present Home Minister. Thrisuls were found near the dead body so as to create an impression that the murder was the handi work of the members of Rashtriya Swayam Sevak (RSS). Persons who were taken into custody after the sniffer dog had run into the house of a CPM worker, were all released at the intervention of the leaders of CPM. News items in two popular dailies were relied upon by the writ petitioner. The writ petitioner did not expect, it is her case, to get justice as the CPM is in power and the Minister from the constituency where the murder took place, is controlling the home portfolio. The writ petitioner had filed W.P.(C). No.2063/07 praying for investigation by a specialist and an impartial agency WA. NO. 654/08 3 preferably by the CBI. That Writ Petition came to be disposed of by Judgment dated 14.2.2007 and it came to be disposed of entrusting the investigation with a Special Team to be headed by the fifth respondent Superintendent of Police. But, even after such entrustment, no effective investigation had been conducted.

3. Two Statements on behalf of the third appellant, namely the Superintendent of police, Special investigation Team were filed. It is stated that four persons residing at liberty quarters had seen the incident partially as admitted before the investigating Officer. It is also stated that two persons, namely Shri Abdulla and Shri Sali had also admitted that they had seen three persons attacking Fasal, but they could not identify the assailants. In the later Statement filed by Shri T.K. Rajmohan, the Investigating Officer, it is stated that after a systematic investigation, the case was analysed threadbare. It is his case that the investigation revealed that one Sunilkumar @ Kodi Suni, Koyeri Biju @ Pachutti Biju @ Bijesh and M.K. Jithesh @ Jithu were known political bad characters who were actually involved in various political murders and attempt to murder cases. It is stated that A1 Sunilkumar is involved in twentyone criminal cases, A2 Koyeri Biju is involved in six criminal cases including Shaji murder case and A3 M.K. Jithesh is involved in four criminal cases. They had arrived at the liberty quarters in a motor cycle and were hiding at the side of the bylane on the eastern side of the liberty quarters. They pounced upon the deceased and attacked him with deadly weapons, like chopper and knife, etc. It is stated that M.K. Jithesh had left behind the chappal at the scene of the crime and returned to the spot. Hearing the screaming sound from the road, one Abdulla and Lulu Marjan witnessed the WA. NO. 654/08 4 incident in dim light, but they could not identify the assailants. It is also stated that one Sameera, resident of liberty quarters had switched on the exterior light and saw a person searching for his chappal on the road in front of the quarters. Upon seeing the light, Jithesh left the scene. On the way to Illathuthazham, they concealed the chopper and knife in an unoccupied open compound on the western side of Pankaj Talkies. It is stated that on the confession of A2 and A3, the Superintendent of police recovered those weapons under a mahazar. The three assailants reached their respective houses and left for Mysore on the next day. It is stated that A1 is in judicial custody and A2 and A3 were arrested on 8.10.2007 while A1 was formally arrested on 10.10.2007.

4. The learned Single Judge after evaluation of the circumstances which included perusal of the case diary files, took the view that there was no independent investigation so as to converge on the three accused persons. It is stated that the only guiding factor appears to be the bad antecedents of the three accused persons so that they could be found handy for easy arraignment as the culprits in this case. The learned Single Judge has found the story of Section 27 recovery of the weapons from an open compound adjacent to the Pankaj Talkies after months of the occurrence, too good to be believed. The learned Single Judge has found that even according to the investigating team, the three accused persons were professional gundas involved in several cases. He found that no investigation appears to have been conducted to pinpoint and confirm the identity of A1 to A3 as the assailants of Fasal. The witnesses, namely Abdulla and Lulu Marjan who had allegedly witnessed the occurrence in dim light have not identified the WA. NO. 654/08 5 assailants. The learned Judge further noticed that if the accused are professional assassins, they must have been definitely engaged by somebody owing allegiance to the CPM to do away with Fasal towards whom the CPM workers were nurturing extreme enmity for canvassing the Muslim youths to join NDF and for increasing the circulation of "Thejus" Daily. The learned Single Judge also found that there is no evidence forthcoming to show the conspiracy hatched to assassinate Fasal against whom the local CPM activist had an axe to grind for his defection from the Marxist Party. He further found that having regard to the political set up in the State, he was fully convinced that the petitioner will not get justice at the hands of the State Police and that a serious investigation by an impartial agency alone can bring out the truth. It was in such circumstances that the learned Single Judge directed investigation to be done by the CBI. It is thereafter that the learned Single Judge has made the following observations:

"8. If reports are to be believed, Kannur District, particularly, Thalassery Taluk has, over the years, become the hot-bed of political violence and carnage of the worst order. All political parties there seem to freely indulge in the cult of violence. What is surprising is the fact that the health conscious people of that area, although very friendly, affabale and hospitable to others, turn mad and transform themselves into veritable demons while under the seizure of acute political acrimony. Previous lives of fellow mortals are taken in the most horrendous manner by the rival bigwigs either through their own partymen or through hired assassins. Lethal weapons are procured and stored without any defection. The God given terrestrial lease of the poor citizens is determined not by any natural causes WA. NO. 654/08 6 but by the beastly animals in human form who dwell amongst us. Very cunningly, however, the party leaders escape unhurt in this cruel and blood thirsty game.

9. Given the full freedom, the State Police is par excellence in crime detection and investigation, provided there is no political or other intervention. But the ground reality is that we get a different picture at Kannur. It is a shame that even if it be for survival, the police pandering to the vicious instincts of the influential politicians by shielding from punishment those who are really guilty and projecting either innocent persons listed out from the party office or arraigning party confidants who volunteer to go to the dock and eventually to the prison houses at the party's expense.

There were reported instances of the peoples' representatives with diabolic designs barging into police stations to rescue their own party criminals from the police lock-ups. Experience shows that whichever party comes into power, violence and political killings continue unabashedly in this part of the State and the common man there lives in constant fear and very often there is a crippling standstill rendering normal life of the people miserable. Shops remain closed continuously to the extreme hardship of the people. All-Party peace missions are nothing but a hoax to hoodwink the fickleminded public. Past lessons show that restoration of peace and harmony is only an evanescent episode invariably followed by a history of repeated violence and vindictive vandalism. No serious concern appears to have been shown to this man-made holocaust in which the bread winners of several families have been slain to death driving the orphaned widows and children literally to the streets. The only solution seems to be a timely intervention by the Union Government by deploying sufficient forces who will not yield to the political WA. NO. 654/08 7 or plutocratic clout by those in power and out of power. It is hoped that there will be a gubernatorial move to apprise the Central Government of the urgent need for a permanent prophylactic action to curb further bloodshed and killings in Kannur District where manslaughter is a competing sport. Blessed are those who are able to die a natural death in Thalassery."

5. We heard Shri C.P. Sudhakara Prasad, learned Advocate General appearing on behalf of the appellants, Shri Sunny Mathew, learned counsel appearing on behalf of the writ petitioner and also Shri M.V.S. Namboothiry, learned standing counsel appearing for the CBI.

6. Contentions of the learned Advocate General:

He would contend that a proper investigation was being conducted in this case and it revealed that there was sufficient evidence to establish and pinpoint that A1 to A3 already referred to, have committed the crime. It is contended that the witnesses Shri Kuniyil Ramsheed and Shri Keloth Sajeer have identified the accused, as they were seen with deadly weapons near the place of occurrence immediately after the incident. The aforesaid two witnesses had identified them and admitted that they were the persons whom they saw on the night of 22.10.2006. The three witnesses, residents of liberty quarters, namely Lulu Marjan, Abdulla and Sameera, who saw the incident, though could not identify the assailants, had stated that they have seen only three assailants attacking the victim. As per the version of A2 and A3, the weapons used for the offence concealed under the ground, were recovered in the presence of the witnesses under Section 27 of the Indian Evidence Act. The chappal recovered from the scene of the crime was fitting WA. NO. 654/08 8 to A3. The two assailants, A2 and A3 have left for Mysore on the very next day of the incident. Though the place of concealment of the weapons, it is contended, was an open ground, the concealed weapons were recovered after digging the earth. It is further contended that when the recovered weapons were produced before Dr. Sherly Vasu, Professor and Head of the Department, Forensic Medicine, Medical College, Calicut, she has opined that the injuries on the body of the victim could be caused with those weapons. It is further contended that the writ petitioner had not made any adverse comment regarding the arrest of the accused and her complaint was that there would be other accused who would have conspired in the case who were not being booked. It is contended that the investigating agency has borne this aspect in mind. It was in the light of this perspective and to consider whether there was a conspiracy, a polygraph test was conducted on A2 and A3. It is pointed out that after analysing the result of the polygraph test the allegation concerning conspiracy and involvement of the other accused can be ruled out. It is further contended by the learned Advocate General that the appellants are not averse to conducting any further test, like Narco Analysis, Brain Mapping, etc. on the accused persons to unearth the existence of conspiracy. It is the case of the appellants that the mobile phone print out of the accused was obtained and it is under analysis. It is the case of the State that there has been a qualitative investigation. Learned Advocate General pointed out that Crime No.442/06 under Section 302 IPC was registered by the Circle Inspector of Police, Shri P. Sukumaran, suo motu on 22.10.2006. Shri K.P. Philip, Dy. Superintendent, Thalassery prepared the Inquest Report and sent the body for post-mortem. Shri Radhakrishnan was WA. NO. 654/08 9 ordered to head a special team and they started investigation on 22.10.2006. Between 22.10.2006 and 3.11.2006, 105 witnesses came to be questioned. He found that both the BJP and CPM sympathizers could be suspected. It is pointed out that no conclusion was reached in this investigation. By order dated 3.11.2006, investigation was transferred to the CB CID, Kannur. A special team led by Shri D. Sali was entrusted with the investigation of the case. The investigation which he took up on 8.11.2006 continued till 25.1.2007. He questioned 149 witnesses. Since the investigation did not bear fruit, the Additional Director General of Police (Crimes) entrusted the investigation to a team headed by Shri T.P. Mohan Das, Superintendent of Police, CB CID, SIG III, Kozhikode. The investigation under him was spread over a period which commenced from 1.2.2007 and terminated on 3.4.2007.

Though he questioned 33 witnesses, there was no clue during his investigation also. Shri T.P. Mohan Das came to be entrusted with the Calicut SM Street explosion case and, therefore, he was relieved from the investigation by order dated 10.4.2007. The investigation was entrusted with Shri T.K. Rajmohan, who was the Superintendent of Police, CB CID, Kannur and he commenced investigation on 12.4.2007 and continued till 24.5.2007. It is thereafter that Shri V. Venugopalan who took charge as Superintendent of CB CID, Kannur, took over the investigation. Thereafter, by order dated 12.6.2007, stating that Shri T.K.Rajmohan who was transferred and posted as Superintendent of police, CB CID, Kozhikode was well-versed with the facts and circumstances of the case and the change of the Investigating Officer will adversely affect the progress of the investigation, shri Rajmohan was ordered to continue as the Investigating Officer in this case. WA. NO. 654/08 10

7. Learned Advocate General would, therefore, point out that there cannot be any room for any complaint that the State was not earnest or sincere in unearthing the truth behind the shocking incident. No effort was spared, it is contended by the learned Advocate General as this was a murder committed in the constituency of the Home Minister, and the State was all the more serious in sparing no efforts in booking the culprits. It is further contended that there is absolutely no basis for the learned Single Judge to have ordered an investigation by the CBI in the circumstances as aforesaid. He would contend that even if it may be true that the investigation conducted earlier was unfruitful, by the time the Writ Petition came to be heard, having regard to the fact that the actual culprits had been arrested and the state of the materials available against them, the learned Single Judge has clearly erred in ordering an investigation by the CBI. He would further contend that the learned Single Judge has proceeded to make various observations which we have already extracted. He would contend that not only were those observations wholly unwarranted, they were unnecessary for deciding the lis before him. In this regard, he relied on the dicta laid down in the following decisions:

1) The State of Uttar Pradesh v. Mohammad Naim (AIR 1964 SC 703).

2) A.M. Mathur v. Pramod Kumar Gupta & Others ((1990) 2 SCC 533).

3) State of Maharashtra & Others v. Admane Anita Moti & Others ((1994) 6 SCC 109).

4) Mangilal and Others v. State of M.P. ((1994) 4 SCC 564).

5) State of Karnataka v. Registrar General, High Court of Karnataka (AIR 2000 SC 2626).

WA. NO. 654/08 11

6) State represented by Inspector of Police & Others v. N.M.T. Joy Immaculate ((2004) 5 SCC 729).

It is apparently on the basis of the impression that the learned Single Judge had in the matter, as could be gleaned from those observations contained in paragraphs 8 and 9 of the Judgment that he has proceeded to decide the Writ Petition and gave the impugned direction to entrust the investigation with the CBI. He contended that the Court should not stray away from the issues which fall for its consideration and decision. A Court should also refrain from making observations about matters except with restraint and only in circumstances when such observations are germane for arriving at conclusions which are necessary for deciding the controversy before it. He would submit that an investigation is essentially a matter which falls within the exclusive province of the police and it is not for the writ court to tinker with the same (See State of Bihar and Another v. J.A.C. Saldanna and Others (AIR 1980 SC 326). He would submit that there cannot be one set of natural reaction. In Bachittar Singh v. State of Punjab ((2002 (8) SCC 125), which is referred to in State of Punjab v. Hardam Singh and Others ((2005) SCC (Crl)

834), it is held as follows:

"Human behaviour varies from man to man. Different people behave and react differently in different situations.

          Human      behaviour   depends      upon     the   facts     and

          circumstances of each given case.         How a man would

behave in a particular situation, can never be predicted."

He would, therefore, submit that this Court may not go into the merits of the matter and should allow the matter to be considered by the competent WA. NO. 654/08 12 criminal court. He also contended with the aid of the decision in Sakiri Vasu v. State of Uttar Pradesh and Others ((2008) 2 SCC 409) that the Apex Court has taken the view that if an investigation was not being conducted into the commission of an offence or if the investigation which is being conducted is not proper, the Magistrate is not without power either ordering an investigation or giving necessary directions so as to ensure that a proper investigation is made. The Court held, inter alia, as follows:

"27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C."

He would submit that when the State police carries out an investigation and books the persons with materials against them, it would be a travesty of justice besides undermining the morale of the State police, if the High Court were to order an investigation by the Central Bureau of Investigation. He also pointed out that the observations made by the learned Single Judge would WA. NO. 654/08 13 only help in the actual culprits getting away. He also contended that the Court could not order investigation by the CBI without consent of the State Government. In this regard, he relied on the decision of the Apex Court in State of W.B. and Others v. Committee For Protection of Democratic Rights, W.B. and Others ((2006) 12 SCC 534) to point out that the matter has been referred to a Larger Bench of the Apex Court where it is pending consideration.

8. Contentions of the first respondent/Writ Petitioner Shri Sunny Mathew, learned counsel appearing for the first respondent would, on the other hand, point out that here is a case where the husband of the writ petitioner came to be brutally murdered. There were as many as twenty injuries. He would point out that though there was a call to the Control Room, intimating the police regarding the crime, steps were not taken to identify the informant over phone. He contended that in the Inquest Report by Shri K.P. Philip, Dy. Superintendent of Police, there was a statement given by one Ajinas that there were indeed eight assailants and not three as claimed by the investigating agency. He further contended that the sniffer dogs had run into the house of three CPM workers and the CPM leaders had interfered and taken them away. He further contended that Shri Philip investigated the case for one day. Shri K. Radhakrishnan conducted the investigation which spanned a period between 27.10.2006 to 3.11.2006. He had examined 105 witnesses within the short period of time and he was making considerable progress. What is more important is that he arrived at a conclusion that the murder could be the handy work of either the BJP or the CPI(M). It is contended that the moment the investigating officer observed that the crime WA. NO. 654/08 14 could be committed by the CPM activists, the investigation was taken away from him. It is contended that Shri T. Rajamohan was leading the investigation from 12.4.2007 till 24.5.2007 and of the said short period of a little over a month, Shri Rajmohan was on leave for a period of nearly two weeks. He further contended that when the team was re-constituted again on 12.6.2007, strangely, Shri Sali, the former Dy. S.P. who was part of the investigating team and was familiar with the facts, was not included. He further contended that Annexure A Statement dated 31.5.2007 would show that the investigation revealed that CPM workers had enmity towards Muhammed Fasal for allegedly canvassing all Muslim youths to the NDF and increasing circulation of Thejus Daily. It is pointed out that in Annexure C Statement, however, the motive for the crime is stated as follows:

The accused persons are known political bad characters involved in certain political murders and such offences. The Muslim youths who were usually submissive to this type of gunda activities started retaliating and questioning these gundas while they were involved in unlawful activities. Their courage was attributed to the active involvement, support and leadership of deceased Fasal. It is further stated in Annexure C Statement that the accused wanted to teach Fasal a lesson by giving him major injuries. It is pointed out by Shri Sunny Mathew that there is a change in the version which renders the stand of the appellants unacceptable. He would contend that it is the definite case of the writ petitioner that the three accused persons who are history sheeters have been conveniently chanced upon. Regarding the polygraph test, the learned counsel would contend that a mere perusal of the so-called relevant questions would clearly show that it is an eye-wash and WA. NO. 654/08 15 more importantly and more shockingly, counsel would contend that the first accused has not been subjected to the polygraph test. He would contend that though the two witnesses have named the three accused persons in the questioning on 16.5.2007, going by the case of the appellants, the alleged recovery is made only several months thereafter. The arrest was delayed till 8.10.2007. Important evidence in the form of blood-stains, which could have been crucial in securing the conviction was lost. Of course, he also pointed out that the site of the recovery, makes the recovery highly suspect, as correctly found by the learned Single Judge. He would further contend that the power of the High Court is unfettered. He sought to enlist the support of Article 215 of the Constitution of India, to contend that being a Court of Record, it is for the High court to decide the limits of its own jurisdiction. He would contend that even in the decision in Sakiri Vasu v. State of Uttar Pradesh and Others ((2008) 2 SCC 409), it has been held at paragraph 31 as follows:

"31. No doubt, the Magistrate cannot order investigation by CBI vide CBI v. State of Rajasthan, but this Court or the High Court has power under Article 136 or Article 226 to order investigation by CBI. That, however, should be done only in some rare and exceptional case, otherwise, CBI would be flooded with a large number of cases and would find it impossible to properly investigate all of them."

He relied on the decision in Surendran v. Simon K. Francis (2006 (4) KLT

353) to contend for the proposition that no consent is required of the State when the High Court orders an investigation by the CBI. He would contend WA. NO. 654/08 16 that it is to be remembered that it is not for any failure on the part of the State investigating authority that the Court can order an investigation by the CBI. What is crucial is the lack of a proper investigation resulting in apparent miscarriage of justice, when there is lack of genuine interest on the part of the investigating authority to get at the whole truth. In this context he pointed out the peculiar circumstances of the case. He contended that the crime took place in Kannur which has become notorious for the spate of political murders which have been committed without any compunction. It is stated that no serious investigation was carried out to bring out the conspiracy behind the murder of Fasal. He has filed a Statement indicating the number of political murders which have taken place in Kannur. He further points out that there have been a number of cases where this Court has ordered investigation by the CBI and no appeals were filed in those cases by the State. Yet, strangely, when it comes to the direction given by the learned Single Judge in this case, the State has chosen to appeal the decision. He points out that all is not well and this Court should not countenance any effort of the State to stall the ascertainment of truth. He further contended that though Shri Sali, on the basis of the statements given by two alleged witnesses who identified the accused persons, decided to have their statements recorded under Section 164 of the Cr. P.C., Shri Rajmohan put the decision in abeyance, thus depriving the prosecution case of a re-assurance in the form of Statements under Section 164 Cr.P.C. Shri Sunny Mathew contended that the Apex Court has found that in cases where the witnesses do not inform the matters within a reasonable time, their version is incredible and cannot be acted upon (See Kochu Maitheen Kannu Salim v. State of Kerala (AIR 1998 WA. NO. 654/08 17 SC 2852), Alil Mollah and Another v. State of W.B. ((1996) SCC (Crimes) 1028), and State of Orissa v. Mr. Brahmananda Nanda (AIR 1976 SC 2488)). He made this contention to point out that the case of the appellants as to how the accused persons were identified was incredible. The incident took place on 22.10.2006. On 14.5.2007, the elder brother of the accused has stated that when he went to the market, he struck up a conversation with one Azeez, who told him that he and another had seen two motor cyclists behaving strangely on 22.10.2006 and what is more, he had noted down their numbers. Azeez was on his way back from Coimbatore. When he arrived at the Bus Station, he is alleged to have picked up by one Shri Aliyar who is having a residence in Thalassery, but who is doing business in Bangalore. These persons are alleged to have remembered the number of the motor cycle which they saw allegedly, more than seven months back. Later, on 16.5.2007 these two motor cyclists whom they saw, stated before the police that on their way back in the morning in the early hours of 22.10.2006, they had seen the three accused persons.

9. In reply, learned Advocate General contended as follows:

He would contend that though Ajinas and certain others had made a statement that there were eight assailants, subsequent investigation clearly revealed that the case that there were eight assailants, is incorrect. In fact, learned Advocate General would point out that Shri Ajinas himself had given up his earlier version. He took us through the other statements also to corroborate the subsequent statements given by Ajinas to show that his earlier version that there were eight assailants was untrue. He points out that though the statements were taken of the identifying witnesses, Shri Rajmohan WA. NO. 654/08 18 who was on leave wanted to verify the matters further before the Statements were recorded under Section 164 Cr. P. C. He would point out that these are all matters for the investigating officer to decide. He further contended that the decision of this Court in Surendran v. Simon K. Francis (2006 (4) KLT

353) wherein this Court had held that consent of the State Government is not necessary, was rendered prior to the reference of the issue whether consent of the State Government is necessary to a Larger Bench of the Apex Court.

He further pointed out that the judgment was pronounced by the learned Single Judge on 11.3.2008, though the arguments were concluded on 21.1.2008. The learned Single Judge has made the observations apparently on the basis of some incidents which took place after the arguments were concluded. There was no opportunity given to the appellants to explain, he contended. He further contended that the first accused was in jail and the permission of the Court is necessary for subjecting him to the polygraph test and he will certainly be subjected to the polygraph test. He further contended that arrest was not made immediately after 16.5.2007, when the two witnesses who identified the accused had given their statements as further enquiries had to be made and materials collected. It is also pointed out that the sniffer dogs have not entered into the house of any person. The contrary version which was sought to be projected with the aid of newspaper reports, shall not to be acted upon, he contends. He relied on the decision of the Apex Court in Ganeshlal v. State of Maharashtra ((1992) 3 SCC 106) for the proposition that the delay in recording the evidence cannot be fatal. Therein, the Court took the view that each case has to be considered on its own facts.

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10. Analysis:

Whether consent of the State Government is necessary ? We are of the view that consent of the State Government cannot be necessary in a case where the High Court orders investigation by the CBI. In arriving at this conclusion, we are fortified by the view taken by this Court in the decision of the Division Bench of this Court in Surendran v. Simon K. Francis (2006 (4) KLT 353) where this Court has held as follows:

"Only when the Central Government may extend to any area the power and jurisdiction of members of Delhi Special Police Establishment for investigation of any offence that it will require the consent of the concerned State Government. No such consent is required if investigation of the crime is to be entrusted to the C.B.I. by the High Court in exercise of t4he powers vested under Art. 226 of the Constitution of India."

It is true that the Apex Court has proceeded to refer the matter to a Larger Bench as to whether consent of the State Government is necessary for ordering investigation by the CBI. But, as the law stands, we are not persuaded to take a view contrary to the view taken by the Division Bench of this Court following the decision of the Apex Court in State of W.B. and Others v. Sampat Lal and Others (AIR 1985 SC 195).

11. Whether the High Court can order investigation by the CBI in appropriate cases ?

We do not find merit in the contention of the learned Advocate General that the High Court should not interfere with the investigation by the Agency WA. NO. 654/08 20 as there is authority with the Magistrate to interfere when the investigation does not progress in a proper manner or is deflected. It is true that the Apex Court has held in Sakiri Vasu v. State of Uttar Pradesh And Others ((2008) 2 SCC 409) that the Magistrate is to be approached in case of an improper investigation. But, we cannot overlook the fact that the Apex Court itself has held in Sakiri Vasu's case supra, stating that in appropriate cases, it is open to the High Court to order investigation by the CBI. We have already referred to the same. Thus, while it may be true that the Magistrate is empowered to order an investigation as also to control the investigation, it does not deprive the High Court of its power to order investigation in appropriate cases.

12. Whether the present case was an appropriate case for entrustment of the investigation to the CBI ?

This is the most crucial question which falls for our consideration. It cannot be gainsaid that an entrustment with the CBI of a case which is being investigated or has been investigated by the State Police should not be done in a light-hearted manner. It involves an attitude essentially of attributing lack of confidence in the State investigating machinery. The morale of the police would be undermined leading to a situation where there could be lack of motivation with the State police to undertake any serious and fair investigation. But, this cannot mean that the Court should abdicate its function to order investigation by an impartial agency, when it is convinced that the investigation has been derailed. There can be exceptional circumstances and each case must be decided on the facts presented before WA. NO. 654/08 21 the Court and there can be no hard and fast rule.

13. It cannot be gainsaid that there have been a large number of political murders which have been committed in and around the area, may be over a period of time. We may not be in error if we describe the area as highly sensitive. It cannot but be said that the offence which has been committed is of a most serious nature involving the untimely snuffing out of a precious human life, rendering the ascertainment of the whole truth behind the crime absolutely essential. The fundamental function of the State is the protection of life. It is in the context of these elements that we must purport to sit in judgment over the view taken by the learned Single Judge.

14. We note that as rightly pointed out by Shri Sunny Mathew, the learned counsel for the writ petitioner, that the appellants who have paraded the polygraph test in an attempt to over-rule the very possibility of a conspiracy has shockingly not cared to subject the first accused to the polygraph test. We do find this as highly disturbing. We are not impressed by the reason trotted out by the appellants, namely that the first accused was in jail and permission from the Court had to be obtained. There was no attempt made at getting the permission of the Court to get the first accused subjected to polygraph test. It is only when it was pointed out by the learned counsel for the writ petitioner that such a reason was given and also the assurance was given that he will be subjected to polygraph test. Coming to the polygraph test itself, we notice that the questions which are seen as relevant and the answers given are as follows, in relation to accused K. Biju @ Pachutty Biju @ Vijesh:

WA. NO. 654/08 22

"Sl.No. Relevant Questions Verbal response

1. Did anybody other than Suni or Jithesh tell you to attack Mohammed Fazal ? No.

2. Do you know whether anybody other than Biju or Jithesh or Suni having involved in the killing of Mohammed Fazal ? No.

3. Had you informed anybody about their matter immediately after Mohammed Fazal was attacked upon ? No.

4. Do you hide any fact in order not to be caught in this case anyone other than Vijesh, suni and Jithesh ? No. "

The assessment and opinion of the expert is given as follows:

"It is submitted that, the Polygrams of Sri. K. Biju @ Vijesh showed no strong, consistent unresolved responses to the above mentioned relevant questions No.1, 3 and 4. After careful analysis of the Polygrams, the opinion derived is that Sri K. Biju, S/o. Sri. Sreedharan was truthful while giving the aforementioned answers to the aforementioned relevant questions No.1, 3 and 4. No conclusive opinion could be formulated in respect of the response to the aforementioned relevant question No.2."

The questions which are seen as relevant and the answers given by accused Jithesh @ Jithu, are as follows:

      "Sl.No.        Relevant Questions               Verbal response

      1)     Did anybody other than Biju or Suni
             tell you to attack Mohammed Fazal ?                   No.

      2)     Do you know whether anybody other than
             Jithesh or Vijesh or Suni having involved
             in the killing of Mohammed Fazal ?                     No.

      3)     Had you informed anybody about the
             matter immediately after Mohammed Fazal
             was attacked upon ?                                    No.

WA. NO. 654/08                         23


       4)     Do you hide any fact in order not to be
              caught in this case anyone other than
              Vijesh, Suni and Jithesh ?                             No."

The assessment and opinion of the Expert in regard to accused Jithesh @ Jithu is given as follows:

"It is submitted that the Polygrams of Sri,. M.K. Jithesh @ Jithu showed no strong, consistent unresolved responses to the aforementioned relevant question No.2, 3 and 4. After careful analysis of the Polygrams, the opinion derived is that Sri M.K. Jithesh @ Jithu, S/o. Sudhakaran was truthful while giving the aforementioned answers to the aforementioned relevant question Nos. 2,3 and 4. No conclusive opinion could be formulated in respect of the response to the aforementioned relevant question No.1."

15. Thus, the Expert was not able to come to any conclusive opinion in respect of accused Jithesh @ Jithu as to whether anybody other than Biju or Suni told him to attack Muhammed Fasal. Likewise, the expert was not able to arrive at any conclusive opinion from the questioning of Shri Biju as to whether anybody other than the accused having involved in the killing of Muhammed Fasal. The arrest is made of the three accused only in October, 2007 ie. nearly five months after their names were allegedly taken by the witnesses 187 and 188.

16. Also, we cannot find that the learned Judge was in error in taking the view that the witnesses who resided near the site of occurrence alleged to have seen three persons were not in a position to identify any of the accused. It is after a long period of time and on the basis of an alleged chance conversation between the elder brother of the deceased Fasal with a stranger WA. NO. 654/08 24 that the stranger (Shri Azeez) and another speak about having seen witnesses 187 and 188 in suspicious circumstances on 22.10.2006. They are also alleged to have remembered the number of the motor cycle. It is their statement which led to the statements which were given by witnesses 187 and 188. Witnesses 187 and 188 have given statements on 16.5.2007 that they have seen the accused with weapons at the scene of occurrence. They would say that they also did not inform anyone citing fear as the reason. The statements were taken at the time when Shri Rajmohan was on leave. Apparently, the statements were not got recorded under Section 164 Cr. P.C. This was at the instance of Shri T.K. Rajmohan who headed the investigation team. Apparently, he wanted to be satisfied of the genuineness of the statements. No doubt, subsequently these witnesses 187 and 188 have stuck to their statements. The arrest, however, took place only on 8.10.2007. The recovery of the weapons was, even according to the appellants, done from an open ground, though after digging. In fact, the Investigating Officer decided to question also Mr. Aliyar and Mr. Azeez who are alleged to have seen the witnesses 187 and 188 in allegedly suspicious circumstances on 22.10.2006. He does not appear to have questioned them. We also notice that the earlier investigating Officer, namely Shri T.P. Mohandas who was entrusted with the investigation had come to a conclusion, prima facie, apparently that in comparison to the BJP, it is more likely that the CPM was behind the murder of Fasal and he had, therefore, decided to conduct a detailed investigation about the Members of the BJP and CPM. This was done on 3.4.2007. On 10.4.2007, however, an order was issued by which Shri T.P. Mohandas was relieved, citing, no doubt, that Shri T.P. Mohandas WA. NO. 654/08 25 was entrusted with the investigation into the Fire Mishap at S.M. Street, Kozhikode. No doubt, prima facie, we do not think that there is much force in the contention raised on behalf of the first respondent that the police dog had entered into the house of CPM workers on a perusal of the CD. So also, the same is the position in regard to the contention of the first respondent about there being eight assailants.

17. However, we cannot close our eyes to the reality that the life of a young man who was the bread-winner of his family, has been snuffed out in a area which is highly sensitive. From time to time, violence erupts, claiming lives on either side of the political divide. As we have already noted, very strangely, the first accused was not subjected to polygraph test itself. On an overall view of the matter, we would think that it is highly necessary in the interest of justice that the case is thoroughly and fairly investigated by the Central Bureau of Investigation. in that view of the matter, we would think that the direction to entrust the case to the Central Bureau of Investigation is not liable to be interfered with.

18. The further question remains as to whether the observations made in paragraphs 8 and 9 of the Judgment of the learned Single Judge are liable to be expunged or deleted. This matter is not res integra as the Apex Court has spoken on it in a number of decisions. In The State of Uttar Pradesh v. Mohammad Naim (AIR 1964 SC 703), a learned Single Judge of the High Court had made the following observations:

"(a) "If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single handed."

(b) " That there is not a single lawless group in the WA. NO. 654/08 26 whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force."

These observations were directed to be expunged. In doing so, the Court held as follows:

"If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time, it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself'; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." WA. NO. 654/08 27

In State of Karnataka v. Registrar General, High Court of Karnataka (AIR 2000 SC 2626), the Apex Court held as follows:

"11. Learned Judges pointed to subjects, which are unfortunately not connected with this case. Those are - (1) murders committed with impunity, (2) the increase in cases involving atrocities against women, (3) harassment inflicted on young married women including "bride burning", (4) molestation and rape of girls and young women. We have already extracted a gist of the facts of this case. None of the fields to which learned Judges pointed their fingers would cover the facts of this case. Hence learned Judges dealt with subjects which are totally ungermane and far beyond the scope of this case as though it was presentation of a paper in a seminar. Whey should the Home Minister and the Home Secretary react to the observations which are absolutely uncalled for on the facts of this case.

12. Judicial disposition is definitely different from a paper presented for seminar discussion. Nor can it be equated with a dissertation. Judicial decorum requires that judgments and orders should confine to the facts and legal points involved in the particular cases which Judges deal with. May be, sometimes Judges would, perhaps wittingly or even unwittingly, jut outside the contours of the litigation, but even such overlappings should be within bounds of propriety and sobriety. But there is no justification for traversing so far beyond the convass as was done by the High Court in this case or to cover areas which are grossly extraneous to the subject matter of the case."

In Popular Muthiah v. State, rep. by Inspector of Police ((2006) 7 SCC 296). WA. NO. 654/08 28 the Apex Court held as follows:

"28. In certain situations, the court exercises a wider jurisdiction e.g. it may pass adverse remarks against an investigator or a prosecutor or a judicial officer, although they are not before it. Expunction of such remarks may also be directed by the High Court at a later stage even suo motu or at the instance of the person aggrieved."

In this context we notice that it is the contention of the learned counsel for first respondent that the observations were made on the basis that the State had little about them to be disputed.

19. The learned Single Judge has given his reasoning and arrived at his conclusion. The relief stood granted. The lis stood resolved. Thereafter, we would think that it was not necessary for the learned Single Judge to have proceeded to make the observations contained in paragraphs 8 and 9 of the Judgment. Thus, while not pronouncing on the correctness of the observations, we think that they are unnecessary and we delete the observations in paragraphs 8 and 9 of the Judgment.

Subject to the above, the Writ Appeal is dismissed.

H.L. DATTU, CHIEF JUSTICE K.M. JOSEPH, JUDGE kbk.

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