Kerala High Court
Joshi N.Thomas vs State Of Kerala on 16 November, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942
WA.No.1260 OF 2020
AGAINST THE JUDGMENT IN WP(C) 19237/2019(D) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
JOSHI N.THOMAS
AGED 71 YEARS
8/68, RETEAT, NAMBIAPARAMBIL HOUSE, MOOKKANNOOR.P.O,
ERNAKULAM DISTRICT, PIN-683577
BY ADV. SRI.V.GANGADHARAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHPAURAM-695001
2 STATE OF KERALA
REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY
HOME DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-695001
3 THE DIRECTOR
CENTRAL BUREAU OF INVESTIGATION,
GOVERNMENT OF INDIA, C.G.O COMPLEX, RAMAKRISHNAPURAM,
NEW DELHI-110003
4 THE DIRECTOR GENERAL OF POLICE AND
STATE POLICE CHIEF, POLICE HEAD QUARTERS
SASTHAMANGALAM, THIRUVANANTHPAURAM-695014
5 THE ADDITIONAL DIRECTOR GENERAL OF POLICEE
NORTH ZONE ,KOZHIKODE-673010
6 THE DEPUTY SUPERINDENTANT OF POLICE
DIRECTOR CRIME BRANCH, THRISSUR (RURAL) STATION,
AYYANTHOLE, THRISSUR-680003
WA.No.1260 OF 2020 2
7 SUB DIVISIONAL MAGISTRATE
CIVIL STATION, OFFICE OF THE S.D.M THRISSUR-680003
R1 AND R2 TO R4 BY SRI. SURIN GEORGE IPE SENIOR
GOVERNMENT PLEADER
R3 BY SRI. SASTHAMANGALAM AJITH KUMAR, STANDING
COUNSEL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-11-2020,
THE COURT ON 16-11-2020 DELIVERED THE FOLLOWING:
WA.No.1260 OF 2020 3
JUDGMENT
SHAJI P.CHALY,J Above writ appeal is filed by the petitioner in the writ petition challenging the judgment of the learned Single Judge in W.P.(C) No.19237/2019 dated 25.8.2020, whereby the writ petition filed for the following reliefs was dismissed.
i) issue a writ of Certiorari or other appropriate Writ or direction calling for the records leading to Ext P-12 on the file of the 5 th Respondent and P-13 submitted by 6th Respondent and quashing the same.
ii) issue a writ of Mandamus or other appropriate Writ or direction or order commanding the 6th Respondent to produce the report of investigation said to have been filed pursuant to Ext P-13.
iii) issue a writ of Mandamus or other appropriate Writ or direction or order for proper investigation preferably commanding the 3rd Respondent to investigate Crime No. 172/2011 of Athirapally Police Station
iv) issue a writ of Mandamus or any other Writ or direction or order directing the 1st respondent to see that investigation of crime no. 172/2011 of Athirapally Police Station is properly communicated to the 3 rd respondent in the event of ordering investigation by 3rd respondent by this Hon'ble Court.
v) issue a writ of Mandamus or any other Writ or direction or order directing a speedy investigation pertaining to the death of Petitioner's son Jerin within stipulated period as this Hon'ble Court deem fit.
vi) issue such other appropriate Writ or order or direction to the Respondents as this Hon'ble Court may deem fit and necessary in the facts and circumstances of the case.
WA.No.1260 OF 2020 4
2. Appellant is the father of late Jerin, who died on 13.5.2011, according to the appellant, under suspicious circumstances. The writ petition was filed seeking to quash, Ext.P12 information dated 7.3.2019 provided by the State Public Information Officer and Junior Superintendent, Office of the Additional Director of Police, North Zone, Kozhikode, whereby it was informed that, the Inspector General of Police, Thrissur Range, informed that the investigation in Crime No.172/2011 of Athirapally Police Station was going on the right track. Therefore, declined action on the complaint submitted by the appellant dated 20.12.2019, and Ext.P13 final report filed by the investigating officer before the Sub Divisional Magistrate Court, Thrissur dated 23.3.2019 reporting that cause of death of Jerin was "due to accidental drowning", and consequently sought for a direction for proper investigation preferably by the Central Bureau of Investigation, the 3rd respondent .
3. The case of the appellant was that Jerin went along with his mother's close relatives on 13.5.2011 to Aroormuzhi, a picnic spot and died there in mysterious circumstances. According to the appellant, the death of Jerin is suspicious, and it cannot be believed that Jerin, who was a swimmer, died due to drowning in shallow waters. It is the contention of the appellant that one N.K.George, retired Circle Inspector of Police and relative of the appellant, who was present in the funeral of Jerin, expressed a doubt about Jerin's death. Therefore, N.K.George contacted the Sub Inspector of Police, Athirapally Police Station, who has registered the FIR. It was also stated that Ext.P1 FIR was WA.No.1260 OF 2020 5 registered on the basis of a statement given by one Aji Thomas, who was one among the persons with Jerin on 13.5.2011. According to the appellant, despite specific request for a proper investigation to the cause of death of Jerin, the Sub Inspector of Police, Athirapally declined to do so and hurriedly closed the investigation and submitted a closure report to the Sub Divisional Magistrate, Thrissur on 30.5.2011. Thereupon, the appellant approached the Superintendent of Police, Thrissur (Rural) and complained about the indifferent and callous investigation of the Sub Inspector of Police. The Superintendent of Police on getting a discrete enquiry report from the Deputy Superintendent of Police, Special Branch, Thrissur, ordered further investigation in Crime No.172/2011. It was submitted that, though the appellant gave a written statement of valuable information to the Deputy Superintendent of Police, Chalakudy, he ignored it and closed the investigation.
4. Being so aggrieved, appellant approached higher authorities and later filed a petition before the Chief Minister of Kerala requesting for investigation through the Central Bureau of Investigation or in the alternative, an investigation by other agencies. However, the Chief Minister ordered a Crime Branch investigation. The Crime Branch, Ernakulam, accordingly, conducted a petition enquiry and closed the case. In the meanwhile, appellant's brother filed a petition before the Chief Minister of Kerala and accordingly, the Deputy Superintendent of Police, Crime Detachment, Aluva, was deputed to conduct the enquiry. The Deputy Superintendent of Police, Crime Detachment, also WA.No.1260 OF 2020 6 closed the enquiry. It is also the case of the appellant that, during the enquiry by the Deputy Superintendent of Police, Crime Detachment, Aluva, the appellant met the Inspector General of Police, Ernakulam Range, and requested for intervention in the said enquiry. It is further stated that, the Inspector General of Police, Ernakulam, informed that he had visited the spot at Aroormuzhi and on enquiry felt occurrence of a crime and further informed that he had recommended for a full fledged investigation by the Crime Branch.
5. Therefore, the appellant submitted a petition before the 4th respondent i.e., the Director General of Police, Police Head Quarters, Thiruvananthapuram. However, no action was taken and thereupon, he approached this Court and filed W.P.(C) No.8872/2014. This Court, as per Ext.P3 interim order dated 1.7.2014, directed to ascertain whether further investigation can be conducted in a convincing manner to the satisfaction of the appellant, regarding the cause of death of Jerin. In compliance with Ext.P3 order, the 4th respondent requested for a change of investigation under the Additional Director General of Police, North Zone, Kozhikode, to which, appellant did not make any objection. Accordingly, the said writ petition was disposed of as per Ext.P4 judgment dated 18.7.2014 directing the Director General of Police, to issue orders to conduct further investigation in Crime No.172/2011 of Athirapally Police Station by constituting a special team under the supervision of Additional Director General of Police, North Zone, and to file a report in accordance with law, as expeditiously as possible. WA.No.1260 OF 2020 7
6. In compliance with Ext.P4 judgment, a special investigation team was constituted and recorded Ext.P5 statement of the appellant on 17.9.2014. It was further submitted that, appellant was informed to meet the Additional Director General of Police, North Zone, on 24.3.2015 and thereupon, it was informed that the investigation conducted by the special investigation team under his supervision could not disclose anything and further informed that he will again look into the matter. According to the appellant, the meeting with the 5th respondent demonstrates that the Police was not conducting the investigation properly. Therefore, appellant again submitted a petition dated 17.4.2015 to the Minister for Home and Vigilance, with a copy to the Director General of Police and the Additional Director General of Police, North Zone, requesting to order an investigation by the Central Bureau of Investigation.
7. In response to the said petition, and apparently consequent to the directions issued by the higher-ups, the Deputy Superintendent of Police, Crime Branch, Tripunithura, summoned the appellant on 12.6.2014 and the appellant gave statement explaining the reasons for his dissatisfaction to the Police enquiry and requested for an investigation by the Central Bureau of Investigation. Subsequently, the Additional Director General of Police, North Zone, submitted Ext.P6 report before this Court stating that the Special Investigation team has arrived at the conclusion that the death of Jerin was due to Asphyxia due to drowning and so also no admissible evidences are forthcoming to substantiate the allegations raised by the appellant. Therefore, WA.No.1260 OF 2020 8 again appellant filed W.P.(C) No.22875/2015 before this Court challenging Ext.P6 report and while admitting the writ petition to the files of this Court, this Court ordered the Additional Director General of Police, North Zone, to file a comprehensive report.
8. Thereupon, Ext.P6 report was submitted before the learned Single Judge and later, the writ petition was disposed of as per Ext.P8 judgement dated 9.8.2017, directing the Additional Director General of Police, North Zone, to comprehensively look into the entire aspects and to consider whether any further action is required to be taken. Based on the directions so issued in Ext.P8 judgment, the Additional Director General of Police, North Zone, as per orders dated 13.11.2017 constituted a special investigation team under the supervision of the then Superintendent of Police, Thrissur (Rural), and the Deputy Superintendent of Police, Crime Branch (Rural) Thrissur, was appointed as the investigating officer with a team to assist him. The said order was produced in the writ petition as Ext.P9.
9. According to the appellant, there was no investigation for a long period and thereupon appellant submitted a petition under the provisions of Right to Information Act before the State Public Information Officer of the Additional Director General of Police, North Zone, seeking information in respect of the investigation, and accordingly informed that no report of the investigation was received. Thereafter, the appellant was directed to be present at the spot at Aroormuzhi on 15.1.2019. It was submitted by the WA.No.1260 OF 2020 9 appellant that, at that time the entire location of the river underwent a drastic change due to the severe flood and even though the Police was relying on two eyewitnesses bathing at the date of the accident 400 meters away from the spot, their statements could not be accepted due to the distinct changes occurred in the course of the river. According to the appellant, the investigating Officer was not prepared to accept the version of the appellant and threatened the appellant to settle the matter. Therefore, according to the appellant, the investigations were always conducted by a hostile team of police officers.
10. It was further stated that the appellant was made to stand in the middle of the river where water was less, without any reason for carrying on such an investigation. In such circumstances, appellant again filed Ext.P11 complaint to the Additional Director General of Police, North Zone, against the investigating officer, the 6th respondent, and requested to change him. However, since there was no information, again he filed an application under the Right to Information Act before the Public Information Officer concerned and it was, accordingly, that Ext.P12 reply was given stating that the investigation officer cannot be changed. Later, the 6 th respondent issued a notice dated 23.3.2019 informing that the final report is filed before the Sub Divisional Magistrate, evident from Ext.P13. Thereupon, the appellant has submitted Ext.P14 objection before the Sub Divisional Magistrate, Thrissur. Being dissatisfied with the investigation, the appellant submitted Ext.P15 WA.No.1260 OF 2020 10 petition before the Chief Minister followed by Ext.P16 reminder; but, there was no information from the office of the Chief Minister. Thereupon that the writ petition leading to this appeal was filed by the writ petitioner.
11. The learned Single Judge after taking into account the judgment of the Apex Court in State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others [(2010)3 SCC 571] regarding the rights of CBI to investigate a criminal offence in a State without its consent, Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Another [(2002)5 SCC 521] and Shree Shree Ram Janki Ji Asthan Tapovan Mandir and Another v. State of Jharkhand and Others [(2019)6 SCC 777] held as follows at paragraphs 12 to 26:
"12. Keeping in view the decisions referred to above, it is to be decided whether investigation made thus far, in this case, is satisfactory and whether interference of this Court is necessary to hand over the investigation to another agency or to the CBI. The petitioner suspects that the death of his son is a homicide whereas the investigation conducted by the local Police as well as the Crime Branch including the Special Investigation Team constituted under directions of this Court, repeatedly concluded that it is a case of accidental death by drowning. The materials placed before this Court will have to be examined to decide whether those materials prima facie disclose a case of homicide as suspected by the petitioner.
WA.No.1260 OF 2020 11
13. Heard the learned counsel appearing for the petitioner Shri V. Gangadharan, and the learned Senior Public Prosecutor Shri C.S. Hrithik. Records perused.
14. The following are the points indicated by the learned counsel for the petitioner as the reasons for the basis of his suspicion about the Police investigation in this Crime.
15. The statement of the SHO, Athirappilly Police station who reached the scene of occurrence on getting information is contradictory to the statement of Aji Thomas, the first informant. The SHO, Sijo Verghese, states that he reached the scene of occurrence on 13/05/2011 at 3:30 PM, noticed a gathering and Jerin was lifted from the river and brought to the southern river bank. Immediately he rushed him to the hospital in his jeep. The First Information Statement is to the effect that Jerin was taken to the hospital at 3:20 PM. The report collected from St. James Hospital is that the patient was brought by the Police at about 3 PM. These discrepancies, according to the learned counsel for the petitioner, are fatal. It is submitted that there is a procedural irregularity in registering the F.I.R only after the inquest. The F.I. statement was recorded from the hospital, but it is shown as recorded from the Police station.
16. There is also a discrepancy in the FI statement wherein it is stated that the tour party reached Aroormuzhi about 1 PM and that Jerin entered the waters for bathing and tripped into the river, whereas the investigation revealed that they reached at 2:30 PM on 13/05/2011 and that almost all the members had entered the waters, and spread in WA.No.1260 OF 2020 12 different directions. The statement that Bincy tried to save Jerin cannot be believed because even admittedly, Jerin was away from the lot when he got into the water. The version of the members of the group that Jerin did not know how to swim also is proved to be a falsity. Bincy stated that Jerin had told her that he did not know swimming. The investigating agency had questioned the classmates of Jerin to gather the information that he knew swimming. They specifically stated that it was Jerin who rescued their classmate Aneesh when he fell into the pond near the college hostel. Despite getting this information, the investigating agency concluded that Jerin was not an expert swimmer. The petitioner points out that no one knowing how to swim could get drowned in a river with only 3.70 metres deep water. The petitioner contends that any person knowing how to swim would definitely have managed to stay afloat in such water, unless he was sucked by a whirlpool. No expertise is required to escape drowning in such situation. Two independent witnesses were fished out by the investigating team who allegedly stated about not witnessing anything suspicious. The petitioner would contend that those witnesses would have been too young at that point in time to make any assessment about the happenings at the scene of occurrence.
17. The petitioner has expressed suspicion regarding the position of the body when he saw it from the mortuary. The supine position with neck stretched backwards, is not explained. The explanations offered by the forensic expert Dr N.A. Balaram is not satisfactory. The possibility of application of pressure on his neck, presence of mud in the mouth and WA.No.1260 OF 2020 13 nose of the deceased were not properly investigated. An attendant in the post mortem team had expressed his doubts about presence of mud in the nostrils and mouth is contradictory to the autopsy report of Dr Sindhu Krishnan who does not state regarding the presence of such mud. Experts opinion in this regard relied upon by the investigation team is not proper. The petitioner states that human body consists of 72% water. This added with air in the lungs would have kept the body afloat. When he attempts to shout for help, water is drawn into the mouth, lungs and stomach. This enhances the body weight and sinks it.
18. The reasons for fainting of Sobha and Linto Pauly during funeral was not investigated. Had there been proper investigation in this regard, it would have unraveled the truth about Jerin's death.
19. The petitioner has received an SMS message on his mobile phone purportedly sent by his deceased son, consoling him and to dispel his doubts about his death. The investigating agency had traced the message to a phone from Madhya Pradesh. But further investigation about who had send it and the reason for such message, etc. were not investigated.
20. The investigating team has gone into all these doubts expressed by the petitioner in some detail, and offered explanations. The petitioner was however not satisfied with those explanations. The suspicious circumstances pointed out by the petitioner can be examined.
21. The petitioner saw the body of his son and found the head stretched backwards. This has given rise to his first suspicion. The forensic WA.No.1260 OF 2020 14 team did examine this suspicion anxiously. It is pointed out that rigor mortis sets in four hours after the death. It is indicated that after retrieving the body from the river, it was placed on a stretcher. There is possibility of neck being stretched backwards, and hence the position of the head. In case there was any scuffle preceding the death of Jerin, as suspected, there would have been external injuries on the body. No such injuries were noted during the autopsy.
22. The petitioner's mind got swayed away by an attender in the hospital informing him about his noticing mud in the nose and mouth of the deceased. Post mortem report does not mention about such mud. Finding of mud on the nose and mouth is not significant. The body would have been recovered from the river bed filled with mud. It may have been placed by the river side, where also possibility of mud is there. The experts have opined that presence of mud in the lungs alone would have lead to some conclusion regarding cause of death. The fact that the autopsy does not refer to such mud on the nose and mouth of the body cannot therefore be given any undue importance.
23. Absence of water in the stomach is pointed out by the petitioner as a significant point to rule out death by drowning. This was investigated and the opinion is that death was caused by Asphyxia, which is caused by air neither entering nor exiting the lungs due to water entering the lungs and it sides adhering and shrinking. The forensic team headed by Dr Balaram had clarified these suspicions raised by the petitioner.
WA.No.1260 OF 2020 15
24. The investigating team questioned each and every member of the touring team, which also included a child. None of them spoke about an altercation or scuffle involving the deceased with anyone present at the scene of occurrence. That apart, two independent witnesses also gave statements to the investigation team about nothing untoward involving the deceased happening on the fateful day.
25. Drowning is a form of death in which the air is prevented from entering the lungs by submersion of the body under water. It is contended by the petitioner that the deceased knew how to swim and hence could not have drowned. The relatives of the deceased who were with him, stated that the deceased had told them that he did not know swimming. The petitioner himself was not aware that his son could swim. In his statement to the Deputy Superintendent of Police, produced as Ext.P10, he came to know that his son could swim only after his death, when his son's friends said that he had saved a boy who fell into the pond near the college hostel. The fact regarding the deceased being a person who knew how to swim, is therefore doubtful. Swimming in a pond is different from swimming in a river with rapids, or strong undercurrents. The conclusion that the deceased died due to accidental drowning cannot therefore be doubted.
26. Suspicion however strong, cannot take the place of proof (See Subramania Swamy v. A Raja 2012(9) SCC 257). In criminal cases, an accused has to be proved to be guilty beyond reasonable doubt. The law does not permit the Court to convict the accused based on suspicion WA.No.1260 OF 2020 16 or on the basis of preponderance of probability (see Latesh@ Dadu Baburao Karlekar & Ors v.State of Maharashtra 2018(3)SCC66) . As stated by the Hon'ble Apex Court in the decisions Secretary, Minor Irrigation & Rural Engineering Services, U.P. and Shree Shree Ram Janki Ji Asthan Tapovan Mandir referred to above, persons cannot be hounded by ordering a CBI investigation merely for the asking. The two Special Investigation Teams have tried their best to dispel the suspicions of the petitioner. Yet, he was not satisfied. On going through the detailed reports submitted by the investigating teams, I find that there is no reason for any further investigation by any other agency or by the CBI. The grief of a father who has lost his son could be understood. The void created in his life due to the loss can never be filled. But ordering further investigation in this case appears to be exercising futility. The Writ Petition is dismissed. "
It is, thus, challenging the correctness and legality of the judgment the appeal is preferred.
12. The paramount contention advanced in the appeal is that, the appellant's doubt about the suspicious death of his son is fortified by the open declaration of two senior Police Officers of Kerala State Police that the death occurred due to crime and that the suspicion expressed by the appellant was upheld by the two Judges of this Court in the earlier rounds of litigation. However, the learned Single Judge has not considered or appreciated the relevant aspects which ended in dismissal of the writ petition. It is also WA.No.1260 OF 2020 17 submitted that after conclusion of various investigations conducted by the Kerala Police, the appellant approached this Court by filing W.P.(C) No.8872/2014, wherein it was held that it is settled law that it is not the fault of the investigation that will have to be considered by the courts while considering the application for changing the investigating agency, but it has to be considered as to whether it was done to the satisfaction of the victim and that even though the appellant was not able to say a reason for the incident, he was having some suspicion about the incident and therefore, the investigating agency had a duty to clear the same.
13. That apart it is submitted that the undisputed observation of Additional Director General of Police, Southern Zone, when he was Inspector General of Police, Ernakulam range, to the appellant persuaded this Court to suggest the said officer to supervise the investigation. But, at the instance of the State Police Chief, the Additional Director General of Police, Northern Zone, was appointed as per Ext.P4 judgment. That apart, it is submitted that the 6 th respondent was directed by this Court as per Ext.P8 judgment to conduct investigation on the contentions and apprehensions raised by the appellant; but, none of the contentions contained in the W.P.(C) No.22875/2015 were looked into or investigated by the 6 th respondent. Therefore, the learned Single Judge has failed to note such vital aspects, while dismissing the writ petition. That apart, it is stated that, the directions issued by this Court was to conduct investigation in Crime No.172/2011 of Athirapally Police Station, and WA.No.1260 OF 2020 18 so also, the order of the Government was for Crime Branch investigation; but the officers have converted the said directions as petition enquiry by the Director General of Police, Kerala. 14. So also, it is contended that the order of re-investigation by the Government was not acted upon by the Director General of Police. It was, accordingly, that as per Ext.P3 order and Ext.P4 judgment this Court directed to conduct further investigation. That apart it is contended that the learned Single Judge has not delivered the judgment in W.P.(C) No.19237/2019 as per the guidelines of the Apex Court in Anil Rai v. State of Bihar [(2001) 7 SCC 318] and even though the appellant submitted application, the matter was not listed for fresh hearing. However, the matter was not posted and according to the appellant, another petition No.207/2020 was filed and therefore, the writ petition ought to have been heard by yet another Bench. Various contentions are raised with respect to the said aspect.
15. Apart from the legal contentions raised based on various judgments and other legal aspects, it was submitted that, absence of water in the stomach was pointed out by the appellant as a significant point to rule out the death by drowning, and therefore, according to the appellant, the conclusion of the investigating officer that, the death due to accidental drowning is contradictory to the observation of the learned Single Judge in the impugned judgment.
16. It was also submitted that the possibility of water entering into the lungs is a consequence of drowning and if the death is not due to drowning, WA.No.1260 OF 2020 19 his death occurred prior to his fall in the river. Again, it was pointed out that the postmortem report says that Asphyxia following drowning and not due to drowning, is the cause of death, which aspect was not properly appreciated by the learned Single Judge. It was also pointed out that the 6th respondent, investigating officer i.e. the Deputy Superintendent of Police, Crime Branch, Thrissur, for one year omitted to conduct investigation as ordered by his superior officer, and instead persuaded the appellant to settle the matter. Therefore, according to the appellant, persuasive intimidation has caused severe prejudice to the appellant and therefore, he has submitted Ext.P11 complaint to the Additional Director General of Police, North Zone; but, no action was taken on the basis of the said complaint and later, it was informed that the investigation was completed by Ext.P13 communication. Furthermore, it was argued that there are discrepancies in the First Information Statement of Aji Thomas, statement of Station House Officer Sijo Varghese, in the autopsy report, position of the body of deceased Jerin in the mortuary, presence of mud and soil in the nostrils and mouth which is contradictorily stated in the autopsy report, fainting of a relative Shoba during the funeral of Jerin, SMS received by the appellant purportedly sent by his deceased son, absence of water in the stomach, collection and preservation of viscera etc. all create suspicion to the appellant.
17. The sum and substance of the contention advanced by the learned counsel for appellant was that, a hasty closure and the discrepancies and WA.No.1260 OF 2020 20 contradictions shown above prompted the appellant to approach the District Police Chief (Rural), Thrissur and apprise him of the state of affairs. It was, accordingly, that the spot enquiry was ordered to be conducted through the 6 th respondent Investigating Officer. However, the investigation was not conducted properly and to the satisfaction of the appellant. That apart it was pointed out that clear directions were issued by this Court in Ext.P8 judgment in W.P.(C) No.22875/2015, dated 9.8.2017 and the directions were not complied with by the investigating officer. That apart, various other circumstances due to certain statements made by Aji Thomas, a relative of the deceased and other aspects are also pointed out to show that these were all suspicious circumstances, which were not enquired into by the investigating officer and overlooked by the learned Single Judge.
18. Yet another aspect put forth by the appellant was that even though Bincy, wife of deceased Jerin's cousin stated before the investigating team that she was told by Jerin that Jerin does not know swimming classmates of Jerin, who were questioned during investigations, told the investigating officers that Jerin rescued a student named Anish from a pond near the college hostel. But, the investigating team came to the conclusion that Jerin was not an expert swimmer. It is also a suspicion raised by the appellant that, when the deceased and other relatives went for picnic to the river, the water level as well as conditions of the river was different, from the time the spot investigation was conducted by the 6th respondent investigating officer. WA.No.1260 OF 2020 21 Therefore, according to the appellant, the learned Single Judge ought to have directed further investigation through a different investigating agency, which would have unearthed the true incident that had occurred on the suspicious death of Jerin.
19. Learned Government Pleader, on the other hand, submitted that in fact a detailed investigation was conducted by the Police by constituting an efficient investigating team as per the directions contained in Ext.P3 order and Exts.P4 and P8 judgments rendered by the learned single Judges of this Court. It was also pointed out that except raising of certain flimsy circumstances, the appellant could not point out any material aspect so as to nurture any doubt with respect to the investigation conducted by the investigating officer viz., the 6th respondent.
20. We have heard counsel for appellant Sri.V.Gangadharan, learned Senior Government Pleader Sri.Surin George Ipe and perused the pleadings and materials on record.
21. The question emerges for consideration is whether any interference is warranted to the judgment of the learned Single Judge? At the outset it is made clear that since the appellant has addressed arguments on the delay of the learned Single Judge to render the judgment after hearing, and other consequences, we elaborately heard the counsel for the appellant and re- appreciated the entire materials on record , apart from perusing the argument notes field, and also submitted across the bar during the course of WA.No.1260 OF 2020 22 arguments .
22. True, it is a case where the appellant has lost his son at a young age, who was a qualified Engineer. It is an admitted fact that the deceased Jerin has accompanied his own close relatives apparently for picnic to the river. The case projected by the appellant was that, at the time of funeral a relative of the appellant viz., one George told appellant that the death was not due to drowning obviously created suspicion in the minds of appellant. Again, when the appellant met the Inspector General of Police, Southern Range, Ernakulam, he was informed that there was a likelihood of crime leading to the death of appellant' son made him more suspicious.
23. Apart from all these aspects, according to the appellant, in the post mortem report, it is stated that Jerin suffered with Asphyxia and the death was caused before drowning. It is also the doubt of the appellant that some of the relatives have told that Jerin does not know swimming while some of his college mates have stated that he has rescued a fellow student from a pond. Other suspicion pointed out by the appellant was in respect of the absence of water in the body and according to the appellant, if drowning was the cause of death, there would have been water in the lungs. The case of the appellant is that, in spite of all these aspects, the investigating officers have not conducted the investigation to the satisfaction of the appellant and has not eliminated the possibilities of the suspicion raised by the appellant with regard to the death of his son Jerin.WA.No.1260 OF 2020 23
24. Anyhow, these were all grounds raised by the appellant in the earlier rounds of litigation and the learned Single Judge in Ext.P4 judgment has held that the investigating agency has a duty to satisfy the doubts entertained by the parents, who were skeptical of the investigation. The learned Single Judge, in Ext.P8 judgment also, has observed that some doubts remain in the minds of the appellant on certain specific points and it was, accordingly, that the Additional Director General of Police, Northern Range, was directed to comprehensively look into the entire aspects and to consider whether any further action is liable to be taken within a period of three months from the date of receipt of a copy of the judgment.
25. Now, we are confronted with a question as to whether any interference is warranted to the final report submitted by the Investigating Officer viz., the Deputy Superintendent of Police Crime Branch (Rural) Thrissur, evident from Ext.P13, before the Sub Divisional Magistrate, Thrissur on 23.3.2019 confirming that the death occurred due to accidental drowning. What we could gather is that on the basis of the directions contained in Ext.P8 judgment, the Additional Director General of Police, North Zone, as per his order dated 13.11.2017, constituted an investigation team for the effective re- investigation of the case in Crime No.171/2011 of Athirapally Police Station with Sri.Yathish Chandra IPS, the District Police Chief, Thrissur, as supervising officer. The team so constituted, consisted of the Deputy Superintendent of Police, Crime Branch, Thrissur (Rural), the investigating officer, and seven other WA.No.1260 OF 2020 24 Police Officers, and with a further direction to conduct an effective investigation on the contentions raised by the appellant in W.P.(C) No.22875/2015, which led to Ext.P8 judgment in a time bound manner. It was further directed that the Inspector General of Police, Thrissur Range forward report in every fortnight about the progress of the investigation.
26. It seems, the appellant has submitted a detailed statement before the investigating officer, evident from Ext.P10, wherein the appellant has expressed doubts with respect to the death of his son, Jerin and has also pinpointed certain suspicious circumstances. Even though suspicions were raised on the basis of the shallow water at the scene of occurrence and other circumstances, the appellant did not raise any suspicion in the conduct of any of the relatives, who were in the picnic party. According to us, investigation is a matter to be conducted by the Investigating Officer taking into account all the relevant and vital aspects. It is also true that whatever suspicious circumstances pointed out by any aggrieved person also was a matter to be taken into account by the Police while conducting investigation. Anyhow, the investigating team conducted the investigation and has arrived at the finding that they could not unearth any case on the basis of the suspicion pointed out by the appellant. The contention now raised by the appellant were all contentions raised by the appellant in the earlier round of the writ petition and taking into account the said aspects alone, this Court directed as per Exts.P4 and P8 judgments to conduct further investigation.WA.No.1260 OF 2020 25
27. True, the correctness of an investigation could be challenged by an aggrieved person, and if substantial materials are placed to establish that the final report is bad and without conducting proper and adequate investigation, further investigation could be ordered to be undertaken by an investigating agency. As we have pointed out earlier, the appellant has raised certain suspicions on the basis of contradiction in statements made by one of the members of the picnic party and other circumstances on account of the presence of mud in the nostrils of the deceased Jerin. Anyhow, in the postmortem report, it was stated specifically that the appellant's son's death was due to Asphyxia and according to the appellant, therefore, the death occurred before deceased Jerin fell into the water.
28. In our considered view, the Investigation was supervised by the District Police Chief, Thrissur, and the Additional Director General of Police, Northern Range, was in control of the investigation proceedings. Allegations in the writ petition was only against the Investigating Officer i.e., Deputy Superintendent of Police, Crime Branch, Thrissur and that too on the basis that after the spot investigation, the Investigating Officer told the appellant to settle the matter, which according to the appellant, was intimidatory in nature.
29. We have appreciated the rival submissions made across the Bar and perused the entire materials on record. According to us, a writ court considering a writ petition in respect of an investigation conducted can only WA.No.1260 OF 2020 26 interfere with the investigation only, when definite and material circumstances are placed before it to show that the investigation was arbitrary and not taking into account any material aspects involved in the incident.
30. We have narrated the suspicious incidents expressed by the appellant, who is the father of the deceased Jerin, but it is to be noted that the appellant did not have a case that any of the members of the family, who have accompanied the deceased Jerin for the picnic, was nurturing any ill-will against the deceased Jerin or for that matter any member of the appellant's wife's family. Even according to the appellant, the suspicion occurred at first when a retired Circle Inspector of Police, a relative of the appellant, told the appellant at the time of funeral that the death could be due to a crime. Anyhow, these aspects now projected by the appellant were the subject matter of this court leading to Exts.P4 and P8 judgments, and according to the directions issued by this Court alone, investigation teams were constituted and detailed investigation was conducted, supervised and regulated by superior IPS officers. Except certain indications made, there were no fresh materials put forth by the appellant enabling the writ Court to arrive at a conclusion that there are strong suspicious circumstances still remaining to be interfered with the veracity and correctness of the investigation.
31. This we say because the realm of interference of a writ court exercising the power conferred under Article 226 of the Constitution of India should be only on substantial materials inspiring confidence to act upon, WA.No.1260 OF 2020 27 especially due to the peculiar facts and circumstances of this case wherein the suspicion of the appellant is in respect of an untoward action on the part of his own close relatives. We are also of the considered opinion that, further investigation into a matter by the Central Bureau of Investigation can be directed to be done only if there are sufficient materials that persuade the mind of a writ court to visualise and think that there are clear indications or likelyhood of an incident of any interference of any higher-ups in the Police, or any influence exerted by politicians, and the investigation according to that was not undertaken in the right direction by the Police. However, the appellant has not pointed out any such situations apart from raising some suspicion into the death of his son. With reference to the nature of the factual matrix available at hand, we cannot forget the fact that the writ court could not have assumed the role of an investigator or wear the garb of an investigating officer and overturn the findings and conclusions of the final report. That said, before ordering further investigation, the court should always carefully consider all the relevant circumstances and grounds that make it convincing, and desirable that in the larger interest of the aggrieved and the public a cognizable offence should be further investigated. Which thus also means, unless the court is satisfied that reasonable and cogent circumstances exist to believe that such offence is committed, no further investigation can be ordered, and if it does so, it would be nothing short of an arbitrary exercise of power.
32. We are also of the view that the appellant has not substantiated any WA.No.1260 OF 2020 28 case that the Investigating Officers or the supervising senior Police officers had made any attempt to protect any culprits and thus interfered with the investigations in the correct direction. We are not oblivious of the fact that it is a hard case where the appellant lost his son. However, we are also conscious of the fact that the deceased Jerin was in the company of immediate family members of the appellant and the mystery nurtured by the appellant appears or to be presumed as any incident by and between any one of the relatives and deceased Jerin. This we say because appellant never had a case that the deceased Jerin was forcibly taken by the relatives or lured into the company by any false promises, so as to commit any crime. Therefore, at this distance of time we can only say that, it might be due to the strong intimacy maintained by the appellant with the deceased, suspicion overpowered him due to a statement made by a retired Police Officer, a relative of the appellant at the time of funeral that there is a likelihood of appellant's son died due to a crime committed by someone. But, at the same time, at no point of time, the name of any person was specifically pointed out by the appellant, who were accompanying Jerin or any third person. Anyhow, this Court, taking into account the sad plight of the appellant, has directed in Exts.P4 and P8 judgments to conduct further investigation and remove the suspicion expressed by the appellant. As we have pointed out earlier, the investigations were conducted by constituting special investigation teams, twice, under the supervision of very senior Police Officers. In spite of the investigation, nothing WA.No.1260 OF 2020 29 could be brought out or elicited in respect of the suspicion expressed by the appellant to the cause of death of Jerin or opening up any incident leading to any crime committed by any one.
33. Taking into account all these aspects, we are of the considered opinion that the learned Single Judge was right in holding that the appellant has not substantiated the case put forth by him so as to order further investigation by any other specialised agency or the Central Bureau of Investigation. According to us also, ordering further investigation by a specialised agency for the third time cannot be a matter of course, especially in the absence of any fresh satisfactory materials .
Resultantly, we have no hesitation to hold that the appellant has not made out a case to interfere with the discretion exercised by the learned Single Judge, in an intra-court appeal filed under Section 5 of the Kerala High Court Act. Needless to say, appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE