Padmini P.M. vs State Of Kerala

Bechu Kurian Thomas, J

Petitioner seeks for a direction to entrust the investigation of Crime No.151 of 2016 of Mudakkunna Police Station, Kannur to the Central Bureau of Investigation and direct a re-investigation.

Petitioner is the mother of Sri.Vineesh, who is alleged to have been murdered on 03.09.2016 at around 8 pm. According to the petitioner, Sri. Vineesh was brutally assaulted by a few sympathizers of the Communist Party of India (Marxist) - a political party (for short CPM) and he succumbed to his injuries. An FIR was registered as Crime No.151 of 2016 by the Mudakkunna Police Station. Subsequently, the investigation was completed and a final report was filed, which is now pending as S.C. No.565 of 2017 before the Sessions Court, Thalassery.

The prosecution alleges that on 03.09.2016 at 7.30 pm, a person by the name of Jijo sustained injuries after his car was damaged in a bomb explosion allegedly at the instance of members of another political party called Bharatiya Janata Party (for short ‘BJP’) and in consequence of the said incident, at about 8 pm, the deceased was attacked by CPM workers, resulting in the death of Sri. Vineesh.

Petitioner alleges that the murder was a pre-planned attack and the final report was filed without proper investigation. According to the petitioner, though Sri.P.P.Subhash, the President of the Thillankeri Panchayat, is involved in the conspiracy, he has been omitted from the array of accused and his brother alone is arrayed as the fourth accused. Petitioner contends that the alleged motive of the crime is stated to be the attack on Sri.Jijo by BJP workers and they have purposely excluded two persons - Sri.Subhash and Sri.Noushad from the array of the accused and the final report was filed in haste, without conducting any scientific investigation. According to the petitioner, the investigation by the local police was not foolproof and due to the influence of the ruling party, the final report was filed without proper investigation and after excluding some of the assailants.

A statement has been filed on behalf of the respondents alleging that the prosecution case itself is that at 8 pm on 03.09.2016, some of the CPM workers formed themselves into an unlawful assembly armed with deadly weapons and killed a BJP worker named Vineesh due to political enmity. It is also stated that on 03.09.2016, the Sub Inspector of Muzhakkunnu Police Station while on patrolling duty received information that a CPM worker by the name Jijo was attacked by BJP/RSS workers while he was travelling in his car and when he rushed and reached the spot, he got information that Sri. Vineesh was attacked by CPM workers and he rushed to that spot and took the injured to the hospital, who later, succumbed to the injuries. Since violence was erupting and there was panic in the area, the Sub Inspector returned to the police station and registered two FIRs suo motu to avoid further delay. The respondent has further averred that the role of Sri.P.P.Subash, President of the Thillankeri Panchayat was specifically investigated and ruled out apart from the chances of any conspiracy. Specific reference was made that Sri.P.P.Subash was present along with the Sub Inspector at the crime scene in Crime No.151/2016 when the incident that led to the death of Vineesh took place. The two incidents occurred at a distance of one kilometre apart. The allegation regarding the sniffer dog was also denied as baseless as the dog could not reveal anything. Sri. Noushad was also excluded from the list of accused as there were no material against him. According to the respondent, the scientific evidence collected, the statements of witnesses and the circumstances were all appreciated in detail and a fair investigation was conducted and seven persons have been arrayed as accused.

I have heard Sri. S. Rajeev, the learned counsel for the petitioner and Sri. K.A. Noushad, the learned Public Prosecutor.

The power of the constitutional courts to direct further investigation or even a re-investigation by another agency is no longer res integra. In Vinay Tyagi v. Irshad Ali @ Deepak and Others. [(2013) 5 SCC 762], it was observed that wherever a charge sheet has been submitted to the Court, even the Supreme Court ordinarily would not reopen the investigation, especially by entrusting the same to a specialised agency. However, in exceptional circumstances, in order to do complete justice and where the facts of the case demand, it is always open to the Court to handover the investigation to a specialised agency notwithstanding the filing of the final report. The decisions in Anant Thanur Karmuse v. State of Maharashtra and Others (2023) 5 SCC 802 and Dharam Pal v. State of Haryana and Others [(2016) 4 SCC 160]. However, in Vishal Tiwari v. Union of India and Others [(2024) 4 SCC 115] the Supreme Court has clarified that the direction to conduct an investigation by the CBI can be resorted to only in exceptional cases where the facts and circumstances justify such a direction. It was observed that:-

“This Court does have the power under Art.32 and Art.142 of the Constitution to transfer an investigation from the authorized agency to the CBI or constitute an SIT. However, such powers must be exercised sparingly and in extraordinary circumstances. Unless the authority statutorily entrusted with the power to investigate portrays a glaring, willful and deliberate inaction in carrying out the investigation the court will ordinarily not supplant the authority which has been vested with the power to investigate. Such powers must not be exercised by the court in the absence of cogent justification indicative of a likely failure of justice in the absence of the exercise of the power to transfer. The petitioner must place on record strong evidence indicating that the investigating agency has portrayed inadequacy in the investigation or prima facie appears to be biased.”

Bearing in mind the above principles of law it is evident from the circumstances in the instant case, that petitioner's son Sri.Vineesh is alleged to have been murdered by members of CPM. Already seven accused have been arrayed. Petitioner's contention is that two other persons also ought to have been arrayed as accused and they have been purposely omitted. However, the investigating officer has specifically stated that a detailed investigation was conducted and all those involved have already been arrayed as accused. The allegation of the petitioner about the omission of two persons from the array of accused have been specifically probed into by the investigating officer and their involvement was negatived. Specific reasons have also been narrated for excluding them. The omission of two persons alleged by the petitioner to be included in the list of accused cannot be a reason to direct the CBI to investigate. Moreover, specific reasons were given for excluding those persons from the list of accused.

Further, the contention of the petitioner that the investigation of Crime No.150 of 2016 was completed only in 2022 and the same was purposely delayed while the investigation of Crime No.151/2016 was completed immediately is also of not much significance considering the nature of allegations in each crime. Even if there was a delay in completing the investigation of one crime, that cannot affect the investigation of the crime under consideration. The said reason cannot fall within the category of an exceptional reason to entrust the investigation with the CBI.

In the decision in K.V. Rajendran v. Superintendent of Police CBCID South Zone, Chennai and Others (2013) 12 SCC 480 it was reiterated that the power to transfer an investigation to agencies such as the CBI must be invoked only in rare and exceptional cases and no person can insist that the offence be investigated by a specific agency since the plea can only be that the offence be investigated properly.

Merely because petitioner contends that two persons have been omitted from the list of accused, the same cannot be a case that falls in the category of rare and exceptional case. If any person has not been included in the array of accused, appropriate remedies are available under Cr.P.C even to the court while trying the matter, to add such accused.

In this context, it needs to be mentioned that the sessions case is now at the stage of trial. Of course, the stage of the case cannot be a governing factor when the petitioner seeks re-investigation. However, when particulars are not available to satisfy the conscience of the court that the investigation already conducted was faulty or a proper investigation was not conducted, there is no reason to direct further investigation or re-investigation by any agency much less the CBI. In that context, the stage of the trial can be borne in mind by the court.

The learned counsel for the petitioner had vehemently pointed out that Crime No.150 of 2016 had been investigated and the final report was filed after a lapse of several years which itself indicates the malafides of the prosecution case. However, I cannot agree with the said contention. Even if the investigation into Crime No.150 of 2016 was delayed, the same is not a reason to doubt the bonafides in the investigation either of the said crime or of Crime No.151 of 2016.

In view of the above, I find no merit in this writ petition and it is dismissed.