P.K.Abdul Sathar vs State Of Kerala

Ashok Menon, J

A writ petition under Article 226 of the Constitution of India.

At daybreak, about 3:30 AM, on 22/10/2006 at the J.T.road, Thalasseri, P.K.Fasalu @ Muhammad Fazal, a distributor of 'Thejus' newspaper, was

allegedly hacked by his arch-rivals members of the C.P.M, and mortally wounded with twenty-odd stab injuries. Responding to an anonymous phone

call, the jurisdictional Circle Inspector of Police reached there and took him to the Government Hospital, Thalasseri, only to be declared dead by the

doctor on duty. Crime No.442/2006, was registered at the Thalasseri Police Station for an offence punishable under Section 302 of the Indian Penal

Code, initially against unnamed assailants. On 03/11/2006, the investigation was handed over to the C.B.C.I.D., Kannur District. On 08/10/2007 A2

and A3 were arrested, followed by the arrest of A1 on 10/10/2007. As the investigation progressed, the accused were subjected to polygraph tests

and reports obtained. In the meanwhile, Mariyu, the wife of the deceased, filed Writ petition No. 11228/2007 before this Court for handing over the

investigation to the Central Bureau of Investigation alleging that the investigation conducted by the C.B.C.I.D. was neither sufficient nor proper. She

alleges that the deceased who had gone to collect 'Thejus' newspaper of which he was the distributor, was brutally murdered in the wee hours of

22/10/2006.

The deceased who was earlier an ardent follower of the C.P.M. switched allegiance to N.D.F. Several Muslim supporters of the C.P.M., followed

the deceased to join N.D.F. The deceased was also instrumental in persuading several subscribers of the C.P.M party newspaper and journals to

terminate their subscription and instead, subscribe to 'Thejus', the newspaper espousing the cause of N.D.F. The aforesaid activities of the deceased,

irked the C.P.M. activists and invited their wrath, and led to his brutal murder. The accused had even planted tridents (thrisuls) near the body to

mislead the investigation and create an impression that the members of the Rashtriya Swayam Sevak Sangh (RSS) were the actual perpetraters. It

was alleged that the then Home Minister was from that constituency wielded considerable influence on the Police. After considering the allegations

made by the wife of the deceased, pointing accusing fingers at the members of C.P.M., and the ground realities at Kannur, and that no investigation

appears to have been conducted to pinpoint and confirm the identity of the accused numbers 1 to 3, as the assailants of the deceased and the recovery

alleged to have been made under S.27 of the Evidence Act from an open compound adjacent to the Pankaj Talkies after months of the occurrence

was found too good to be believed, this Court allowed the Writ Petition and directed the investigation to be handed over to the C.B.I., vide Ext.P2

judgement. The State of Kerala challenged Ext.P2 judgement in Writ appeal No.654/2008. A Division Bench of this Court dismissed the writ appeal

and confirmed Ext.P2 Judgement vide Ext. P3 judgement.

The Central Bureau of Investigation took over the investigation, re-registered the case as RC2 (S)/2008/Chn, on 05/04/2008 vide Ext. P4 F.I.R, and

proceeded with the investigation, which continued for long four years. Accused Nos.4 and 5 were arrested on 15/03/2012, A6 was arrested on

16/03/2012, while A7 and A8, against whom conspiracy is alleged, surrendered before the jurisdictional Court, and arrested. On completion of the

investigation, Ext.P5 final report was submitted by the 2nd respondent, Director of the C.B.I., alleging offences punishable under sections 120-B, 143,

147, 148, 149, 341 and 302 of the Indian Penal Code, and under Section 27 of the Arms Act, reserving their right to file supplementary charge sheet on

identification of the remaining conspirators in this crime.

The jurisdictional Magistrate committed the case and it has been taken on the files of the Sessions Court-IV, Ernakulam (C.B.I Court II) as S.C.

No.405/2012. While the trial was in progress, Ext.P6 supplementary final report was filed by the investigating officer on 04/03/2013, stating that

despite thorough investigation, the remaining two accused and a bike that allegedly was used in the commission of the offence, could not be identified.

However, the investigating agency still reserved its right to continue with the investigation with the permission of the Court, as and when any evidence

in lead about the identity of the two conspirators believed to be involved in the crime, and the motorcycle used was established.

Things take a dramatic turn consequent to the arrest of the 7th respondent, alleged to an erstwhile member of the R.S.S., on 18-11-2016, in Crime

No.1706/2016 of Koothuparamba Police Station, registered in connection with the murder of one Mohanan, a member of the C.P.M. During his

interrogation, he allegedly gave Ext.P7 statement to the police confessing his involvement in two other murders. He admitted that he was involved in

the murder of one Pavithran, in a pending Crime No.43/2009 of Kannavam Police Station, and further confessed his involvement in the present Crime

No.442/2006 of Thalasseri Police Station, for murdering Fasal, the brother of the petitioner. The confession statement of R7 was video recorded by

the investigating officer in Crime No.1708/2016. The investigating officer reported the fact to superior police officials. The District Police Chief,

Kannur sent Ext.P8 letter to the State Police Chief, on 24-11-2016, informing of the information about the confession of R7 and requesting the matter

to be taken with the C.B.I who are entrusted with the investigation of the instant Crime. Crime 43/2009 of Kannavam Police Station was at that time

pending as SC No.362/2011 before the Addl. Sessions Court- III, Thalasseri. A report was filed by the investigating officer therein, for further

investigation, and on being convinced, permission was granted to conduct further investigation under S.173(8) Cr.P.C., as per Ext.P9 order. R7 was

produced before the JFCM, Koothuparamba, in Crime No.1708/2016, with a request for remand. Ext.P10 is that remand report. He gave Ext.P11, a

statement. It is contended by the petitioner that R7 did not raise any complaints of police harassment during custody, to the Magistrate. It was only at

a later stage that R7 retracted from his confession and raised all sorts of complaints against the police about extracting a confession from him which

was not voluntarily made by him. Moreover, R7 has allegedly admitted about his involvement to his friend, over the phone, two years before his

confession to the police. The recordings of that conversation are also produced by the police in a pen drive. Shinoj, a co-accused has also confessed

about his involvement in the crime with R7 for murdering Fasal.

Under the above circumstances, the petitioner states that the real culprits are not yet arraigned as accused. He, therefore, filed Crl. M.P

No.877/2017 at Ext.P12, before the jurisdictional Court, requesting a further investigation by the C.B.I under S.173(8) Cr.P.C. The 3rd respondent

investigating officer opposed the application for further investigation and filed Ext.P13 objections. The petitioner states that R3 is determined to

proceed against C.P.M leaders presently arraigned as accused in this Crime. Crl.M.P.No.877/2017 was dismissed by the jurisdictional Court vide

Ext.P14 Order. Aggrieved by the order refusing further investigation, the petitioner has approached this Court with this Writ Petition seeking a further

investigation by a special investigation team constituted by the 2nd respondent.

The 7th respondent had got himself impleaded in Crl.M.P.No.877/2017 by filing Crl.M.P.No. 1501/2017 opposing the further investigation of this

Crime based on an alleged confession given by him. He states that he was taken into illegal custody and forced to give a confession statement and

made to admit about his involvement in Fasal's murder. He was subjected to brutal torture for two days at Azhikal Coast Guard Station, Kannur, by

two Dy.S.Ps. According to him, all this was done to weaken the case against the C.P.M leaders who are presently arraigned as accused, at the

instance of the C.P.M led L.D.F., presently in power in the State. R7 has filed a written complaint against the two officers, before the JFCM,

Koothuparamba. Complaints were also made before the Human Rights Commission and Police Complaints Authority. The State Police is attempting

to foist a case against R.S.S workers including R7 alleging that they had murdered Fasal and that no C.P.M members are involved. The petitioner who

is the brother of the deceased is himself an active C.P.M worker, and he has therefore been made a pawn to dance to the tunes of the State Police

and the C.P.M leaders. The petitioner had opposed the impleadment of R7 in his application for further investigation because he has no Locus Standi.

The objection was however disregarded by the jurisdictional court and R7 was impleaded and heard because further investigation is sought based on a

purported confession made by him. Ultimately, vide Ext.P14 Order, the request for further investigation was declined.

Heard Sri Sidharth Luthra, the learned Senior counsel for the petitioner, Sri Suman Chakravarthy, the learned Senior G.P. for the State, Sri Arjun

Sreedharan the learned counsel for the seventh respondent and Sri Sasthamangalam S. Ajithkumar, the standing counsel for the C.B.I. Records

perused.

It is argued for the petitioner that the Police has the right to file a supplementary charge sheet even after a final report under Section 173 Cr. P.C

was filed. If the Police officer after having laid the charge sheet, gets further information, he can still investigate and lay further charge sheets. Even

the Magistrate's/Court's permission is not necessary for further investigation. All that is to be done by the investigating officer is to inform the

jurisdictional Court about the fresh facts which have come to light. The learned counsel submits that Police has the right to reopen the investigation

even after the filing of the charge sheet under Section 173 (1), Cr.P.C. The learned counsel relies on the decision of the Kerala High Court,I n the

Matter of State Prosecutor, [1973 Cri LJ 1288] in which several decisions of various High Courts have been referred to. The Apex CourtÂ

has in Ram Lal Narang and Ors vs. State (Delhi Administration) [AIR 1979 SC 1791] held that notwithstanding the Magistrate taking cognizance

of the offence upon a Police report submitted under Section 173 Cr. P.C, the right of the Police to further investigate was not exhausted and the

Police could exercise such a right as often as necessary when fresh information came to light. Relying on the decision Mani M.M Vs. State of

Kerala and Others, [2012 (3) KHC 36], the learned counsel argues that investigation of the crime is within the domain of the Police. For the reason

that once a crime has been investigated and charge sheet filed against one or more accused persons and the trial proceeded against him, ending in his

conviction/acquittal, it is not postulated that where fresh evidence, throwing light on the crime previously investigated and tried by the Court comes to

the notice of Police, it cannot be probed at all. In that case, speech made by the district secretary of a political party, wherein a declaration was made

that some of the murders that have taken place in the district were part of a design after preparing a list naming such adversaries and finishing them

off. It was held that registration of an F.I.R based on the speech was proper and further investigation in those murder cases could be conducted under

Section 173 (8), Cr.P.C. The learned counsel submits that the constitutional courts are empowered to direct further investigation or even de novo or

fresh investigation or reinvestigation by some other investigating agency. Commencement of trial and examination of some witnesses cannot be an

absolute impediment for exercising the said constitutional power. (SeeD haram Pal vs. State of Haryana and others, [(2016) 4 SCC

160]). The learned counsel submits that the power of ordering further investigation would be available at all stages and that the Court is not denuded

of the power to order further investigation, even in the post-cognizance stage. If fresh facts come to light, which would lead to inculcating or

exculpating certain persons, arriving at the truth in doing substantial justice in a criminal case is more important than avoiding further delay being

caused in concluding the criminal proceedings. (See Hassanbhai Valibhai Qureshi vs. State of Gujarat [(2004) 5 SCC 347])T. his view has also

been upheld in a later decision of the Apex Court in Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another

[2019Â SCC OnLine SC 1346] .It is submitted that the petitioner being the brother of the deceased is an interested party who can question the

nature of the investigation made in this case.

The learned Sessions Judge relying on the decision of the Apex Court in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and

Ors [(2017(1) KHC 867(SC): AIR 2017 SC 774]h, eld that further investigation under S.173(8) Cr.P.C., after taking cognizance by the Court can

be ordered only on the request of the investigating agency and it cannot be ordered at the request of the defacto complainant/informant or any other

person. Hence the trial court refused to order further investigation on the request of the petitioner solely based on a retracted confession allegedly

made by the 7th respondent while in police custody, or an alleged extra-judicial confession made by him to his friend. The investigating agency has not

considered the alleged confession statement to be valid or admissible. The wife of the deceased, at whose instance the CBI investigation was ordered

by this court, has also no opinion favouring a further investigation in the case.

The learned counsel for the petitioner submits that the decision in Amrutbhai Shambhubhai Patel has been overruled by a Three-Judge Bench of

the Apex Court in Vinubhai Haribhai Malaviya and Ors v. State of Gujarat and Another [2019(5)KHC 352: AIR 2019 SC

5233] and observed thus:

There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon the

process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right

till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya

(supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having held that a criminal trial does not begin after cognizance is taken, but only

after charges are framed. What is not given any importance at all in the recent judgments of this Court is Art.21 of the Constitution and the fact that the Article

demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of

course, to the Magistrate's nod under S.173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate

suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an

innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive

view of the powers of the Magistrate, particularly when such powers are traceable to S.156(3) read with S.156(1), S.2(h), and S.173(8) of the CrPC, as has been noticed

hereinabove, and would be available at all stages of the progress of a criminal case before the trial commences. It would also be in the interest of justice that this

power is exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within

the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to

light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than

avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the

judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to

add, Randhir Singh Rana v. State (Delhi Administration), 1997 KHC 247: 1997 (1) SCC 361 and Reeta Nag v. State of West Bengal and Others, 2009 KHC 4942: 2009 (9)

SCC 129 also stand overruled."" (emphasis supplied)

Given the above finding of the Larger Bench of the Apex Court, it is argued that there is scope for further investigation despite

the objection raised by R7 and the CBI. The CBI has not made any investigation concerning the alleged confession statement given by R7Â

wherein  he has stated that Fasal was murdered by RSS gangsters including himself and three others, namely Proneesh, Prabheesh andÂ

Shinoj. It is also pointed out that some of the witnesses who claim to have witnessed the occurrence, have later

retracted from their earlier version. The confession statement of the present accused leading to recovery is also found to be faulty. The final report

suggests that there was an existing RSS-NDP clash in the area on the eve of the murder of Fasal. RSS worker Shinoj was allegedly assaulted by

NDF activists who had barged into the RSS office. The attack on Fasal is alleged to be in retaliation to the said attack on RSS workers.

The learned Senior Government Pleader representing the State Government also points out the need for a further investigation in the case. The 6th

respondent, Dy. Sp Kannur has also filed a detailed statement explaining the requirement for a further investigation in the case.

After having gone through the submissions made by the petitioner and the respondents, and on perusal of the materials placed, there is undoubtedly

a need for examination of the confession statement of R7 and the attending circumstances. Without an examination of those materials by the

investigating agency, it is not proper to discard them altogether. When some fresh facts come to light leading to inculpating and exculpating certain

persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding

the criminal proceeding, as observed by the Apex Court in Vinubhai (Supra).

It may be true that the CBI may not be satisfied with the materials now collected by the local police during the investigation in some other case

involving R7. But there is no harm in examining those materials also, as a part of a further investigation under section 173(8) Cr.P.C. Such further

investigation can, no doubt be sought by the petitioner, who is interested in seeing the real culprits of his brother are proceeded against.

The Learned Sessions Judge had dismissed the request of the petitioner vide Ext P14, based solely on the decision of the Apex Court

in Amrutbhai (supra) holding that once the final report is filed, the de facto complainant or aggrieved cannot seek further investigation invoking the

provisions under S.173(8) Cr. P.C, without the investigating officer asking for it. This finding cannot be justified given the subsequent dictum of the

Hon'ble Supreme Court in Vinubhai (Supra) and has to be set aside.

The Writ Petition is allowed. The second respondent is hereby directed to constitute a special team of the CBI to further investigate Crime

No.RC2(S)/2008/Chn pending as S.C. 405/2012 on the files of the Sessions Court-IV(CBI-II), Ernakulam.