Back
2021 Supreme(Ker) 488
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK MENON, J.
P.K.ABDUL SATHAR – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) NO.30716 OF 2017
Decided on : 07-07-2021
Important Points
Subject
Criminal Law - Investigation and Evidence
Act Referred
CONSTITUTION OF INDIA : Art.226, Art.21
CRIMINAL PROCEDURE CODE : S.173(8), S.173, S.173(1), S.173(8), S.2(h), S.156(1), S.156(3)
INDIAN PENAL CODE : S.302, S.120(b), S.143, S.147, S.148, S.149, S.341, S.302
Headnote
Constitution of India, 1950 – Article 226 – Arms Act – Section 27 – Indian Penal Code, 1860 – Sections 120-B, 143, 147, 148, 149, 341 and 302 – Code of Criminal Procedure, 1973 – Section 173 – Offence of Murder – Order of Conviction – Petitioner states that real culprits are not yet arraigned as accused. He, therefore, filed Crl. M.P before jurisdictional Court, requesting a further investigation by C.B.I under S.173(8) Cr.P.C. – 3rd respondent investigating officer opposed application for further investigation and filed Ext.P13 objections. – Petitioner states that R3 is determined to proceed against C.P.M leaders presently arraigned as accused in this Crime. – Crl.M.P. was dismissed by jurisdictional Court vide Ext.P14 Order. – Aggrieved by order refusing further investigation, petitioner has approached this Court with this Writ Petition seeking a further investigation by a special investigation team constituted by 2nd respondent
Finding of the court:
There is undoubtedly a need for examination of confession statement of R7 and attending circumstances – Without an examination of those materials by 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 truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding criminal proceeding, as observed by Apex Court in Vinubhai (Supra). – It may be true that CBI may not be satisfied with materials now collected by local police during 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 petitioner, who is interested in seeing real culprits of his brother are proceeded against – Sessions Judge had dismissed request of petitioner vide Ext P14, based solely on decision of Apex Court in Amrutbhai (supra) holding that once final report is filed, de facto complainant or aggrieved cannot seek further investigation invoking provisions under S.173(8) Cr. P.C, without investigating officer asking for it – This finding cannot be justified given subsequent dictum of Hon'ble Supreme Court in Vinubhai (Supra) and has to be set aside. –
Result : Petition Allowed
Advocate Appeared:
For the Appellant : SIDHARTH LUTHRA (SR.), SRI.AKHIL S.VISHNU, SMT.APARNA SUKUMARAN SUKUMARAN P.N.
For the Respondent: SRI.SASTHAMANGALAM S. AJITHKUMAR, SRI.SUMAN CHAKRAVARTHY, M.P. ABDUL LATHEEFSANDEEP T.K., ARJUN SREEDHAR
SRI.P.K.MOHAMED JAMEEL, JOSEPH GEORGE(MULLAKKARIYIL), SRI.SASTHAMANGALAM S. AJITHKUMAR, ARUN KRISHNA DHAN
JUDGMENT :
A writ petition under Article 226 of the Constitution of India.
2. 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.
3. 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 judgment. The State of Kerala challenged Ext.P2 judgment in Writ appeal No.654/2008. A Division Bench of this Court dismissed the writ appeal and confirmed Ext.P2 Judgment vide Ext. P3 judgment.
4. 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.
5. 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
