ജസ്റ്റിസ് രാംകുമാര്‍ - സര്‍ക്കാരിനെതിരെ - 2008

IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 11228 of 2007(J)
1. MARIYU, W/O.MUHAMMED FASAL (LATE),
... Petitioner

Vs

1. THE DEPUTY SUPERINTENDENT,
... Respondent

2. THE DIRECTOR GENERAL OF POLICE,

3. THE CENTRAL BUREAU OF INVESTIGATION,

4. THE CENTRAL BUREAU OF INVESTIGATION,

5. THE SUPERINTENDENT OF POLICE,

6. STATE OF KERALA, REPRESENTED BY

For Petitioner :SRI.SUNNY MATHEW
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI

The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/03/2008

O R D E R
V. Ramkumar, J.
.......................................
W.P. ( c) No. 11228 of 2007
.......................................

Dated: 11-03-2008
JUDGMENT


In this Writ Petition under Article 226 of the Constitution of India filed on 29-3-2007, the petitioner (Mariyu) who is the wife of one Muhammed Fasal of Madapapedika in Thalassery, seeks a writ of mandamus directing the 6th respondent, State of Kerala to entrust the investigation of C.B.C.I.D Crime No. 313/CR/KNR/2006 (Crime No. 442 of 2006 of Thalassery Police Station) with respondents 3 and 4 namely, the Cochin Unit of Central Bureau of Investigation and the Central Bureau of Investigation, New Delhi.

THE LAMENTATIONS OF A WIDOW

2. The petitioner's version regarding the occurrence is as follows:-

Muhammed Fasal, the late husband of the petitioner was a newspaper vendor by occupation . He was vending the newspaper daily by name " Thejus". At about 3.30 a.m. on 22- 10-2006 he had gone to collect newspapers and distribute them.

But he was brutally murdered at the wee hours of 22-10-2006 from the temple road Thalassery near the Liberty Quarters. The deceased had sustained as may as 20 stab injuries. The nature of the injuries would suggest that the murderers were professional assailants having expertise in committing such offences. It was a pre-planned cold-blooded murder. On 22-10- 2006 itself Crime No. 442 of 2006 was registered by the Sub Inspector of Police, Thalassery, under Sec. 302 I.P.C. against unidentified persons on receipt of an anonymous telephone call to the effect that somebody was lying wounded on the road in a pool of blood. Eventhough the police took Fasal to the Government General Hospital, Thalassery, the doctor after examining him pronounced him dead. Immediately the investigation of the case was taken over by the first respondent Superintendent, CBCID, Thalassery. So far no person has been arrested and the investigating agency would take the stand that there is no clue regarding the assailants. The deceased was a supporter of the National Democratic Front (NDF). The deceased was a person of good behaviour and as far as the petitioner knows he had no enemies. However, on account of the political conditions prevailing in that area the deceased used to tell the petitioner that the local members of the Communist Party of India (Marxist) ("CPM" for short) were not happy with him. He was earlier an ardent supporter and worker of C.P.M. But later he shifted his allegiance and joined the N.D.F. Many of the Muslim members of that locality had defected to the N.D.F. at the instance of the petitioner's husband. Fasal was instrumental for many persons terminating the subscription to the C.P.M. party newspapers and subscribing to "Thejus" Newspaper. By this, Fasal had invited the wrath of the C.P.M. Activists. The investigation of the case was proceeding in the most unsatisfactory manner. Eventhough the police dog attached to the dog squad had, after sniffing, got into the house of certain ardent workers of C.P.M., the then Dy.S.P. of DCRB by name Radhakrishnan who had made commendable headway into the investigation was withdrawn from the investigation team. It is pertinent to note that the gruesome murder in this case took place in the Constituency of Kodiyeri Balakrishnan the present Home Minister . With a view to throw the investigating agency and the public off the scent the assailants had planted tridents (thrisuls) near the deadbody so as to create an impression that members of the Rashtreeya Swayam Sevak Sangh ("RSS" for short) were behind the murder of Fasal. Eventhough three C.P.M. workers were taken into custody by the then investigating officer, after the sniffer dog had run into the house of a C.P.M. worker, those three persons were released from custody at the intervention of the leaders of the C.P.M. as revealed by Exts.P1 and P2 news items in two popular dailies by name Madhyamam and Chandrika. In Ext.P3 news item in Madhyamam Daily dated 1-12-2006 it was reported that the members of the United Democratic Front had protested against the political interference by the ruling party C.P.M. in the fair and impartial investigation of this case. The petitioner reasonably understands that the murderers of her late husband are none other than the members of the C.P.M. and she will not get justice since the C.P.M. is in power and the Minister who is hailing from that Constituency is controlling the portfolio of Home. All representations by the petitioner before various authorities including the Director General of Police (the 2nd respondent) for justice have fallen on deaf ears. The petitioner filed W.P.(C).

No. 2063 of 2007 before this Court praying for the investigation by a more specialised and impartial agency preferably the C.B.I. That Writ Petition was disposed of by this Court as per judgment dated 14-2-2007 entrusting the investigation with a Special Investigation Team headed by the 5th respondent Superintendent of Police. But even after the entrustment of the investigation with a Special Investigation Team, no investigation worth its name has been conducted. Valuable evidence which would throw some light into the circumstances leading to the death of the petitioner's husband will be destroyed by the lapse of time. Every day's delay on the part of the police in unearthing the evidence of the crime is fatal. In the present political set up the petitioner will not get any justice from the State Police.

Hence this Writ Petition.

THE POLICE VERSION

3. Two statements have been filed in this case on behalf of the 5th respondent (Superintendent of Police, Special Investigation Team). The first statement was filed by one Venugopalan, Superintendent of Police, Crime Branch C.I.D., Kannur on 31-5-2007 wherein except denying the allegations made by the petitioner the said statement contains nothing new.

The said statement contains the following further facts:-

Four persons residing at Liberty Quarters near Saidarpalli claimed to have seen the incident partially and they had admitted the same before the Investigating Officer. Two witnesses by name Abdulla and Sali have already admitted that they have seen three persons attacking Fasal from the public road in front of Liberty Quarters at about 3 a.m. on 22-10-2006 but they could not identify the assailants as there was no streetlight.

They have further stated that the assailants suddenly took to their heels after taking the vehicle and sped along the eastern side.

4. In the subsequent statement dated 15-10-2007 filed by T.K. Rajmohan, Superintendent of Police, Crime Branch CID, SIG III, Kozhikode what is stated is as follows:

The Special Investigation Team started investigation on 14- 06-2007. After a systematic investigation in which more than 100 witnesses were questioned, the case was analysed threadbare.

The first accused in the case is Sunilkumar @ Kodi Suni. Accused Nos. 2 and 3 Koyeri Biju @ Pachutti Biju @ Bijesh and M.K. Jithesh @ Jithu. All of them are known political

bad characters hailing from Thalassery, Chockli and Pallur Police Station Limits. These gundas were actively involved in several political murders and attempt to murder cases and extorting people in that area. A1 Sunilkumar is involved in 21 criminal cases and A2 Brijesh is involved in six criminal cases including Shaji murder case and A3 Jithesh is involved in 4 criminal cases . Deceased Fasal was a strong N.D.F. activist in that area. The accused persons had reached the place of occurrence namely the front portion of Liberty Quarters in a motor cycle bearing Reg. No. PY-01/2976. They were hiding by the side of the by-lane on the eastern side of Liberty Quarters when deceased Fasal came on his bicycle to collect "Thejus" newspaper. The accused persons pounced upon him and attacked him in front of Liberty Quarters with deadly weapons like chopper, knife etc. After the incident they tried to escape from the scene on the motor cycle of A3 Jithesh. The siad Jithesh who had left behind his chappal at the scene of crime returned to the spot while the two others waited on the motor cycle. Hearing the commotion and the screaming sound from the road, one Abdulla and Lulu Marjan both of whom are residents of Liberty Quarters witnessed the incident in dim light but they could not identify the assailants.

Similarly, one Sameera, daughter of Moidu, another inmate of Liberty Quarters had switched on the exterior light and saw a person searching for his chappal on the road in front of her quarters. Seeing the light Jithesh fled from the scene leaving back his pair of chappals and alighted the motor cycle and sped away along with the other two accused persons. On their way to Illathuthazham they concealed the chopper and knife in an unoccupied open compound on the western side of Pankaj Talkies. Subsequently, on the confession of A2 and A3, Rajmohan, the Superintendent of Police recovered those weapons under a mahazar. The three assailants who reached their respective houses, left for Mysore on the next day. A2 and A3 who had been questioned earlier by the previous investigating officer were summoned again for questioning and on a thorough interrogation on 8-10-2007, they confessed their guilt along with A1 who is in judicial custody. A2 and A3 were thus arrested on 8-10-2007. A1 who is in judicial custody in connection with Chockli Police Station Crime No. 226 of 2007 for offences punishable under Sections 143, 147, 148, 341, 324 and 307 read with Sec. 34 I.P.C. and Sessions 3 and 5 of the Explosive Substances Act, 1908, was formally arrested on 10-10-2007.

5. The learned Standing Counsel for the C.B.I. submitted that in the absence of any inter-State or International ramifications for the case intervention by the C.B.I. many not be necessary.

JUDICIAL EVALUATION

6. Even according to the Special Investigation Team, the three accused persons who have been arrested are professional gundas involved in several cases. No investigation appears to have been conducted to pinpoint and confirm the identity of A1 to A3 as the assailants of Fasal. Even the witnesses by name Abdulla and Lulu Marjan who had allegedly witnessed the occurrence in dim light have not identified the assailants. If the accused are professional assassins, then they must have been definitely engaged by somebody owing allegiance to the C.P.M. 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.

There is no evidence forthcoming to show the conspiracy hatched to assassinate Fasal against whom the local C.P.M. activist had an axe to grind for his defection from the Marxist Party.

7. A perusal of the case diary files suggests that there has not been any intelligent investigation so as to conversge on the three accused persons. 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 story of Section 27 recovery of the weapons from an open compound adjacent to the Pankaj Talkies after months of the occurrence is too good to be believed. Having regard to the political set up in the State I am fully convinced that the petitioner will not get justice at the hands of the State Police. A serious investigation by an impartial agency (which may not be amenable to the local politics) alone can bring out the truth.

Under these circumstances, I am inclined to entrust the investigation with the C.B.I. The investigation files shall, therefore, be transferred to the Central Bureau of Investigation which shall continue the investigation and bring to justice the culprits behind the slaying of Muhammed Fasal. The State Government shall provide all the necessary infrastructural facilities to the officers to the C.B.I. in-charge of the investigation.

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, affable and hospitable to others, turn mad and transform themselves into veritable demons while under the seizure of acute political acrimony.

Precious 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 detection. The God given terrestrial lease of the poor citizens is determined not by any natural causes 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 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.

This Writ Petition is accordingly allowed and disposed of in terms of paragraph 7 above.




V.Ramkumar, Judge.