A division bench of the High Court of Kerala on Friday set aside the judgment of a single bench which handed over to CBI the investigation of the killing of Shuhaib, a Youth Congress worker, in Kannur district in February 2018.
Allowing the appeal filed by the Kerala Government against the order, the bench of Chief Justice Hrishikesh Roy and Justice A K Jayasankaran Nambiar observed "there was hardly any material available before the writ court that could have led it to assume that the investigation was inherently unfair or biased in any manner."
The order for CBI probe issued by single judge Justice B Kemal Pasha (since retired) within three weeks of the crime was termed as a 'hasty direction' by the division bench.
As on March 7, 2018 - the date of the order of single bench - the state police had arrested six persons and recovered the weapons allegedly used for the crime, noted the division bench.
"As is evident from a perusal of the note submitted before the writ court by the State Attorney, the State police had already arrested six persons, and recovered the weapons used for the crime, within three weeks of the incident and before the case came up for consideration before the writ court. If the writ court wanted to get further details as regards the investigation carried out, it could have asked for the production of the Case Diary in Court but, for reasons that are not very clear, it chose not to do so. It did not also grant any opportunity to the State Government to file a counter affidavit in response to the averments in the writ petition.
In our opinion, the aforesaid omissions of the writ court, without anything more, vitiates the direction issued by it to transfer the investigation of the case to the CBI. Such a hasty direction was not warranted on the facts and circumstances of the case", said the judgment authored by Justice Jayasankaran Nambiar.
CBI probe should be ordered only "sparingly, cautiously and only in execptional circumstances", added the Court.
Youth Congress worker Shuhaib, 29, was hacked to death allegedly by CPI(M) workers Mattanur in Kannur district on February 12, 2018. Two weeks after the incident, his parents C P Muhammed and S P Raziya approached the High Court expressing dissatisfaction with the investigation by local police. Since the members of ruling party were behind the murder, the police was trying to shield the real culprits, his parents alleged.
The single bench direction was stayed by the division bench in March 2018. During the pendency of the appeal, the Kerala police continued the investigation and filed final reports on May 14, 2018 and January 21, 2019.
The division bench noted that writ petitioners did not, at any stage of the said investigation, approach the magistrate concerned for the any direction under Section 156(3).
"Even after the final reports were laid before the criminal court, they did not approach either the said court or this court for any direction. The said inaction of the writ petitioners impinges upon the bonafides of their claim that there was no fair investigation of the case," the division bench said.
The division bench took into account the submission of Senior Advocate Vijay Hansaria, who appeared for the government, that the investigation was carried out by a 15 member Special Investigation Team. Around one lakh calls were monitored and 210 witnesses were examined. Except for a few local functionaries, the involvement of any higher level leaders of the ruling party behind the conspiracy was not found by the police, submitted the senior counsel.
Direction to add UAPA charges unwarranted
The single judge had observed that offence under Section 15 of the Unlawful Activities (Prevention) Act 1967 was applicable in the case.
This observation was found to be without merits by the division bench.
"There was also no material before the writ court, on the basis of which it could have opined that the provisions of the UAPA had to be invoked by the investigating authorities", the division bench said.
The single bench issued the directions without perusing the case diary.
"Directions with regard to further investigation, or inclusion of additional charges, could have been issued by this Court even to the State investigating agency if, after perusing the Case Diary and other relevant material, it was found necessary to issue such directions in exercise of its inherent powers. The said option was not, however, explored by the writ court", added the bench.
The bench, however, made it clear that nothing in this judgement shall be construed as prejudicing the right of the writ petitioners to pursue the remedies available to them in law in relation to the investigation or trial of the case in question.
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