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Periya Double Murder-Supreme Court Dismisses Kerala Govt's Plea Against Further Investigation By CBI
Mehal Jain
1 Dec 2020 1:17 PM GMT
The Supreme Court on Tuesday dismissed Kerala Government's plea against the decision of the Kerala High Court to transfer the further investigation in the Periya double murder case to the CBI.The State came in appeal against the judgment of the High Court of Kerala directing CBI investigation into the twin murders of Kripesh and Sarath Lal, who were members of the Congress party.They...
The Supreme Court on Tuesday dismissed Kerala Government's plea against the decision of the Kerala High Court to transfer the further investigation in the Periya double murder case to the CBI.
The State came in appeal against the judgment of the High Court of Kerala directing CBI investigation into the twin murders of Kripesh and Sarath Lal, who were members of the Congress party.
They were hacked to death on February 17, 2019 at Periya, Kasargod district. The parents of the slain youth had approached the High Court seeking CBI probe alleging that the police investigation was being sabotaged at the instance of party workers of the CPI(M).
On October 3, 2019, a single bench of Justice B Sudheendra Kumar directed CBI investigation, after terming the probe by the crime branch of state police to be a "sham".
The single bench also set aside the final report filed in May 20 arraying 10 CPM workers as the accused. The state appealed against the verdict before the division bench.
On August 25, 2020, a division bench of Chief Justice S Manikumar and Justice C T Ravikumar upheld the direction for CBI investigation. The division bench held that "serious slackness and incompleteness" have occurred in the investigation resulting in the case which had direct evidence to be weakened by one resting on circumstantial evidence.
"Taking note of the serious slackness and incompleteness that occurred in the matter of investigation which if investigated seriously, some times would have turned this case now rests on circumstantial evidence, to a case of a direct evidence tends us to think that to instill confidence and also to do justice to the parties it is only proper in the said circumstances to transfer the investigation to CBI. That has already been ordered by the writ Court. Hence, it is upheld".
Perusing the detailed analysis of the High Court, upon which it arrived at the conclusion that the investigation by the local police was not fair, the bench headed by Justice L. Nageswara Rao, ruled that the High Court was right in transferring the investigation to the Central probe agency, "to instill confidence in the minds of the writ petitioners and the public in general and to ensure that the investigation is done in a fair and impartial manner".
'We will not enter into the merits of the case as that would have an adverse effect on the trial. We are convinced by the reasons of the High Court for transferring the investigation to the CBI. We make it clear that by a mere transfer of the investigation, either the impartiality or the competence of the state police hase not been found to be deficient", observed the bench.
"As the CBI has already commenced the investigation has sought the records of the case to be furnished, we direct the state police to do the needful", the bench further directed.
"We have perused the paragraphs in the impugned judgement where Mr. Maninder Singh, Senior Advocate for the state of Kerala, submits that adverse remarks against the state have been made. We are not in agreement with Mr. Singh that anything adverse, against either the state or its investigation agency, is expressed", said the bench, dismissing the SLP.
The bench had earlier observed that it shall interfere in the transfer of the probe to the CBI only if the agency has not made substantial progress. Mr Singh on Tuesday drew the bench's attention to the judgment of September 30, 2019 of the single bench of the Kerala High Court- "The chargesheet of the SIT of the state was rejected and inquiry was directed by the CBI. Adverse observations were made against the state government. The Single Judge had called it a political murder, saying that this is a conspiracy by the party in power i.e. the CPI(M)".
Next, Mr Singh indicated the statement made by the standing counsel for the CBI before the Division Bench of the Kerala High Court on November 16, 2019, on which date the bench had reserved its judgement on the writ appeal against the ruling of the Single Judge- "The bench had asked the standing counsel for the CBI, Mr. S. Ajithkumar, 'Have you commenced the investigation after the order of the Single Bench'. I myself was present in court at that time. The CBI counsel had stated that while the CBI has re-registered the FIR as RC, it has not commenced any investigation. The Division Bench then said, 'Hold your hand until we decide this matter'"
He further indicated an order passed by a Single Bench of the High Court on a bail application of three accused in the case on August 25 this year, on the same date when the impugned judgment of the Division Bench was pronounced. "It is recorded in the order that the CBI standing counsel had again said that while the CBI has taken over the investigation and re-registered the case, in view of the oral direction of the division bench it has so far not commenced any investigation", argued Mr. Singh.
Mr Singh indicated the three grounds based on which the single bench of the High Court had made observations against the state and directed the transfer of the probe to the CBI. "Firstly, it was of the view that some witnesses should have been made accused. Secondly, the single bench had found a discrepancy between the statement of the IO on his affidavit and subsequently, in the final report of the SIT of 21 senior members. The division bench did finally say that since the final report was before the court, that was what was to be considered. And then there was the view that the weapons had not been not recovered and that there is a discrepancy as to whether it was a sharp weapon which had caused the injury. All these three points on the basis of which the single bench had set aside the chargesheet of the state and had ordered CBI enquiry were in turn set aside by the division bench", urged Mr. Singh.
"Now, please see the grounds on which the necessity for further investigation by the CBI was felt by the division bench. Please see if it meets the requirements of the 'rarest of the rare' case. The first point is that the case diary did not reveal any serious investigation and disclosed mostly circumstantial evidence. Secondly, the IO who was required to file the affidavit under the single bench's direction had stated that one of the Complainant Witnesses was not trustworthy. The court felt that the IO was not justified in taking such a stand. The trustworthiness is for the court to decide. And thirdly, some witnesses had said that while the CCTV had been placed in the area, there had been no serious investigation of the CCTV footage", narrated Mr. Singh.
"From A1 to A11, all are there. Some of them had even confessed that all the weapons had been recovered. The challan was filed in 90 days and there were no bail applications. Immediately after the incident, all the accused were arrested. The one who was absconding was also arrested in May", he advanced.
"If this is to be the test for the 'rarest of the rare' case for transfer of the investigation to the CBI, it will be a serious dent on the federal structure of the Constitution, as also the Delhi Special Police Establishment Act, which requires the consent of the state for such a transfer. The High Court itself has said that a perfect investigation, in our system, where there is no such slackness, is impossible to achieve. In view of the nature of functioning of the police and the law and order in our country, where detection is one wing and control of the law and order is another wing, it is impossible", contended Mr. Singh.
"If any further investigation was to be directed, in view of any slackness or perceived incompleteness of investigation, it would be the subject of section 156 (Cr.P.C.) before the magistrate, and not under 226 before the High Court", he advanced.
"It has been held in several judgements of this court that the CBI may not undertake inquiry in IPC matters on its own. However, they said before the High Court that they are ready to take over the investigation. Today also there is a lot of eagerness on their part to take up the inquiry", he urged.
"There was a letter which the Kerala police wrote to the CBI averring that the case file is not required to be handed over to the CBI in view of the oral direction of the division bench. If they were only required to disclose if there has been substantial investigation or whether or not there was a stay by the High Court, where was the occasion to file a status report in sealed cover? Your Lordships may peruse the sealed cover, but it cannot override the record of the single judge in his order", pressed Mr. Singh.
At this point, SG Tushar Mehta appearing for the CBI interjected that "the oral allegation that the CBI is in anyway interested in the matter is uncalled for". "Your Lordships are aware, as is my learned friend, that any such contentions are always to be made on affidavit if there is material present to back them. Loose allegations of such sort do not prejudice the court. The only reason the status report was filed in a sealed cover is because it may have been felt that it should not be made available to the accused. There is nothing confidential or secret in it. I have no difficulty in opening the report right now or sharing it with Mr Singh", he argued.
"The division bench had said that while the chargesheet remains, the CBI has to conduct further investigation on account of certain lacunae. The single bench and the division bench concurred on the point of the lacunae. After August 25, we registered a FIR are was directed by the Kerala High Court. From 25th August to 26th of August, we wrote letters to the SP, Kannur to handover the original files. We were not given the material, even though there had been no stay. On September 8, we again wrote to the ADG of Kerala police to give us the papers. We told him that we have examined the complainant and the father of the deceased and that we could not proceed because the state police has chosen to stay the investigation itself. Subsequently, on September 12, we wrote to the DG again asking for the records. Nothing was done. After 15 days, we issued notice under section 91 to the IO for non-compliance of the order of the division bench to give us the case files. Further investigation could not be conducted because the record was not parted with. It is to be seen whether such conduct can be countenance or not", he continued.
"I have seen the files and I can say that independent investigation, other than that of the local police, into the case is needed. We have recorded the statements of the father of the deceased and the complainant", submitted the SG.
Thereupon, Mr Singh still urged that except for the registration of the FIR and the recording of the statements of the petitioners before the High Court, which he said was virtually the writ petition itself, no further progress had been made.
Mr Singh also contended that before the High Court, the statement of the state government as regards the jurisdiction under Article 226 to order further investigation by the CBI had been recorded.
The bench finally dismissed the SLP, agreeing to Mr. Singh's submission to employ the terminology "further investigation", in place of "investigation", so far as the CBI is concerned.
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