IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 18291 of 2004(C)
1. SMT.NABEESA, W/O.A.KARIM, AGED 41
... Petitioner
Vs
1. THE STATE OF KERALA, REP. BY THE
... Respondent
2. THE DIRECTOR, CENTRAL BUREAU OF
3. THE SUPERINTENDENT OF POLICE,
4. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble MR. Justice R.BASANT
Dated :27/11/2006
O R D E R
R.BASANT, J.
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W.P.C.NO.18291 OF 2004
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Dated this the 27th ,day of November, 2006.
JUDGMENT
The petitioner is the mother of a 12 year old girl, who was
murdered and her body was found abandoned stuffed in a gunny bag
on 21.07.1997. Investigation was conducted by the police. The
petitioner had occasion to come to this Court complaining about the
allegedly inadequate investigation. That petition was disposed of by
order dt.1.6.1999 in O.P.2818 of 1998 by this Court, a copy of which
is produced as Ext.P1. At that stage, it was reported that
investigation is complete and a charge sheet/final report has been
filed against two accused persons. The 2nd accused who was charge
sheeted is none other than the husband of the petitioner herein, ie.
the father of the child, who was murdered.
2. The petitioner appears to have accepted Ext.P1 order.
The order was not challenged. Though at the Bar it was submitted
earlier that Ext.P1 order was challenged in writ appeal before this
Court, it is submitted now that there has been no such challenge. In
short, the petitioner appears to have accepted Ext.P1. It shows that
after investigation, the petitioner’s husband himself was arrayed as
the 2nd accused along with another with whom he is alleged to have
shared the common intention to commit the murder of his daughter.
W.P.C.NO.18291 OF 2004 2
3. The further proceedings continued and the petitioner’s
husband along with the co-accused faced trial before the learned
Additional Sessions Judge (Fast Track – I), Palakkad. In that
prosecution, PWs 1 to 29 were examined and Exts.P1 to P23 were
proved. M.Os 1 to 13 were also marked. No defence evidence was
adduced. The learned Sessions Judge by Ext.P2 judgment found that
the prosecution has not succeeded in proving the guilt of either of the
two accused. Accordingly, the learned Sessions Judge proceeded to
pass the judgment dated 16.11.2002 in Sessions Case No.246 of 1998,
a copy of which is produced as Ext.P2, in this Writ Petition.
4. The petitioner has come to this Court again. What is her
grievance ? The learned counsel for the petitioner submits that the
petitioner, the mother of the victim/child is anguished that the
mystery relating to the murder of her child remains unresolved even
now. The counsel urges that the petitioner has a right to know what
had happened to her child. The counsel submits that the absence of
an efficient and proper investigation has led to the petitioner being
left in the lurch unable to know how her minor child had met with her
death. The counsel submits that the petitioner has again come before
this Court only because a proper investigation was not conducted. All
the crucial witnesses had turned hostile in the trial before the
Sessions Court. They did not support the prosecution case at all. At
W.P.C.NO.18291 OF 2004 3
the end of the day, there was only the semblance of an evidence that
blood of the same group as that of her deceased child was available in
the bathroom of the 1st accused. The prosecution was not able to
place any better evidence. Witnesses including the petitioner had
turned hostile. The learned counsel for the petitioner submits that
according to the petitioner, it is not a case of the witnesses speaking
falsehood before the court below. It is a case where proper and true
investigation was not conducted. In these circumstances, it is prayed
that further investigation may be ordered to be conducted and such
further investigation may be entrusted to the Central Bureau of
Investigation.
5. The learned Stand Counsel for the C.B.I opposes the
prayer. He submits that the prayer is unknown to law. Investigation
was conducted earlier. The final report has been filed. Even the
petitioner appears to have accepted the final report in as much as she
did not choose to challenge Ext.P1 order. The mere fact that the
witnesses turned hostile to the prosecution and the court could not
resolve the mystery of the crime is no reason at all to direct any
further investigation. It cannot be the law that until conviction is
secured, further trial and investigation should continue. The prayer is
misconstrued, submits the learned Stand Counsel for the C.B.I.
W.P.C.NO.18291 OF 2004 4
6. The learned counsel for the petitioner places reliance on
the decision in Zahira Habibulla H.Sheikh v. State of Gujarat
[(2004) 4 Supreme Court Cases 158] (known popularly as the Best
Bakery case) and various further decisions in the same case reported
in (2005) 4 SCC 292 & (2006) 3 SCC 374. He contends that in an
appropriate case, the hands of this Court are not tied and if this Court
is convinced that a proper investigation has not been conducted and
a proper trial had not not been held, it is open to court to direct re-
trial and reinvestigation also.
7. I am in agreement with the learned Standing Counsel for
the C.B.I. It is now trite that the dictum in the Best Bakery case
cannot be applied mechanically in all other situations. That was
indeed an exceptional case where the Supreme Court felt that a
mockery of justice by a farcical trial. In these circumstances the said
dictum in the Best Bakery Case cannot be imported to the factual
situation in other cases unless they are comparable. The Supreme
Court made this clear in a subsequent decision in Satyajit Banerjee
v. State of W.B [2005(1) SCC 115]. The learned Judges in para.26
have made the following observations.
“The law laid down in Best Bakery case in the
aforesaid extraordinary circumstances, cannot be applied
to all cases against the established principles of criminal
jurisprudence. Direction for retrial should not be made in
all or every case where acquittal of accused is for want of
adequate or reliable evidence. In Best Bakery case, the
W.P.C.NO.18291 OF 2004 5
first trial was found to be afarce and is described as “mock
trial”. Therefore the direction for retrial was in fact, for a
real trial. Such extraordinary situation alone can justify
the directions as made by this Court in Best Bakery case.”
8. In this case, investigation was conducted by the police.
Final report had been filed. It would appear from the judgment
Ext.P2 that the court could not come to any safe conclusion because
there was hostility on the part of witnesses including the petioner
herein.
9. I am certainly not satisfied that the situation available in
this case is in any way comparable to the situation in the Best Bakery
case. I am certainly not persuaded to invoke the powers under
Section 482 Cr.P.C to direct retrial or reinvestigation in this case.
Unfortunate though it be that the murderers of the young child could
not be brought to book, this certainly is not a case where the powers
under Section 482 Cr.P.C can or ought to be invoked to direct a fresh
investigation and trial.
10. This Writ Petition is, in these circumstances, dismissed.
R.BASANT
JUDGE
rtr/