IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12814 of 2007(A)
1. KESAVAN, AGED 67 YEARS,
... Petitioner
Vs
1. CENTRAL BUREAU OF INVESTIGATION,
... Respondent
2. STATE OF KRALA REP. BY THE PUBLIC
For Petitioner :SRI.V.JOHN SEBASTIAN RALPH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :17/12/2010
O R D E R
P.S.GOPINATHAN, J.
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W.P.(C)No.12814 of 2007
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Dated this the 17th day of December, 2010
JUDGMENT
The petitioner’s son Shaji was an under trial prisoner in
C.C. No.609/2001 on the file of the Additional Chief Judicial
Magistrate Court, Ernakulam. It is alleged that he was
remanded to Central Prison, Viyoor and when brought to the jail
on 20.01.2007, one Yohannan, the Writer of the Central Prison
brutally tortured him and as a result, he died. Ext.P1 is the copy
of the complaint submitted by the prisoner before the Additional
Chief Judicial Magistrate Court, Ernakulam. The prisoner was
sent to the District Hospital, Ernakulam and later he was again
remanded to Central Prison Viyoor. While in custody he expired
on 22.01.2007, alleging that, the local police was not properly
investigating the cases, this writ petition was filed with the
following main prayers:
(i) Issue a writ of mandamus directing the first
respondent to conduct an investigation into
the custodial death mentioned above for the
purpose of bringing the real culprits before the
law.
W.P.(C)No.12814/2007
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(ii) Direct the second respondent to afford
sufficient support in the investigation.
The Deputy Superintendent of Police, Thrissur filed a
statement on 21.05.2007 narrating that regarding the death of
Shaji, a case as Crime No.37/2007 for unnatural death was
registered at Viyoor Police Station. Subsequently, the
investigation was taken over by the Deputy Superintendent of
Police, Thirussur and that the doctor who conducted the
postmortem examination opined that, the postmortem findings
were consistent with death due to occlusive coronary artery
disease and that he had the opinion that any physical or mental
trauma or stress could have accelerated or precipitated the
death of Shaji and the alleged history of Shaji (beating by jail
warden) could have accelerated / or precipitated the death. Thus
there is ample evidence to hold the jail warden (Yohannan),
liable for Shaji’s death. Investigation was almost completed and
the learned Public Prosecutor, who perused the case diary, was
of the opinion that, the accused Yohannan could be charge
sheeted for offences under Section 304 I.P.C. A copy of the
opinion submitted by the learned Public Prosecutor was also
produced.
W.P.(C)No.12814/2007
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It is seen that on 06.08.2007, an interim direction was
issued by this court that the final report should not be filed until
further orders. Thereafter, for some time, there was no order
issued from this court. When it was posted on 13.12.2010, a
direction was issued by this court to the learned Government
Pleader to produce the case diary. Accordingly, the case diary
was produced. Going by the case diary, it is seen that, the order
dated 06.08.2007 was received to the investigating officer on
08.08.2007. He had reported to the then Government Pleader
that the investigation was completed and charge sheet was filed
on 28.06.2007. The case diary was submitted to the Public
Prosecutor and further instruction was sought. However, no
instruction is seen given by the Public Prosecutor. Going by the
case diary, it is seen that a final report alleging offence under
Section 304 I.P.C was filed against the above said Yohannan. It
is further seen that, the case was committed to the Court of
Session and from there, it was made over to the Principal
Assistant Sessions Judge, Thrissur and it is numbered as
S.C. 888/08. It appears that the petitioner was not aware of the
filing of the charge sheet. He is also not aware as to what all are
the materials collected during the investigation and the
W.P.(C)No.12814/2007
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conclusion thereon; and on what basis, the charge sheet was
submitted. To put it shortly as against the final report submitted
before the committal Magistrate, there is no specific allegation.
In this background, I find that unless there are cogent reasons to
assail the final report, it is not just and appropriate to order
further investigation or to entrust the investigation to the first
respondent in exercise of the writ jurisdiction. I find that, in the
above circumstances, it would be just and appropriate to dispose
the writ petition giving liberty to the petitioner to go through the
final report submitted by the Investigating Officer and in the
event he is aggrieved of it, to move, this court for assailing the
final report, if there is any specific ground available to the
petitioner.
In the result, the writ petition is dismissed with liberty to
the petitioner to assail the final report, if any ground exists.
(P.S.GOPINATHAN)
JUDGE
SS/-