High Court Kerala High Court

Smt.Nabeesa vs The State Of Kerala on 27 November, 2006

Kerala High Court
Smt.Nabeesa vs The State Of Kerala on 27 November, 2006
       

  

  

 
 
  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.

                          ------------------------------------

                          W.P.C.NO.18291 OF 2004

                          ------------------------------------

                 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/