IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31371 of 2005(I)
1. VISWANATHAN ACHARY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. STATE OF KERALA, REPRESENTED BY ITS
3. CIRCLE INSPECTOR OF POLICE,
4. THE DETECTIVE INSPECTOR, CRIME BRANCH
5. THE SUPERINTENDENT OF POLICE, CBI,
6. THAMPI, CHEMPAKAPARAMBIL HOUSE,
7. SANTHOSH, PUTHUPARAMBIL HOUSE,
8. BIJU THOMAS,
For Petitioner :SRI.S.JAYAKRISHNAN
For Respondent :SRI.S.SREEKUMAR, SC FOR CBI
The Hon'ble MR. Justice K.M.JOSEPH
Dated :30/09/2010
O R D E R
K.M.JOSEPH , J.
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W.P.(C).No.31371 of 2005-I
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Dated, this the 30th day of September, 2010
J U D G M E N T
This is an unfortunate case where the petitioner
is constrained to come to the Court complaining of the
lethargy on the part of the police officers in the matter of
tracing out the only son of the petitioner. Pending the writ
petition the original petitioner died and subsequently the wife
of the petitioner has been impleaded as additional petitioner.
Briefly put, the case of the petitioner is as follows: The family
of the petitioner consists of his wife, three daughters and one
son. On 8.9.95 on the occasion of ‘Sree Narayana Guru
Jayanthi’ celebrations an inaugural function was held at
about 4.30 P.M. The only son of the petitioner Mahadevan
who was only 13 years old went out of the house and he had
a lemon juice from the nearby shop of Sasidharan.
Thereafter, the said Mahadevan did not return. Petitioner and
his family searched him. Thereafter, they complained on the
same day at about 6.30 P.M. On 10.9.1995 petitioner
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received a telephone call demanding heavy amount for the
release of Mahadevan. It is stated that the petitioner filed a
complaint before the Changanacherry police. Ext.P1 is the
FIR. Respondents 6 to 8 are alleged to be the residents in and
around the locality and political activists of the present ruling
front. Those persons had the background of political
manipulations related criminal acts and commissions. They
were on bitter enimical terms with the petitioner. They are
smugglers selling Narcotic drugs like Ganja etc. They are
under the influence of high handed criminals and are in the
practice of capturing children and they were transporting to
Mumbai and Chennai etc. On several occasions there were
threat to the petitioner from these persons. After the
incident the 6th respondent came to the petitioner’s shop
demanding money for the key chain holding by the son of the
petitioner. Petitioner was informed that Mahadevan is in
Kanyakumari. Petitioner and and his relatives went to
Kanyakumari as informed by the 6th respondent, but
Mahadevan was not there. The 6th respondent was caught by
the local police and after questioning him he was released on
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bail. Ext.P2 is the paper report. The matter was handed over
to the Crime Branch. Petitioner had made certain allegations
in paragraph 6 in connection with the belongings of
Mahadevan being found out. Ext.P4 is the letter. Petitioner
filed a writ petition culminating in Ext.P6 judgment. It reads
as under:
“Petitioner’s only son aged 13 years was missing from the
residence on 8-9-1995. A statement was filed averring that
investigations are being conducted, but, nothing could be
traced out so far. A boy of 13 years of age was missing from
September, 1995. Police cannot was their hands stating that
nothing was traced out in the investigation even after lapse of
more than five years.
2. In the circumstances of the case, I direct the
Government to entrust the investigation to the Crime
Branch and if necessary appoint special officers and complete
the investigation as expeditiously as possible.”
2. Petitioner filed representation before the Ist
respondent to entrust the investigation to the CBI. Ext.P7 is
the representation.
3. Petitioner has approached this Court seeking
the following reliefs:
“i) to issue a writ of mandamus or other appropriate writ,
order or direction, directing the Ist and 2nd respondents to
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conduct a detailed investigation through 3 to 5
respondents, the CBI to trace the whereabouts of the
petitioner’s missing son, Mahadevan.
ii) to issue a writ of mandamus or other appropriate writ,
order or direction directing the respondents 3 to 5 to
complete the investigation regarding the mystery
petitioner’s missing son Mahadevan.
Iii) to issue a writ of mandamus or other appropriate writ
order or direction directing the Ist and 2nd respondents to
entrust the investigation of Crime No.33/CB/96 of Crime
Branch (544/96) of Changanacherry Police to the CBI.”
4. A statement is filed by the Detective Inspector
wherein it is inter alia stated as follows:
“3. As per the Order No.D14-68869/95 dated 21.12.1995
of Director General of Police, Kerala this case was
transferred to Crime Branch CID, Kottayam for
investigation. Vide Order N.B1-1659/CBK/96 of SP,CB CID,
Kottayam in pursuance of order No.D1-34397/CR/95 dated
02-01-1996 of ADGP (Crimes), Thiruvananthapuram, this
case was renumbered as CR.33/CR/96 and entrusted with
Sri.M.B.Dileep, Detective Inspector, CB CID, Kottayam for
investigation. He took over the investigation of this case on
17.01.1996 and CB CID, Kottayam Unit continued the
investigation of this case until 31.07.2000.
4. It is submitted that, earnest and sincere efforts were
made by the CB, CID, Kottayam to locate the missing
person by questioning 65 witnesses and recorded their
statements. This unit had again published the photographs
and details of missing boy, Mahadevan in television media
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and news papers inside and outside of Kerala in Malayalam,
Tamil, Kannada and English medium. This unit had
conducted extensive enquiries at several places circulating
look-out notices inside and outside Kerala.
6. It is submitted that on investigation it could be seen that
Mahadevan was not good in his studies and he was scolded
by the petitioner in this regard. It was also revealed that he
had so many friends who were having all bad habits like
alcohol consumption. He was missing from his residential
locality and no clue was received that somebody had
kidnapped him. It was also reported that earlier he had on
two occasions absconded and returned home voluntarily
after some days. It is submitted that Mahadevan was a
patient of Dr.V.K.Radhakrishnan, MD, Grace Hospital,
Changanacherry for mental disorder for two years and
doctor who treated Mahadevan opined that boys of such
character is having the habit of absconding.”
It is also stated that the complicity of 6th
respondent was also investigated but no incriminating
evidence was received against him. It is also stated that
during the course of investigation some witnesses identified
the photograph of the missing boy and some of them had seen
the missing boy at Chengannor Railway Station. Mahadevan
was not good in his studies and he was scolded by the
petitioner in this regard. It is also stated that he had
absconded on two occasions and returned home voluntarily
WPC No.31371/2005 -6-
after some days. It is also stated that Mahadevan was a
patient of Dr.V.K.Radhakrishnan for mental disorder and the
doctor who treated Mahadevan opined that boy of such
character is having the habit of absconding. It is stated that
in spite of efforts police could not trace out the anonymous
phone calls. It is also stated that police could not trace out
Mahadevan and finally it is reported undetected by the then
Detective Inspector after getting sanction from ADGP
(Crimes).
5. Petitioner filed reply affidavit. It is stated inter
alia as follows: Mahadevan was not treated at the hospital.
He was never treated for mental disorder. His mental
condition was very sound. Police have a duty to find out the
missing boy.
6. I heard the learned counsel for the petitioner,
learned Government Pleader and also the learned standing
counsel for the CBI. Learned counsel for the CBI would point
out that this is not a fit case for ordering investigation by CBI.
It is not one of the rare cases, according to him, which
warrants entrusting the matter to the premier investigating
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agency of the country. Learned Government Pleader, on
being asked as to whether pursuant to Ext.P6 judgment the
matter was entrusted to senior officer pointed out that it was
not done. In other words, investigation was carried out by the
Detective Inspector as stated in paragraph 3.
7. This is a case where the only son of the
petitioner has been missing since he was 13 years old. He has
been missing for the past 15 years. The understandable
anxiety of the parents is to be properly borne-in-mind. I feel
that while it may not be necessary to order investigation by
CBI at any rate at this stage I feel that interest of justice
would be met if I order that investigation is to be conducted
by a superior officer of the Crime Branch. The matter will be
investigated by the higher officer of the Crime Branch.
Accordingly, there will be a direction that the investigation will
be conducted in the matter by the Superintendent of Police,
Crime Branch (Hurt and Homicide Wing), Kottayam under the
supervision of ADGP (Crimes). In the circumstances of the
case as more than 15 years have gone by I direct that the
investigation shall be concluded within an outer period of six
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months from the date on which the copy of the judgment is
produced before the Superintendent of Police, Crime Branch
(Hurt and Homicide Wing) Kottayam.
(K.M.JOSEPH)
JUDGE.
MS