S. Unnikrishnan Nair & Anr.

For Petitioner:- 

For Respondents:- 

O R D E R

1. The above petition has been filed by two officers of Central Bureau of investigation (for short “the CBI”) challenging their implication as accused in a crime case registered over the suicide committed by a senior police officer of CBI, who headed an investigation team in which petitioners too formed part of.

2. A voluminous petition with plethora of documents has been presented before this court to seek the exercise of inherent powers of this court under Section 482 of the Code of Criminal Procedure (for short “the Code”) to quash the criminal proceedings. Shorn off unnecessary details, the case of petitioners, in brief, for the relief canvassed can be summed up thus:

3. Haridath, the officer who committed suicide conducted investigation of a crime registered over the alleged custodial death of one Sampath, pursuant to Annexure-I judgment rendered by this court. Investigation in the crime conducted by Crime Branch was assailed before this court, and, then under Annexure AI judgment it was ordered to be handed over to CBI with some directions. Petitioners working as Inspectors in the Thiruvananthapuram Branch of the CBI formed part of the investigation unit headed by the above officer. During investigation involvement of two senior police officers in the custodial death of Sampath was suspected of, and then, there was harassment of the members of the investigation team, was raised before this court in subsequent proceedings, and, thereupon Annexure V order was passed, after perusing the case diary, directing the Chief Judicial Magistrate to monitor the investigation of the crime. Other orders were also passed that the investigation team comprising the petitioners should not be changed without orders of the court. Investigation continued by the team headed by Haridath led to filing of reports before the Chief Judicial Magistrate seeking issue of non-bailable warrants against two senior police officers whose complicity in the custodial death of Sampath was suspected of by materials collected. At that stage, pursuant to orders passed by the Supreme Court in the appeal against Annexure V order, two superior officers of the CBI were authorised to supervise the investigation. In the investigation of crime that continued under the supervision of two senior officers of CBI petitioners were sidelined, and from 03.09.2011 they had no participation in the investigation. According to petitioners, senior officers of CBI, who supervised investigation compelled Haridath to undo whatever he had done earlier and that ultimately resulted in his committing suicide on 15.03.2012. In a suicide note, allegedly, written by Haridath, it is stated, names of petitioners and an advocate are mentioned, with imputation against the Chief Judicial Magistrate also, that they were responsible for his suicide. A month later, these petitioners were transferred to Calcutta and Guwahati respectively, since their names appeared in the suicide note. A crime was registered over the death of Haridath under Section 174 of the Code at Narakkal police station. Investigation of the crime was later taken over by the Crime Branch Crime investigation Department (CBCID), HSW-II, Ernakulam. Superintendent of Police, CBCID, is presently investigating the crime. Under the guise of investigation into the suicide of Haridath, investigating officer is scrutinizing whatever is done during the investigation in Sampath custodial death case by the investigation team headed by Haridath. Petitioners were examined continuously for hours together by the investigating officer. Some of the witnesses examined and whose statements were recorded under Section 164 of the Code during the investigation of Sampath custodial death case, were recalled and examined by the investigating officer conducting investigation over the suicide of Haridath. On the premise that those witnesses had been compelled to give false statements, recorded from them under Sections 161 and 164 of the Code, due to threat and compulsion by the petitioners they have now been implicated as accused in the crime registered over the suicide of Haridath, for offences under Sections 182, 194, 195, 195A and 306 Indian Penal Code. A report, Annexure-LI, has been filed by the investigating officer, Superintendent of Police, CBCID before the Sub Divisional Magistrate, Fort Kochi stating that the petitioners have been included as accused in the crime for the aforesaid offences on the basis of materials collected during investigation, and that, deleting Section 174 of the Code under which the crime was registered, its investigation is being continued for the abovesaid offences. Petitioners have filed the above Crl.M.C to quash Annexure LI report filed before the Sub Divisional Magistrate, as an abuse of process of court, exercising inherent powers of this court under Section 482 of the Code.

4. Subsequently, modification of the relief as one for quashing the criminal proceedings against them as such was sought for filing an amendment petition, and it was allowed. Amended petition seeks quashing of the criminal proceedings against petitioners for the offences imputed against them under Annexure LI report by which investigation in the crime registered over the death of Haridath, which is being continued implicating petitioners as accused.

5. I heard Sri. Pirappancode V. Sudheer, learned counsel for petitioners, Sri. K.I. Abdul Rasheed learned Public Prosecutor [Additional Director General of Prosecutions] and Sri. Chandrasekhara Pillai learned standing counsel for the CBI.

6. Learned counsel for petitioners, adverting to the facts and circumstances involved in the case, and placing reliance on the documentary materials tendered with the petition, more particularly, orders passed by this court during investigation of the crime in the Sampath custodial death case, contended that filing of Annexure LI report implicating the petitioners as accused in the crime registered over the suicide of Haridath was nothing but an attempt to wreak vengeance and harass them since the investigation team headed by Haridath, on the basis of materials collected, had taken steps to implicate two senior police officers as accused in the crime over the custodial death of Sampath. Learned counsel also contended that petitioners have been falsely implicated in the crime without anything to show that they have abetted in the commission of suicide by Haridath, or in any way caused his untimely death.

7. Learned Public Prosecutor resisted the challenges contending that exercise of inherent powers of this court, at this stage, is not called for. The materials gathered in the investigation of the crime registered over the suicide of Haridath have disclosed complicity of petitioners in the commission of the offences imputed under Annexure LI report, according to him. During investigation of the crime in Sampath custodial death case, petitioners have intimidated and threatened some witnesses to give false statements as instructed by them instilling fear on them that they would be implicated as accused in that crime if false statements as directed were not given. The acts and misdeeds done by petitioners during investigation of that crime (Sampath's case) have led to Haridath committing suicide, and, his suicide note hold them culpable with some others for ending his life. Investigation of the crime is still in progress and on the materials gathered in the investigation petitioners whose complicity is revealed have been implicated for the offences stated in Annexure LI report, is the further submission of Public Prosecutor, to contend that the petition is devoid of any merit.

8. Learned standing counsel for the CBI Sri. Chandrasekhara Pillai assertively and strongly contended that CBI is an unnecessary party in the petition and as such it has to be struck off from the array of respondents. Investigation over the suicide of Haridath is conducted by the CBCID and in that case if petitioners are proceeded as accused, then, that is a matter between that investigating agency and petitioners over which the CBI has no role, is the submission of learned standing counsel to contend that it is an unnecessary party in the petition, and therefore, it has to be struck off from the array of respondents.

9. After hearing the submissions made by counsel on both sides, and taking note of the facts and circumstances presented in the case, I find, what is under challenge in the proceedings is not Annexure LI report filed by the CBCID investigating the crime over the suicide of Haridath implicating petitioners as accused in the crime for the offences stated in such report, but something more grave. Haridath, the officer who headed the investigation team over the custodial death of Sampath, committed suicide on 15.03.2012. His suicide note, copy of which is produced, Annexure XXXVII, disclose that he had been placed in a situation to commit suicide by some persons, petitioners, an advocate and Chief Judicial Magistrate. Learned Public Prosecutor, to my query, has stated that at this stage, petitioners alone are implicated for the offences stated in Annexure LI report and implication of others mentioned in the suicide note i.e., advocate named and also Chief Judicial Magistrate as co-accused cannot be ruled out at a later stage in the crime.

10. Without going into any challenge raised by petitioners to impeach Annexure LI report and their implication as accused in the crime, first of all what are the offences for which they have been implicated and what is the basis thereof has to be taken note of. Annexure LI report discloses that in the crime registered, initially, under the caption of Section 174 of the Code over the suicide of Haridadh, on the basis of materials gathered in the investigation the CBCID has implicated petitioners as accused for offences under Sections 182, 194, 195, 195A and 306 of the IPC. Leaving apart the offence under Section 306 of the IPC, abetment of suicide of Haridath, the rest of the offences imputed against petitioners i.e., under Sections 182, 194, 195 and 195A of the IPC, all of them, have been made, concededly, over misdeeds imputed against them, more particularly, illegalities committed by them, during the investigation of Sampath Custodial death case in which they also formed part of the investigation team headed by Haridath. I do not want to refer in detail to Annexures I and V orders passed by this court in Sampath Custodial death case, other than stating that specific orders have been given by this court with directions to the Chief Judicial Magistrate to monitor the investigation of the crime, after perusal of the case diary in the crime. During the investigation of Sampath custodial death case petitioners had threatened some witnesses to give false evidence to implicate some persons as accused in the crime, is the basis for proceeding against them, who were parties to the investigation team in Sampath custodial death case for the offences stated supra. Whether the CBCID is empowered with authority to examine the legality or illegality of the investigation conducted by CBI in another case, that too done under specific directions or orders passed by this court? I find it extremely strange that the learned standing counsel for the CBI has nothing to say when previous investigation conducted by that agency, whoever be the officers who conducted such investigation, is sought to be interfered with imputing illegality in such investigation, that too when after investigation of crime CBI has filed a report before the competent criminal court. Can the CBCID sit in judgment or even conduct an investigation into the investigation conducted by CBI over Sampath custodial death case where this court, by orders, have ordered for taking over the investigation of that crime case from the Crime Branch and handing it over to the CBI? If that is permitted or allowed, then, it is not a case of investigation conducted by one or other agency that is at peril, but the fundamental principles governing criminal investigation, and also the sanctity and binding force of the orders of this court.

11. To proceed against the petitioners for offences under Sections 182, 194, 195 and 195A of the IPC, whatever be the materials collected in the present crime by the Crime Branch to impute that they have done acts culpable of such offences, what was done by them during the investigation of the crime in Sampath custodial death case and the evidence collected thereof as part of the investigation team, no doubt, would form the foundation. Can the Crime Branch, from which the investigation had been taken over and handed it over to the CBI on orders of this court, determine legality, propriety and correctness of the investigation conducted by the CBI with respect to the evidence gathered by them after taking over such investigation, that too when the court before which the report was filed after investigation has to decide such questions? Learned standing counsel for the CBI has submitted that after completing the investigation in Sampath custodial death case, a report has already been filed before the court at least one month back, and some query raised thereof by the court now required to be clarified of. That also deserves to be taken note of in examining Annexure LI report filed by the Crime Branch to proceed against the accused for the offences stated thereunder in the Haridath suicide case.

12. The bar under Section 195(1)(a) of the Code interdicting the taking of cognizance of the offence under Section 182 of the IPC by the court, which is one among the offences stated under Annexure LI report, otherwise than on a complaint in writing by a public servant, cannot also be lost sight of in considering the legality of the steps taken by Crime Branch in proceeding with an investigation over such offence in a crime registered under Section 174 of the Code over the suicide of Haridath, to implicate petitioners as accused for such offence. Some of the offences under Annexure LI report, that is Sections 194, 195 and 195A Indian Penal Code are imputed in relation to the investigation conducted in Sampath custodial death case with respect to the evidence collected in such case by the petitioners as part of the investigation team. It is then a case where the bar under Section 195(1) (b) (i) of the Code will apply, especially, where the court, which is competent to decide such questions from the report filed by the investigation team is yet to take a decision in that matter.

13. Learned Public Prosecutor, relying on Ram Dhan Vs. State of Uttar Pradesh and another, (2012) 5 SCC 536 has contended before me that the bar under Section 195(1)(b)(i) of the Code will not be applicable to the present case. Facts involved in the reported case are quite different, and that was a case where the petitioner therein was found guilty of suppressing materials facts. Here, in the present case, the Crime Branch proceeds on the basis that it has empowerment and authority to determine and decide whether the materials collected in investigation by the CBI in the crime case, are false evidence even when the investigation of such case had been taken over from it and handed over to the CBI on orders of this court. Truth or falsity of the evidence collected by the investigation team of the CBI is yet to be decided by the court which alone is competent to do so. To prosecute the petitioners for the offence of fabricating false evidence in relation to the investigation carried out by them in that crime as part of the investigation team cannot be permitted as it will amount to an abuse of process of the court.

14. The remaining offence covered by Annexure LI report to implicate the petitioners as accused is Section 306 of the IPC. Suicide note of Haridath contains the names of some persons including the petitioners with name of an advocate, and also Chief Judicial Magistrate, as culpable for ending his life. Whether that alone would amount to an offence under Section 306 of the Indian Penal Code? Of course, it cannot. There must be abetment for commission of suicide by the act of some other person, to proceed against such person for that offence. Haridath would not have done many things during the investigation of the crime in Sampath custodial death case, but for the pressure exerted and fraud played on him by petitioners, and even his wife has given statement regarding the pressure and suffocation endured by Haridath during the preceding months before commission of his suicide, which was canvassed to impute abetment against the petitioners, cannot be given any merit. When investigation of the crime on Sampath custodial death case got supervised by some senior officers of the CBI, Haridath had to retract from many things that he did earlier. Whatever be the reasons thereof, finally, he committed suicide naming petitioners and some others stating that but for their compulsion he would not have done those things performed earlier. That does not indicate of any abetment by the persons named in his suicide, nor even show that whatever Haridath did earlier during the course of his investigation was incorrect.

15. Learned Public Prosecutor wanted me to look into the case diary and determine the propriety of Annexure LI report filed to implicate the accused for the aforesaid offence. To my query what material is there other than the suicide note to proceed against them for the offence under Section 306 IPC, and also other offences imputed, learned Public Prosecutor would state that the only other materials are statements of witnesses that statements from them containing false evidence were recorded in previous investigation in Sampath custodial death case under Section 164 of the Code by threat, intimidation and compulsion by petitioners and also the statement of the wife of Haridath of the pressure suffered by Haridath during the preceding months of his commission of suicide. When such be the submission, I find, examination of the case diary requested by the prosecutor is not called for to dispose this petition.

16. Annexure LI report filed before the Sub Divisional Magistrate, Fort Kochi by the Crime Branch, to implicate the petitioners for offences under Sections 182, 194, 195 and 195A IPC in Haridath suicide case is found to be an abuse of process of the court. So far as the offence under Section 306 of the IPC, levelled against the petitioners, that too, on the submissions made and facts and circumstances presented, I find, is unworthy of any merit. That being so, Annexure LI report and all further proceedings taken against the petitioners in the crime are quashed exercising inherent powers of this . court, under Section 482 of the Code.

Crl.M.C is disposed of as above.