1. In this application filed by the Petitioner (Murukeshan), in the above Writ Petition he seeks a direction to the 4th respondent i.e Director, Central Bureau of Investigation (“C.B” for short) to submit a detailed report regarding the investigation so far conducted and produce the entire case diary. The petitioner alleges that there is a conscious attempt to suppress the involvement of two superior police officers behind the murder of the petitioner's younger brother Sampath. This case popularly known as “Sampath Murder Case” pertains to the brutal murder of one Sampath aged 26 years in the night of 29.3.2010 after he was taken into police custody on a suspicion that he was the prime accused in “Sheela Murder Case”. In the above Writ Petition filed by the petitioner herein, it was conceded before this Court that Sampath was done away with as a result of continuous torture while in the custody of the State police. As per judgment dated 25.5.2010 this Court entrusted the investigation “with the C.B.I, mainly for the reason that it was not desirable that the State police continues with the investigation of a case in which the accused persons are members of the State police. While disposing of the Writ Petition this Court inter alia directed as follows:—
“Every person directly or indirectly involved in the custodial torture of Sampath, howsoever high he may be shall be brought to justice”.
2. This Court expects the C.B.I, to follow the above direction in letter and spirit But according to the petitioner there has been interference from the higher echelons of the C.B.I, against the arraignment of two senior I.P.S Officers of the State Police as accused in this case.
3. I have perused the Case Diary. Pursuant to the directions of this Court Sri. V.A Mohan, Supdt of Police, C.B.I, SCB, Thiruvananthapuram constituted an investigation team with one S. Unikrishnan Nair, Inspector of Police, CBI, SCB, TVPM as the Chief Investigating Officer and one K-K. Rajan, Sub Inspector, S.P Nair Constable and Louie Paul, Constable, as members. The above team has done excellent work. But eyebrows were raised at the higher level in the C.B.I when the Chief Investigating Officer sought permission to add to the array of accused two I.P.S Officers of the State police. It appears that certain officers of the C.B.I got afflicted by the “birds of the same feather syndrome” and started finding fault with the Chief Investigating Officer who was served with a few memo. There has even been an attempt to trivialise the goonda intrusion into the house of a member of the investigating team. The suspect officers may be their batch mates, former colleagues, training mates or the like. But while investigating a murder case, no such clanish considerations should weigh with any officer worth his name. The re-constitution of the investigation team by inducting one Haridath as the Chief Investigating Officer, naturally engendered a fear in the mind of the petitioner that some attempt was afoot to deflect the course of investigation. It is that fear which has necessitated this application.
4. Those who are concerned should realise that departmental instructions and executive orders obliging the investigating officers to seek permission of the higher-ups like the Unit Chief, Head of the Branch, Head of the Zone, Director etc. for performing routine investigative functions such as registering an F.I.R, arraying a person as accused, arresting such person and finally submitting final reports under S. 173(2) Cr.P.C etc. do not have any legal sanction. They are contrary to the scheme under the Cr.P.C No. such restrictions can be placed on the freedom of the investigating officer. In this context it is apposite to refer to the following observation of the Apex Court in Vineet Narain v. Union of India ((1998) 1 SCC 226 : AIR 1998 SC 889).
“According to the Code of Criminal Procedure, 1973 the formation of the opinion as to whether or not there is a case to place the accused for trial is that of the police officer making the investigation and the final step in the investigation is to be taken only by the police and by no other authority, See Abhinandan Jha v. Dinesh Mishra, (1967 KLT SN 21 (C. No. 39) SC : AIR 1968 SC 117)”.
5. Chief Justice J.S Verma in the above decision quoted with approval the following observations made by Lord Denning in R. v. Metropolitan Police Commissioner (1968 (1) All. ER 763) indicating the duty of the Commissioner of Police
“I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State……..I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute his man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”.
6. The above observations should guide every investigating officer as well as every officer above him. There is a popular misconception among some superior police officers that by having recourse to S. 36 Cr.P.C they can, under the guise of supervision, interfere with the investigation conducted by their subordinates. The above provision in the Cr.P.C only enables such superior police officers to take over the investigation and conduct the same with the same amount of freedom and flexibility as could be enjoyed by their subordinates and with the same amount (if not more) of accountability which was saddled on such subordinates. Officers at every level should bear in mind these salutory principles. The officers at the cutting edge of investigation also should realise that unless and until a person is found guilty by a Court of competent jurisdiction, such person enjoys the protective insulation of the presumption of innocence. Therefore, while dealing with a suspect the investigating officer should be circumspect and should ensure that the valuable rights of such suspects are also not infringed. I do not wish to make any further observation in view of the proposed plan of action. It is hoped that the reconstituted investigation team with P.G Haridath, D.S.P at the head and ably assisted by Unnikrishnan Nair and four other police officers will soon make a headway in the matter and submit a final report against all the persons (howsoever high they may be) responsible for the brutal torture of Sampath leading to his tragic death.
7. It is a passion for certain investigating officers to disseminate to the media piecemeal or full information regarding the progress of investigation. All concerned should realise that once a case involving the commission of a cognizable offence has been registered and the F.I.R forwarded to the Magistrate concerned, the matter is sub judice and no police officer has the right to leak out information regarding the outcome of investigation until the final report is eventually filed before the Court. Cases may attract either justifiable or uncalled for media publicity. There is a tendency among certain sections of the Press to draw sustenance even from unconfirmed sources including the police in order to boost their garbled versions. When police officers freely indulge in passing on information to the media and to the public, they not only breach the Conduct Rules but also put unnecessary pressure on the Courts which are to eventually try the cases. It is well known that many of the materials collected by the police during investigation are comprised of hearsay or inadmissible stuff and at times extracted from the accused persons themselves by employing third degree methods. Such material will not stand the scrutiny of a court of justice during trial. The Fourth Estate also does not seem to realise the irreparable damage that may be inflicted on the victims of crimes and the alleged culprits and those close to them through sensationalised journalistic adventures. Truth is very often suppressed, exaggerated or distorted in order to add flavour and spice to the story put forward. The fickle minded public which might be conditioned to believe a particular version given through a calculated process of media indoctrination will be loath??? to-accept a different conclusion reached in the Court verdict It is pertinent to remember that the trial Court can take into consideration only legal evidence. If the Court were to finally record an order of acquittal for want of acceptable evidence before it, it may not be out of place if the public at large were to conclude that the Court verdict was wrong. They may even attribute motives in the presiding judge. No disciplined society which believes in the rule of law can afford to have such a state of affairs to come to stay. (Vide paragraph 2G of State of Kerala v. Aboobacker (2006 (4) KLT SN 33 (C. No. 49) : ILR 2006 (3) Ker. 672) and suo motu contempt proceedings (2009 (1) KLD 133) (Delhi High Court). Investigating Officers should, therefore, be alive to this aspect of the matter and they along with the media will have to be prepared to face action in the event of a breach.
8. The induction of Haridath at the helm of affairs in the investigation of Sampath Murder Case need not cause any concern either to the petitioner or to anybody else. Hardath is believed to be an officer of proven integrity and of bold disposition. He shall, however, submit a report every three weeks, under intimation to this Court, to the Chief Judicial Magistrate, Ernakulam regarding the progress of the investigation. The Chief Judicial Magistrate shall also monitor the investigation and if, need be, call for the case diary for his perusal. The present team of investigation shall not be dislocated or changed without the orders of this Court. Should any member of the investigating team feel that there is any interference with his freedom either from the C.B.I or from elsewhere, such member shall be free to address this Court through the Registrar General in a sealed cover This application is disposed of as above.
9. Dated this the 22nd day of December, 2010.