S. Nambi Narayanan v. State Of Kerala

JUDGMENT

The petitioner, a former Scientist of the Indian Space Research Organisation (ISRO) who has orbited the sun 74 times (it appears from record that he is aged 74 years now) continues his fight for justice with this writ petition for quashing Ext.P2 (G.O (Rt) No. 1923/2011.Home dated 29.06.2011) by which, the State Government has decided not to take any action against respondents 4 to 6, who investigated ISRO espionage case at the early stage of investigation. The petitioner alleges that Ext.P2 has added insult to his injury, as he lost not only his career, but also a considerable span of life, his savings, honour, academic work aswell as self esteem through a witch-hunt commonly called ‘ISRO spy case’.

2. The case cropped up in October, 1994 with registering of Crime No. 225/94 on 20.10.1994 of Vanchiyoor Police Station, Thiruvananthapuram against one Mariayam Rasheeda, a Maldivian national under Section 14 of the Foreigners Act, 1946 and Section 7 of the Foreigners Order, 1948. Investigation of the case was taken by the 6th respondent who was the then Inspector, Special Branch, Thiruvananthapuram. Mariayam Rasheeda was arrested on 20.10.1994 and she was sent to judicial custody on 21.10.1994 Her custody was obtained by the Police on 03.11.1994 Allegedly, during interrogation, she made certain ‘confessions’ which led to the registration of Crime No. 246/1994 of Vanchiyoor Police Station on 13.11.94 followed by the arrest of D. Sasikumaran, a Senior Scientist of ISRO, K. Chandrasekhar, a representative of Russian Space Agency Glavkosmos in India, the petitioner herein, one Fauzia Hassan, known as Rasheeda's handler and one S.K Sharma, a Bangalore based Labour contractor.

3. Investigation of both the cases was taken over by the Special Investigation Team headed by the 4 respondent, who was the then D.I.G, Crime of Kerala Police on 15.11.94 Later, consequent to the request of the Government of Kerala and the decision of Government of India, investigation was transferred to the C.B.I (the 3rd respondent). Accordingly, RC.10(S)/94 and RC.11(S)/94 dated 02.12.94 were registered and investigation was taken up by C.B.I

4. The cases were handed over to C.B.I during the first week of December, 1994. During December itself, the C.B.I questioned the then I.G of Kerala Police Mr. Raman Srivastava. By this time, the issue had become a political controversy within the then ruling party of the State. During March, 1995, the then Chief Minister was forced to step down. After investigation, the 3 respondents ubmitted a report before the Chief Judicial Magistrate (CJM), Ernakulam under Section 173(2) of Cr.P.C which was accepted by the court as per Ext.P3 order dated 02.05.1996 and all the accused were discharged cancelling the bail bond executed by them.

5. By that time, a new coalition Government came into power in the State which withdrew the consent given to the C.B.I to probe the case and decided to conduct re-investigation of thecase by the State Police. Though the petitioner herein as well as other accused challenged the re-investigation order before this Court, this Court upheld the decision of the Government. They took the matter in appeal before the Apex Court.

6. On 29.04.1998, the Apex Court quashed the decision of the State Government to reinvestigate, holding that the move was against good governance. All accused were freed of charges and consequently on 30.04.1998 Mariayam Rasheeda was released. In the year 2001, National Human Rights Commission ordered a compensation of 10 lakhs as interim relief to the petitionerherein, who sought .1 crore as damages. A Division Bench of this Court on 07.09.2012 asked the Government to pay the interim relief of 10 lakhs within three weeks.

7. The petitioner alleges that the 3 respondent by Ext.P1 report sent to the State Government stating that there were lapseson the part of the earlier investigating officers of the Kerala Police and Intelligence Bureau. The petitioner further alleges that the aforesaid report which is marked as Ext.P1 in this case is still inforce and none of the respondents have challenged the saidfindings. However, shockingly the State Government had issued Ext.P2 without any cogent reasons dropping all further proceedings against respondents 4, 5, and 6. Therefore, the petitioner alleges that Ext.P2 is liable to be quashed.

8. The petitioner adds that respondents 4 to 6 fabricated and cooked up ISRO espionage for some other motive which has to be investigated also. The petitioner also points out that he strongly believes that it was an agenda for other nations that India should not develop Cryogenic Engine Technology which is clear from thefact that when USSR and India entered into an agreement for transfer of cryogenic technology, it was torpedoed by US threatening to apply sanctions against India and USSR. The petitioner points out that had cryogenic engine been developedduring that period, India would have become a very strong contender of US in space technology. It is with this background, the petitioner has come up before this Court.

9. The 2nd respondent has filed a counter affidavit which was later on adopted by the 1st respondent. Additional counter affidavit was also filed by respondents 1 and 2. They contended as follows:

The registration of the crimes, the investigation of the cases by a Special Investigation Team consisting of respondents 4 to 6, subsequent taking over of investigation by CBI, the acceptance of thefinal report under Section 173(2) of Cr.P.C by the Chief Judicial Magistrate's (CJM's) Court, Ernakulam were admitted.

It was contended that after the CJM's Court has accepted therefer report, the CBI submitted Ext.P1 report before the Government of Kerala, highlighting certain irregularities in the investigation conducted by the SIT. It was further contended that Ext.P1 does no form part of the record of the final report filed by the C.B.I in the CJM's Court, Ernakulam. Ext.P1 is an unsigned report, though it was sent along with a covering letter dated 3.6.1996 to Government by the C.B.I; it is averred. Copy of the covering letter No. 2783/3/11(s)/94-95 dated 3.6.1996 sent by the CBI is produced as Ext.R1(b).

Since the conclusion arrived by the C.B.I in referring the crime was not acceptable to the Government, and realising that a proper investigation would not be carried out by the C.B.I, the Government withdrew the notification issued under Section 6 of the Delhi Special Police Establishment Act, handing over the investigation in Crime No. 246/94 of Vanchiyoor Police Station to the CBI. The said withdrawal notification was issued as per notification dated 27.06.1996 Copy of the notification No. 27707.SSA3/96.Home dated 27.06.1996 is produced as Ext.R1(c). A Special Investigation Team headed by Sri. T.P Senkumar was also proposed to be constituted. Copy of the letter No. 1/91232/94 dated 29.06.1996 of Director Generalof Police is produced as Ext.R1(d).

This withdrawal notification was challenged before this Court. A Division Bench of this Court upheld the withdrawal notification. However, the Apex Court by the decision in K. Chandrashekar v. State of Kerala [(1998) 5 SCC 223] quashed the said notification onthe ground that further investigation can be conducted by CBI aloneand not by the State Police. It was contended that the Government of Kerala is bound by the said decision of the Apex Court and, therefore, no further action was taken.

The Kerala Government is not bound to act upon Ext.P1 report of the CBI which was forwarded to the Government along with covering letter dated 03.06.1996 signed by Sharad Kumar, Deputy Inspector General of Police, C.B.I who is not known to be part of the investigation team; it was contended. Though there is no recommendation in Ext.P1, out of fairness to the accused persons andin public interest, an enquiry was ordered by the Government to beconducted by the Director General of Police vide letter No. 27699.SSA3/96.Home dated 15.06.1996 The Director General of Police during the course of enquiry, called for explanation of theofficers and vide report dated 3.10.1997 recommended to drop further action. The recommendation of the DGP was endorsed favourably by the Additional Chief Secretary on 10.11.1997 as is evident from file No. 27699.SSA3/96. While so, the judgment of the Division Bench ofthis Hon'ble Court upholding the withdrawal notification was challenged by the petitioner and others before the Apex Court. Therefore, the then Chief Minister endorsed on the file on 12.12.1997 to wait for the Apex Court decision in this regard. The fact that thematter remained dormant for sometime was admitted. However, while passing Ext.P2, the opinion of the Director General of Police as well asthe Additional Chief Secretary recommending no further action was before the Government and the Government have after proper application of mind passed Ext.P2

It was further contended that no court of law has made any direction to take action against the police officers, while appreciating the facts involved in the ISRO espionage case. The S.I.T conducted investigation from 16.11.1994 to 03.12.1994 i.e only for 17 days. The C.B.I took over investigation on 04.12.1994 and continued with the investigation for more than 1 year and 4 months and on 30.04.1996 filed a closure report, referring the case as not proved and false. The investigation was transferred to C.B.I while it was in the preliminary stage with the S.I.T It was contended that the question of lapses of investigation does not arise. Therefore, the conclusion arrived in Ext.P1 is unsustainable; it was contended.

It was also contended that the petitioner had no grievance that hewas mentally or physically tortured by the S.I.T, when he was produced before the learned Magistrate on 09.12.1994 by the C.B.I The earliest version of the petitioner before the Magistrate has every sanctity as it can be treated as one without after thought and untutored. Therefore, the revelation of C.B.I after 1 year and 4 months without sufficient proof is only to be discarded; it is stated. A Division Bench of this Court in Niayamvedi v. Raman Srivastava [1995 (1) KLT 206] has viewed the video cassettes of the interrogation and rejected the version of the C.B.I that the accused were subjected to torture. Though the said judgment was challenged in the Apex Court, the said finding was not reversed by the Apex Court while disposing the same which is reported in Director CBI v. Niyamavedi [(1995) 3 SCC 601].

After the Apex Court quashing Ext.R1(c) withdrawal notification issued by the State, the petitioner approached the National Human Rights Commission alleging human right commission by filing case No. 235/11/98-99. Petitioner has also filed suit as OS No. 370/2003 before the Sub Court, Thiruvananthapuram seeking damages to thetune of Rs. 1 crore from the Government of Kerala and Police Officers. Thus, the petitioner has already availed the remedies that are legally available to him. The petitioner cannot seek for a direction from this Court to take criminal action against the respondents 4 to 6. There isalso no material in Ext.P1 warranting the criminal action. If at all aggrieved the petitioner is to seek appropriate remedy as providedunder the Cr.P.C; it was contended.

The Human Rights Commission in the petition submitted by the writ petitioner, granted an interim compensation of .10 lakhs to the petitioner. Though the State challenged the said interim order and waspartly successful before the learned Single Judge, the Division Benchin the W.A No. 422/2007 and connected cases [reported in 2012 (4) KLT 221] set aside the judgment of the learned Single Judge. Accordingly, the State paid .10 lakhs to the petitioner as ordered by the National Human Rights Commission. True copy of the GO(Rt) No. 3169/2012.Home dated 25.10.2012 is produced as Ext.R1(f).

It is further contended that the National Human Rights Commission has not so far entered into a finding that whether there isany human rights violation against the petitioner and whether therespondents 4 to 6 of the Kerala Police or any other person are responsible for it. When the question of violation of human rights is being considered by a competent fact finding forum, the petitioner is dis-entitled to seek any relief from this Hon'ble Court alleging humanright violations. Another fact finding forum, namely the Sub Court, Thiruvananthapuram is also considering the petitioner's claim in O.S No. 370/2003; it was contended.

It was further contended that respondents 4 to 6 have already retired from service. It was pointed out that respondents 4 to 6 have proven track records and credible service career, and they have been awarded with several rewards for their unblemished service rendered by them. They have only discharged their official duties in accordance with law. The allegation that some of the accused were ill treated and subjected to mental agony while in custody of SIT is without any basisand liable to be rejected. The accused persons were arrested and produced before the Magistrate's Court and remanded to judicial/policecustody. The accused were again produced before the court for extending their remands till their release from judicial custody, The accused did not make any complaint to the learned Magistrate regarding any sort of custodial violence by the respondents 4 to 6 or their men. It is submitted that the allegations and averments regarding custodial violence by respondents 4 to 6 are only imaginary and not supported by any cogent or reliable evidence. After considering the entire aspects, the Government is of the firm opinion that no action need be taken on Ext.P1 and accordingly, after proper application ofmind, the Government have passed Ext.P2 order; it was contended.

10. The 4 respondent has filed a counter as well as additional counter affidavits. In the counter affidavit, the 4 respondent contended as follows:

On 15.11.1994, a Special Team was constituted to investigate into Crime No. 246/94 of Vanchiyoor Police Station by Order No. CONFDL.1/91232/94 dated 15.11.1994 of Director General of Police, Kerala. The 4 respondent, who was a Deputy Inspector General of Police, Crime Branch was given written orders to take up further investigation of this case. Accordingly further investigation was carried out under the supervision of Director General of Police. Four persons, including the petitioner were arrested, and produced before the Add. Chief Judicial Magistrate on 09.12.1994 and they haveinformed that they have no complaints of ill treatment against Police Officers. Therefore, the learned Magistrate observed, “I am satisfiedthat A5 and A6 are sound in mind and body”. 5 accused is the petitioner herein. Copy of the order dated 9.12.1994 of the Additional Chief Judicial Magistrate is produced as Ext.R4(a). Therefore, the allegation of ‘torture’ by the officers of Special Investigation Team is false and hence denied by the 4 respondent.

It was further contended that the petitioner has ventured out on a futile attempt to tarnish the image of upright and highly placed officers like the 4 respondent with the sole condemnable motive of tarnishinghis image and stifling his prospectus. Such attempt on the part of the petitioner deserves to be nipped at the bud. The petitioner is liable tobe proceeded against for securing a confidential document like Ext.P1 clandestinely. The petitioner is also liable to explain how he has obtained Exts.P1 which was addressed to the Government of Kerala.

It was further contended that the above writ petition is hopelessly barred by limitation and on the ground of delay and laches itself the writ petition is liable to be rejected at the threshold itself. No reasonsare forthcoming for explaining the delay of 18 years in preferring thewrit petition. The petitioner is attempting to take up issues which havebeen concluded long back and it amounts to a clear abuse of theprocess of law and a wastage of valuable judicial time. The Apex Courthas considered the question of delay and laches in several decisions.

It was also contended that the case was transferred to C.B.I for further investigation, based on a report submitted by this respondent tothe Director General of Police. Copy of the report dated 30.11.1994 isproduced as Ext.R4(b). This document brings out the bona fides and good faith of 4 respondent in investigation of the case; it is stated. CBI after investigation, filed final report as ‘not proved and false’ on 30.04.1996 CJM accepted the ‘Closure Report’ and discharged all accused on 02.05.1996, i.e, the next working day.

It was further contended that the allegations against officials, especially the 4 respondent are at the worst only “lack ofprofessionalism” and “he allowed the doubts and suspicions in themass media and the public mind to linger on” about the alleged role of Sri. Raman Srivastava. Allegations of ‘torture’ and ‘mental and physical harassment’ have been found to be baseless vide judgment of this Court of Kerala reported in 1995 (1) KLT 206. It was further contended that Ext.P2 was issued by the Government of Kerala after examining “the entire records of the case and proper application of mind”.

The allegations in paragraph (7) regarding the connivance of the 4 respondent with the Government were emphatically denied. It was contended that the 4 respondent has no personal interest in the alleged ISRO espionage case, and only on the basis of direction from the superior officers and Government the investigation of the case wastaken over by this respondent at its initial stage. The investigation remained with Kerala Police only for 20 days. Even after 15 years of receipt of Ext.P1, Government of Kerala never initiated any disciplinary action against 4 respondent. There was no departmental enquiry because Government were convinced about the hollowness of Ext.P1 and shab by investigation conducted by CBI, which prompted them to issue a Government Order ‘with drawing consent given to CBI to investigate the case’; it was contended. Since the Supreme Court quashed the said G.O vide judgement dated 29.4.1998, there was nofurther investigation against the petitioner. The petitioner in turn, has been harassing the respondents, especially 4 and 6 respondents by filing civil suit for damages and complaint before National Human Rights Commission. At the same time, he has not included 5 respondent in such proceedings. Petitioner has filed civil suit fordamages against respondents, including respondents 4 & 6, which is still pending as O.S No. 370/2003 before Sub Court-III, Trivandrum.

It was further contended that the Supreme Court did not go intothe merits of the case or evaluate the evidence. The Apex Court madeit clear that it was concerned only with the question of law ‘whether the withdrawal of consent given to C.B.I to investigate the case was legally sustainable or not’. The question of taking disciplinary action this respondent was never raised by the petitioner before the Apex Court, nor before the National Human Rights Commission, New Delhi. Therefore the petitioner is estopped from taking from making suchclaims at this belated stage; it was contended.

The allegation that arrest of the Petitioner was part of an “agendaof USA” accomplished by CIA in connivance with IB officials and respondents 4 to 6 and “so many officers” was strongly denied as false, incorrect, baseless and with oblique motives. It was further contendedthat the petitioner has never raised such contentions before this Court, and the Apex Court while challenging the notification issued by Government for further investigation of the ISRO case. CBI report, which the petitioner considers as authentic and sacred, has never hinted about such allegations. Such allegations are not raised even inthe civil suit for damages filed by the petitioner against the respondents, and others.

11. In the additional counter affidavit, the 4 respondent contended that the Kerala Police is investigating more than 1 lakh IPC cases each year. No DGP can ever supervise the investigation of these thousands of cases. The 4 respondent was instructed by the DGP to take over the investigation of Crime No. 246/1994 of Vanchiyoor Police Station by issuing proceedings dated 15.11.1994 Copy of the same is produced as Ext.R4(d). A plain reading of Ext.R4(d) would make it clear that the 4 respondent should keep the Director General of Police (Intelligence) “regularly informed” about all developments in the investigation of the case. In compliance of the said direction, the 4 respondentwas briefing the Director General of Police (Head of the Department) on a day to day basis. In fact the DGP was examinedas a witness in the defamation case C.C 1/2000, mentioned by the petitioner in para 4 of the reply affidavit, and he confirmedwhatever is sworn here by the 4 respondent are correct facts.

12. The 5 respondent filed counter wherein, it was contended as follows:

He has not suppressed any relevant information or materials from the case diaries and case records. He had only a minor role of assisting the 4 respondent who was entrusted with the investigation of the case being the head of the special investigation team. The special investigation team consisted of respondents 4, 5 and 6 and severalother officers, including a superintendent of police. It is stated that the 5 respondent had prepared the case diaries truly and carefully based only on the information and documents produced to him by the head of the special investigation team and the other members of the team. The members of this special investigation team were bound to carry out allthe legal directions of the head of the special investigation team and the members had no discretion to take independent decisions on the course of the investigation. In fact the duty of a member of the team was confined to the duties assigned to him by the head of the team. Assuch the 5 respondent cannot be held responsible for the alleged lapses in not conducting searches of certain places of certain suspected persons or collecting documents and evidences etc. The 5 respondent had done the duties assigned to him by the head of the special investigation team carefully and honestly and whatever was done by him was only as per the directions given by the head of the special investigation team; it was contended.

It was further contended that the Government issued Ext.P2 after examining the entire records of the case with proper application of mind. The petitioner filed the above writ petition out of vengeance and with a view to harass this respondent. The question of taking disciplinary action against the respondents 4 to 6 was never raised bythe petitioner before the Apex Court or before the National Human Rights Commission. For the last 15 years after the submission of Ext.P1 report the Government did not find any reason to initiate disciplinary action against these respondents. There is no statement in the CBI report that respondents 4 to 6 cooked up and fabricated the ISRO espionage case; it was contended.

It was also contended that no official communication by Government of India, Department of Space or ISRO has supported the contention that India could have earned billions of US dollars by developing cryogenic engine but for the occurrence of the arrest of the petitioner. Ext.P4 is neither authentic nor conclusive. The allegation, that arrest of the petitioner was a part of an agenda of USA accomplished by CIA in connivance with IB officials and respondents 4 to 6, and so many officials, is denied as false. The petitioner has not taken any contentions before the Apex Court or before this Court. None of the grounds raised by the petitioner is legally sustainable.

13. The 6 respondent filed counter wherein, it was contended as follows:

Crime No. 246/94 was registered based on his report whereinthe names of only two accused viz., one Mariam Rasheeda and Fousia Hassan find a place. He was not involved or included in the investigation conducted by the Special Team as he was admitted in the Government Hospital at Iranimuttom for treatment of Chickenpox since 15.11.1994 Hence, the allegation that the 6 respondent was alsoinvolved in torturing the petitioner is absolutely false.

It was further contended that on getting information about the submission of final report by the C.B.I before the CJM's Court, Ernakulam on 01.05.1996 through the dailies, the 6 respondent appeared before the CJM Court, Ernakulam on 02.05.1996 and filed an objection under Section 173(2)(ii) Cr.P.C stating that he was not issued with the statutory notice as the informant of the case under consideration. The said objection was rejected and the CJM accepted the final report on the same day. Later, the 6 respondent received reliable information that the Chief Judicial Magistrate Sri. D. Mohana Rajan was a close relative of 3 accused Sri. Sasikumar. The CJM ought not have involved in the disposal of the case by avoiding thematter either with the approval of the District and Sessions Judge, Ernakulam or the Hon'ble High Court of Kerala; it was contended.

It was further contended that Ext.P1 report was submitted to the Chief Secretary, Government of Kerala by one Sharad Kumar, Dy. Inspector General of Police, C.B.I with recommendation “for necessary action as deemed fit” vide letter dated 03.06.1996 He was not a part of the team which investigated the case. He only forwardeda “self contained note”. The officer who prepared this “self contained note” is unknown, since it is neither signed nor dated. Hence, it cannot be taken as a basis either to take disciplinary action or criminal action against respondents 4 to 6; it is stated.

It was also contended that the Apex Court was considering only a question of law, and did not pass any orders about the contents of P1. The question of taking disciplinary action against respondents 4 to 6 was never raised by the petitioner before the Apex Court, or before the National Human Rights Commission, New Delhi.

It was also contended that no official communication by Government of India, Department of Space, or ISRO has supported the contentions that India could have earned billions of US dollars by developing cryogenic engine but for the occurrence of the arrest of the petitioner. The petitioner was reinstated in service and continued towork in ISRO till retirement in 2001. But, he was never given any important assignment, connected to cryogenic engine, possibly because the Government of India knew that the allegations of espionage againstthe petitioner was correct.

It was also contended that there was no connivance by respondents 4 to 6 in causing delay in issuance of Ext.P2 The Apex Court has never issued any direction to respondents 1 and 2 to take disciplinary action against the 6 respondent. The CJM issued orders on 02.05.1996 without proper application of mind, on the CBI report numbering 200 pages, which was filed on 30/04/1996. May 1 was aholiday. CJM could not have examined the CBI report seriously andwith proper application of mind, in an unbiased manner. Withoutissuing notice to CBI for their remarks against the petition filed by the 6 respondent, the CJM accepted the final report on 02.05.1996 itself. There is not even a single line in the CBI report supporting theallegation that because of the ISRO case India lost billions of US dollars and could not develop cryogenic engine. The C.B.I report contained only a vague recommendation to the 1 respondent to “take necessary action as deemed fit”. The 1 respondent has issued Ext.P2 after proper application of mind. The petitioner had not raised anysuch questions put in Ground D for the last 18 years, after his arrest, before any judicial forum. The demands made by the petitioner areillegal, illogical and only based on his whims and fancies; it was contended.

14. The petitioner has filed reply affidavits to the counterfiled by respondents 1 and 2, and the 4 respondent.

15. I have heard learned counsel for the petitioner, the learned Additional Advocate General, the learned counsel for the C.B.I, learned Senior Counsel for the 4 respondent and learned counsel appearing for respondents 5 and 6 quite in extenso.

16. The learned counsel appearing for the petitioner invitingmy attention to Ext.P1 report would submit that there is a categorical finding by the CBI, which is the prime investigating agency of this country, that respondents 4 to 6 have committed irregularities in the investigation of ISRO espionage case and it was a false case. The learned counsel for the petitioner wouldpoint out that dropping of proceedings against respondents 4 to 6 was on flimsy reasons and, therefore, the interference of this Court is necessary.

17. The learned additional Advocate General as well as the learned Senior Counsel for the 4 respondent would submit that itis the prerogative of the State to consider whether action has to be taken against its employees and it cannot be a subject matter to beinterfered with, in exercise of the powers under Article 226 of the Constitution of India. The learned Senior Counsel for the 4 respondent made a frontal attack against the authenticity of Ext.P1 report on the ground that it is neither signed or dated. However, itis crucial to note that in Ext.P2 order, which is under challenge, reference was made to Ext.P1 report. The date of the report ismade mention of as 03.06.1996 Neither the State nor the partyrespondents have a case that a report other than Ext.P1 was submitted by the C.B.I before the State Government requiring action against respondents 4 to 6.

18. Ext.P1 report was treated with approval and respect by the Government and admittedly explanations were sought from respondents 4 to 6. Therefore, the present objection that Ext.P1 was an unsigned report lacking recommendation from CBI, is only to be overruled.

19. The material question that has to be answered is whether the State Government was justified in deciding not to take anyaction against respondents 4 to 6 as per Ext.P2 The relevant portion of Ext.P2 reads as follows:-

“Both the CBI and the accused-discharged persons approached the Hon'ble High Court against the action of Government of Kerala. However, the High Court upheldthe action of the Government. Against this the CBI andthe accused - discharged persons approached the Supreme Court through SLPs against the action of Government of Kerala.

In the meantime Government examined the case withreference to the views obtained from the State Police Chiefon the observation of the CBI along with the explanationof the officers concerned. After examination it was decided to await the decision of the Hon'ble Supreme Court. The Hon'ble Supreme Court allowed the prayer of the CBI and the accused discharged persons questioningthe notification issued by the Government withdrawing the consent given to the CBI to investigate into the espionagecase and also to “further investigate” the ISRO espionagecase and also directed to give Rs. 1 Lakh each to theaccused appellants as cost.

Government examined the matter with reference tothe entire records of the case and in proper application ofmind. It has been found that neither the Hon'ble Chief Judicial Magistrate Court who accepted the Final Reportnor the Hon'ble Supreme Court had issued any directionto take action against the investigating officers viz.- Shri S. Vijayan, the then Inspector, Special Branch, Thiruvananthapuram City, Shri K.K Joshwa, the then Dy. SP, CB CID, Thiruvananthapuram, Shri Siby Mathews, thethen DIG (Crimes) of the Special Investigation Team who investigated into the ISRO Espionage case.

In the circumstances, Government are of the view that it is not proper or legal to take disciplinary action against the officials for the alleged lapses pointed out inthe investigation report of the CBI at this juncture, afterthe lapse of 15 years and therefore Government decidethat no disciplinary action need be taken against the above officials for their alleged lapses in the investigation of the ISRO Espionage case and it is ordered accordingly.”

(emphasis supplied)

20. It is not the prayer of the petitioner to re-open the ISRO espionage case once again and to go for a further investigation. On the other hand, the petitioner points out that this is a legallyfinalised matter by the Apex Court and cannot be reopened by anybody who respects the Constitution of India. The petitioner points out that the final conclusions of the C.B.I and courts of law reveal that the petitioner was tortured. The petitioner alleges thatthe closure report was accepted by the Chief Judicial Magistrate's Court, Ernakulam and it was further accepted by this Court by dismissing all the appeals against the order of the CJM's Court accepting the closure report. It was also alleged that the closurereport was further accepted by the Apex Court which quashed the executive order of the Government for further investigation. Stillfurther, the National Human Rights Commission has also passed recommendations to pay immediate interim relief to the petitioner which was upheld by a Division Bench of this Court; it was pointed out.

21. Following are findings of the C.B.I regarding omission and commission on the part of the officers of the Kerala Police:

1. Shri S. Vijayan, the then Inspector, Special Branch, Trivandrum City (6 respondent).

(i) He questioned Mariyam Rasheeda and Fauzia Hassan startingwith 14.10.94 when they had approached him for getting thenecessary permission for stay beyond 90 days in respect of Mariyam Rasheeda. He advised Mariyam Rasheeda to get aconfirmed ticket for her return. Accordingly, she purchased Indian Airlines Ticket Ex. Trivandrum - Male (W/L) and another OK ticket of Srilankan Airlines Ex. Trivandrum - Colombo for 17.10.94 Shri Vijayan, however, kept with him the tickets of Mariyam Rasheeda unauthorisedly and on 20.10.94, arrested Mariyam Rasheeda at 4.15 PM and lodged a complaint with PSVanchiyoor on the basis of which an offence u/s 7 of Foreigners Order, 1948 r/w 14 of the Foreigners Act, 1946 was registered. Theseizure of the tickets was not shown even after the registration of the case and, thus, he caused obstruction to Mariyam Rasheeda'sreturn to Male on 17.10.94

(ii) He took over the investigation of Case Crime No. 225/94, PSV anchiyoor on 3.11.94 and he was entrusted with the Policecustody of Mariyam Rasheeda from 3.11.94 to 14.11.94, by the Hon'ble CMM, Trivandrum. But, he willfully surrendered the custody of accused Mariyam Rasheeda to IB officials in contravention of the Court orders and caused the IB officials alone interrogating accused Mariyam Rasheeda and torturing her. Shri Vijayan has recorded in his several case diaries that the IB officialsasked him to get out of the room and therefore he had to leave theroom leaving the lady accused to the male officials of IB. He isthus, liable for dereliction and abrogation of legal duties.

(iii) On 9.11.94, Mariyam Rasheeda disclosed about her contacts with accused Sasikumaran and Chandra Sekhar of Bangalore. Inspector Vijayan took no steps to question immediately either Sasikumaran or Chandra Sekhar and to confront them with Mariam Rasheeda so as to bring out the truth especially in the context of wide media coverage from 22.10.94 onwards alleging espionageactivities.

(iv) The basis of his deduction that Mariyam Rasheeda and Fauzia Hassan had come to India for espionage purposes has not beenbrought out on record by him. During investigation, he did notcollect any information about any particular espionage activity committed by the accused. Despite this, he preferred to lodge areport at PS Vanchiyoor on 13.11.94 that Mariyam Rasheeda and Fauzia Hassan had committed activities prejudicial to the sovereignty and integrity of the State. The main grounds mentioned in the FIR for allegation of espionage is that Mariyam Rasheeda contacted Sasikumaran several times and that she had made lot of entries in her diary which was seized by them. Verification of these telephone calls and a translation of the diaryentries would have confirmed that they have nothing to do with ISRO or espionage. Without any verification, Inspr. Vijayan askedin haste to lodge an FIR on allegations of espionage. Inspector Vijayan, thus, acted in an unfair and unprofessional manner, thereby causing avoidable harassment and suffering to the accused persons.

(v) While accused Mariyam Rasheeda was in his personal custody, he allowed the IB officials to ill-treat her and even he himself threatened Mariyam Rasheeda of dire consequences.

(vi) In his statement u/s. 161, he admitted having shown photograph of IG Raman Srivastava to Mariyam Rasheeda. Butstrangely enough, he did not bring this fact on record. Nor did hebring on record the rationale of why only Raman Srivatsava's photograph was shown to Rasheeda. This shows malafides andlack of professional integrity on his part.

2. Shri K.K Joshwa, the then DSP, CB. CID, Trivandrum. (5 respondent)

He was drafted in the Special Investigation Team which took over the investigation of Case Crime No. 225 and 246 of 1994 of PSV anchiyoor on 15.11.94 That very day, he was assigned the job ofpreparing the case records.

(i) In his CD dt. 16.11.94, he recorded that both accused Fauziya Hassan and Mariyam Rasheeda admitted that they came to India tocollect vital informations for some agents of alien countries andthat they contacted Sasikumaran, Scientist of LPSC, Valiamala and Chandrasekhar of Bangalore and others and collected valuableinformations and passed on the same to foreign countries. However, he did not record the statements of accused on 16.11.94 Neither did he mention the details of the alleged valuable informations.

(ii) Assuming that it became known to him on 16.11.94 that valuable informations had been passed on to foreign countries, hetook no immediate steps to recover any incriminating documents byway of conducting the house searches of the Sasikumaran and Chandrashekhar. It may be mentioned that their names had figured even during the course of investigation of Crime No. 225/94.

(iii) It is on record that the interrogation of accused Fauzia Hassan, Chandra sekhar and Sasikumaran was videographed by IB but thesame has not been indicated in the case records in spite of the factthat the custody of the accused was with the Kerala Police.

(iv) Though it has been brought on record that the accused were interrogated by IB officials, no interrogation report what-so-everprepared by the IB was taken on record by him. Nor did he verifythe allegations contained in the statements.

(v) The statement of accused S.K Sharma has been recorded on 3.12.94 but the corresponding CD has not been issued by Shri K.K Joshwa.

(vi) The accused during questioning by CBI have stated that they were mentally and physically tortured during police custody as aresult of which, they had to make statement on suggested lines. The investigation also disclosed that accused Nambi Narayanan and Chandra Sekhar were given medical treatment while in police custody on 3.12.94 and 28.11.94 respectively. However, the fact of medical treatment given to the accused has been suppressed from the case diaries and case records by DSP K.K Joshwa.

(vii) Accused Chandra Sekhar in his statement dated 28.11.94 had allegedly stated that IGP Raman Srivastava attended the meeting in International Hotel, Madras on 22/23.1.94 and subsequently attended a meeting at Indira Nagar Club, Bangalore in September, 1994. Shri Joshwa took no steps either to question Shri Raman Srivastava or check the official records which were available toascertain the movements of Raman Srivastava which tantamounts to dereliction of his duties.

(viii) On the one hand, Kerala Police was suspecting espionage activities and on the other hand, they delayed the conduct of house searches etc. to recover incriminating documents, if any, which isclear from the fact that the house and office search of accused Sasikumaran at LPSC, Valiamala were conducted on 30.11.94 inspite of the fact that the accused has been arrested by them on 21.11.94 There is nothing on record to justify such a delayed search. Similarly, though Nambi Narayan was arrested on 30.11.1994, house search was not conducted till the case washanded over to the CBI on 4.12.1994

(ix) The house search of Shri Mohana Prasad, (a Scientist of LPSC, Valiyamala) as mentioned in letter dt.16.12.94 of Shri Siby Mathewhas not been reflected in the case records of Shri K.K Joshwa.

4. Shri Siby Mathew, DIG, Crime. (4 respondent)

(i) Shri Siby Mathew was heading the Special Investigation Team and was, therefore, fully responsible for the conduct ofinvestigation in the aforesaid two cases. Investigationconducted by the CBI has revealed that he did not takeadequate steps either in regard to the thorough interrogation of the accused persons by the Kerala Police or verification of theso called disclosures made by the accused persons. In fact heleft the entire investigation to IB, surrendering his duties. Heordered indiscriminate arrest of the ISRO Scientists and otherswithout adequate evidence being on record. It is stressed thatneither Shri Siby Mathew and his team recovered any incriminating ISRO documents from the accused persons norany monies alleged to have been paid to the accused persons by their foreign masters. It was unprofessional on his part to haveordered indiscriminate arrests of top ISRO scientists who played a key role in successful launching of Satellites in the space and thereby caused avoidable mental and physical agony to them.

(ii) Shri Siby Mathew sent a report vide his letter dated 16.12.94 to DGP, Kerala, stating therein that it wasembarrassing for him to conduct further investigation into thealleged role of Raman Srivastava, IGP in this episode as eventhe IB had not enlightened him about the grounds on whichthey were suspecting Raman Srivastava's involvement. Being asenior officer he should have verified the facts from allpossible angles and conducted investigation in a professional way and thereafter taken a clear and firm stand on the role of Raman Srivastava. It is unfortunate that he allowed the doubts and suspicions in the mass media and the public mind to lingeron without conducting proper verification.

(iii) While handing over the case records to the CBI, Shri Mathew in his CD dated 4.12.94 recorded that CBI should conduct investigation on certain points, namely, the office and house search of Nambi Narayanan; verification of investmentsmade by the accused persons with Thomas Kurisinkal of Cochin; fixing up the identity of Brig., also known as Coatwala, nature of secret documents alleged to have beensecreted out by Mehbood Pasha/Mohiuddin and verification of the records of Hotel Madras International, regarding the stay of the accused persons therein on 24/1/1994 etc. It is important tomention that Shri Mathew took over the charge of the cases on 15/11/94. The case continued with him till 4 of Dec. 1994. Thus, the case remained with him for about 20 days. It issurprising that he did not take any steps at his own level toconduct investigation on the points suggested by him. Since Shri Mathew was based at Trivandrum there was n ojustification for not having the searches conducted in theofficial/residential premises of accused Nambi Narayanan, though Nambi Narayan was arrested by the Kerala Police on 30.11.1994 Even though accused Sasikumaran was arrestedon 21/11/94, his house search was conducted on 30/11/94 i.e after 7 days for which there is no justification. This shows lack of professionalism on his part.

(iv) Shri G. Babu Raj, the then SP, CB, CID, Trivandrum in his CD dated 24/11/94 clearly recorded that the person who had accomplished Rasheeda and Fauziya to the Army Club at Bangalore in June' 94, was Sqn. Ldr. KL Bhasin. He, thus, ruledout the possibility of Shri Raman Srivastava's presence in thesaid Club along with the Maldivian ladies. The case diary ispresumed to have been submitted to Shri Siby Mathews, being In-charge of the team. It is intriguing that Shri Mathew did nottake any steps to educate the media about the outcome of theinvestigation conducted by his team on this aspect and, thus, deliberately and intentionally allowed the rumours to float un-interrupted and thereby caused deep embarrassment to Shri Raman Srivastava. It may be added that notwithstanding theclear finding given by his own SP, Shri Mathew before handingover the case to the CBI, recorded in his CD dated 4/12/94 thatfurther investigation is required to be conducted to firmly fixup the identity of Brig. or Coatwala. It is not known as to why he did not enquire into the aspect himself for 20 days, when thecase was being supervised by him. He is also not clear as to why Shri Mathew did not examine Raman Srivastava in thismatter. It appears that he deliberately and intentionally allowed the investigation to drift for reasons best known to him.

(v) Shri Sibu Mathew in his statement u/s. 161 has admitted that photograph of Shri KL Bhasin was collected at Bangaloreand on return to Trivandrum, the photograph of Bhasin was shown to accused Fauziya Hassan who identified thephotograph of Shri Bhasin to be of the person with whom she and Mariyam Rasheeda went to a place which looked like Army Club at Bangalore. However, this fact had not been brought on record.

(vi) Shri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz. Hotel Fort Manor, Hotel Pankaj, Hotel Luciya etc. which were located at Trivandrum to ascertain the veracity of the statements of accused persons. Similarly, he failed to get the records of Hotel International, Madras, checked up notwithstanding the fact thatthe investigation remained with him for 20 days.”

22. The report concludes stating that the aforesaid facts arebeing brought to the notice of the competent authority for theirkind consideration and for such action as deemed fit.

23. With reference to the aforesaid observations, the learned counsel for the petitioner would argue that respondents 4 to 6 havehatched a criminal conspiracy to foist a false and frivolousespionage case against the petitioner and others of ISRO, arrestedand detained the petitioner and others, attempted to fabricate false evidence, forging the confession statements of alleged accused stating that such false confession statements extracted from the petitioner herein and other accused in suggested lines under extreme duress were genuinely given by the accused and used the same in court to reject the bail applications of the petitioner and other accused and creating such false case, indiscriminate arrest, detention etc. of the petitioner and others committed offences amounting to criminal conspiracy, fabricating false evidence, forgery for the purpose of harming reputation of the petitioner andothers, using as genuine a forged document and false charge of offence made with intent to injure. It was pointed out that the petitioner was subjected to irreparable damage and he was forced to pay heavily for no fault of his own.

24. In the additional counter affidavit filed by the State it isstated that the then Chief Minister on 12.12.1997 had minuted onthe file to await for the decision of the Apex Court in the matter oftaking action against respondents 4 to 6 pursuant to Ext.P1 reportof the C.B.I Therefore, it is evident that the then Chief Ministerof Kerala did not agree to drop the action against respondents 4 to 6 as recommended by the Additional Chief Secretary. Instead of agreeing to the proposal of the Additional Chief Secretary, the Chief Minister wanted to wait for the verdict of the Apex Court. The reason now pointed out in Ext.P2 was that there is nothing in Ext.P3 order passed by the learned CJM nor in the judgment passed by the Apex Court that action has to be taken against the investigating officers. The lapse of 15 years is also pointed out as another circumstance to drop the proceedings.

25. The learned additional Advocate General as well as thelearned Senior Counsel for the 4 respondent would argue that the Apex Court has not stated anything regarding the involvement of the petitioner or other accused in the espionage case as it was only considering the competency of the order of the State Government to order re-investigation.

26. The decision of the Apex Court in K. Chandrasekhar v. State of Kerala [AIR 1998 SC 2001] was made available to me and I have perused the same. In para(26) of the said judgment, the Apex Court observed as under:

“26. Even if we were to hold that the State Government had the requisite power and authority to issuethe impugned notification, still the same would be liable tobe quashed on the ground of malafide exercise of power. Eloquent proof thereof is furnished by the following factsand circumstances as appearing on the record:-

(i) while requesting the Director General of Police, Thiruvananthapuram, to transfer the case to C.B.I forinvestigation by his letter dated 30.11.94, Shri Mathew, the Deputy Inspector General of Police (who, as noticed earlier, impleaded himself as a respondent in the writ petitions filedby the accused - appellants in the High Court) stated asunder:-

“(1) The incidents of this case are spread over thethree states of Kerala, Tamilnadu and Karnataka andforeign locations like Colombo and Male.

(2) There is reason to believe that strategically important information about the IAF/Armed Forces (R & DWing) have been passed on by the espionage chain tounfriendly countries. The complicity of senior militarypersonnel is very likely. The State police may not be able toquestion them, conduct search in their office, etc.

(3) There is information (not fully authenticated) about the involvement of a senior officer.

Due to the above mentioned reasons, I do not think the Special Team now in charge of the case could be able to dofull justice to the case. This is a fit case to be transferred tothe Central Bureau of Investigation who are better equippedand also have the advantage of being a Central Police Investigating outfit.”

(Emphasis supplied)

That on the basis of the above letter the Director General of Police recommended investigation by the CBIand the Government of Kerala in its turn issued the notification dated December 2, 1994 (quoted earlier) wouldbe evident from the explanatory note appended thereto. Ifthe above formidable impediments stood in the way of the State Government to get the case properly investigated by itspolice and impelled it to hand over the investigation the C.B.I it is hardly conceivable that the State Government would be able to pursue the investigation effectively as those impediments would still be there. Mr. Shanti Bhushan, however, contended, relying upon the following Statement made by Shri K. Dasan, an Additional Secretary to the Government of Kerala in his counter-affidavit (filed on February 20, 1997 in Criminal Appeal No. 489 of 1997):-

“Having regard to the question of public importance involved in this matter the Government ordered that further investigation should be takenby a Special team handed by senior officials of Kerala state police assisted by senior officials of the Intelligence Bureau, RAW and intelligence wingin the defence organisation of Govt. of India.”

That there would be no difficulty in carrying on an effective and purposeful investigation with the assistanceof the related organisations of the Central Government. Having regard to the stand taken by the Central Government that they are satisfied with the report ofinvestigation of the C.B.I we are not prepared to acceptthe above statement, in the absence of any supporting affidavit on behalf of the Government of India or any ofthose organisations;

(ii) On a careful perusal of the police report submitted by the C.B.I on completion of the investigation (which runs through more than 100 pages) we find that ithas made a detailed investigation from all possible angles before drawing the conclusion that the allegations of espionage did not stand proved and were found to befalse. Mr. Shanti Bhushan, however, drew our attention tocertain passages from that report to contend that C.B.I only ‘Investigated the Investigation’ (to use the words of Mr. Shanti Bhushan), which had been carried on for lessthan three weeks by the Kerala police and the Intelligence Bureau of the Central Government, in its (C.B.I's) anxiety to establish that the statements of theaccused - appellants recorded by the Kerala Police and the Intelligence Bureau could not be accepted as correct. He also drew out attention to pages 7 to 15 of the counteraffidavit filed by Shri T.P Sen Kumar, Deputy Inspector General of Police, Kerala (In Criminal Appeal No. 491of 1997), wherein detailed reasons have been given fornot accepting the police report submitted by the C.B.I and for the State Government's decision to withdraw theconsent. After having gone through the relevantaverments made in those pages we find that the main endeavour of Shri Sen Kumar has been to demonstratethat the conclusions arrived at by the C.B.I from thematerials collected during investigation were wrong andnot that the investigation was ill directed or that thematerials collected in course thereof were insufficient or irrelevant. If the State Government found that theconclusions drawn by the C.B.I were not proper, the only course left to the State Government, in our opinion, wasto ask the Central Government to take a different view of the materials collected during investigation and persuade it to lodge a complaint in accordance with Section 13 of the I.O.S Act. The contention of Mr. Shanti Bhushan that the C.B.I only ‘investigated into theinvestigation’ is also without any basis whatsoever for wefind that keeping in view the statements made by some of the accused appellants, the C.B.I sought for theassistance of INTERPOL and got a number of personsexamined by them in Srilanka and Maldives [besides anumber of witnesses in India, who were examined by it (C.B.I)]. Further, we find that the State Government didnot canvass any satisfactory ground justifying further investigation, while seeking permission of the Chief Judicial Magistrate for that purpose;

(iii) Though the investigation of the case centered round espionage activities in I.S.R.O no complaint wasmade by it to that effect nor did it raise any grievance onthat score. On the contrary, from the police reportsubmitted by the C.B.I we find that several scientists ofthis organisation were examined and from the statements made by those officers the C.B.I drew the following conclusion:-

“The sum and substance of the aforesaid statements is that ISRO does not have a system ofclassifying drawings/documents. In other words, the document drawing are not marked as Top Secret, Secret, confidential or classified etc. Further, ISRO follows an open door policy in regard to the issue of documents to scientists. Since ISRO, is a researchoriented organisation, any scientist wanting to studyany document is free to go to the Documentation Cell/Library and study the documents. As regards theissue of documents to various Divisions, the procedure was that only the copies used to be issued to thevarious divisions on indent after duly entering thesame in the Documentation Issue Registers. During investigation, it has been revealed that Fabrication Divn. where accused Sasikumaran was working, various drawings running into 16,800 sheets wereissued and after his transfer to SAP, Ahmedabad on 7.11.1994, all the copies of the drawings were found tobe intact. Nambi Narayan being a senior scientist, though had access to the drawings, but at no stageany drawings/documents were found to have beenissued to him. they have also stated it was usual forscientists to take the documents/drawings required forany meetings/discussions to their houses for study purposes. In these circumstances, the allegation that Nambi Narayan and Sasikumaran might have passedon the documents to a third party, is found to be false.”

It further appears that at the instance of C.B.I, acommittee of senior Scientists was constituted toascertain whether any classified documents of theorganisation were stolen or found missing and theirreport shows that there was no such missing documents. There cannot, therefore, be any scope for further Investigation in respect of purported espionageactivities in that organisation in respect of which onlythe Kerala police would have jurisdiction to investigate;

(iv) The Government of India, by supporting thecase of the writ petitioners (the accused - appellants) in the High Court, and filing some of these appeals in this Court and an affidavit in connection therewith has, in nouncertain terms, made it abundantly clear that they aresatisfied with the investigation conducted by the C.B.I and they strongly oppose any attempt on the part of the State Government to further investigate into the matterby its police. In spite thereof the State Government hashad been pursuing the matter zealously and stronglydefending their action, knowing fully well that a prosecution can be launched by or at the instance of Central Government only. Having known the stand of the Government of India it was expected of the Government of Kerala to withdraw the impugned notification, for in the ultimate analysis any further investigation by it would be an exercise in futility; and

(v) Though, (as held by this Court in Jamuna v. State of Bihar, AIR 1974 SC 1822 the duty of the Investigating Agency is not merely to bolster up aprosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth, yet the Kerala Government wants theinstant case to be further investigated by a team nominated by it with the avowed object of establishingthat the accused - appellants are guilty, even after the investigating agency of its choice, the C.B.I, found thatno case had been made out against them. This will beevident from the following passage from the order dated December 13, 1996 passed by the Chief Judicial Magistrate, Thiruvananthapuram while granting permission to the Kerala Police to further investigate:-

“The report submitted by the Director General of Police discloses the fact that he has got reliableinformation that the conclusions arrived at by the C.B.I during investigation were not correct. If the case is further investigated more evidence can be collected which would point towards the quilt of the accused.”

(Emphasis supplied)

And from the order of detention dated September 6, 1997 passed against the appellant Mariyam Rashida by Mr. Mohan Kumar, Additional Chief Secretary, Governmentof Kerala. The said order reads as under:-

“WHEREAS Smt. Mariyam Rasheeda who is a Maldivian National, a foreigner, is an accused in Crime No. 246/94 of Vanchiyoor Police Station. Thiruvananthapuram.

WHEREAS in the judgment dated 27-12-1996 in O.P Nos. 12747/96, 14248/96, 15363/96 and 16358/96 the Hon'ble High Court of Kerala said that the order of Government of Kerala to conduct further investigationin the above crime case is valid.

WHEREAS the Government of Kerala have taken steps to obtain the formal permission of the Chief Judicial Magistrate, Thiruvananthapuram to conduct further investigation.

AND WHEREAS the Government of Kerala are satisfied that there is sufficient evidence to proceedagainst the said Mariyam Rasheeda for the offence u/Ss. 3 and 4 of the Official Secrets Act and for the purpose offurther investigation, her continued presence in India is absolutely necessary and that she is likely to abscondand act in a manner prejudicial to the defence of India and the security of India, unless detained.

NOW THEREFORE the Government of Kerala hereby order that the aforesaid Smt. Mariyam Rasheeda bedetained under section 3(1)(a) and (b) of the National Security Act, 1980 (Act No. 65 of 1980) in the Central Prison, Viyyoor, Thrissur.”

(Emphasis supplied)

If before taking up further investigation an opinion has already been formed regarding the guilt of theaccused and, that too, at a stage when the commission of the offence itself is yet to be proved, it is obvious that theinvestigation cannot and will not be fair and its out comeappears to be a foregone conclusion.”

27. In the circumstances referred to the above, the Apex Court was constrained to say that the issuance of the notification withdrawing the case from the C.B.I and entrusting the same withthe State Police did not comport with the known pattern of a responsible Government bound by rule of law and it is undoubtedly a matter of concern and consternation. Their Lordships abstained from saying anything more. The Apex Court allowed the appeals by the petitioners and others and quashed theimpugned notification, and directed the State Government to pay asum of .1 lakh each to the 6 accused as costs.

28. The aforesaid judgment was pronounced on 29.04.1998 However, the file relating to Ext.P1 which waited for the decisionof the Apex Court did not see light till Ext.P2 dated 29.06.2011 was passed. No satisfactory explanation is forthcoming as to why 13 years were taken to take a decision on the file where the Chief Minister has specifically ordered to await for the decision of the Apex Court, as admitted in the additional counter affidavit filed bythe State. This is the reason pointed out by the petitioner to hold that Ext.P2 Government order is a product of mala fides, favouritism and against the known pattern of good governance ofa responsible Government bound by rule of law. In effect, Ext.P2 Government order is a mockery to the public and the unfortunate victims, including the petitioner; it was argued. I have no hesitation to accept the said argument as no satisfactory explanation is forthcoming from the respondents for the delay. Strangely enough the respondents were contending that there is inordinate delay in filing this writ petition.

29. The main argument advanced by the respondents is thaton receipt of Ext.P1, the Government conducted an enquiry and Ext.P2 order was passed after proper application of mind. The nature of the so-called enquiry conducted by the Government isrevealed through the counter affidavit filed by the State. According to the State, the Director General of Police conductedan investigation and sought explanation from respondents 4 to 6. It is crucial to note that the 4 respondent was the D.I.G of Crimeand, therefore, an enquiry conducted by a superior officer in the same department leading to the decision not to take any actionagainst respondents 4 to 6 was nothing, but a force.

30. Ext.P1 is the report forwarded by the C.B.I which is the prime investigating agency of this country, which contains certainallegations against respondents 4 to 6 which are quite disturbing. It is crucial to note that the investigation conducted by the C.B.I leading to the closure report submitted by them before the Chief Judicial Magistrate had gained acceptance by the Apex Court. Though the closure report was challenged before this Court, it waswithout success. Under such circumstances, the State should not have dealt with Ext.P1 report in such a casual manner by conducting a namesake enquiry wherein the petitioner herein and other accused were not given an opportunity to participate.

31. This does not mean that respondents 4 to 6 should have subjected to punishment straightaway. Such a course would beequally disastrous. The proper course open to the State Government was to bring respondents 4 to 6 before a competentforum where the matter could have been adjudicated on the basis of material particulars supplied by both sides.

32. Another argument advanced by the the respondents is that when the petitioner was arrested and produced before the Additional Chief Judicial Magistrate's Court on 09.12.1994, he did not complain about any torture. Here, I would like to point outthat the arrest and detention of innocent persons on false accusations is nothing, but torture. Physical assault is not anecessary ingredient of torture. It is an admitted case that the petitioner at the time of his arrest was a senior Scientist in the ISRO, which took our nation to the membership of space club. It is the definite case of the petitioner that the 4 respondent arrested him on 30.11.1994 without conducting any search in his office, or residence and without any seizure of any incriminating evidence, that too, after the 4 respondent had sent Ext.R4(b) report recommending to hand over investigation to C.B.I

33. The following observation of the Apex Court in Lucknow Development Authority v. M.K Gupta. [(1994) 1 SCC 243] is worth quoting in this context:

“The jurisdiction and power of the courts to indemnify a citizen for injury suffered due to abuseof power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome on the principle that, ‘an award of exemplary damages can serve a useful purpose invindicating the strength of law’. An ordinary citizenor common man is hardly equipped to match themight of the State or its instrumentalities. That isprovided by the rule of law. It acts as a check onarbitrary and capricious exercise of power. In Rookes v. Barnard it was observed by Lord Delvin, ‘the servants of the government are also the servantsof the people and the use of their power must always be subordinate to their duty of service’. A Publicfunctionary if he acts maliciously or oppressivelyand the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it. Compensation of damage as explained earlier mayarise even when the officer discharges his dutyhonestly and bonafide. But when it arises due to arbitrary or capricious behaviour then it losses itsindividual character and assumes social significance. Harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harm him personally but theinjury to the society is far more grievous. Crime and corruption thrive and prosper in the society dueto lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.”

34. If midnight arrests or house breaking by the Police isa llowed to become order of the day and no one has the courage totell the State that life and liberty are too fundamental to be a matterof grace, when the State is brazen enough to assert that life andliberty of the subjects are purely dependent upon the executive's decision, either to allow or to deny such rights, the same wouldsound the death knell of an egalitarian democratic society.

35. The prerogative of the State was pointed out as one of the circumstance to non-suit the petitioner, as if the petitioner hasno business to question the validity of Ext.P2 If this Court accepts the said contention, this Court would be submitting itself to absolutist Government which is virtually the last step in thedestruction of our Constitution.

36. It was further contended by the respondents that the petitioner has availed remedies before the Sub Court, Thiruvananthapuram as well as the National Human Rights Commission. In those proceedings, the petitioner is claiming otherreliefs which this Court cannot grant. Here, in this case, the petitioner is projecting his grievance against the action of the Government in exonerating respondents 4 to 6 on flimsy grounds from the allegations made mention of in Ext.P1

37. Though the learned Senior Counsel for the 4 respondent tried to explain away that the omissions and actions on the part of respondents 4 to 6 are at the worst only lack of professionalism, Iam not inclined to accept the said theory because respondents 4 to 6 were experienced officers under the Kerala Police, who were well tutored in the craft of investigation of crime.

38. The argument that the Kerala Police is investigating more than one lakh IPC cases in an year, is not a valid reason for aperson like the 4 respondent to justify the irregularities pointedout in Ext.P1 At the time of registration of the crime, the State Government felt that the matter has to be investigated by a specialteam. That is why the team headed by the 4 respondent wasconstituted. He cannot be heard to say that it was not at allpossible for him to personally supervise the investigation of thecase which was specifically made over to the Special Team headedby the him. It is here, the 4 respondent should be reminded of thewords of the Apex Court in Jamuna v. State of Bihar [AIR 1974 SC 1822] that the duty of the investigating agency is not merely tobolster up a prosecution case but to bring out the real unvarnished truth. While the Special Investigation Team failed in that, the C.B.I has done that.

39. Another argument advanced by the respondents was that the Special Team headed by the 4 respondent investigated the case initially only for a period of less than 20 days. But, it appears from Ext.P1 that within that short time, enough damage has been done.

40. It is surprising to note that the 6 respondent in the counter affidavit has raised an unchased allegation against the then Chief Judicial Magistrate who passed Ext.P3 order accepting theclosure report. As already pointed out, the view taken by thelearned Magistrate was accepted by this Court and the same had gained acceptance by the Apex Court in the appeals filed by the petitioner and other accused. As the legality of the finding enteredinto by the learned Magistrate has attained finality, it was improperon the part of the 6 respondent to make such a statement in thecounter affidavit filed by him.

41. In spite of various challenges put forward by the respondents against Ext.P1, this Court is of the definite view thatthe commission and omission made mention of in Ext.P1 should not have occurred during the course of a fair investigation.

42. The petitioner has a case that launching of crime against him and other scientists of ISRO was a result of international conspiracy to stall the introduction of Cryogenic Engine Technology in Indian Space Research. According to the petitioner, but for this espionage case, the ISRO could have developed cryogenic engine about 14 years back and India would havebecome very strong contender of US Space Technology. I am not intending to pronounce anything on the same as the province ofconsideration in this writ petition is limited to the legality, regularity and propriety of Ext.P2 order. Reports are there that India would be using Cryogenic Engine Technology without muchdelay in space technology.

43. Now India is keeping historic date with Mars as Mangalyaan at the cost of $ 74 million, inserted the space craft into the Mars orbit making it the world's cheapest inter planetary mission. It was the Polar Satellite Launch Vehicle (PSLV) developed by ISRO, which put the Mars Space Craft into an earth bound orbit on November 5, 2013. As a Scientist of ISRO, the petitioner along with other scientists has made contributions in developing the aforesaid Satellite Launch Vehicle. While the spacecraft in the orbit rounds the Mars, the petitioner continues his fight for justice.

44. The State Government, which was enthusiastic in withdrawing the case from the C.B.I and handing over to the State Police, has not taken Ext.P1 seriously as could be seen from the records. The kind of seriousness expected from a welfare State was not shown by the State while dealing with Ext.P1 Theconduct of the State was not above-board. Here, I would borrowthe words of the Apex Court in K. Chandrashekar's case (cited supra) to say that Ext.P2 “does not comport with the known pattern of a responsible Government bound by rule of law”.

45. The only manner by which the the matter could be set atright, at this juncture, is to require the Government to reconsider the decision in Ext.P2 exonerating respondents 4 to 6.

Therefore, the writ petition is allowed. Ext.P2 is quashed. The matter is remitted back to the 1 respondent for reconsideration and for issuing formal orders, within a period ofthree months from the date of receipt of a copy of this judgment, in the light of what has been stated above. The course of action to betaken in the matter is left open to be decided by the Government. Suffice it to say that it shall not be namesake, making administration of justice a mockery.