W. P. (C) No. 11304 of 2010 (Q). Case: M. K. Musthafa Haji Vs Director, Central Bureau of Investigation, New Delhi and Ors.. High Court of Kerala (India)
| Case Number | W. P. (C) No. 11304 of 2010 (Q) |
| Counsel | For Appellant: K. A. Jaleel, Adv. and For Respondents: MVS Nam-boothiry, Govt. Pleader C. K. Suresh |
| Judges | V. Ramkumar, J. |
| Issue | Constitution of India - Article 226; Criminal P.C. (2 of 1974) - Sections 132(1), 197(1) |
| Citation | 2011 CriLJ 3968 |
| Judgement Date | September 24, 2010 |
| Court | High Court of Kerala (India) |
Order:
1. Reliefs prayed for in this Writ Petition In this writ petition filed under Article 226 of the Constitution of India, the petitioner who is the father of one Mohammed Shafeeque, who was killed in Police firing on 15-11-2009 at Kasaragode, seeks a writ of Mandamus or any other direction calling upon respondents 2, 3 and 5 (State of Kerala represented by Chief Secretary to Government, Director General of Police and Sub-Inspector of Police, Kasaragode) to hand over the investigation of Crime No. 85/2010 of Kasaragode Police Station to the 1st respondent (Director, Central Bureau of Investigation, New Delhi) and a writ of mandamus or any other direction calling upon the 2nd respondent to pay a sum of Rs. 25,00,000/-(Rupees twenty five lakhs only) to the petitioner as compensation for the death of the petitioner's son due to gun-shot injuries inflicted by the 6th respondent (Ramdas Pothan) the formers Superintendent of Police, Kasaragode.
THE OCCURRENCE (Petitioner's version)
2. The case of the petitioner is as follows:-
On 15-11 -2009 at about 5 p.m. near the new bus stand at Kasaragode a public meeting was proposed to be conducted for giving a reception to the State leaders of the Indian Union Muslim League (IUML for short) which is a registered political party before the Election Commission of India under Section 29A of the Representation of the People Act, 1951. Mohammed Shafeeque aged 23 years, the eldest son of the petitioner, who was employed in the Persian Gulf, was at that time in his native place at Cheruvathur in Hosdrug Taluk. He is a follower of the Kerala State Muslim League which is also a registered political party. The son of the petitioner came to Kasaragode to attend the said meeting. The meeting started at about 5 p.m. The meeting was stopped at 6 p.m. to enable the Muslims to perform the Magrib prayers. It was announced that the meeting would be resumed at 6.30 p.m. after the prayers. The petitioner's son went to the Mosque situated to the south of the Kasaragode-Cherkala National Highway for performing the prayer. At about 6.30 p.m. the petitioner's son was walking towards the venue of the meeting after his prayers. There were some disturbances in some parts of Kasaragode town be-tween the Police and certain anti-social elements during that evening. But there was no disturbance at or around the venue where the meeting was held near the new bus stand at Kasaragode. The 6th respondent, Ramdasan Pothan who was the Head of the Police force in Kasaragode district was standing along with his gun-man shouting and hurling abusive words at the people in an angry mood. When the petitioner's son reached the western side of the new bus stand complex building, the 6th respondent who was in an angry mood suddenly snatched the pistol from the hands of his gun-man and shot at the petitioner's son on his chest. Mohammed Shafeeque who was fatally wounded fell on the road for a long time without anybody attending on him. It was without any provocation from the side of the petitioner's son that the 6th respondent opened fire at him and the petitioner's son succumbed to the bullet injuries sustained on his chest. After realising that the petitioner's son was killed by his act of firing, the 6th respondent went to the Kasaragode Police Station and registered a case as Crime No. 816/2009 of Kasaragode Police Station for offences punishable under Sections 143, 147, 148, 353, 332, 333, 427 and 307 read with 149 IPC and Section 3(1) of the Prevention of Destruction to Public Property Act. Ext. P4 is the FIR in that case registered against 500 and odd IUML people stating inter alia, that he fired three rounds out of self defence with the service pistol taken from his gunman to disperse the angry mob which had resorted to violence. No extraordinary circumstances existed at the place to justify the act of the 6th respondent who opened fire at the IUML workers. The 6th respondent was not doing any act in discharge of his official duty. On the contrary, the 6th respondent was intentionally and knowingly committing the offence of murder with the requisite mens rea and punishable under Sec-tion 302 IPC. Mohammed Shafeeque was the eldest son of the petitioner and the only support of the petitioner, who is afflicted with old age ailments. The 5th respondent, Sub-Inspector of Police, Kasaragode did not take any action to arrest the 6th respondent or to conduct the investigation evidently because he is a subordinate of the 6th respondent. Mohammed Shafeeque who was lying wounded on the road with bullet injuries on him for a long time was eventually taken to the Taluk Head Quarters Hospital, Kasaragode by the Police. On reaching there the doctor pronounced him dead. Inquest over the dead body of the petitioner's son was conducted by the Tahsildar, Kasaragode. Thereafter the dead body was taken to the Academy of Medical Sciences, Priyaram, Kannur for autopsy. Ext. P2 is the post-mortem certificate, as per which the autopsy Surgeon concluded that the petitioner's son died of gun-shot injury on the chest involving his lungs and aorta. The petitioner was under the bona fide belief that the Police had registered a crime in connection with the murder of his son. But on enquiry it was understood that the Police had not registered any murder case against the 6th respondent who was working as the Superintendent of Police, Kasaragode. Therefore, on 4-12-2009, the petitioner lodged Ext. P3 Complaint before the 5th respondent (Sub-Inspector of Police, Kasaragode), detailing the occurrence and requesting him to take action against the 6th respondent for the murder of the petitioner's son. Even though Ext. P3 complaint was duly received on 4-12-2009 as evidenced Ext. P3(a) receipt, no crime was registered by the 5th respondent. Hence the petitioner was constrained to file Ext. P5 criminal complaint as Crl. M. P. 413/2010 before the J.F.C.M. Kasaragod who forwarded the same to the Police under Section 156(3) Cr. P. C. resulting in the 5th respondent finally registering Crime No. 85/2010 against the 6th respondent for an offence punishable under Section 302 IPC. There was no extraordinary circumstance or law and order situation justifying the act of the 6th respondent in opening fire at the persons who had collected there to attend the meeting. Since the investigation of the above crime is conducted by a subordinate of the 6th respondent, there will be no fair and free investigation and the petitioner will not get any justice in such investigation. For the deprivation of the precious life of the petitioner's son and the infringement of his human rights and fundamental freedoms the petitioner is entitled to the remedy of compensation in public law based on strict liability and the defence of Sovereign immunity is not available to the State. Hence this writ petition.
POLICE VERSION OF THE OCCURRENCE
3. One M. J. Sojan, Deputy Superintendent of Police, OCW-IV, Sub Unit, Kasaragode has filed a statement contending inter alia as follows:-
On the statement of Sri. Ramadasan Pothan, the then Superintendent of Police, Kasaragod, a case was registered as Crime No. 816 of 2009 of Kasaragod Police Station against 500 and odd IUML activists for attacking the police, destroying public properties etc. That case is being investigated by the C. B. CID Kasaragod Sub Unit. Crime No. 85 of 2010 registered by the Kasaragod Police against Sri. Ramadasan Pothan for an offence punishable under S. 302 I. P. C. pursuant to the J. F. C. M. Kasaragod forward-ing the private complaint filed by the petitioner to the Kasaragod Police was also transferred to the C. B. CID for investigation as per order dated 2-2-2007 by the 3rd respondent Director General of Police. Investigation of this case was entrusted to the Dy. S. P., C. B. CID, OCW IV, Kasaragod from 31-3-2010. The maker of the statement (M. J. Sojan) is investigating this case also. In the evening of 15-11-2009 there was a public meeting organized by the Indian Union Muslim League near the New Bus Stand, Kasaragod. The said meeting was organized to felicitate the newly elected State President and other leaders of the IUML. Many workers of the party from various parts of the district came to attend the meeting. At about 18.30 hours trouble erupted when the workers numbering about 500 started pelting stones towards the shops and at the police party on duty. They also attacked a temple in Amey Colony. In the meantime persons belonging the other community collected at the site and started to retaliate. The unruly crowd continued their activities in spite of efforts by the police. As the situation was going out of control and there was a likelihood of communal clashes and destruction of public property, senior police officers under the leadership of Sri. Ramadasan Pothan reached the site and began to disperse the crowd using grenades and by resort to lathi charge. Since all efforts by the police proved futile and the mob continued its violence destroying police vehicles and burning private vehicles and some of the police personnel sustained injuries, the Superintendent of Police as a last resort to protect himself and the police party and to control the violence and communal clashes fired three rounds from his service pistol towards the mob. The petitioner's son Muhammed Shafeeq who was an active member of the unlawful assembly suffered bullet injury on his chest and fell...
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