Documente Academic
Documente Profesional
Documente Cultură
OF 2015
(Against the impugned final judgment and order dated 04-03-2015 in W.A.
No. 1863 & 1959 of 2015 of the High Court of Kerala at Ernakulam
(With Prayer for interim relief)
IN THE MATTER OF: -
Position of Parties
Before the
High Court
S. NAMBI NARAYANAN
Sangeetha,
T.C. No. 36/978,
NSS Lane, Perumthanni
Thiruvananthapuram,
Kerala,
Respondent 1
Versus
1.STATE OF KERALA
Represented by Chief Secy
to the Government of Kerala
695-001
2. Secretary to the
Govt. of Kerala
Department of Home
Govt. Secretariat
Trivandrum 695001
3. The Central Bureau of
Investigation
represented by
its Director
New Delhi
4.Sibi Mathew
5. K.K. Joshwa
Before this
Honble Court
Petitioner
6. S. Vijayan
TO
THE HONBLE CHIEF JUSTICE OF INDIA &
HIS COMPANION JUDGES OF THE
HONBLE SUPREME COURT OF INDIA
judgment and order dated final judgment and order dated 04-03-2015 in
W.A. No. 1863 & 1959 of 2015 of the High Court of Kerala at Ernakulam
whereby,
the Division Bench had set aside the well reasoned and
2.
QUESTIONS OF LAW:
The following questions of law of general importance emerge from the
facts of the case:(a) When the CBI, the highest investigating authority, on a thorough
investigation, had rendered its finding that the allegation of espionage
against the petitioner, who was questioned, apprehended and
tortured at the hands of respondent Nos. 4 to 6, did not stand proved
and was found to be false, and had also made a report to the State
Government against respondent Nos. 4 to 6 surfacing out many a
professional lacuna for taking action as deemed fit, is not the closure
of the case by the State Government after a blissful hibernation over
a decade and a half,
justification for closure of the case totally illegal? In other words, can
the Government be permitted to encash its own mistake when it is
settled law that one cannot take advantage of ones own mistake?
[(2010) 1 SCC 287 and (2005) 3 SCC 427]
(b) When an administrative action was suggested by the CBI, whether
the same could be disregarded by the Government stating that the
same had not been endorsed by the Courts?
(c) When this Honble Court in the earlier round of litigation branded
the action on the part of the Government and its officers as malafide
exercise of power,
action against the erring officers as suggested by the CBI yet another
malafide exercise of power?
(d) Is not the anguish expressed by the National Human Rights
Commission when it observes as to the unlawful action of the Kerala
Police and unblushing support by the State asthe flagrant disregard
to human rights a sufficient caution to the State to proceed against
Respondent Nos. 4 to 6 as per the report of the CBI?
(e) Can the Division Bench of the High Court marginalize the report of
the CBI and accept the reasons stated by the State in closing the
case when the action of the State was condemned both by the
National Human Rights Commission and this Honble Court?
3.
Honble Court against the final impugned judgment and order dated final
judgment and order dated 04-03-2015 in W.A. No. 1863 & 1959 of 2015 of
4.
the
Special
Leave
Petition
are
true
produced along
copies
of
the
5.
GROUNDS
report of the CBI, the highest investigating agency of the country in which the
public of the country has full confidence as commented by this Honble Court
in Nupur Talwar vs CBI (2012) 2 SCC 188,
justification suggested
When such reports are made by the CBI, prompt action is taken
dispassionately and in this regard, the decision of this Honble Court in the
case of Susie Tharu vs State of A.P. and Another [ (1986) Supp SCC 504 ]
wherein this Honble Court has held as under:We directed by our order dated December 20, 1985 that CBI will
investigate into the case of alleged rape of Sattamma by two police
officers and four constables as alleged in their writ petition.
Pursuant to the order made by us, the CBI carried out a detailed
investigation and as a result of such investigation, the CBI has
the
Sub-Inspectors
of
Police
ofgambheeraolpished
and
prosecution has been made, vide Sec. 195 IPC,( Giving or fabricating false
evidence with intent to procure conviction of offence punishable with
imprisonment for life or imprisonment) even criminal action is justified.
(D) The view that neither the CJM, Ernakulam nor the Apex Court had issued
directions to the State to take action in accordance with the CBI Report and
hence no action is called for, is totally erroneous. The suggestion of the CBI
to take action against the Investigating Team is one falling within the domain
of the administration and there is no need at all of any Judicial order either
of the CJM who had accepted the report or of the Supreme Court which too
accepted the report. Such a direction from the court is not a sine qua non to
initiate action on the basis of the report of the CBI.
(E) In unequivocal terms, the Learned Single Judge arrived at the conclusion
that the entire inaction on the part of the Government smacks malafide and
thus the delay should not come in the way of taking action.
The Division
Bench held this view of the Learned Single Judge as one of assumption which
is not so. The conduct of the State Government has already been commented
adversely by the Supreme Court and the National Human Rights Commission.
(F) Limitation to proceed against the respondents Nos. 4 to 6 cannot come in
the way of the Petitioner in so far as criminal proceedings are concerned and
the CBI report to take action as deemed fit does not confine itself to
departmental action only.
(G) In interpreting the term action as deemed fit contained in the CBI
Report, the Learned Single judge did not confine the action to departmental
proceedings only. The Honble Division Bench has wrongly assumed, as had
been the case of the Government of Kerala, that action suggested by the CBI
is restricted to Departmental Action only.
(G) That the accused were subjected to torture has been mentioned by the
NHRC in its proceedings. The petitioner had to undergo medical treatment,
and this is the admitted fact. The torture need not be one of overt or physical
in nature.
The NHRC rightly referred to the violation of human rights of "a reputed
scientist whose long and distinguished career in space research has been
tarnished apart from the physical and mental torture to which he and his
family were subjected ..."
(H)
expressed by the Apex Court in the action of the State of Kerala and the
Kerala police:(i) The flagellation inflicted by the Apex Court upon the State
Government and its officers, qualifying their action as "malafide
exercise of power";
(ii) the comparatively rare use of the words "does not comport with
the known pattern of a responsible Government bound by the rule
of law";
(iii)
the
words in their
strongest term, "obvious that the investigation cannot and will not
be fair - and its outcome appears to be a foregone conclusion"
(I)
re-
embossing the stamp of mala fide in the State's action, as held by this Hon'ble
Court.
(J)
compensation (even in their own words when the Commission stated, "difficult
to assess in precise terms the monetary compensation") are deterrent in nature
so that the same blunder for which such cost and compensation are awarded
against the State is not repeated by the State and its blue eyed officers.
(K) The above are sufficient enough to kindle the sense of responsibility upon
the State machinery to trigger immediate action against the erring police
officers on the basis of the CBI Report and it was after fully appreciating the
same that the Learned Single Judge had directed the State Government to
consider action against the respondent Nos. 4 to 6 as deemed necessary.
At
the same time, consciously keeping in mind the unusual and illogical
support that may be given by the State Government to the erring officers and
their targeted action against the petitioner, a word of caution had also been
administered in the judgment, by the concluding words, "Suffice it to say that
it shall not be namesake, making administration justice a mockery"
(L)
undercurrent that passed through the mind of the Apex Court, the NHRC and
the single judge in their verdict and on untenable reasons quashed the order
of the learned single judge.
(M)
The true import of the judgement by the Apex Court in Criminal Appeal
492/1997 could well be discerned from the words of the National Human
Rights Commission vide its proceedings in the case of the petitioner herein.
The following is the extract from the said proceedings:
"The Supreme Court of India by its judgements dated 29-04-1998
allowed the Appeal (Criminal Appeal No. 246 of 1994) filed by the
complainant is together with connected appeals filed by others and
quashed the notification directing 'further investigation' into the case by
Kerala Police. The Supreme Court passed strictures against the Kerala
government and observed that the subsequent notification issued by it
was inconsistent with the role of a responsible government bound by
the rule of law. Accordingly, the Supreme Court also awarded Rs.1 lakh
to each of the appellants as costs to be paid by the government of
Kerala."
(N)
With regard to the CBI report, here again, the Human Rights
Commission extracted from the judgment of the Apex Court the following:
"On a careful perusal of the police report submitted by the CBI on
completion of the investigation (which runs through more than 100
pages) we find that it has made detailed investigation from all possible
angles before drawing the conclusion that the allegations of the
espionage did not stand proved and were found to be false."
(O)
That the report of the CBI had been approved by the Supreme Court
has been specifically spelt out by the National Human Rights Commission
when it stated, after extracting profusely from the judgement of the Apex
Court, "It is useful before proceeding further to also quote some relevant
extracts from the closure report of the CBI, which stood approved by the Courts
in above manner."
(P)
(Q)
matter of the court and advised action against the erring individual officers
which is an administrative function. The court accepted in toto the closure
report and closed the case. That is the judicial part. The court is not, save
when report is called for by itself, normally expected to comment upon the
advice given by the CBI with reference to the administrative action as it is
within the domain of the executive. It was fairly hoped that the executive will
function with that sense of responsibility as is normally expected
of a
professional lapses on the part of the police officials the same could not be
marginalised.
prescribed
The commendation
only encourage the unlawful action and mindset on the part of the
Kerala police to harass innocent persons for extraneous considerations
and unless action as suggested by the CBI is immediately taken,
(possibly under the provisions of Sec. 195 of the IPC if for any justifiable
reason departmental action could not be taken), the innocent public
would suffer at the hands of the Police. Hence, it is appropriate that the
impugned Judgment dated 4th March, 2015 of the High Court of Kerala
in W.A No.1863 and 1959 of 2014 are stayed and the State Government
initiate action as deemed necessary during the pendency of this SLP.
7.
MAIN PRAYER
It is therefore most respectfully prayed that your lordships may be
graciously pleased to: -
A.
Grant special leave to appeal against the final judgment and order final
judgment and order dated 04-03-2015 in W.A. No. 1863 & 1959 of 2015
B.
8.
B.
Pass such other or further orders as this Honble Court may deem fit
and proper in the facts and circumstances of the case and in the
interest of justice.
Drawn and filed by:
. . Petitioner
Versus
State of Kerala and 5 others
....... Respondents
CERTIFICATE
Certified that the Special Leave Petition is confined only to the pleadings
before the court whose order is challenged and the other documents relied
upon in those proceedings. No additional facts, documents or grounds have
been taken upon therein or relied upon in the Special Leave Petition. It is
further certified that the copies of documents/annexures attached to the
Special Leave petition are necessary to answer the Questions of law raised in
the Petition or to make out ground urged in the Special Leave petition for
consideration of this Honble Court. This certificate is given on the basis of
the instructions given by the Petitioner whose affidavit is filed in support of
the Special Leave Petition.
Filed by:
Advocate for the Petitioner
New Delhi
Filed on:
.........
Versus
State of Kerala & 5 Others
.Respondent(s)
. . . . . . . . . . . . . .
VAKALATNAMA
I , S. Nambi Narayanan, Petitioner/, in the above Petition do hereby appoint
and retain Dr. K.B.SOUNDER RAJAN, Advocate, Supreme Court to act and
appear for me/ in the above petition and on my/our behalf, to conduct and
prosecute the same and all proceedings that may be taken in respect of any
application connected with the same or any decree or order passed therein,
including proceedings in taxation and application for review, and to file and
obtain return of documents, and deposit and receive any money on my/our
behalf in the said suit/appeal/petition/reference and in application for review,
and to represent me/us, and to take all necessary steps on my/our behalf in
the above matter. I/we agree to pay his fees and out of pocket expenses, agree
to ratify all acts done by the aforesaid advocate in pursuance of this authority.
Dated this the . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . 2015 .
Accepted& identified
Petitioner
Regn. No.
Memo of appearance
To
The Registrar,
Supreme Court of India
New Delhi 01
Sir
Kindly enter my appearance in the above mentioned
petition/Appeal/reference/review made on behalf of the
petitioner(s)/Appellant(s)/Respondent(s).
Yours faithfully
Advocate for the Petitioner
New Delhi/Dated . . . . . . . . . . . . . . .