JOSEPH KUNCHERIA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is the Managing Director of I.P. Ruby Latex Pvt. Ltd. (for short, "the Company") at Mampad, near Nilambur in Malappurara District. On 6.12.2009, it is alleged, a mob trespassed into its factory and destroyed furniture in the office causing loss of around Rupees one lakh. Regarding that, a complaint was lodged with the Nilambur Police who registered Ext.P11, F.I.R. against certain identifiable persons. While so on 7.12.2009 there was yet another attack on the said factory by certain miscreants trespassing into it, damaged the factory, equipments, etc., and caused loss of around Rs. 3.5 lakhs. Again the company authorities preferred a complaint to the local police who registered Ext.P 12, F.I.R. Since inspite of the above two incidents the local Police did not afford necessary protection to the Company, it was constrained to move this Court for police protection vide W.P.(C) No. 35886 of 2009. This Court by Ext.P 13, interim order dated 11.12.2009 directed the Police to afford necessary protection to the company. But, nothing was done in the matter, petitioner complains. On 05.01.2010 a mob carrying deadly weapons and said to be led by one Abdul Karim who is a political leader of the locality went to a nearby factory by name 'Merdac R.K. Latex Pvt. Ltd.' and started erecting a shed in the premises of the said factory. Another group attacked the Security Guard and destroyed vehicles parked in the premises of that factory. The security staff were beaten up and the armed security staff fired in the air to disperse the violent mob. A person was shot below his knee. The mob turned violent and set fire to the factory. The factory of petitioner is situated about one kilometre away from the factory which was set fire. In between those two factories is situated another factory by name 'Velankanni Matha Rubber Products'. Petitioner, learning about the incidents which occurred in Merdac R.K. Latex Pvt. Ltd. informed respondent Nos. 5 and 6, Circle Inspector and Sub Inspector of the area concerning the incidents and the possibility of factory of petitioner also being attacked by the mob. Petitioner contacted the said officers over telephone several times between 11.30 a.m. and 12 noon. But, inspite of the factory of petitioner being situated five kilometres away from the local Police Station and notwithstanding that this Court passed interim order to afford protection to the factory of petitioner, nothing was done by the Police. Petitioner informed the Police Officers that miscreants might attack his factory. He contacted the Superintendent of Police, Malappuram expressing his apprehension in the matter. Still, nothing worthwhile happened. Petitioner even contacted the Special Branch Police and intimated them about the impending attack. At about 12.05 p.m. about 50 persons attacked the factory of petitioner with iron rods, sticks and stones and some of them carried inflammable articles in cans. Certain persons had come on motor bikes carrying those cans. They set fire to the motor bikes parked in the premises of the factory of petitioner. Others in the mob attacked the factory building and set fire to the factory and store room. Ext.P 19 series are the photographs of the factory which was gutted in fire.

(2.) The prayer in this petition is to handover investigation of the case to the Central Bureau of Investigation (for short, "the CBF"). It is stated that investigation is being conducted by respondent No. 8, the Deputy Superintendent of Police, Malappuram. Petitioner contends that regarding the matter, the Government had called for a report from the Additional Director General of Police (Intelligence) and that officer had given a report (a copy of which is Ext.P23) which stated that the Malappuram Police did not take necessary action to prevent the untoward incident notwithstanding Ext.P 13, order of this Court. The attack on the factory of petitioner was well planned at the instance of some political leaders of the locality and involving the Managing Director of Velankanni Matha Rubber Products to gain monopoly in the business. It is alleged that Abdul Karim who is the Vice President of the local Panchayat, President of Mampad unit of the Indian Union Muslim League and an employee of Velankanni Matha Rubber Products is very much involved in the incident. According to the petitioner, involvement of fundamentalist elements in the incident also cannot be ruled out. Petitioner contended that it is not merely complacency on the part of the local Police in providing protection to the factory notwithstanding Ext.P 13, order but their hand and legs were tied by certain extra constitutional authorities and hence the involvement of the Police also is to be the subject matter of investigation. In such a situation investigation by the local Police is not likely to yield the expected result and hence the prayer to entrust investigation to the C.B.I. Learned counsel has placed reliance on the decision of the Supreme Court in KASHMERI DEVI V/S DELHI ADMINISTRATION, 1988 SCC(Cri) 864, Gudalure M.J. Cherian v. Union of India, 1992 1 SCC 397 and Rubabbuddin Sheikh v. State of Gujarat & Ors., 2010 2 SCC 200.

(3.) Respondent No. 8 in answer to the averments in the Writ Petition has filed a counter affidavit denying all allegations regarding complacency on the part of Police. It is stated that the local Police has registered a case with respect to the destruction of the factory of petitioner and that persons whose involvement is revealed in the investigation have already been arrested. It is stated in paragraph 6(3) of the counter affidavit that the local Police has registered Crime No. 10 of 2010 for offences punishable under Sections 143, 147, 148, 427, 452, 435 and 436 read with S. 149 of the Indian Penal Code. The Circle Inspector of Police, Nilambur investigated the case with the help of Cyber Cell, Malappuram regarding involvement of the accused and others. A Special Investigation Team was constituted under the leadership of respondent No. 8. the Deputy Superintendent of Police, Malappuram as per order of the Superintendent of Police, Malappuram with sufficient number of Police Personnels including the Circle Inspector of Police, Nilambur, Assistant Sub Inspector of Police, Nilambur and others. In the course of investigation accused Nos. 8 to 17 were identified. Those persons were arrested and later they were released on bail. In paragraph 7 of the counter affidavit it is stated that on 26.1.2011 (almost a year after the incident) one Nizar Ahammad from Kanjirappally came to the office of respondent No. 8 and said that he was doing rubber business along with one Rouf at Calicut and that the said Rouf had committed many criminal acts including destruction of a rubber factory at West Hill, Calicut by setting fire to it in the year 1996. Nizar Ahammad confessed that he also assisted Rouf to set fire to the said latex factory at West Hill, Calicut. He expressed doubt about involvement of the said Rouf in the destruction of rubber factories at Nilambur (including that of petitioner) by setting fire to it. In paragraph 8 of the counter affidavit it is stated that investigation is being continued on the suspected hidden conspiracy as stated by the said Nizar Ahammad and so far, no positive clue could be obtained but, efforts are on to find out whether there is any truth in what Nizar Ahammad said. The deponent concludes his affidavit stating that investigation is going on in the proper manner and all earnest efforts are being continued to conclude the investigation and submit final report in the case. But present Investigating Agency has no objection in entrusting the case with any other Agency as this Court deems fit and proper.