IN RE: SR. ABHAYAS CASE Vs. STATE

JUDGEMENT

(1.) THIS suo motu Criminal Revision is taken against an order passed by the Chief Judicial Magistrate, Ernakulam on 26 -9 -2005 while considering the final report filed by the Central Bureau of Investigation in Crime No. RC 8(S)93/SPE/KER/SIC -II, popularly known as Sr Abhaya case. The short, but interesting, question arising for consideration in this Criminal Revision Petition is the power of the committal Magistrate to conduct local inspection of the place of occurrence while considering a final report filed under section 173(4) Cr.P.C. in respect of a case exclusively triable by a Court of Sessions. Sr. Abhaya, aged 21 daughter of Sri. Thomas and Smt. Leelamma was a student of Pre -degree course of BCM College, Kottayam. She was staying in St. Pious Xth Convent at Kottayam. On 27 -3 -1992 she woke up at 4 AM and went to the kitchen of the hostel to drink cold water which was kept inside a fridge. She was found missing and nobody had seen her alive thereafter. A search was conducted. Her dead body was extricated from a well situated near the hostel. Crime No. 187/92 under the caption 'unnatural death' was registered by the Kottayam West Police. Due to public demand, the investigation was handed over to the Crime Branch. The case was reregistered as Crime No. 142/CR/92 of CBCID, Kottayam. The Investigating Officer filed a report stating that it was a case of suicide by drowning. The Government of Kerala requested the Central Bureau of Investigation (CBI for short) to take over the investigation of Crime No. 142/CR/92 of CBCID Kottayam. The father of the deceased filed O.P. No. 9147/1997 before this Court to expedite the investigation of the case. The CBI took over the investigation of the case and re -registered the same as RCA(9)/93/SPE/KER. On 29 -11 -1996, the CBI submitted a final report in the case with a prayer to close the investigation of the case as untraced. The prayer of the CBI was opposed by the father of the deceased. The learned Chief Judicial Magistrate after hearing the counsel for the father of the deceased and Standing Counsel for CBI passed an order dt. 20 -3 -1997 rejecting the final report; and directed the CBI to conduct further investigation. The learned Chief Judicial Magistrate made adverse remarks against Dr. Umadathan, the Medico Legal Expert and Shri K.J. Michael the S.P., Crime Branch. Shri. K.J. Michael filed Crl.M.C. 1566/97 to expunge the remarks made against him. This Court allowed both Crl.M.Cs. and expunged the remarks made by the Chief Judicial Magistrate against the Medico Legal Expert as well as the Investigating Officer. The CBI conducted further investigation on 12 -7 -1999 and a final report was filed stating that Sr. Abyaya was murdered but it was not possible to trace the culprit who committed the murder. The father of the deceased filed Crl.M.P. 16869/99 to reject the final report. Shri. K. Divakaran, Advocate & Notary, Kottayam filed Crl.M.P. 110/2000 to order exhumation of the dead body of Sr. Abhaya and conduct a fresh postmortem examination by another Forensic Expert. Dr. Umadathan filed Crl.M.P. 2837/00 to reject the final report on the ground that the finding of the Investigating Officer that it was a homicide was not correct and it was a case of suicide. The learned Chief Judicial Magistrate rejected the final report filed by the CBI and directed the CBI to conduct fresh investigation and submit the report. The CBI filed Crl.R.P.808/00 challenging the order passed by the learned Chief Judicial Magistrate. This Court by order dated 18 -5 -2001 allowed the Crl.R.P. in part. The order passed by the Chief Judicial Magistrate was modified and the CBI was directed to conduct further investigation under section 173(8) of Cr.P.C.

(2.) THE CBI conducted further investigation and filed a final report on 30 -8 -2005. The counsel for the father of the deceased raised objection to the third report also. The learned Chief Judicial, Magistrate heard the Standing Counsel for the CBI as well as the father of the deceased and perused the records. The learned Magistrate found that there were no materials enabling the committal Court to form any idea regarding the scene of occurrence. It was further held that aspects like measurement and location of the well, the room in which Sr. Abhaya was residing, the position of the kitchen where Sr. Abhaya went first from her room to take water after she woke up, the position of other rooms near the kitchen in which certain suspected persons were residing, the position of the house of Mr. Sanju P. Thomas, and the place where he was exactly standing to ascertain whether it was possible for him to see the body of Sr. Abhaya being taken out of well, whether the sound of falling of a vessel can be heard by those persons who were in the hostel, etc. were to be linked and analysed to decide whether the refer report was acceptable or anything further was possible and to find out whether any more aspects were to be done by the Investigating Officer. The learned Chief Judicial Magistrate was of the opinion that it was only just and essential in the interest of justice to conduct a local inspection as contemplated under section 310 of Cr.P.C. to enable him to get a clear idea and for passing a proper order appreciating and analysing various factual aspects involved in the case. The learned Magistrate directed to issue notice to the father of the deceased as well as to the Standing Counsel for CBI and fixed a time to conduct local inspection. When this fact was brought to the notice of this Court this Court entertained a doubt regarding the jurisdiction of a committal Magistrate to conduct local inspection while considering the final report for committing the case to the Court of Sessions. Accordingly, this suo motu revision was registered. Notice was issued to the counsel for the CBI, the defacto complainant and the father of the deceased.

(3.) HEARD Advocate Shri. A.X. Varghese, the counsel for the father of the deceased and the Standing Counsel for the CBI. Considering the importance of the matter Advocate Shri. Bechu Kurian Thomas was requested to assist the Court as amicus curiae. When the hearing of the Case was going on, Advocate Shri S. Girish who was present: in the Court also made submissions regarding certain legal aspects. He filed a hearing note also. Advocate Shri Bechu Kurian Thomas and Advocate Shri. S. Girish were also heard.