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Periya Double Murder Case : Supreme Court Adjourns Hearing On Kerala Govt's Appeal Against HC Direction For CBI Probe

By - Mehal Jain
Update: 2020-11-17 14:00 GMT
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Noting that the CBI has filed a status report in sealed cover, the Supreme Court on Tuesday adjourned the hearing in Kerala government's challenge to the transfer of the investigation in the Periya double murder case to the Central probe agency to the next week,"A status report has been filed in sealed cover, enumerating the steps taken. Many steps have been taken even before the Division...

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Noting that the CBI has filed a status report in sealed cover, the Supreme Court on Tuesday adjourned the hearing in Kerala government's challenge to the transfer of the investigation in the Periya double murder case to the Central probe agency to the next week,

"A status report has been filed in sealed cover, enumerating the steps taken. Many steps have been taken even before the Division Bench judgment (of the Kerala High Court) and after the judgment also", advanced the counsel appearing on behalf of SG Tushar Mehta, for the CBI.
Before him, Senior Advocate Maninder Singh, for the state government, argued, "The standing counsel of the CBI had made a statement before the High Court that the investigation has not commenced! On the same day on which the order of the division bench was passed, the standing counsel of the CBI, Sh. Ajithkumar, had submitted that though the CBI had taken over the investigation and re-registered the case, in view of the oral order of the division bench hearing the appeal, the CBI had not commenced the investigation". He indicated the affidavit of the CBI standing counsel before the High Court.
In view of the submission on behalf of the SG, the bench of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi adjourned the matter to the next week.
On September 25, the Supreme Court had refused to stay the CBI investigation, as directed by the Kerala High Court, in the Periya twin murders.
Senior Advocate Maninder Singh, appearing for the state, contended that the direction for CBI inquiry was sustained even after the Division Bench of the High Court stood satisfied that the allegations of political complicity were not correct and were set aside. "A 20 member SIT was constituted. There was one critical charge, the chargesheet was filed...all accused have been arrested....one was abroad, who was brought back after the LOC was issued, and was also arrested", he submitted.
"It is the grievance of the CBI everyday that they are overburdened, and that matters which can be dealt with by the local police must not be referred to them...and here, on the very first day, the Single Bench said that there was 'serious lackness and incompleteness' in the investigation and involved the CBI...this is not a case of the rarest of rare...you find this in every case that something is left out...if any lackness is found, the trial court will order inquiry...14 people were made accused, and all are arrested....the chargesheet is filed...there is no malafide or allegation of bias against anybody....in fact, in the same matter, an earlier bench of the same high court had declined CBI enquiry", he pressed.
"Tell us in your own words why the CBI inquiry was directed?", inquired Justice L. Nageswara Rao.
"It was said that some accused were only made witnesses and not accused...but that status can be changed subsequently...then there was a discrepancy between the intial statement of the IO and the finding in the charge sheet finally filed as to whether the death was by a sharp object or a blunt weapon...the chargesheet contained the correct position...that has been showed as slackness....the third was that the CCTV footage was not viewed...there was only one CCTV and that found mention in the report...", argued Mr. Singh.
He urged that there would be no impediment in requiring such "slackness", if any, to be corrected by SIT itself.
"How do you say a rare case is made out, Mr. Giri", asked Justice Rao from Senior Counsel V. Giri, for the petitioners.
"The weapons were not shown to the forensic surgeon, who had conducted the autopsy, when he was questioned. When finally they were shown, the plastic covers were not removed, even though it was permitted by the High Court The forensic surgeon said none of the injuries on the bodies were caused by these weapons...", advanced Mr. Giri.
Justice Rao asked, "What are the reasons for which CBI inquiry can be directed? What are the circumstances where the court can come to a conclusion that injustice would be done (if probe is not transferred)?". Mr. Giri, in response, referred to the earlier top court constitution bench authorities on the point.
"Mr. Singh, you can respond if you want, but we won't pass any interim order as of now", observed Justice Rao. "Has the CBI continued with the investigation?", asked the Judge.
"The DB (of the Kerala HC) did not stay the inquiry...", submitted Mr. Giri.
"Let the CBI file an affidavit, then we will see. If substantial progress has been made, we won't interfere...", said Justice Rao finally.
The bench was hearing the state's SLP against the August 25 decision of a division bench of the Kerala High Court upholding the Single Bench order directing CBI Investigation in the Periya twin murder case.
The bench comprising of Chief Justice S. Manikumar and Justice CT Ravikumar, partly allowed the state's appeal by setting aside the Single Bench order to the extent it quashed the charge sheet filed by the Special Investigation Team, which had investigated the crime initially. The bench, therefore directed the CBI to conduct 'further investigation' based on the re-registration of the case and file supplementary report in terms of the provisions under Section 173(8), Cr.P.C.

Kripesh and Sarath Lal, Congress Party workers, were hacked to death, on 17th February 2019 at about 7.45 p.m. using swords and iron pipes. Writ petitions were filed alleging that the deceased Kripesh and Sarath Lal @ Joshy were Youth Congress workers and the accused persons who got allegiance to the political party-CPI(M) committed their murder due to political vendetta. The single bench of Justice B Sudheendra Kumar ordered the CBI probe allowing the petition filed by the parents of the slain youth. Observing the investigation completed by the Crime Branch of the state police was a "sham", the Court had also set aside the final report filed in May 20 arraying 10 CPM workers as the accused.

While interfering with the single bench order to the extent it had set aside the final report, the bench observed:

"On our careful perusal of the case diary and upon considering the rival contentions we are of the considered view that it cannot be said that no offence whatsoever was made out prima facie, in the charge sheet and hence, at the stage when the police report under Section 173, Cr.P.C. was forwarded to the Court after completion of the investigation exercise of extra ordinary jurisdiction under Article 226 of the Constitution to set aside the said charge sheet was not warranted at all."

The bench added that its finding that the final report was not to be set aside cannot be taken as an affirmation that the investigation was flawless and it was fair to the core.

To uphold the CBI investigation part of the order, the bench said that the fact that the investigation conducted does not instill full confidence and the slackness and incompleteness in investigation or lack of serious investigation had occurred in respect of some vital aspects, at least some of which may result in miscarriage of justice. It observed:

Taking note of the serious slackness and incompleteness that occurred in the matter of investigation which if investigated seriously, some times would have turned this case now rests on circumstantial evidence, to a case of a direct evidence tends us to think that to instill confidence and also to do justice to the parties it is only proper in the said circumstances to transfer the investigation to CBI. That has already been ordered by the writ Court. Hence, it is upheld.

The bench also set aside the finding of the single bench which held that circumstances indicate that the contention of the petitioners that the twin murder in this case was planned and executed not by the first accused but by the CPM Party, is probable


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