Comment on VargheseMurder Enquiry Case — ARejoinder

This author had the opportunity to go throughthe comment' written by my senior colleague ProfessorK.N. Chandrasekaran Pillai on Thomas v. State ofKerala' and I felt that I should express some seriousdifference of opinion on academic grounds on the viewsexpressed there on such important socio-legal issues.The disclosure by way of confession of certain facts bythe 5th Respondent, a police constable who is one ofthe principal alleged accused persons himself raisesan important matter of public interest — that is, thejustification or otherwise of the state itself becomingan instrument of misuse and abuse of power to coverup an alleged first degree murder in the name of sup-pressing political extremist activities. For the legalsystem of a liberal democracy it brings up a collateralissue. Is it proper for the state to exterminate youngrevolutionary leaders who are guided or for that mattermisguided by political extremist views, instead ofbringing them to course of justice for their misadven-ture ? If that is allowed or justified what really is thedistinction between the unjust and oppressive earst-while British regime which shot dead many youngrevolutionaries and activists who fought for politicalindependence and this independent Indian regimewhich shoots and kills political extremists in the nameof protecting democracy.

See K.N. Chandrasekharan Pillai, "A Comment on VargheseMurder Enquiry Case", supra p 150.O.P. No. 22485 of 1998.

C.U.L.R. Notes and Comments 157

Issues Side-tracked or Devalued

These important legal, ethical, moral, social andpolitical values and issues have been found sidetracked or devalued by the earlier commentator. Hesays in the starting paraphrase :

"It has become a common thing for the people tocall for a judicial inquiry whenever an unpleas-ant event or tragedy takes place. It is believedby the man in the street that judicial inquiry willbe more open and therefore capable of identifyingthe causes and of formulating suggestions forremedial measures including initiation ofproceedings against those who must have beenresponsible for the calamity. While making thedemand for inquiry however one does not care tothink about the unusual consumption of time,energy and money involved in inquiries. One isalso not aware of the ineffectiveness of inquiryreports in compelling the authorities to act on therecommendations".

The Judge 3 as well as the earlier commentatorwho supports him have lost sight of the fact that theineffectiveness of the inquiry reports to compel thegovernment to take proper action on the report byinitiating prosecution if necessary is not peculiar tojudicial inquiries. The same fate may be met with anenquiry by a police officer which is not entirelyindependent from political influence. Effectivenesseven of the C.B.I. enquiry is today a matter ofdifference of opinion after the experience of acquittalof almost all Jain diary Hawala series of cases by the

3. C.S. Rajan, J.

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trial courts all of which were investigated and inquirdby C.B.I. and that too under the continuing mandamusprocedure followed by the Supreme Court' and of thetragic incident which took place right down in our ownstate revealed by the facts and developments in SisterAbhaya Murder case.5

Educative and Corrective Value

Another aspect which the court as well as theearlier commentator has neglected is the publiceducative value and social, psychological correctivevalue of enquiry reports under the Commission ofInquiries Act. The legislation has several socialpurposes. The Commission of Inquiries Act was passedin 1952 by the Parliament to regulate the powers andfunctions of the Inquiry Commissions on the patternof English Tribunals of Inquiries (Evidence) Act, 1921.This central enactment confers powers on theappropriate Government to make an inquiry into "anydefinite matter of public importance" 6 The confidence .of the people begins to waver when the press lets out

A.I.R. 1998 S.C. 889. See for details, G. Sadasivan Nair, "NewChannels of Corruption : Judicial Techniques of ActivatingInvestigation", [1998] C.U.L.R. 314.

Following interference in the investigation by some seniorofficer an honest police official is reported to have resignedin this case. When investigation was entrusted to the C.B.I.,firstly the CBI Officer investigating this case reported it tobe a suicide case. Later, on judicial interference investiga-tion was resumed. Ultimately the CBI filed petition in theKara High Court for sanction for closing the case becausethe case could not be proceeded against anybody as accusedinspite of it being a murder case on scientific evidence.

6. See Law Commission of India, 24th Report on the Commissionof Inquiries Act 1952, p.1.

C.U.L.R. Notes and Comments 159

stories of abuse of power and of arbitrary decisionstaken by the Government. Such press freedom cannotbe curtailed also for reason of democracy and right todissent and they need to be investigated in publicinterest. It is not surprising therefore to find a glamourfor investigation or public inquiry whenever anythinggoes wrong or appears to have gone wrong. Usuallythe demand come from the people for such actions. Anyway such investigative journalistic news' inevitablydents the public confidence. To assuage them and toproclaim its innocence, the government resort toinquiries and investigations. 8 Atleast this limitedobjective would have been taken into account. It isunfortunate that the Court, instead of upholding thispublic educative value and the socio-legal objectivesof the legislation in affording an opportunity to declarethe innocence and justness of the regime or govern-ment, has decided to dumb it in the dust bin saying itis ineffective. Any way it is not for scholarly academicworld to condemn the legislation namely theCommission of Inquiry Act, 1952 when it has thepotential as envisaged above. It may be ineffective toconsummate the report to its final conclusive imple-mentation or actual criminal prosecution in a case ofcriminal nature. But it serves some alternative purposeas said above.

The vernacular and other news papers were full of stories ofthe brutal murder of Shri Varghese by the police machinary.See for details, G. Sadasivan Nair, "Judicial Activism NoPanacea for Prevention of Corruption" [1997] C.U.L.R. 375411- 413; also see Omprakash Motiwal, "Commission ofInquiries in India", 13 J.I.L.I. 220 (1971).

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Activist Energy Goes Unutilised

The Court could also have used its activist energyto recommend and morally oblige the government tosee that the investigation reports are given effect to.It has now been accepted as a judicial remedy of fillingup the lacune in the legislation. If the recommen-dations in the reports supported by the judiciary arenot carried out the government risks the chance ofgetting unpopular which will weigh in the nextpopular election and governmental formation. This isthe democratic tradition and the advantage ofparticipatary co-operative democracy over dectatorship.These facts are also not unknown for juristic andacademic worlds. Then, why a public inquiry underthe Act in such an important matter of public interest,involving protection of basic human rights and uphold-ing of democratic tradition of legitimate governanceby adopting fair and just criminal justice process indealing with dessidents, was dismissed as futile andineffective ? The time, money and energy spent forsuch judicial enquiry is the price of democracy.Legitimate governments are expected to act withinrules and bounds, fairly and justly. Admittedly bypublic judicial inquiry has the advantage of being openand impartial compared to discretionary police enquiry.The police can pick and choose the witnesses whichmay not lead to prosecution of the real accused asasserted in the part of the judgment quoted by theearlier commentator. In fact, police investigation intomany instances of police violence and crimes commit-ted by influential men have not resulted in its logicalconclusion of prosecution as mentioned earlier.

The police constable, the additional 5th respon-dent in the case is at liberty to retract his confession

C.U.L.R. Notes and Comments 161

at any time before the police or in the Court. So if thecase proceeds solely on the basis of his confession alonethe case can fall down at any moment even before itreaches the court. So further thorough judicial inquirywithout the fear of the harassment of the policeinvestigation 9 would have brought to light manyhidden facts of the brutal murder case which happenedmore than two decades back. Many other officials andvictims of police repression in those days are still livingand any person interested in that matter of great publicinterest or any person having knowledge of thatincident can give evidence without police intimidationand harassment. There is no question of following theproforma approach or publicity seeking and gainingpraise, readily complying with the party's request ifthe court orders judicial inquiry. The party seekingjudicial inquiry was not influential so that the courtmay solicit praising. It was none other than thehelpless brother of the deceased who was knocking atthe doors of the Court for complete justice by orderinga judicial enquiry. Shri. Varghese could not have beenbrought to life by the fiat of judicial enquiry but thetruth would have been brought to broad day light. Therelative of the victim would have got the justice of hischoice. The state and the erring police officials wouldhave got an opportunity to proclaim their legitimacyof action and innocence of the charges by assuagingthe loss of public confidence.

Opinion on Compensation

Another retrograde opinion expressed by theearlier commentator is regarding the policy adopted

9. Political and departmental interference is not uncommonwhen the case involves top ranking politicians and policeofficers in service or retired.

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by the judiciary in awarding compensation to thevictims of state atrocities. The comment goes as follows :

"In these days of judicial activism when the courtsaward compensation by the state to the victimsof state atrocities even before proper ascertain-ment of the circumstances of the case it isheartening to see a judge resorting to plain speak-ing on the futile exercise of inquiries"10

Is not any body aware of the fact that thejudiciary has adopted this extra ordinary remedy ofawarding compensation in writ petitions to the victimsof state atrocities or police violence in undisputed factsituations of benign neglect of personal freedoms andbreach of right to life committed by state functionarieslike police and prison authorities as a palliativemeasure without prejudice to full fledged compensationproceedings by way of civil suits ?" The argument isillogic and self contradictory also because one cannotcomplain of legal forums awarding compensation forbreach of fundamental rights as a palliative measurewithout ascertainement of facts and circumstances ofthe case and then point out to the futility of exerciseof inquiries. It is blowing hot and cold visited withimpatience of the benovolence of judicial administra-tion in the interest of complete justice. In the casecited by Prof. Pillai, Nilabati Behera l2 there would not

Supra n.1 at pp. 152-153.Rudal Shah v. State of Bihar, A.I.R. 1983 S.C. 1086; Saheli, awomen's Resources Centre v. Commissioner of Police, Delhi,AIR. 1990 S.C. 513. Bim Sing v. State of J. and K. 1985 (4)S.C.C. 677.

12. Nilabati Behera v. State of Orissa, (1993) 2 S.C.C. 746.Sebastian M. Hongray v. Union of India, AIR 1984 S.C. 1026.

C.U.L.R. Notes and Comments 163

have been any juridical inconsistancy if there had beentwo distinct and differing inquiries by two DistrictJudges because the nature of enquiry and the standardof proof required are different for the purpose ofawarding of compensation and for the purpose of crimi-nal prosecution and conviction. Here the SupremeCourt had held that a claim in public law for compen-sation for contravention of human rights and funda-mental freedoms is an acknowledged remedy forenforcement and protection of such rights and such aclaim based on strict liability is distinct from and inaddition to the remedy in private law for damages fortort and the defence of soverign immunity has noapplication here. The Court awarded Rs.1,50,000/- ascompensation.

It may be worthwhile to point out that the prayerfor compensation was not there in the writ petition filedby the brother of the accused and the helpless relativeswere clamouring only for a full judicial inquiry to bringout the truth and facts of the case involving thesupreme sacrifice made by the revolutionary youth andthe atrocities committed on him by the police. Thejustifiability or otherwise of awarding compensationwithout the facts of the case need not have been madean issue in commenting a case of this nature. It wastrue that prayer for compensation was there in otherpetitions filed in the matter by way of public interest.Any way the court had not ordered for any compensa-tion at this stage though it had rightly mentiond theInternational Covenents and Universal Declaration ofHuman Rights in the context. There would be noillogicity if compensation was awarded at that stageor after some more inquiry was conducted in thismatter. Here the disclosure is a very material evidencemade by the main culprit himself, the 5th Respondent

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who shot Shri. Varghese dead allegedly under threatand compulsion by senior police officers. Awarding ofcompensation vicariously imposed to be paid by thestate as a progressive judicial remedy is a way ofpunishing the erring state officials. The state canrecover it from the erring officials if necessary. It canalso be considered as part of welfare state function.

On Enquiry by a District Judge

After having fully supported the argument offutility of an inquiry under the Commission of InquiryAct Prof. Pillai examined the demand for inquiry by asitting judge. By the same logic he also dismisses it asfutile. He even finds it against the spirit of Article50' 3 of the Constitution. In fact inquiry under Commi-ssion of Inquiry Act by judicial officers sitting or retiredcan be made at any level or rank - by a Supreme CourtJudge, High Court Judge or District Court Judge. Thequestion is to have or not to have a judicial inquiry.In the circumstances and parties involved in the casea judicial inquiry would have ensured open, impartialand fair inquiry free from political and bureaucraticinfluences. Article 50 of the Constitution is to beviewed in a different context. It has nothing to dowith facts and issues involved in the case. Inquiryconducted by a professionally trained judicial officerassumes the character of a judicial nature. One neednot be afraid of the adverse comments made by higherjudiciary in appropriate cases. Even judicial officermay err or go wrong in his conclusions. He is notinfallible. But if we avoid judicial enquiry even in

13. Article 50 reads : "Separation of judiciary from executive -The State shall take steps to separate the judiciary from theexecutive in the public services of the State".

C.U.L.R. Notes and Comments 165

appropriate cases, on the same logic, we may have toargue for only single level of adjudication avoiding anyappeal because of fear of adverse comments fromhigher judiciary.

On Objectives of Punishment

The last point taken up by the ealrier commentatoris the preposition that 'the criminal justice system doesnot insist for punishment of the guilty if its insistancefor punishment works against the purpose of peventionof crimes'. He is pointing out the provisions forwithdrawal of prosecutions, compounding of offences,barring prosecutions based on limitation etc. He alsopoints out to the need for the citizen and the society tohave repose, to forget and forgive if it ultimatelyachieves peace in society leading to prevention ofcrimes. The provisions invoked, it may be submitted,have again no baring on the context of the facts andcircumstance of Varghese murder case. Here the factsare yet to be unearthed fully. If the facts aresuppressed it will only be unjust leading to a cold peacenot conjenial for prevention of crimes. Such instancesare likely to be repeated. Period of limitation isinapplicable to gruesome murder cases. How can it beargued that in this background one may not agree toreopen a case of the debate of a person responsible forthe killing of several persons years ago ?. What wasin demand was not for debate but for a solid judicialinquiry. One cannot also assume that Varghese waslegally responsible for the murder of many as it cannotbe assumed that the 5th respondent police constablewas shooting down Shri. Varghese on the dictates ofsuperior officers. Why and in what circumstances themain culprit in the case now comes forward with thestartling revealation or confession ? It was belived bythe public or the public was made to believe by the

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official version appeared in the press that ShriVarghese had died in an encounter characteristic ofrevolutionory action. Does the constable or somebodyelse also deserve punishment ? In fact, if the 5threspondent who makes a confession goes unpunishedwithout being brought to the course of justice he islikely to suffer the burden of conscience pricking andthat will be against the objectives of punishmentnamely reparation, repeptance, remorse, retribution,reform and prevention. An open judicial enquiry wouldhave revealed the full facts and innocence or otherwiseof the superior officers and State functionaries asmentioned earlier. So also a CBI enquiry cannot be impar-tial and independent in the circumstances of the case.

A Glimpse of the Merits

Going by the facts and merits of the case the 5threspondant police constable deserves punishmentunless he retracts from his confession or promisedpardon as an approver witness. As admitted in hisrevealation as reported in the press and as containedin the counter affidavit he is party to the commissionof a first degree murder by actual shooting by himselffor which the alleged threat or coersion from thesuperior officers is no defence in Indian law. Thoughthere is no division between first and second degreemurders in Indian law as it is in English law he is anaccomplice before the fact and one of the main culpritsand so the principle laid down in an important Englishcase is relevent here for comparison. In Re Howe", it

14. [1980] I All E.R. 833 at p.838. The decision of the House ofLords in Lynch v. DPP, [1975] I All E.R. 913 was distinguishedwhich was the case of a murderer of the second degree, notparticipating in the actual schooting or killing; and thedecision of the Privy Council inAbbot v. The Queen, [1976], 3All E.R. 140 (P.C.) applied which was a case again of a principalin the first degree by actual participation.

C.U.L.R. Notes and Comments 167

was held by Court of Appeal that "although the defenceof duress is available to a person who has beencharged with aiding and abetting a murder, whetherhe was present at the killing or not, such a defence isnot available to a principal in the first degree to theactual killing."

Conclusion

The case involves important matter of public in-terest both from socio-legal and academic point of view.A full fledged judicial inquiry to bring out full facts ofthe case is not against the interest of democracy andlegal system. A subsequent prosecution if necessaryin the light of full facts is worthy in the interest ofjustice inspite of spending time, energy and money.Criminal justice process informed by facts has no illeffects. It is better than jumping into prosecutionwithout full facts. CBI inquiry may not bring out thefull facts.

G. Sadasivan Nair*

* B.Sc. (Kerala), LL.B. (Delhi), LL.M., Ph.D. (Cochin); Professorand Director, School of Legal Studies, Cochin University ofScience and Technology, Cochin - 682 022.