Sister Abhaya met with her untimely and unnatural death on the night of 26.3.1992. The mystery about the circumstances under which her death took place has not been finally resolved yet. The matter was being investigated by Delhi Unit of the C.B.I. The local police, C.B.C.I.D. and the C.B.I. Delhi Unit had earlier sought permission to close the investigation. But permission was not granted by courts. According to the C.B.I., it is a case of homicide. The manner in which the homicide took place could not be ascertained by the Delhi Unit.

2. Dissatisfied with the investigation, Honble Mr. Justice V. Ramkumar by order dated 4.9.2008 directed as follows in para 15:

"15. There is no reason why the Kerala Branch of the C.B.I. should not conduct further investigation of this case. Accordingly, I direct that this case shall be further investigated by the Kerala Branch of the C.B.I. The Superintendent of Police in-charge of the Kerala Branch of the C.B.I. shall entrust the investigation of this case with a team consisting of officers of unquestionable integrity and ensure that no stone is left unturned in its mission to unravel the truth behind the murder of Sister Abhaya and in locating the persons responsible for the homicide. The action, if any, against Sri.R.K. Agarwal is deferred till the outcome of the further investigation in this case. Sri.R.K. Agarwal shall immediately hand over the entire investigation files to the Superintendent of Police heading the Kerala Branch of the C.B.I. It shall not be lawful for anybody including the Central or State Governments to interfere with the course of further investigation to be conducted by the Kerala Branch of the C.B.I. In case there is any intra-institutional or external pressure or influence exerted on any member of the investigating team, it shall be lawful for him to move this Court through the Registrar General without seeking the formal permission of any of his superiors. In the light of the decision of the Apex Court in Sakiri Vasu v. State of U.P. (2008 (1) KLT 724 (SC)) it shall be lawful for the Chief Judicial Magistrate, Ernakulam, to monitor the investigation by the Kerala Branch of the C.B.I. and issue appropriate directions in case he has reason to believe that the further investigation is not proceeding on proper lines. In the event of the Chief Judicial Magistrate entertaining some doubt regarding the modalities or the propriety of the further investigation, he shall be at liberty to submit his evaluation report to this Court through proper channel and this Court will then consider whether the investigation should be taken away from the C.B.I. and entrusted with a team of good officers under the State Police. This I.A. is disposed of accordingly."

3. The Case Diary was not transferred to the Kochi Unit as directed. The matter was reported to this Court by the learned C.J.M. The matter was placed before Mr. Justice V. Ramkumar. By then, there was a change in roster. Mr. Justice V. Ramkumar directed that the matter:

"be posted before the learned Judge dealing with the subject as per the roster".

Contrary to the popular belief which mistaken impression is expressed at the Bar also, Mr.Justice Ramkumar did not as such avoid the matter. The Honble Chief Justice directed that:

"the matter be posted before the Bench dealing with Writ Petitions and Art.226 (Criminal) matters as per the roster."

Accordingly, the matter was placed before this Bench. Peremptory directions were issued on 23.10.2008 obliging the C.B.I. Delhi Unit to hand over the files to the Kochi Unit within a stipulated time. At that stage, the C.B.I. appears to have acted promptly. They issued order dated 24.10.2008 entrusting the investigation to a Special Investigation Team headed by Sri. Nandkumar Nair, Deputy Superintendent of Police. Para 2 of the order specifically directed that:

"the further investigation in the case will be supervised by D.I.G., C.B.I., Chennai and Joint Director (South), C.B.I."

When this fact was reported to this Court on 3.11.2008, the Court was dissatisfied that the investigation was entrusted to an official at the level of a Deputy Superintendent of Police. Clarification was sought and it was pointed out that in the light of the directions issued by Mr. Justice V. Ramkumar on 4.9.2008, the Superintedent of Police had to specify the Investigating Officer and therefore he could not have entrusted the investigation to any superior officer. It was reported to this Court that the Investigating Officer is an officer of impeccable track record -winner of Presidents police medal on 26.1.2008. This Court considered all circumstances and accepted the arrangement. It was decided that the investigation shall be overseen and monitored by this Court broadly which on an ongoing manner shall be monitored by the learned C.J.M. under 5.156 (3) Cr.P.C. (as already directed by Mr. Justice V. Ramkumar in the order dated 4.9.2008). I extract the relevant observations/ directions in the said order dated 4.11.2008:

"2. I repeat that I expect the present Team to undertake a professional job - a mission with commitment to truth and justice only. I note that directions have been issued earlier to them to submit periodical reports. I realise the need to give time to the officers concerned to go through the voluminous records before any specific report is filed. I therefore direct that the next report before this Court and the learned C.J.M. need be filed only after elapse of 45 days from this date. Needless to say, the learned C.J.M. shall monitor the investigation true to the directions issued earlier by my learned brother.

3. This petition can now be closed with the observation that the matter shall be considered again when the next report is submitted by the Investigating Officer to this Court on or before 4.2.2009. I intend to over see and monitor the investigation broadly, which on an ongoing manner shall be monitored by the learned C.J.M. When the next report is submitted on or before 4.2.2009, this Court shall again consider the steps that are necessary. I make it clear that the Investigating Officer shall be at liberty to seek further directions from this Court as and when necessary if he experiences any difficulties in investigation and needs the direction of this Court. The directions issued by this Court on 4.9.2008 shall be strictly complied with by all concerned subject to the modification above that the next report need be filed only after elapse of 45 days from this date.

4. The learned counsel for the petitioner seeks directions of this Court on the details of the investigation. I am of opinion that no direction need be issued now. The Investigating Officer and his Team, I am satisfied, must be given a free hand to make all out efforts to identify and ascertain the truth behind the murder of Sister Abhaya. I expect tangible results should be produced by the present Investigating Officer at the earliest" (emphasis supplied)

4. Investigation proceeded. Three persons were arrayed as accused and arrested. They were produced before the learned C.J.M. They were remanded to custody. Police custody was granted. Accused came before this Court challenging the remand and handing over to police custody. This Court by the decision in Fr. Jose Poothrikkayil & Ors. v. Union of India (2008 (4) KLT 822 = 2008 (4) KHC 902) turned down the challenge. The accused were arrested on 18.11.2008 and 19.11.2008. Long later on 1.1.2009, orders were passed on the bail applications filed by the said three accused persons. They were directed to be released on bail, subject to conditions. That order, hereinafter referred to as the bail order, is a detailed order. Observations have been made expressing reservations about the adequacy of investigation. It was at this juncture that the C.B.I. has filed this application seeking further directions in terms of the option given to the C.B.I. as per the orders dated 4.9.2008 and 4/11/08 (relevant portions extracted above).

5. I have heard the learned Standing Counsel for the C.B.I. Sri. M.V.S. Nampoothiry and Sri.A.X. Varghese - the learned counsel for the father of the deceased Abhaya. Sri. K.Ramakumar - Senior counsel, was also permitted to make his submissions to assist this Court. I also heard Sri.C.P. Udayabhanu and Sri.B. Raman Pillai - the counsel for the accused who happened to be present in Court and who were gracious to assist this Court. It was made clear to every one concerned that only the learned counsel for the C.B.I. has the right of hearing and all others are only permitted to assist the Court.

6. To a specific query put to the counsel for C.B.I., the counsel submitted that the investigation remains freezed and is at a stand still position from the date of the bail order. They seek directions as to what they should do. Before proceeding to consider the matter, I would in an unambiguous manner express dissatisfaction against the course followed by the C.B.I. I would like to remind all the functionaries that the official chair and position can only give the functionaries only the opportunity to fight for truth and justice. The yearning to relentlessly fight for truth, justice, virtue and righteousness and to fight against untruth, injustice and vice must be inherent in the personality of the incumbent. If that is lacking the chair and the position will not make any difference. The credentials of the Investigating Officer placed before me in writing had instilled in me the hope and the satisfaction that the investigation had at last reached such hands. The Kochi Unit of the C.B.I. should not be looking for excuses to discontinue the investigation. I am disappointed at the admitted freezing of the investigation by the C.B.I. which I am now assured has re-started consequent to the discussions at the Bar on 5.1.2009 and 6.1.2009. I feel relieved to hear that submission.

7. The C.B.I. as also the father of late Abhaya and Sri.K. Ramakumarwho was appearing for the writ petitioner has several grievances to raise about the order of the bail Bench. Canons of judicial ethics, judicial discipline and judicial propriety inform me that I should not even refer to the grievances on merits against the order. I shall not do the same. The learned counsel were deterred from raising any such arguments before this Bench. If they have any grievance, the aggrieved must go northwards to the superior court to assail such order.

8. In the light of the order of the bail Bench, can the C.B.I. proceed with the investigation Should it stop the investigation It may be clarified whether this Bench is monitoring the investigation and whether the bail Bench will hereafter be monitoring the investigation. There is serious confusion on these aspects, submit the learned standing counsel for the C.B.I., Advocate Sri.A.X. Varghese and Advocate Sri.K. Ramakumar.

9. I find no merit whatsoever in these submissions. The bail Bench and all concerned were fully aware of the orders dated 4.9.2008 and 4.11.2008 passed by this Bench and that this Bench was supervising and monitoring investigation. The bail Bench cannot and did not take over the burden of monitoring the investigation under Art.226 of the Constitution. The short question that fell for consideration before the bail Bench was whether bail can be granted to the three accused in custody. It could not stop short by saying that bail was granted or not granted. Reasons had to be shown. The bail Bench did not and could not render any authentic findings on the questions that arose in investigation and which may come up at the stage of trial if trial has to be gone through. No final opinion on any matter pending in investigation can be or was rendered by the bail Bench. The said Bench could not in law have intended to render any final and binding findings on any disputed questions. Incidental to its jurisdiction/obligation to explain and give reasons as to why bail was or was not being granted a bail Bench has to give reasons. The observations of the bail Bench may and must persuade an alert Investigator to pointedly consider the relevant circumstances adverted to in the bail order. Whatever the bail Bench or the monitoring Bench may now say, the burden would rest heavily on the prosecution to prove the case beyond any doubt before the trial court if the matter ultimately reaches the Trial Court. An efficient and intellectually humble Investigator can gather many a relevant inputs from such observations in bail orders to fine tune his investigation. Faced with such observations, he cannot throw his hands up and freeze the investigation.

10. The C.B.I. - the premier investigating agency in this country, could not have reasonably entertained any doubt as to which Bench was monitoring the investigation. No observation in the bail order could have created any such doubt. The bail Bench was aware of the fact that another Bench is monitoring the investigation. That Bench had made no observation to suggest that it was taking over the burden of monitoring the investigation. That Bench could not have done the same also in the absence of any directions for change of roster. The fact that Sakiri Vasu v. State of U.P. (2008 (1) KLT 724 (SC)) permits the Magistrates to monitor, supervise and even interfere with the investigation invoking its powers under S.156(3) Cr.P.C. if a proper investigation is not conducted, could never have persuaded the C.B.I. to feel that the bail Bench has taken over monitoring of the investigation even when another Bench as per the roster is seized of the matter. The C.B.I.s assumption that there is confusion as to which Bench is monitoring the investigation is to say the least naive, puerile and without substance. The C.B.I. could not have assumed that all who touch the sword are oracles.

11. Let the message go loud and clear to the C.B.I., if there be any confusion or doubt, that as per the roster and as specifically directed by the Honble Chief Justice on 22.10.2008, it is the burden/duty of the Bench dealing with the Writ Petitions under Art.227 (criminal matters) to monitor the investigation.

12. Two specific circumstances are pointed out which allegedly fetters jurisdiction of the present Investigating Officer to proceed further. In pars 99(2) of the bail order, there is a direction in these words:

"99(2). The investigation by the present team of officers shall be continued hereafter only under strict and immediate guidance and supervision of a more competent and experienced senior officer or team of officers of C.B.I., in the light of the observations made in this order. The details of the supervising officers shall be furnished to this court without any delay." (emphasis supplied)

13. This is surprisingly construed as a direction superseding the order dated 4.11.2009 in which the order dated 24.10.2008 entrusting the investigation to a Special Investigation Team supervised by the D.I.G., Chennai and the J.D. (South). At the first instance, there is nothing in the bail order to show that the bail Bench wants any one other than the D.I.G., Chennai and the J.D. (South) to monitor the investigation. They must supervise the investigation properly and earnestly and must inform the bail Bench that they are doing so. I am unable to find any merit in the interpretation that fresh specification of officers for supervision is necessary. The bail order does not mandate that the officers superior to the D.I.G., Chennai and J.D. (South) must conduct the supervision of the investigation by the investigation team. The learned Judge was obviously not satisfied that they were properly supervising the investigation. The direction reasonably read cannot lead any prudent mind to the conclusion that the C.B.I. must import any officer superior to the rank of the Director to supervise the investigation. The assumption is unjustified and totally unsatisfactory. I find no merit in the submission that the investigation justifiably had to be freezed in the light of the above direction.

14. It is then submitted that there is a frontal conflict in the order dated 4.9.2008 and the bail order as to which C.Ds. have been edited and manipulated. Mr. Justice V Ramkumar held that the C.B.I. appears to be guilty of such editing/manipulation. That observation appears in the last para of the order dated 4.9.2008 in the following words:

"Before parting with this case, I wish to place on record the valuable-response shown to this Court by Dr.B.M. Mohan, Director, Forensic Science Laboratory, Bangalore and Dr.S. Malini, Asst. Director, Forensic Psychology Division, FSL, Bangalore. It is a matter of great pleasure to note that notwithstanding the fact that the FSL is under the Police Department, the aforementioned officers have exhibited remarkable independence and integrity in apprising this Court of the true facts. Even before getting the inputs from the FSL, Bangalore, the impression which this Court, had gathered was that a CD was enclosed with each of the narco reports pertaining to the three suspects. It was the said impression which has been confirmed by the FSL, Bangalore. I have the least suspicion that the FSL, Bangalore had indulged in either editing or manipulating the CDs so as to make them incongruous, illogical or incompatible with the narco reports submitted by them. The Registrar General shall convey the appreciation of this Court to both the aforesaid officers." (emphasis supplied)

Those observations as also the earlier observations in the order dated 4.9.2008 reveal that Mr. Justice V. Ramkumar entertained the impression that the CD was manipulated not at the FSL, Bangalore; but later.

15. However, in the order of the bail Bench dated 1.1.2009 the learned Judge appears to have made a different observation in paras 55 and 56 which again I extract below:

"55. Three independent CDs which were produced before me are stated to be received directly from the Forensic Laboratory, Bangalore. A comparison of those CDs with the other single CD (containing the three files in one CD) reveals that all the CDs are not only edited but manipulated also. According to me, in all probabilities, those are edited and manipulated at the Forensic Science Laboratory itself, by the person or persons who were doing the analysis.

56. The editing is clearly visible to the naked eye and to find out the evident editing even an expert may not be necessary. I could not find even a single CD which is unedited. I am not prepared to place any reliance upon the contents of the CDs on Narco Analysis or the reports submitted by Dr. Malini, for the reasons stated above. I have no doubt that if reliance is placed on the CDs made available to this Court, the court and the investigator will go wrong in making conclusions. I am making these observations because the court is entitled to monitor investigation, as held in Sakiri Vasu V. State of Uttar Pradesh & Ors. (2008 (1) KLT 724 (SC) = (2008) 2 SCC 409 [LQ/SC/2007/1498] ). Therefore, it is necessary that the investigator takes all steps necessary to retrieve the unedited original video containing Narco Analysis of all the accused, before he proceeds any further to act upon those CDs. I have no doubt that the edited and manipulated CDs and report on Narco Analysis by Dr. Malini may mislead the investigation." (emphasis supplied)

16. I accept that there is incongruity. Needless to say, such incongruity ought to have been avoided to avert confusion. It must be noted that the observations in both orders are not findings which are final or authentic on the question. They can be reckoned only as observations and not as authentic findings. A bail Bench or a monitoring Bench does not, need not and cannot render any such final and binding findings on disputed facts at this stage. The C.B.I. need not remain shell shocked in front of such observations. At best that must impress upon the C.B.I. the need to revet their pointed attention on that aspect. The observations of the bail Bench that steps must be taken to retrieve the unedited original video containing narco analysis of all the accused must be followed implicitly by any prudent mind which wants to authentically resolve the controversy raised about the genuineness of the CDs. The pointed attention of the Investigating Officer must certainly be revetted on this aspect. No direction or clarification appears to be necessary on that aspect by this Court at any rate. As no authentic findings or directions are necessary on this aspect in this matter at this stage, I am of opinion that it is not necessary to refer the matter to the Division Bench. I had seriously considered that option at the stage when arguments were advanced at the Bar.

17. As ably pointed out by Sri.C.P. Udayabhanu, I have considered the question whether the C.B.I. must be directed to seek clarification from the bail Bench as to what they should do. Undoubtedly, they must certainly comply with the directions of the bail Bench. All that I intended to do is to make it clear that the C.B.I. must comply with the direction of the bail Bench; but must continue the investigation. They cannot freeze the investigation on the basis of any such unreal assumptions as to fetters. It will be abdication of jurisdiction for this Court monitoring the investigation not to impress upon the C.B.I. their responsibility to continue with the investigation complying with the observations of the bail Bench.

18. Was Sr. Abhayas death a case of homicide If so, who was/were responsible for the same Has any one at any stage polluted or attempted to pollute the stream of justice Who are they These are questions which the righteous members of polity in this country are entitled to raise. As a functionary in the legal system as also a citizen of this country, I share the anxiety of the civil society including the relatives of the deceased, ordinary citizens and the fourth estate to get answers for these questions. The C.B.I. has the duty to conduct a proper investigation and furnish satisfactory and reasonable answers to these questions. The C.B.I., I repeat must perform in a firm, efficient and professional manner with ill-will and malice to none and observing the human rights of all concerned. Find out the truth, they must.

19. The C.B.I. complains that they have not been able to perform the task of investigation in peace and they are driven from Bench to Bench with petitions after petitions. They have to run from Bench to Bench with voluminous case bundles and have to educate different Benches of the sequence of events that have taken place during the past about 17 years. I have sympathy for their plight. It is for the Honble Chief Justice to consider whether it is necessary and expedient to direct that all matters relating to this crime must be considered by a specified Judge/Bench.

20. To conclude, I am, in these circumstances, of opinion that no specific clarification or farther direction is necessary. I state that the Investigating Officer is obliged under law to proceed with the investigation with determination. The D.I.G., Chennai and the Joint Director (South) must supervise the investigation effectively as they are expected under the order dated 24.10.2008, They must discharge their responsibility and must report that fact to the bail Bench. Overseeing/monitoring of the investigation certainly shall be by this Bench i.e., the Bench to which "SB criminal matters miscellaneous and O.Ps./W.Ps. (Criminal) under Art.226/227 in pending criminal matters" is assigned. This shall be subject to the supervision and monitoring of the investigation by the learned C.J.M. under S.156(3) Cr.P.C. in terms of the dictum in Sakiri Vasu v. State of U.P. (2008 (1) KLT 724 (SC)) followed by this Court in Vasanthi Devi v. S.I. of Police (2008 (1) KLT 945 [LQ/KerHC/2008/108] ). Until the master of the roster - Honble Chief Justice, issues other directions, the C.B.I. can seek directions from this Bench as already explained in the orders dated 4.9.2008 and 4.11.2008.