BECHU KURIAN THOMAS, J.

1. Balabhaskar was an acclaimed violinist who created magical notes with his violin. He was one of the youngest music directors in the Malayalam film industry. Unfortunately, his life was snuffed out at the young age of 40 when, on 25.09.2018, he suffered a car accident on the outskirts of Thiruvananthapuram. Balabhaskar succumbed to his injuries within a week after the accident.

2. Mangalapuram Police registered Crime No.1591/2018 and commenced investigation into the accident. Parents of the deceased Balabhaskar, who are the revision petitioners in Crl.R.P. No.608 of 2022, were dissatisfied with the investigation carried on by the local police, and hence, at their request, the Crime Branch took over the investigation. Still disquieted over the nature of investigation, petitioners requested the Government to hand it over to the CBI. The Government yielded to the request and directed the CBI to take over the investigation. The CBI registered a new crime on 29.7.2020 as RC3(S)/2020/CBI/SCB/Tvm under sections 279, 337, 338 and 304A of the Indian Penal Code, 1860.

3. After completing the investigation, CBI, in its report dated 27-01-2021, concluded that the death of Balabhaskar was on account of the injuries sustained by him in the road traffic accident that occurred on 25.09.2018 and the driver of the vehicle on the fateful day - Sri. Arjun K. Narayanan was arrayed as the accused. The Chief Judicial Magistrate, Thiruvananthapuram, took cognizance of the case as C.C No. 23 of 2021 and is pending consideration. In the meanwhile, discontented with the nature of investigation and the conclusions arrived at by the CBI, petitioners requested the Chief Judicial Magistrate to order a further investigation. One of the witnesses in the case - Sri. Soby George, the revision petitioner in Crl. R.P No.268 of 2023, who claimed to have seen certain persons attacking the vehicle of Balabhaskar, also filed a petition seeking further investigation. By the impugned order dated 29.07.2022, the learned Chief Judicial Magistrate dismissed both applications and, hence, these two revision petitions.

4. According to the final report, on 24.9.2018, Balabhaskar, along with his wife and minor child, travelled to Thrissur for an offering at the Vadakkumnathan Temple. After completing the ceremony, they returned to Thiruvananthapuram in a Toyota Innova car driven by Sri. Arjun. When the vehicle reached near the CRPF Camp at Pallipuram, at around 03.30 am on 25-09-2018, it swayed to the sides and collided with a tree, causing instant death of Balabhaskar’s daughter, who was sitting on his wife’s lap in the front seat. During the course of treatment, Balabhaskar also succumbed to his injuries on 02.10.2018. Following prolonged treatment, Balabhaskar’s wife Lakshmi and the driver Arjun recovered and were discharged from the hospital.

5. Sri. T.M. Ramankartha, learned counsel for the revision petitioners, contended that the CBI had failed to probe into various aspects of the crime and had left many questions unanswered. According to the learned Counsel, when the CBI was called upon to investigate, they should have arrived at a conclusion only after an exhaustive investigation, which leaves no room for doubt as otherwise, a probe by an expert agency is of no use. In order to impress upon the court the necessity of a further investigation, various aspects were pointed out, especially those surrounding the witnesses like Sri.Prakash Thampi, Sri.Vishnu Somasundaram, Sri.Arjun Narayanan, Sri.Jishnu and Smt.Latha Raveendranath.

6. Sri.K.P.Satheesan, learned Senior Counsel appearing on behalf of the CBI duly instructed by Adv.Sudhin Kumar, on the other hand, submitted that the order of the learned Chief Judicial Magistrate calls for no interference and that every aspect of the crime had been properly investigated. The learned Senior Counsel read through the statements of numerous witnesses and submitted that the CBI had carried out an exhaustive probe and concluded it to be a road traffic accident. It was submitted that the doubts expressed by the parents had also been probed into, and hence, no case has been made out for any further investigation. Referring to the request for further investigation filed by Sri. Soby George, who is the revision petitioner in Crl.R.P. No.268/2023 CBI alleged that he was misleading the investigating agency and proceedings have been initiated against him for giving false evidence.

7. I have considered the exhaustive arguments of both the learned Counsel and also perused the copies of the records handed over by the learned Counsel.

8. The power of the Court to order further investigation is no longer res integra. Reference to the decisions in Vinay Tyagi v. Irshad Ali alias Deepak and Others [(2013) 5 SCC 762] [LQ/SC/2012/1138] and Anant Thanur Karmuse v. State of Maharashtra and Others [(2023) 5 SCC 802] [LQ/SC/2023/193 ;] are relevant. Further, in a recent decision of the Supreme Court in State through Central Bureau of Investigation v. Hemendhra Reddy and Another [(2023) SCC Online SC 515] it was held that “there is no bar against conducting further investigation under S.173(8) of the CrPC after the final report is submitted under S.173(2) of the CrPC” and also that “prior to carrying out further investigation under S.173(8) of the CrPC it is not necessary that the order accepting the final report should be reviewed, recalled or quashed”.

9. Apart from the above, in the decision in Chandra Babu alias Moses V. State through Inspector of Police and Others [(2015) 8 SCC 774] [LQ/SC/2015/849] the Supreme Court had culled out the powers of Magistrate under section 173(8) Cr.P.C and held that after getting a final report, the Magistrate concerned has an unfettered right of directing further investigation as envisaged in sub-clause (8) of S.173 of the Code. Since the present two revision petitions are challenging the order of the learned Magistrate declining to order further investigation, this Court has to consider whether the circumstances require a further investigation.

10. Balabhaskar and his daughter died, pursuant to a road traffic accident that occurred on 25.09.2018. At the time of the accident, Balabhaskar was lying in the back seat of the vehicle while his wife Lakshmi and daughter Tejaswini were sitting in the front along with the driver. Enroute to Thiruvananthapuram from Thrissur, the vehicle suddenly swerved off the road and hit a tree near Pallipuram. The injured were immediately taken to the Medical College Hospital, Thiruvananthapuram, while the daughter, who died instantly, was taken to Ananthapuri Hospital.

11. Balabhaskar’s parents’ doubt stems from certain events that transpired after the accident. Their suspicion revolves around the conduct of a few persons, including Sri.Prakash Thampi, a close aid of Balabhaskar, Sri.Jishnu, who was one of the initial persons who came to know about the accident and Sri. Vishnu Somasundaram, a friend and the former employer of the driver Sri.Arjun. From the nature of contentions raised, it is assimilated that petitioners suspect foul play behind the alleged accident.

12. While analysing the contentions urged to substantiate the prayer for further investigation, the following circumstances are relevant:

(i) Balabhaskar had travelled from Thiruvananthapuram to Thrissur on 24-09-2018 and booked a hotel for one night but suddenly decided to return to Thiruvananthapuram that night itself. On their way back, they had dinner at Smt. Latha’s (CW48) sister's house at Thrissur. Smt. Latha stated that on the night before the accident, Balabhaskar insisted on travelling back as he had arranged a meeting with a Music Director called Akshay Verma (CW104) at Thiruvananthapuram on 25-09-2023, while the said Akshay Verma denied any such proposed meeting.

(ii) Smt. Latha called Arjun sometime around 4.15 a.m., and the police picked up their call and informed her about the accident. She immediately telephoned her son Jishnu, who was staying with Sri.Prakash Thampi that night.

(iii) By 04.30 am, both Sri.Prakash Thampi (CW53) and Sri.Jishnu (CW51) went first to Ananthapuri Hospital and then to the Medical College Hospital, Thiruvananthapuram. Against medical advice, Sri.Prakash Thampi shifted Balabhaskar and his wife to Ananthapuri Hospital, situated 6 km away. On his way to the hospital, he informed the parents of the wife of Balabhaskar and other friends.

(iv) Sri.Prakash Thampi stated that he went to Mangalapuram Police Station on 25-09-2018 between 9 a.m. and 10 a.m. and collected Balabhaskar’s mobile phone, wallet and car key from the police station, which had been seized by the police from the scene of occurrence. No acknowledgement was obtained by the police at the time of handing over those material objects recovered from the scene of the crime to Sri.Prakash Thampi. An acknowledgement was obtained from the brother of Lakshmi five days later for objects other than those handed over to Sri.Prakash Thampi.

(v) Sri.Prakash Thampi refused to hand over Balabhaskar’s mobile phone to Balabhaskar’s wife despite repeated requests.

(vi) Two mobile phones of Balabhaskar were concealed in the pooja room of the house of Sri.Prakash Thampi and were recovered when the Department of Revenue Intelligence seized them in May 2019.

(vii) Sri.Prakash Thampi and Sri.Vishnu Somasundaram were involved in a gold smuggling case and were both arrested and remanded into custody. They even underwent preventive detention under the COFEPOSA.

(viii) Sri.Prakash Thampi had withdrawn an amount of Rs.25000/- from an ATM close to the scene of occurrence and that too few hours before the accident. (at 19.58 hours on 24-09-2018). This fact was also identified by the DRI who informed the CBI through their letter dtd. 12-10-2020.

(ix). Dr. Anoop Chandran, CW87, (husband of the closest first cousin of Balabhaskar), the Medical Director of a well-known hospital called Sree Uthradam Thirunal Hospital (SUT) situated close to the Medical College Hospital, Thiruvananthapuram (2 km), was never consulted or informed by Sri.Prakash Thampi before the injured were shifted to a private hospital that too from the Medical College Hospital against medical advice and even before the sun rose on the day of the accident.

(x) Though there were two well-known hospitals like SUT and KIMS, closer to the Medical College Hospital, and despite CW87 being the Medical Director of SUT Hospital, Sri.Prakash Thampi shifted the injured persons to Ananthapuri Hospital, which was about 6 kms away.

(xi) Dr. Anoop Chandran CW87 says that Sri.Prakash Thampi was the last to see Balabhaskar at Ananthapuri Hospital on 1st October, 2018, the day before his death, and his behaviour on hearing the news of the death of Balabhaskar was dramatic and suspicious.

(xii) Sri.Prakash Thampi travelled all the way to Kollam with a technician and another person to check on the CCTV camera at a juice shop from where Balabhaskar had juice during his travel on the ill- fated day.

(xiii) The juice shop owner CW.61, had stated that Sri.Prakash Thampi came with a technician to his shop to check the CCTV recording, and with the permission of the local police, he was permitted to check the CCTV. CW61 further stated that Sri.Prakash Thampi left, saying that he could not retrieve anything.

(xiv) CW41, a Civil Police Officer, who was on duty at Mangalapuram Police Station till 9 a.m. on 25-09-2018, stated that at around 6.30 am and 7 am, a lady and a man came to the police station to collect the articles of Balabhaskar recovered by the police from the scene of the accident.

(xv) The call detail records of Balabhaskar’s phone show that on 25-09-2018 at 7.14 am a call was attended at Mangalapuram (police station) while the next call was attended at 7.35 a.m., while the phone was at Pettah junction indicating that the phone had travelled out of the police station before 7.35 am.

(xvi) CW74, the Nodal Officer of the Cellular operator of Sri.Prakash Thampi’s Mobile phone, stated that between 6.55 am to 07.25 am Sri.Prakash Thampi’s mobile phone was within the towers of Mangalapuram (Police Station area) to Kazhakoottam. The distance between Ananthapuri Hospital and Mangalapuram Police Station is about 19 kilometres.

(xvii) The driver of the vehicle Sri. Arjun has few criminal antecedents, including involvement in two ATM theft cases and criminal trespass, as spoken to by CW2, CW47, CW 49, CW50 and even by his own parents.

(xviii) The driver Arjun, was not wearing a seat belt, though the vehicle was speeding at 94 km per hour at the time of accident. The passenger (Lakhsmi) seated in the front, on the left, was wearing a seat belt, and she suffered serious injuries and was unconscious for almost a month, while the driver, though injured, did not suffer serious injuries compared to the other passengers.

(xix) Sri.Prakash Thampi has a significant connection with ‘Ananthapuri hospital’ and he had taken thumb impressions of Balabhaskar while at the hospital.

(xx) Sri.Akash Shaji, the cousin of Sri.Vishnu and questioned by DRI for smuggling with whom Sri.Prakash Thampi had a conversation for 8.31 minutes at 10.30 pm on 24-09-2018, was never questioned by the CBI.

13. The above twenty circumstances create suspicion, commencing with the Music Director, Akshay Verma (CW104), denying any agreement to meet Balabhaskar at Thiruvananthapuram on 25-09-2018 and the conduct of Smt.Latha telephoning Sri.Arjun at 4.15 am, which is around the time of the accident. The latter conduct, though not abnormal, especially since the said Smt.Latha is the aunt of Sri.Arjun, it is still not a regular course of human conduct, especially the timing of the call. Further, the information of the accident is first conveyed by Smt.Latha to her son Sri.Jishnu, who was staying with Sri.Prakash Thampi, with whom he had only a casual acquaintance and the conduct of Prakash Thampi in forcefully shifting Balabhaskar and his wife to Ananthapuri Hospital, situated about 6 km away from Medical College Hospital, that too against medical advice. Neither the parents of Balabhaskar nor his wife and not even their relatives were informed about the accident until the injured were shifted to the Ananthapuri Hospital. Failure to inform Dr.Anoop Chandran CW87, before shifting the injured from the Medical College Hospital is surprising, especially when two well-known hospitals very close to the Medical College Hospital were there and CW87 was the Medical Director of one of those hospitals (Sree Uthradam Thirunal Hospital).

14. Added to the above circumstances is the suspicious conduct of Sri.Prakash Thampi in collecting Balabhaskar’s mobile phone, wallet and car key from the police station that too without any acknowledgement and his subsequent refusal to return them to Balabhaskar’s wife, apart from the discrepancy of the time when the mobile phones were collected. Sri.Prakash Thampi and Sri.Vishnu Somasundaram were subsequently arrested in a gold smuggling case and both were remanded to custody and during the search of Sri. Prakash Thampi’s house, the DRI recovered two of Balabhaskar's mobile phones concealed in the pooja room. The driver, Arjun, who is the nephew of Smt. Latha, and a former employee of Sri. Vishnu was involved in a few crimes, including two ATM thefts earlier. The above circumstances should have aroused the curiosity of any investigating officer. In the backdrop of the above circumstances, Sri. Prakash Thampi’s conduct of travelling all the way to Kollam with a technician and another person to check on the CCTV camera at a juice shop also raises doubt. There is no proper explanation or even any investigation conducted into the above aspects.

15. The above circumstances are not exhaustive. They indicate something beyond normal, which may or may not be relevant. However, as an expert investigating agency, even the slightest doubt is required to be probed into and verified. Surprisingly, such an exercise is not seen to be carried out by the CBI. The investigating agency has accepted the statements of the witnesses, who could be under a scanner of doubt and against whom suspicions were raised by the parents of the deceased, as gospel truth, without confronting them with the materials collected.

16. In this context, the statement of Sri. Soby George assumes significance. Sri. Soby George is CW117 - a total stranger to all those involved and who was driving towards Thiruvananthapuram around the same time. He alleged that he saw a few persons attacking Balabhaskar’s car near a petrol pump and sped away and that later he saw the very same persons standing around Balabhaskar’s car near the accident site. Sri. Soby George had, during the investigation, identified one random person - a total stranger to him (later identified as Sri. Reuben Thomas and a friend of Sri. Vishnu Somasundaram) standing near the accident site. CBI found the information of Sri. Soby George as false based on Call Detail Records of the said Reuben. CBI subjected Sri. Soby George, as well as Sri.Prakash Thampi, Sri.Arjun and Sri. Vishnu, to a layered voice analysis test as well as a polygraph test, and Sri. Soby George had willingly given his consent to all such tests. Ext.D52 is the report of tests conducted on the said four persons. The report reveals that Polygraph could not be performed on Sri.Soby George due to medical reasons. However, other tests were done on him, which revealed deceptive answers given by him. CBI discarded all the instances narrated by Sri. Soby George as false assumptions for the reason that he is involved in 20 criminal cases. Of course, it was contended by the learned counsel that the criminal cases were all based on failure to honour cheques and were not serious offences. Curiously, instead of ascertaining whether the circumstances narrated by Sri. Soby George could have been possible, CBI has gone on to register a crime against him for the offences under sections 193 and 187 IPC for misleading the CBI investigation and for giving false evidence.

17. Strangely, the driver of the vehicle, Sri. Arjun is admittedly involved in an ATM theft case at Cheruthuruthy in the year 2015 and another ATM theft case at Pazhayannur and also involved in a crime relating to house trespass at Thrissur. Sri.Prakash Thampi and Sri.Vishnu Somasundaram were involved in smuggling activities, of course, allegedly, subsequently. A polygraph test on Sri. Vishnu revealed that he was not being truthful in his answer regarding Balabhaskar's knowledge about Sri. Vishnu’s smuggling activities. Surprisingly, even during the polygraph test on Sri.Prakash Thampi or on Sri.Vishnu, they were not confronted with inconsistencies noticed during the investigation. The deceptive answer of Sri. Vishnu has not been given any importance. The statements of the aforesaid witnesses were relied upon by the CBI without any hesitation, while the statements of Sri. Soby George, who was even subjected to various lie detection tests, were discarded. Of course, Sri. Soby George’s conduct in not informing his driver about him witnessing an incident of this nature does raise doubts, still, as an expert investigating agency, the CBI should have probed deeper into those aspects.

18. Relevant in this context is Ext.D55, which is a letter issued by the Directorate of Revenue Intelligence to the CBI on 12-10-2020. In the said letter, Directorate of Revenue Intelligence states that statements under section 108 of the Customs Act, 1962 were given by two persons who were caught smuggling 24.9 kgs of gold on 13-05-2019 at Thiruvananthapuram Airport, that they were members of a smuggling racket operated by Sri. Vishnu and that he was introduced into the smuggling racket by his cousin Sri.Prakash Thampi. They also stated that the smuggling operations were done with the help of a Customs Officer by the name of Sri.Radhakrishnan. The letter further goes on to state that Sri.Vishnu Somasundaram and Sri.Prakash Thampi thereafter absconded to Dubai and during the search of the house of Sri.Prakash Thampi, they recovered three mobile phones, out of which two were later found to be that of deceased Balabhaskar concealed inside the pooja room of Prakash Thampi. It is also mentioned in the letter of the Directorate of Revenue Intelligence that the Customs Officer Sri. Radhakrishnan had, in his statement under section 108, stated that he came into contact with Sri.Vishnu through Balabhaskar. After referring to the information given by Sri. Soby George, the letter goes on to state that Directorate of Revenue Intelligence investigation revealed that Sri.Prakash Thampi had withdrawn an amount of Rs.25,000/- from an ATM near the accident site at 19.58 at Pothencode on 24-09-2018 and also that one Jameel Abdul Jabbar, the Sound Recorder of Balabhaskar, was involved as a carrier in the smuggling racket organised by Sri.Vishnu Somasundaram and Sri.Prakash Thampi. Of course, there is a case that Sri.Prakash Thampi’s wife was admitted to a hospital at Pothencode, and the amount was withdrawn for paying her bill. However, the timing of discharge does not tally with the timing of withdrawal. All these circumstances still remain unanswered, and a doubt lingers in the mind of the Court. This is all the more since Sri. Prakash Thampi or the other persons allegedly involved in the gold smuggling have not been confronted with any of the incriminating materials collected or revealed during the investigation.

19. In this context, it is apposite to point out that the driver Sri.Arjun was, according to the prosecution, not wearing a seat belt. The nature of injuries sustained by him, despite not wearing a seatbelt and the nature of injuries sustained by the wife of Sri. Balabhaskar, who was wearing a seat belt, has not been seriously probed into. The witnesses from the nearby colony who claimed to have come to the scene of the occurrence immediately after the accident had never given any information earlier to the local police or to the Crime Branch but gave statements to the CBI is puzzling, though not fully material.

20. The circumstances mentioned above, even if it is assumed to be inconsequential in the ultimate analysis, should have necessarily stirred the incisive mind of an investigating officer, especially since most unanswered areas revolve around the conduct of Sri.Prakash Thampi, Sri.Vishnu Somasundaram and their associates. Surprisingly, the CBI has not probed deeper into the aforesaid aspects. The astuteness of an expert investigating agency ought to be reflected in leaving no stone unturned during the probe. An inconsistency or a discrepancy, insignificant to the outside world, can, at times, be the lead for unravelling the mysteries of covert actions. To achieve this, a deep and pervasive investigation is required. The doubts expressed by the parents of Balabhaskar cannot, in the above circumstances, be held to be wholly bereft of any basis. When it is felt that the investigation conducted has not been penetrating and the final report has still left several loose ends and many stones unturned, the imprimatur of a comprehensive investigation cannot be accorded by the Court.

21. In view of the above discussion, this Court is of the view that the investigation conducted by the CBI into Crime No. RC3(S)/2020/CBI/SCB/Tvm has not been foolproof, and the circumstances arising in the case need to be probed further. Therefore, the orders dated 29.07.2022 in Crl.M.P No.363/2021 and Crl.M.P No.362/2021 in C.C. No.23 of 2021 on the files of the Chief Judicial Magistrates Court, Thiruvananthapuram are set aside and the Investigating Officer is directed to investigate the said crime further, especially to identify whether there was any conspiracy or connection between the activities of gold smuggling and the accident on 25-09-2018 and the consequent death of Balabhaskar. The further investigation so directed shall be completed as expeditiously as possible, and preferably within three months from today.

22. These criminal revision petitions are allowed as above.