IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Order XVI Rule 4 (1) (A)
SPECIAL LEAVE PETITION (CIVIL) NO.

OF 2015

(Against the impugned final judgment and order dated 04-03-2015 in W.A.
No. 1863 & 1959 of 2015 of the High Court of Kerala at Ernakulam
(With Prayer for interim relief)
IN THE MATTER OF: -

Position of Parties
Before the
High Court
S. NAMBI NARAYANAN
Sangeetha,
T.C. No. 36/978,
NSS Lane, Perumthanni
Thiruvananthapuram,
Kerala,

Respondent 1

Versus
1.STATE OF KERALA
Represented by Chief Secy
to the Government of Kerala
695-001

2. Secretary to the
Govt. of Kerala
Department of Home
Govt. Secretariat
Trivandrum 695001
3. The Central Bureau of
Investigation
represented by
its Director
New Delhi
4.Sibi Mathew
5. K.K. Joshwa

Before this
Honble Court
Petitioner

6. S. Vijayan

TO
THE HONBLE CHIEF JUSTICE OF INDIA &
HIS COMPANION JUDGES OF THE
HONBLE SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE PETITIONER

ABOVE NAMED

MOST RESPECTFULLY SHOWETH: 1.

This special Leave Petition is filed challenging the legality of the

judgment and order dated final judgment and order dated 04-03-2015 in
W.A. No. 1863 & 1959 of 2015 of the High Court of Kerala at Ernakulam
whereby,

the Division Bench had set aside the well reasoned and

consideredjudgment dated 20-10-2012 in W.P.(C) 30918 of 2012 (L)

2.

QUESTIONS OF LAW:
The following questions of law of general importance emerge from the

facts of the case:(a) When the CBI, the highest investigating authority, on a thorough
investigation, had rendered its finding that the allegation of espionage
against the petitioner, who was questioned, apprehended and
tortured at the hands of respondent Nos. 4 to 6, did not stand proved
and was found to be false, and had also made a report to the State
Government against respondent Nos. 4 to 6 surfacing out many a

professional lacuna for taking action as deemed fit, is not the closure
of the case by the State Government after a blissful hibernation over
a decade and a half,

showing the time distance as the main

justification for closure of the case totally illegal? In other words, can
the Government be permitted to encash its own mistake when it is
settled law that one cannot take advantage of ones own mistake?
[(2010) 1 SCC 287 and (2005) 3 SCC 427]
(b) When an administrative action was suggested by the CBI, whether
the same could be disregarded by the Government stating that the
same had not been endorsed by the Courts?
(c) When this Honble Court in the earlier round of litigation branded
the action on the part of the Government and its officers as malafide
exercise of power,

is not the closure of the case without taking

action against the erring officers as suggested by the CBI yet another
malafide exercise of power?
(d) Is not the anguish expressed by the National Human Rights
Commission when it observes as to the unlawful action of the Kerala
Police and unblushing support by the State asthe flagrant disregard
to human rights a sufficient caution to the State to proceed against
Respondent Nos. 4 to 6 as per the report of the CBI?
(e) Can the Division Bench of the High Court marginalize the report of
the CBI and accept the reasons stated by the State in closing the
case when the action of the State was condemned both by the
National Human Rights Commission and this Honble Court?

3.

DECLARATION IN TERMS OF RULE 3(2)

The Petitioner has not filed any other Special Leave Petition in this

Honble Court against the final impugned judgment and order dated final
judgment and order dated 04-03-2015 in W.A. No. 1863 & 1959 of 2015 of

the High Court of Kerala at Ernakulam

4.

DECLARATION IN TERMS OF RULE 5.

The petitioner submits that Annexures P-1 to P-08
with

the

Special

Leave

Petition

are

true

produced along
copies

of

the

pleadings/documents/their translated version which formed part of the

records of the case in the High Court and other courts below against
whose orders the present Special Leave Petition is being moved.

5.

GROUNDS

(A) The judgment impugned is bad in law.

(B)

The Division Bench has thoroughly marginalized the comprehensive

report of the CBI, the highest investigating agency of the country in which the
public of the country has full confidence as commented by this Honble Court
in Nupur Talwar vs CBI (2012) 2 SCC 188,
justification suggested

which report, with full

action to be taken against the Investigating Team.

When such reports are made by the CBI, prompt action is taken
dispassionately and in this regard, the decision of this Honble Court in the
case of Susie Tharu vs State of A.P. and Another [ (1986) Supp SCC 504 ]
wherein this Honble Court has held as under:We directed by our order dated December 20, 1985 that CBI will
investigate into the case of alleged rape of Sattamma by two police
officers and four constables as alleged in their writ petition.
Pursuant to the order made by us, the CBI carried out a detailed
investigation and as a result of such investigation, the CBI has

come to the conclusion that is the allegation of rape on Sattamma

by

the

Sub-Inspectors

of

Police

ofgambheeraolpished

and

Mustabad and other police constables is not established. In view

of this report made by CBI< we do not think we can take any
further action in the matter. We must, therefore, close this case,
but since the CBI has come to a finding that there were certain
lapses on the part of Dr. K.Swarna Kumari, Civil Assistant
Surgeon, Government Headquarters Hospital,Karimnagar and Shri
A. Buchy Reddy, Deputy Superintendent of Police, Peddapally in
the discharge of their duties, we would direct that that the report
of the CBI may be sent to the Chief Secretary to the Government of
Andhra Pradesh for taking such disciplinary action as may be
thought fit against these two officers, namely, Dr. K.Swarna
Kumari and Shri A. Buchi Reddy for the lapses committed by them
in the discharge of their official duties as pointed out in the report.

(C) There need be no statutory provision when recommendation has been

from the CBI, a statutory body.

As a matter of fact, when malicious

prosecution has been made, vide Sec. 195 IPC,( Giving or fabricating false
evidence with intent to procure conviction of offence punishable with
imprisonment for life or imprisonment) even criminal action is justified.
(D) The view that neither the CJM, Ernakulam nor the Apex Court had issued
directions to the State to take action in accordance with the CBI Report and
hence no action is called for, is totally erroneous. The suggestion of the CBI
to take action against the Investigating Team is one falling within the domain

of the administration and there is no need at all of any Judicial order either
of the CJM who had accepted the report or of the Supreme Court which too
accepted the report. Such a direction from the court is not a sine qua non to
initiate action on the basis of the report of the CBI.
(E) In unequivocal terms, the Learned Single Judge arrived at the conclusion
that the entire inaction on the part of the Government smacks malafide and
thus the delay should not come in the way of taking action.

The Division

Bench held this view of the Learned Single Judge as one of assumption which
is not so. The conduct of the State Government has already been commented
adversely by the Supreme Court and the National Human Rights Commission.
(F) Limitation to proceed against the respondents Nos. 4 to 6 cannot come in
the way of the Petitioner in so far as criminal proceedings are concerned and
the CBI report to take action as deemed fit does not confine itself to
departmental action only.
(G) In interpreting the term action as deemed fit contained in the CBI
Report, the Learned Single judge did not confine the action to departmental
proceedings only. The Honble Division Bench has wrongly assumed, as had
been the case of the Government of Kerala, that action suggested by the CBI
is restricted to Departmental Action only.

Para 23 and Para 25 of the

impugned judgment refer.

(F) The domain and scope of Art. 226 is far and wide and in its exercise, the
learned Single Judge is fully justified in issuing a direction to initiate action
against the investigating team, especially when the learned Single Judge had
profusely extracted the judgment of the Apex Court before arriving at the
right conclusion.

(G) That the accused were subjected to torture has been mentioned by the
NHRC in its proceedings. The petitioner had to undergo medical treatment,
and this is the admitted fact. The torture need not be one of overt or physical
in nature.

Mental torture is worse.

And the petitioner has suffered both.

The NHRC rightly referred to the violation of human rights of "a reputed
scientist whose long and distinguished career in space research has been
tarnished apart from the physical and mental torture to which he and his
family were subjected ..."
(H)

The following are the dominant display of displeasure and dismay

expressed by the Apex Court in the action of the State of Kerala and the
Kerala police:(i) The flagellation inflicted by the Apex Court upon the State
Government and its officers, qualifying their action as "malafide
exercise of power";
(ii) the comparatively rare use of the words "does not comport with
the known pattern of a responsible Government bound by the rule
of law";
(iii)

the

use, after the pregnant words, "This is undoubtedly a

matter of concern and consternation" of the terminology "we say no

more",
(iv) the conclusion of the judgment with the

words in their

strongest term, "obvious that the investigation cannot and will not
be fair - and its outcome appears to be a foregone conclusion"
(I)

Like degree of anguish and equal scale of concern and consternation

have been manifestly expressed by the National Human Rights Commission

on the flagrant disregard to human rights by the Kerala Police and the
Intelligence Bureau branding their act as "the unlawful action" and the
abetting and unblushing support to the same by the State of Kerala

re-

embossing the stamp of mala fide in the State's action, as held by this Hon'ble
Court.
(J)

The imposition of exemplary cost by the Apex Court and conservative

compensation (even in their own words when the Commission stated, "difficult
to assess in precise terms the monetary compensation") are deterrent in nature
so that the same blunder for which such cost and compensation are awarded
against the State is not repeated by the State and its blue eyed officers.
(K) The above are sufficient enough to kindle the sense of responsibility upon
the State machinery to trigger immediate action against the erring police
officers on the basis of the CBI Report and it was after fully appreciating the
same that the Learned Single Judge had directed the State Government to
consider action against the respondent Nos. 4 to 6 as deemed necessary.

At

the same time, consciously keeping in mind the unusual and illogical
support that may be given by the State Government to the erring officers and
their targeted action against the petitioner, a word of caution had also been
administered in the judgment, by the concluding words, "Suffice it to say that
it shall not be namesake, making administration justice a mockery"
(L)

It is unfortunate that the Division Bench failed to appreciate the real

undercurrent that passed through the mind of the Apex Court, the NHRC and
the single judge in their verdict and on untenable reasons quashed the order
of the learned single judge.

(M)

The true import of the judgement by the Apex Court in Criminal Appeal

492/1997 could well be discerned from the words of the National Human
Rights Commission vide its proceedings in the case of the petitioner herein.
The following is the extract from the said proceedings:
"The Supreme Court of India by its judgements dated 29-04-1998
allowed the Appeal (Criminal Appeal No. 246 of 1994) filed by the
complainant is together with connected appeals filed by others and
quashed the notification directing 'further investigation' into the case by
Kerala Police. The Supreme Court passed strictures against the Kerala
government and observed that the subsequent notification issued by it
was inconsistent with the role of a responsible government bound by
the rule of law. Accordingly, the Supreme Court also awarded Rs.1 lakh
to each of the appellants as costs to be paid by the government of
Kerala."

(N)

With regard to the CBI report, here again, the Human Rights

Commission extracted from the judgment of the Apex Court the following:
"On a careful perusal of the police report submitted by the CBI on
completion of the investigation (which runs through more than 100
pages) we find that it has made detailed investigation from all possible
angles before drawing the conclusion that the allegations of the
espionage did not stand proved and were found to be false."
(O)

That the report of the CBI had been approved by the Supreme Court

has been specifically spelt out by the National Human Rights Commission

when it stated, after extracting profusely from the judgement of the Apex
Court, "It is useful before proceeding further to also quote some relevant
extracts from the closure report of the CBI, which stood approved by the Courts
in above manner."
(P)

The National Human Rights Commission, categorically held,

"The fact that the CBI after a thorough investigation found the
accusation against the complainant is to be false and the closed the
case, which conclusion has been upheld even by the Supreme Court
of India, is by itself sufficient to prove the allegations made by the
complainant is of gross violation of his human rights by officers of the
Kerala police and Intelligence Bureau. This unlawful action was
supported by the government of Kerala which was mala fide exercise
of power as held by the Supreme Court."

(Q)

The Human Rights Commission expressed in its clear terms its

considered opinion as under:

"In our considered opinion, this is an unusual case of gross violation
of human rights of a reputed scientist whose long and distinguished
career in space research has been tarnished apart from the physical
and mental torture to which he and his family were subjected in the
above manner."
(R)

The CBI expressed its dispassionate view after thoroughly conducting

the investigation and suggested

closure of the case which is the subject

matter of the court and advised action against the erring individual officers
which is an administrative function. The court accepted in toto the closure

report and closed the case. That is the judicial part. The court is not, save
when report is called for by itself, normally expected to comment upon the
advice given by the CBI with reference to the administrative action as it is
within the domain of the executive. It was fairly hoped that the executive will
function with that sense of responsibility as is normally expected

of a

responsible government. Absence of any direction by the courts to take action

against the erring individuals cannot in any way dilute the concrete views
expressed by the CBI and its anguish over the way in which the state police
had shabbily treated the petitioner. Rather, absence of criticism by the Court
against the suggestion by the CBI should have be taken as a tacit approval of
the same by the Court.
(S)

When the CBI makes certain observations in connection with the

professional lapses on the part of the police officials the same could not be
marginalised.
prescribed

The commendation

earned by the CBI in performing its

functions as a responsible institution of investigation may be

appreciated from the words of the Apex Court in an earlier judgement in

Kishan Yadav vs State of Haryana (1994) 4 SCC 165.
We have already mentioned about recording the report of CBI. We
will go only by that, as the report commends itself to acceptance. In
our considered opinion, the CBI has done a commendable job and
has not failed to call a spade a spade, without shielding anyone
concerned including a Minister.

.6. GROUNDS FOR INTERIM RELIEF:

The illegality in the judgment impugned, if allowed to perpetuate, would

only encourage the unlawful action and mindset on the part of the
Kerala police to harass innocent persons for extraneous considerations
and unless action as suggested by the CBI is immediately taken,
(possibly under the provisions of Sec. 195 of the IPC if for any justifiable
reason departmental action could not be taken), the innocent public
would suffer at the hands of the Police. Hence, it is appropriate that the
impugned Judgment dated 4th March, 2015 of the High Court of Kerala
in W.A No.1863 and 1959 of 2014 are stayed and the State Government
initiate action as deemed necessary during the pendency of this SLP.

7.

MAIN PRAYER
It is therefore most respectfully prayed that your lordships may be
graciously pleased to: -

A.

Grant special leave to appeal against the final judgment and order final
judgment and order dated 04-03-2015 in W.A. No. 1863 & 1959 of 2015

B.

of the High Court of Kerala at Ernakulam

Pass such other or further orders as this Honble Court may deem fit
and proper in the facts and circumstances of the case and in the
interest of justice.

8.

PRAYER FOR INTERIM RELIEF

A. stay the operation of the judgment dated 04-03-2015 in W.A. 1863
and W.A. 1959 of the High Court of Kerala during the pendency of this
petition.

B.

Pass such other or further orders as this Honble Court may deem fit

and proper in the facts and circumstances of the case and in the
interest of justice.
Drawn and filed by:

Dr. K.B. Sounder Rajan

Advocate for the Petitioner
Drawn on:
Filed on:

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
Order XVI Rule 4 (1) (A)
SPECIAL LEAVE PETITION (CIVIL) NO.
OF 2015
(Against the impugned final judgment and order dated final judgment and
order dated 04-03-2015 in W.A. No. 1863 & 1959 of 2015 of the High Court of
Kerala at Ernakulam
(With Prayer for interim relief

IN THE MATTER OF: Mr. S. Nambi Narayanan

. . Petitioner

Versus
State of Kerala and 5 others

....... Respondents

CERTIFICATE

Certified that the Special Leave Petition is confined only to the pleadings
before the court whose order is challenged and the other documents relied
upon in those proceedings. No additional facts, documents or grounds have
been taken upon therein or relied upon in the Special Leave Petition. It is
further certified that the copies of documents/annexures attached to the
Special Leave petition are necessary to answer the Questions of law raised in
the Petition or to make out ground urged in the Special Leave petition for
consideration of this Honble Court. This certificate is given on the basis of
the instructions given by the Petitioner whose affidavit is filed in support of
the Special Leave Petition.
Filed by:
Advocate for the Petitioner
New Delhi
Filed on:

IN THE SUPREME COURT OF INDIA

Civil/Criminal/Original/Appellate Jurisdiction
Special Leave Petition (Civil/Criminal) No. . . . . . . . . . . of 200
Writ/Transfer Petition Appeal (Civil/Criminal) No . . . . . . . . of 201
In the matter of: Mr. S. Namb Narayanan
Petitioner(s)/Appellant(s)

.........

Versus
State of Kerala & 5 Others
.Respondent(s)

. . . . . . . . . . . . . .

VAKALATNAMA
I , S. Nambi Narayanan, Petitioner/, in the above Petition do hereby appoint
and retain Dr. K.B.SOUNDER RAJAN, Advocate, Supreme Court to act and
appear for me/ in the above petition and on my/our behalf, to conduct and
prosecute the same and all proceedings that may be taken in respect of any
application connected with the same or any decree or order passed therein,
including proceedings in taxation and application for review, and to file and
obtain return of documents, and deposit and receive any money on my/our
behalf in the said suit/appeal/petition/reference and in application for review,
and to represent me/us, and to take all necessary steps on my/our behalf in
the above matter. I/we agree to pay his fees and out of pocket expenses, agree
to ratify all acts done by the aforesaid advocate in pursuance of this authority.
Dated this the . . . . . . . . . . . . . . . day of . . . . . . . . . . . . . . 2015 .
Accepted& identified

Petitioner
Regn. No.
Memo of appearance
To
The Registrar,
Supreme Court of India
New Delhi 01
Sir
Kindly enter my appearance in the above mentioned
petition/Appeal/reference/review made on behalf of the
petitioner(s)/Appellant(s)/Respondent(s).
Yours faithfully
Advocate for the Petitioner
New Delhi/Dated . . . . . . . . . . . . . . .