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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6637-6638 of 2018

S. Nambi Narayanan …Appellant(s)

VERSUS

Siby Mathews & Others Etc. …Respondent(s)

J U D G M E N T

Dipak Misra, CJI

The appellant, a septuagenarian, a former Scientist of the Indian

Space Research Organisation (ISRO), has assailed the judgment and

order passed by the Division Bench of the High Court of Kerala whereby

it  has  overturned  the  decision  of  the  learned  single  Judge  who  had

lancinated  the  order  of  the  State  Government  declining  to  take

appropriate action against the police officers on the grounds of delay and

further  remitted  the  matter  to  the  Government.  To  say  the  least,  the

delineation by the Division Bench is too simplistic.

2. The  exposé  of  facts  very  succinctly  put  is  that  on  20.01.1994,

Crime No.225/94 was registered at  Vanchiyoor  Police Station against

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one Mariam Rasheeda, a Maldivian National, under Section 14 of the

Foreigners  Act,  1946 and  paragraph  7  of  the  Foreigners  Order.  The

investigation  of  the  case  was  conducted  by  one  S.  Vijayan,  the

respondent no. 6 herein, who was the then Inspector, Special Branch,

Thiruvananthapuram.

3. Mariam Rasheeda was arrested and sent to judicial  custody on

21.10.1994. Her custody was obtained by the Police on 03.11.1994 and

she  was  interrogated  by  Kerala  Police  and  Intelligence  Bureau  (IB)

officials.  Allegedly, during interrogation, she made certain ‘confessions’

which led to the registration of Crime No. 246/1994, Vanchiyoor Police

Station  on  13.11.1994  under  Sections  3  and  4  of  the  Indian  Official

Secrets Acts, 1923, alleging that certain official secrets and documents

of Indian Space Research Organisation (ISRO) had been leaked out by

scientists of ISRO.  

4. Another  Maldivian  National  Fousiya  Hasan  along  with  Mariam

Rasheeda  was  arrested  in  Crime  No.  246/1994.  On  15.11.1994,

investigation  of  both  the  cases  was  taken  over  by  the  Special

Investigation Team (SIT) headed by one Mr. Siby Mathews, respondent

no.  1  herein,  who  was  the  then  D.I.G.  Crime  of  Kerala  Police.  On

21.11.1994, Sri D. Sasikumaran, a scientist at ISRO, was arrested and

on 30.11.1994, S. Nambi Narayanan, the appellant herein, was arrested

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along with two other persons. Later, on 04.12.1994, consequent to the

request  of  the  Government  of  Kerala  and  the  decision  of  the

Government  of  India,  the investigation was transferred to the Central

Bureau of Investigation (CBI), the respondent no. 4 herein.

5. After the investigation, the CBI submitted a report before the Chief

Judicial Magistrate (CJM), Ernakulam, under Section 173(2) of Cr.P.C.

stating  that  the  evidence  collected  indicated  that  the  allegations  of

espionage against the scientists at ISRO, including the appellant herein,

were not proved and were found to be false. This report was accepted

vide  court’s  order  dated  02.05.1996  and  all  the  accused  were

discharged.

6. That apart, in the said report, addressed to the Chief Secretary,

Government  of  Kerala,  the  CBI,  the  respondent  no.  4  herein,  had

categorically mentioned:-

“Notwithstanding the denial of the accused persons of  their  complicity,  meticulous,  sustain  and painstaking investigations were launched by the CBI and every bit of information allegedly given by the accused  in  their  earlier  statement  to  Kerala Police/IB about the places of meetings for purposes of espionage activities, the possibility of passing on the  drawing/documents  of  various  technologies, receipt  of  money  as  a  consideration  thereof  etc., were gone into, but none of the information could be substantiated.”

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7. The CBI in its report, as regards the role of the respondent no.1

herein, went on to state:-

“I,  Sh.  Siby  Mathew  was  heading  the  Special Investigation Team and was, therefore, fully responsible for  the  conduct  of  investigation  in  the  aforesaid  two cases. Investigation conducted by the CBI has revealed that he did not take adequate steps either in regard to the thorough interrogations of  the accused persons by Kerala  Police  or  the  verification  of  the  so  called disclosure made by the accused persons. In fact, he left the entire investigation to IB surrendering his duties. He ordered indiscriminate arrest of the ISRO scientist  and others  without  adequate  evidence  being  on  record.  It stressed  that  neither  Sh.  Siby  Mathew  and  his  team recovered any incriminating ISRO documents from the accused persons nor any monies alleged to have been paid to the accused persons by their foreign masters.  It was  unprofessional  on  his  part  to  have  ordered indiscriminate arrest to top ISRO scientists who played a key role in successful launching of satellite in the space and  thereby   caused  avoidable  mental  and  physical agony to them. It is surprising that he did not take any steps at  his  own level  to  conduct  investigation on the points suggested by him. Since Sh. Mathew was based at Trivandrum, there was no justification for not having the  searches  conducted  in  the  officials’  residential premises of the accused Nambi Narayanan was arrested by the Kerala Police on 30.11.1994.

Vi. Shri Siby Mathew and his team miserably failed even in conducting verification of the records of Hotels viz., Hotel foret Manor, Hotel Pankaj, Hotel Luciya, etc., which  were  located  at  Trivandrum  to  ascertain  the veracity of the statement of accused persons….

The above facts are being brought to the notice of the competent authority for their kind consideration and for such action as deemed fit.

[Emphasis added]

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8. On 27.06.1996, the State Government of Kerala, being dissatisfied

with  the  CBI  report,  issued  a  notification  withdrawing  the  earlier

notification issued to entrust the matter to CBI and decided to conduct

re-investigation  of  the  case  by  the  State  Police.  This  notification  for

re-investigation was challenged by the appellant herein, before the High

Court  of  Kerala,  in  O.P.  No.  14248/1996-U  but  the  notification  was

upheld by the High Court of Kerala vide order dated 27.11.1996.

9. Aggrieved by the aforesaid order  of  the Kerala High Court,  the

appellant herein, moved this Court by filing a special leave petition. This

Court in K. Chandrasekhar v. State of Kerala and others1 quashed the

notification of the State of Kerala for re-investigation holding that the said

notification was against good governance and consequently, all accused

were freed of charges. The observations of this Court read thus:-

“Even if we were to hold that State Government had the requisite  power  and  authority  to  issue  the  impugned notification, still the same would be liable to be quashed on the ground of  malafide exercise of power. Eloquent proof  thereof  is  furnished  by  the  following  facts  and circumstances as appearing on the record….”

[Emphasis added]

10. Even after disposal of the case by this Court, the State of Kerala

did not  take any action against  the erring police officers.  In  the year

1 (1998) 5 SCC 223

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2001, the National Human Rights Commission ordered a compensation

of  Rs.10,00,000/-  (Rupees  ten  lakhs  only)  as  interim  relief  to  the

appellant, who had sought Rs.1,00,00,000/- (Rupees one crore only) as

damages. A division bench of the Kerala High Court, vide order dated

07.09.2012,  asked  the  Government  to  pay  the  interim  relief  of  Rs.

10,00,000/- (Rupees ten lakhs only) within three weeks of the said order.

11. Thereafter, one Rajasekharan Nair filed a writ petition, being W.P.

(C) No. 8080 of 2010, before the Kerala High Court on the basis of the

report filed by the CBI seeking directions for the State of Kerala to pass

appropriate orders and take necessary action against the erring police

officers for conducting a malicious investigation. In the meantime, the

Government,  by  order  dated  29.06.2011,  decided  not  to  take  any

disciplinary  action  against  the  members  of  the  SIT  (erring  police

officers). The relevant portion of the order of the State of Kerala dated

29.06.2011 reads as follows:-

“5)   Both  the  CBI  and  the  accused-discharged persons approached the Hon’ble High Court against the action of Government  of  Kerala.  However,  the  High  Court  upheld the action of the Government. Against this the CBI and the accused – discharged persons approached the Supreme Court through SLPs against the action of Government of Kerala.

6)  In the meantime Government examined the case with reference to the views obtained form the State Police Chief on the observation of the CBI along with the explanation of the officers concerned. After examination it was decided to

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await  the  decision  of  the  Hon’ble  Supreme  Court.  The Hon’ble Supreme Court allowed the prayer of the CBI and the  accused  discharged  persons  questioning  the notification  issued  by  the  Government  withdrawing  the consent given to the CBI to investigate into the espionage case and also to “further investigate” the ISRO espionage case and also  directed  to  give Rs.  1  Lakh  each  to  the accused appellants as cost.

7)  Government examined the matter with reference to the entire  records  of  the  case  and  in  proper  application  of mind.  It  has  been  found  that  neither  the  Hon’ble  Chief Judicial Magistrate Court who accepted the Final Report nor the Hon’ble Supreme Court had issued any direction to take action against the investigating officers viz :- Shri S. Vijayan,  the  then  Inspector,  Special  Branch, Thiruvananthapuram City, Shri K.K. Joshwa, the then Dy. SP, CB CID, Thiruvananthapuram, Shri Siby Methews, the then DIG (Crimes) of the Special Investigation Team who investigated in to the ISRO Espionage case.

8)  In the circumstances, Government are of the view that it is not proper or legal to take disciplinary action against the  officials  for  the  alleged  lapses  pointed  out  in  the investigation report  of  the CBI at  this  juncture,  after  the lapse of 15 years and therefore Government decide that no  disciplinary  action  need  be  taken  against  the  above officials for their alleged lapses in the investigation of the ISRO Espionage case and it is ordered accordingly.”

12. W.P.  (C) No. 8080 of  2010 was disposed of  by the High Court

having  been  rendered  infructuous  as  the  petitioner  therein,

Rajesekharan Nair, wanted to reserve his right to challenge the order

issued  by  the  Government.  Despite  insurmountable  difficulties,  the

indomitable  spirit  of  the  appellant  impelled  him  to  file  another  writ

petition, W.P. (C) No. 30918 of 2012, before the Kerala High Court. The

learned Judge of the High Court of Kerala, considering the pleadings of

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the parties and thereafter elaborately considering the matter, allowed the

writ  petition and quashed the order  dated 29.06.2011 passed by the

State of Kerala whereby the Kerala Government had decided not to take

any disciplinary action against  the members of  the SIT (erring police

officers) and consequently remitted the matter to the State of Kerala, the

respondent no. 2 herein, for reconsideration and passing further orders

within three months.  Though the learned single Judge left it open to the

State of  Kerala to decide on the course of  action to be taken in the

matter, yet it was categorically mentioned that the reconsideration of the

matter should not just be a namesake which will make the administration

of justice a mockery.

13. Though the  said  decision  of  the  learned  single  Judge  was not

challenged by the State of Kerala, yet two private persons, being the

respondent  nos.  1  and  5  herein,  assailed  the  judgment  before  the

Division Bench in WA Nos. 1863 and 1959 of 2014. The Division Bench

of the High Court, vide impugned judgment and order dated 04.03.2015,

observed that the only question before the Government was whether any

disciplinary  action  was  to  be  initiated  against  the  officers  who  were

members of the SIT which conducted investigation for some days and

thereafter  reported that  the matter  required to be investigated by the

CBI.  The  Division  Bench  opined  that  the  factual  finding  or  report

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submitted by the CBI on 03.06.1996 in the matter could only be treated

as an opinion expressed by the CBI which may be considered by the

Government.  Further, the Division Bench left it  to the Government to

consider  or  not  to  consider  the  opinion  expressed  by  the  CBI  in  its

aforesaid report for the purpose of taking disciplinary action.

14. The  Division  Bench  also  held  that  the  Kerala  Government’s

decision of not taking action against the erring police officers of the SIT

was  based  on  three  specific  findings,  namely  (i)  the  Government’s

examination of the case with reference to the views obtained from the

State Police Chief with respect to the observations of the CBI alongwith

the explanation of the erring police officers concerned, (ii)  the absence

of any direction by the Chief Judicial Magistrate who had accepted the

final report, and (iii) absence of any direction from the Supreme Court to

take action against the investigating officers. That apart, the Government

opined that it is not proper or legal to take disciplinary action against the

officers on the basis of CBI report after a lapse of fifteen years.

15. Be it noted, the Division Bench concluded by observing thus:

“Therefore the three reasons mentioned in Ext.P2 clearly indicate that the Government has examined the relevant matters for arriving at the said decision. When a decision has  been  taken  not  to  proceed  further  with  any disciplinary  action,  after  considering  such  relevant matters,  the  decision  cannot  be  considered  as unreasonable, unfair or arbitrary.”

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And again:-

“In fact,  whether the accused were tortured or not  is  a disputed question of fact. Further no such complaint was raised by the accused. When the fact being so and since the  petitioner  having  already  approached  the  National Human Rights Commission and the Civil  Court, it  is for the said agencies to arrive at a proper finding regarding such disputed facts.”

The said order is the subject matter of assail before this Court in

these appeals.

16. It is urged by the appellant that the prosecution launched against

him by the Kerala police was malicious on account of two reasons, the

first  being that  the said  prosecution had  a  catastrophic  effect  on  his

service career  as a  leading and renowned scientist  at  ISRO thereby

smothering his career, life span, savings, honour, academic work as well

as  self-esteem and consequently  resulting in  total  devastation  of  the

peace of his entire family which is an ineffaceable individual loss, and

the second, the irreparable and irremediable loss and setback caused to

the technological advancement in Space Research in India.

17. It has also been contended that the CBI, to whom the investigation

of  the  case  against  the  appellant  was  transferred,  after  a  thorough

investigation  for  about  eighteen  months,  filed  a  comprehensive  and

exhaustive report wherein it had recommended that the case against the

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appellant be closed as the allegations against the appellant are totally

unsubstantiated.

18. The appellant has also drawn the attention of this Court to the fact

that the CBI in the said report had also highlighted several omissions

and  commissions  on  the  part  of  the  Kerala  Police  Officers  while

investigating the case against the appellant. That apart, the CBI, in its

report  submitted  to  the  Kerala  Government,  had  recommended  that

action be taken against the erring police officers for serious lapses in the

discharge  of  their  duties.  The  appellant  has,  in  his  submissions,

expressed his agony over the fact that the State Government, instead of

acting  upon  the  recommendations  made  by  the  CBI  and  taking

appropriate action against the erring police officers,  focused its entire

attention  on  taking  further  action  on  the  investigation  against  the

appellant and hastened to constitute a Special Investigation Team (SIT)

through a notification which was challenged before the High Court.

19. The appellant  has further  highlighted that  this  Court  had earlier

opined about the malicious prosecution launched against him. Reliance

has been placed on the criticism advanced by the NHRC against the

State Government.  Learned senior counsel has urged with anguish that

the High Court has fallen into grave error by sustaining the order of the

Government and remaining oblivious to the plight of the appellant. It is

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his  further  submission  that  the  appellant  should  be  granted

compensation by taking recourse to the principle of  constitutional  tort

and a committee be constituted to take appropriate action against the

officers  who  had  played  with  the  life  and  liberty  of  a  man  of  great

reputation.  

20. Learned counsel for the respondent no. 1 has submitted that the

contention of the appellant that if he had not been falsely implicated, he

would have made a huge difference in  the cryogenic technology and

thereby contributed immensely  to  the Nation is  untenable  as it  is  an

admitted fact that he had submitted his VRS on 01.11.1994 immediately

after  the arrest of Mariam Rasheeda, and on the very same day,  his

resignation was accepted by the Superior Officer. It is pointed out that

the claim of significant contribution to the Nation is being put forth by

appellant only to gain the sympathy of the Court.

21. It  is  further  canvassed that  the  entire  investigation  of  the  case

against the appellant was carried out under close supervision of the then

Director  General  of  Police  (Intelligence)  &  Director  General  of  Police

(Law and Order) and daily reports were sent to them during the course

of the investigation. It has also been highlighted that on the day of arrest

of the appellant, the respondent no. 1 had submitted a report to the DGP

requesting entrusting of the matter to the CBI which is a clear indication

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of the fact that there was no mala fide on the part of the said respondent

no. 1 and other officials of the Kerala Police. The respondent no. 1 has

contended  that  the  entire  gamut  of  facts  reveals  that  he  and  other

officials  had  performed  their  duties  with  full  responsibility  and  the

evidence on record and the statements of  other  accused had clearly

shown  the  involvement  of  the  accused  persons  in  the  activities  of

espionage.

22. The respondent no. 1, in order to substantiate his claim that the

appellant and the other accused persons were never subjected to any

torture by the respondent no. 1 or other police officers, seeks to draw the

attention of the Court to the findings of a Division Bench of the High

Court which had dealt with a writ petition filed when the investigation was

pending before the CBI. It is put forth on behalf of the respondent no. 1

that he himself did not take any steps for thorough interrogation of the

accused and sent the same to the CBI and, hence, the argument that he

was  tortured  by  the  State  police  was  far  from  the  truth.  As  per  the

notification  dated  20.01.1987  issued  by  the  Government  of  India,

Ministry of Home Affairs, the Central Government conferred the powers

of Superintendent of Police on officers of the rank of Assistant Director of

the Intelligence Bureau and in the instant case, the IB had come into the

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picture long before the constitution of a Special Investigation Team (SIT)

by the State Government.

23. It is highlighted by the respondent no. 1 that there was sufficient

evidence  indicating  the  involvement  of  the  appellant  and  it  had  also

come to the notice of the respondent no. 1 that the appellant, who had

submitted his VRS, was intending to leave the country and in the light of

the said facts, the arrest of the appellant and other accused persons had

become necessary. Learned counsel would contend that the stand of the

CBI that no incriminating records had been recovered is unacceptable

inasmuch as the final report reveals that 235 documents were recovered

from the house of the accused persons and the reason for the same was

an issue which required investigation.

24. Further, it is contended that the case had been investigated by the

respondent no. 1 only for 17 days and thereafter, it  was the CBI that

carried out the investigation and, hence, the responsibility to apprise the

media fell on the CBI and not on the respondent no. 1. Various other

aspects have been controverted to show the non-involvement of the said

respondent and the bona fide act on his part to transfer the case to the

CBI. To make allegations against the SIT after transfer of the case to the

CBI is unwarranted.

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25. Learned counsel for the respondent no. 1 submits that the whole

thrust of the argument of the appellant that he was subjected to torture

falls to the ground as the IB officials against whom the major charges of

torture had been levelled had not been made accountable for the said

action and, therefore, it would be discriminatory to hold the respondent

no.  1  and other  police  officers  of  Kerala  accountable  for  the alleged

torture. That apart, it is urged that the learned single Judge of the High

Court had only remanded the matter to the State Government for fresh

consideration and had not given any finding on the allegation of torture

and the respondent no.  1 had also contended that the appellant never

raised  any  allegations  of  torture  before  the  CJM Court.  Further,  it  is

argued that the appellant was in custody of Kerala police only for 5 days,

while the CBI had taken remand of the accused on three occasions and

had kept in custody for forty five days.

26. On behalf of the CBI, the fourth respondent, it  is submitted that

inspite of highlighting several lapses and faults on the part of the police

officials while carrying out investigation against the appellant and other

accused persons, the Kerala Government has failed to take any action

against the erring officials. It has been submitted that the reasons given

by the Kerala Government for not initiating any action against the erring

police officers, who had not only inflicted inhuman custodial torture to the

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scientists of ISRO but also arrested them while they were working on a

crucial space programme, was an unpardonable lapse. It is pointed out

that if the action of the Government of Kerala is not interfered with on the

ground of delay, it would tantamount  to taking advantage of one’s own

wrong doing and further adding a premium to an unpardonable fault.  

27. Learned counsel for the respondent no. 4 has submitted that the

conduct of the police officials is criminal in nature as per the investigation

and report submitted by the CBI and the investigation of the CBI had

clearly established that the investigation carried out by the State police

was full of lapses and also involved employment of illegal means such

as criminal torture. The stand of the respondents is that the report is

recommendatory but it was incumbent upon the State of Kerala to act

upon  the  same  as  that  would  have  reflected  an  apposite  facet  of

constitutional governance and respect for individual liberty and dignity.

Relying upon the judgment of this Court in  Japani Sahoo v. Chandra

Sekhar Mohanty2, it is submitted that the State of Kerala could not take

shelter of the doctrine of delay and laches. The erring conduct of the

police officers is of criminal nature and justice can be meted out to the

appellant only by taking appropriate action against the said officers along

with payment of compensation for the humiliation and disgrace suffered

by the victim.  

2 (2007) 7 SCC 394

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28. It is further contended by the learned counsel for the respondent

no. 4 that investigation can be initiated to instill confidence in the public

mind. To buttress his stand, the decision in Punjab and Haryana High

Court  Bar  Association  v.  State  of  Punjab  and  others3 has  been

pressed into service.

29. First, we shall advert to the aspect of grant of compensation. From

the analysis above, we are of the view that the appellant was arrested

and he has suffered custody for almost fifty days. His arrest has been

seriously  criticized  in  the  closure  report  of  the  CBI.   The  comments

contained in the report read as follows:-

“2. Consequent upon the request of Govt. of Kerala, the investigation  of  Crime  No  225/95  and  No.  246/94  was entrusted  to  the  .CHI  for  investigation  vide  DP&T Notification No. 228/59/94-AVD.II (i) & (ii) dated 2/12/94. Accordingly, case RC. 10(S) 94 lis. 14 of Foreigners Act and  Para  7  of  Foreigners  Act,  1948  (corresponding  to Crime No. 225/95) and case RC 11 (S)/94 U/s. I20-B r/w See.  3,  4  &  5  of  official  Secrets  Act  r/w  Sec.  34  IPC (corresponding to Crime No. 246/94). were registered on 3/12/94 in SIU. V Branch of CBl/SIC.II/New Delhi.

3. Immediately after the registration of the case, the investigation was taken upon 4/12/94 and the police case files  of  both  the  cases  were  taken  over.  After investigation,  a Chargesheet in Case Crime no. 225.94 was  filed  on  17/12/94  against  Mariam  Fasheeda.  This case  has  ended  in  acquittal  of  accused  Mariyam Rasheeda vide Judgment dated 14.11.1995, passed by the Hon’ble Chief Judicial Magistrate, Cochin.

3 (1994) 1 SCC 616

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4. The  local  police  during  the  course  of investigation of case crime No. 225/94 had seized a Diary written  in  Dwivegi  script  from  accused  Mariyam Rasheeda, the contents of which indicated that she was collecting informations about certain Maldivian nationals based in Bangalore who were allegedly planning a coup against the Govt. of Maldives. It was further revealed that accused Mariyam Rasheeda along with Fauziya Hassan had stayed in Room No. 205 of Hotel Smart,  Trivandrum from 17/9/94 to 20/10/94 and during this period a number of telephone calls were found to have been made from Room No. 205 to Tel.  No. of D. Sasikumaran, a senior Scientist  of  Indian  Space  Research  Organisation, Valiamala.  Accused Mariyam Rasheeda while  in  Kerala Police  custody in  this  case was interrogated by Kerala Police  and  officials  of  Intelligence  Bureau.  Accused Mariyam Rasheeda allegedly made a statement revealing the contacts of  Fauziya Hassan and of  one Zuheira,  a Maldivian  national  settled  in  Colombo  with  Mohiyuddin state  to  be  Pakistani  national  working  as  Assistant Manager, Habib Bank in Male and Mazhar Khan, another Pak National. She also allegedly disclosed that according to  Fauziya  Hassan,  D.  Sasikumaran  was  friend  of Zuheria.  Based  on  the  disclosures  allegedly  made  by accused Mariyam Rasheeda coupled with the contents of her  diary  and  the  telephone  contacts  with  D. Sasikumaran,  the  instant  case  was  registered  on  the suspicion that she and Fauziya Hassan along with others were taking part in activities prejudicial to the sovereignty and integrity of India.

5. The investigation of crime No. 246/94 remained with Special Branch only for two days and on 15.11.94, the investigation was taken over by Special Investigation was taken over by Special Investigation Team headed by Shri Siby Mathews, DIG (Crime), Trivandrum. During the course of  investigation,  the Kerala  Police/Crime branch arrested  6  accused  persons  on  the  dates  as  shown below:-

i. Fauziya Hassan - 13.11:94

ii. Mariyam Fasheeda- 14.11.94 iii. D. Sasikumaran - 21.11.94

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iv. K. Chandrasekhar - 23.11.94 v. Nambi Narayanan - 30.11.94 vi. Sudhir Kumar Sharma - 01.12.94

5. The search of the office room as well as residence of  D.  Sasikumaran  at  Space  Application  Centre, Ahemedabad, was conducted on 21.11.94 and that of his office  and  residence  at  Trivandrum  on  30.11.94.  The search  of  office  as  well  as  residence  of  accused Chandrasekhar  and  S.K.  Sharma,  were  conducted  on 21.11.94  at  Bangalore.  The  house  search  of  Ms  Sara Palani of Bangalore where accused  Fauziya Hassan was residing, was also conducted on 21.11.94. In addition, the house  seach  of  Shri.  M.K.  Govinadan  Nair  and  Shri Mohana  Prasad,  both  senior  Scientists  of  LPSC Valiamala, was also conducted but nothing incriminating was  recovered.  The  Crime  Branch  also  exdamined  27 witnesses  but  none  of  the  witnesses  stated  anything which could throw any light about the alleged espionage activities  of  the  accused  persons.  The  7  witnesses  of Hotel  Samrat,  Tridandrum,  proved  the  stay  of  accused Mariyam Rahseeda  and  Fauziya  Hassan  in  Room No. 205 in Hotel Samrat from 19.9.94 to 20.10.94 and the visit of  Sasikumaran  to  Hotel  Samarat  to  meet  Mariyam Rasheeda.  The  witnesses  of  Hotel  Geeth,  Trivandrum and that of Hotel Rock Holm, Trivandrum, proved the visit of accused Sasikumaran alongwith Mariyam Rasheeda to the said hotel on 10.10.94 and witjiMariyam Rasheeda to the said hotel on 10.10.94 and 28.9.94, respectively.”

And again:-

“10.  Though  no  independent  evidence  has  come  on record  during  the  course  of  local  Police/Crime  branch investigation about the alleged espionage activities of the accused persons, yet based on the revelations allegedly made by the accused, the module that emerged regarding the  espionage  activities  was  that  accused  Nambi Narayanan and Sasikumaran used to pass on documents drawings  of  ISRO  relating  to  Viking/Vikas  Engine technology,  Cryogenic  Engine  technology  and  PSLV Flight Data/Drawings and accused Chandersekhar,  S.K. Sharma  and  Raman  Srivastava,  the  then  IGP  South

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Zone, Kerala passed on secrets of Aeronautical Defence Establishments,  Bangalore.  The  documents/drawings were allegedly passed on to Mohd. Aslam, a Pak nuclear scientist  and  Mohd.  Pasha/ahmed  Pasha  for  monetory considerations and that the amount running into lacs of US  dollars  was  received  andshared  by  accused Sasikumaran,  Chandrasekhar,  Nambi  Narayanan  and Shri  Raman  Srivastava  and  that  Mohiyuddin,  Asstt. Manager of Habib Bank, Male, was one of the persons who  was  financing  the  accused.  Accused  Fauziya Hassan,  zuheria,  a  Maldivian  national  settled  in Colomobo, Mr. Alexi Vassive of Glovkosmos, Russia, and Shri Raman srivastava, worked as conduits. Some of the important  meetings  which  were  held  for  espionage activities  and  in  which  the  documents  were  allegedly passed on for a consideration, were held at International Hotel  Madras  on  24.5.1994,  m  Bangalore  in  the  mid September and on 23.9.94 at Hotel Luciya, Trivandrum, in which some of the accused as well as said Zuheira and Shri Raman Srivastava, IGP, took part.

11. Immediately after taking over the investigation ,  by  CBI,  all  the  6  accused  persons  are  thoroughly interrogated,  taking  the  statements  purported  to  have been made by the accused before the Kerala Police/IB, to be true,  but  all  of  them denied having indulged in  any espionage  activity.  On  being  confronted  with  the statements made by them before Kerala Police as well as IB officials, the accused took the plea that the statements were made on the suggested lines under duress. Though there  was  no  complaint  either  from  ISRO  or  fromDE Bangalore about the loss of any documents, the alleged revelations  of  the  accused  made  before  local Police/Intelligence officials were taken at their face value and focused investigation was carried out to find out the details and purposes of various visits of accused Mariyam Rasheeda and Fauziya Hassan to India, their places of stay were verified, the persons, including accused,, with whom they came in contact  were examined and efforts are made to gather oral as well as documentary evidence to find out whether the accused have committed any acts which  were  prejudicial  to  the  sovereignty,  integrity  and security of the State and violative of the Official Secrets Act, 1923

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x x           x          x     x

“Accused Nambi  Narayanan jointed  Thumba Equotarial Launching System on 12.9.1996 as Technical  Assistant (Design) and then from time to time he was promoted and was working as Scientist-II since January 93. In system Project,  Associates  Project  Director  GSLV  and  Project Director  PS-II  and  PS-LV  and  was  responsible  for  the organization and management of launch vehicle system projects in LPSC.

x       x      x      x x 32. During the investigation neither any evidence came on  record  indicating  that  the  accused  indulged  in espionage  activities  by  way  of  passing  on  of  secret documents of ISRO of any Defence establishments nor any  incriminating  documents  could  be  recovered. Accused Mariyam Rasheeda has taken the stand that she was  to  return  to  Male  on  29.9.94  but  could  reach Trivandrum Airport  as she did not  get  any transport  on account of the 'bandh'. Subsequently, the Indian Airlines (lights were suspended on account of plague scare and thus, she could not go. Since she was going to complete stay of 90 days on 14.10.94, and to enable her to stay beyond 90 days she required the permission of the police authorities, she alongwith Fauziya Hassan visited office of the  Commissioner  of  Police  and  contacted  Inspector Vijayan.  She  was  advised  by  Inspector  Vijayan  to  first obtain  a  confirmed  ticket  for  her  return  and  then  to approach for the extension of her stay. Accordingly, she got  one  Indian  Airlines  ticket  and  one  Air  Lanka  ticket confirmed for her departure of 17.10.94 and approached Inspector Vijayan. However, Inspector vijayan took ticket as well as her Passport and ultimately she was arrested on 20.10.94.

x x x x

38.  As per the statement of accused Nambi Narayanan allegedly  made  before  Kerala  Police,  a  deal  for  sale Viking/Vikas Engine drawings was struck with Habibullah Khan for Rs. 1.5 crores. Two installments of the drawings were given to Rauziya at  Thampanoor  'Bus Stand and

22

Luciya Hotel and the third installment was scheduled to be given on 5,12.94. Another deal for transfer for Rocket Launch  details  of  LPSC  was  finalized  with  Fauziya Hassan  and  Ahemd  Pash  at  hotel  Fort  Manor  during February, 1993 for a consideration of USS 1.00 lakh and that on 11.10.94 he and Sasikumaran took Fauziya from Hotel Samrat to a nearby dam and engaged in transfer of packets containing Cryogenic technology.

The investigation revealed:-

(xiv)  Investigation  has  established  that  the  accused persons  including  Rasheeda,  Nambi  Narayanan  and Chandrasekhar were harassed and physically abused. It is  curious  that  while  the  IB  had  all  the  six  accused persons in their custody, they recorded the statements of only  Sasikumaran,  Chandrashekar,  Fauziya  and Rasheeda  and  not  of  Nambi  Narayanan  and  S.K.. Shanna. There is reason to believe that the interrogators forced  the  accused  persons  to  make  statements  on suggested  lines.  The  CBI  seized  the  personal  diary  of Chandrasekhar on 9.12.94. which contained the details of his  activities  almost  on  day  to  day  basis.  If Chandrasekhar  had  made  truthful  disclosures  to  the Kerala Police/IB interrogators, certainly they would have also discovered the existence of his diary which did not support  case against  him.  He made disclosures before the  CBI  regarding  the  existence  of  his  diary  which  on analysis  corroborates  his  version  regarding  his movements ex. Bangalore.

(xv)  On  the  request  of  CBI,  Director,  LPSC  had constituted a Committee of experts of determine whether any documents were found to be missing. The Committee gave a report to say that only 254 documents were found to be missing which were random in nature and did not pertain  to  a  particular  system  or  sub  system.  The Committee also noted that Vikas Engine was released on the basis of the in-house drawings which were prepared after  modifying  the  SEP drawings  and  all  the  in-house drawings were available  and there was likely  to  be no impact  of  some  small  number  of  missing  documents. Similarly,  all  the 16.800 sheets in  the Fabrication Divn. where Sasikumaran was working were found to be intact.

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 (xvi) Neither any incriminating documents of any money- Indian or foreign have been recovered form the accused persons during searches conducted by the Kerala Police and later by the CBI. The scrutiny of bank accounts also do not indicate anything suspicious in this regard.

(xvii)  It  is  reasonable  to  believe  that  if  Rasheeda  was involved in  any espionage activity regarding ISRO, she should have made a mention thereof in her diary which is not the case.

114. During course of investigation, certain lapses were found on  the  part  of  earlier  investigations/interrogators. The  report  is  being  submitted  that  Government  of Kerala/Govt. of India, separately on these aspects. 115. So sum up, in view of the evidence on record, oral as  well  as  documentary,  as  discussed  above,  the allegations of espionage are not proved and have been found to be false. It is, therefore, prayed that the report may kindly be accepted and the accused discharged and permission be accorded to return the seized documents to the concerned.”

From  the  aforesaid  report,  the  harassment  and  mental  torture

faced by the appellant is obvious.  

30. The report submitted by the CBI has been accepted by this Court

in K. Chandrasekhar (supra).  Dealing with the conclusion of the report,

this Court stated:-

“(iii) Though the investigation of the case centered round espionage activities in ISRO no complaint was made by it  to  that  effect  nor  did  it  raise any grievance on that score. On the contrary, from the police report submitted by  the  CBI  we  find  that  several  scientists  of  this organisation  were  examined  and  from the  statements made  by  those  officers  the  CBI  drew  the  following conclusion:

24

“The  sum  and  substance  of  the  aforesaid statements is that ISRO does not have a system of classifying drawings/documents. In other words, the documents/drawings are not marked as Top Secret, Secret, Confidential or Classified etc. Further, ISRO follows an open-door policy in regard to the issue of documents  to  the  scientists.  Since  ISRO  is  a research-oriented  organisation,  any  scientist wanting to study any document is free to go to the Documentation  Cell/Library  and  study  the documents. As regards the issue of documents to various Divisions, the procedure was that only the copies used to be issued to the various divisions on indent  after  duly  entering  the  same  in  the Documentation  Issue  Registers.  During investigation,  it  has  been  revealed  that  various drawings running into 16,800 sheets were issued to the  Fabrication  Division  where  accused  Sasi Kumaran was working, and after his transfer to SAP, Ahmedabad  on  7-11-1994,  all  the  copies  of  the drawings were found to be intact. Nambi Narayanan being a senior scientist, though had access to the drawings, but at no stage any drawings/documents were found to have been issued to him. They have also stated that it was usual for scientists to take the documents/drawings  required  for  any meetings/discussions  to  their  houses  for  study purposes.  In  these  circumstances,  the  allegation that  Nambi  Narayanan  and  Sasi  Kumaran  might have passed on the documents to a third party, is found to be false.”

It  further  appears  that  at  the  instance  of  CBI,  a Committee  of  senior  scientists  was  constituted  to ascertain  whether  any  classified  documents  of  the organisation  were  stolen  or  found  missing  and  their report  shows  that  there  were  no  such  missing documents. There cannot, therefore, be any scope for further investigation in respect  of  purported espionage activities in that organisation in respect of which only the Kerala Police would have jurisdiction to investigate;

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31. As stated earlier, the entire prosecution initiated by the State police

was  malicious  and  it  has  caused  tremendous  harassment  and

immeasurable  anguish  to  the  appellant.   It  is  not  a  case  where  the

accused is kept under custody and, eventually, after trial, he is found not

guilty. The State police was dealing with an extremely sensitive case and

after  arresting the appellant  and some others,  the State,  on its  own,

transferred  the  case  to  the  Central  Bureau  of  Investigation.   After

comprehensive enquiry, the closure report was filed.  An argument has

been advanced by the learned counsel for the State of Kerala as well as

by the other respondents that the fault should be found with the CBI but

not with the State police, for it had transferred the case to the CBI.  The

said submission is to be noted only to be rejected.  The criminal law was

set in motion without any basis.  It was initiated, if one is allowed to say,

on some kind of fancy or notion.  The liberty and dignity of the appellant

which are basic to his human rights were jeopardized as he was taken

into custody and, eventually,  despite all  the glory of the past, he was

compelled to face cynical abhorrence.  This situation invites the public

law remedy for grant of compensation for violation of the fundamental

right envisaged under Article 21 of the Constitution.  In such a situation,

it springs to life with immediacy. It is because life commands self-respect

and dignity.  

26

32. There has been some argument that there has been no complaint

with regard to custodial torture.  When such an argument is advanced,

the concept of torture is viewed from a narrow perspective.  What really

matters is what has been stated in  D.K. Basu v. State of W.B.4.  The

Court in the said case, while dealing with the aspect of torture, held:-

“10. ‘Torture’ has not been defined in the Constitution or in  other  penal  laws.  ‘Torture’  of  a  human  being  by another  human  being  is  essentially  an  instrument  to impose  the  will  of  the  ‘strong’  over  the  ‘weak’  by suffering.  The  word  torture today  has  become synonymous with the darker side of human civilisation.

‘Torture  is  a  wound  in  the  soul  so  painful  that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in  your  chest,  cold as ice and heavy as a stone, paralysing as sleep and dark as the abyss. Torture is despair and fear and rage and hate.  It  is  a  desire  to  kill  and  destroy  including yourself.’

— Adriana P. Bartow

11. No violation of any one of the human rights has been the subject of so many conventions and declarations as ‘torture’ — all aiming at total banning of it in all forms, but in spite of the commitments made to eliminate torture, the fact  remains that  torture  is  more widespread now than ever before. ‘Custodial torture’ is a naked violation of human dignity and degradation which destroys, to a very  large  extent,  the  individual  personality.  It  is  a calculated  assault  on  human  dignity  and  whenever human  dignity  is  wounded,  civilisation  takes  a  step backward  —  flag  of  humanity  must  on  each  such occasion fly half-mast.

4 (1997) 1 SCC 416

27

12. In all custodial crimes what is of real concern is not only infliction of body pain but the mental agony which a person undergoes within the four walls of police station or  lock-up.  Whether  it  is  physical  assault  or  rape  in police  custody,  the  extent  of  trauma,  a  person experiences is beyond the purview of law.”

33. From the aforesaid, it is quite vivid that emphasis has been laid on

mental agony when a person is confined within the four walls of a police

station  or  lock  up.   There  may not  be  infliction  of  physical  pain  but

definitely there is mental torment.  In Joginder Kumar v. State of U.P.

and others5, the Court ruled:-

“8.  The  horizon  of  human rights  is  expanding.  At  the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing  and  balancing  the  rights,  liberties  and privileges of the single individual and those of individuals collectively;  of  simply  deciding  what  is  wanted  and where to put the weight and the emphasis; of deciding which  comes  first  —  the  criminal  or  society,  the  law violator or the law abider….”

34. In Kiran Bedi v. Committee of Inquiry and another6, this Court

reproduced an observation from the decision in D.F. Marion v. Davis7:-

5 (1994) 4 SCC 260 6 (1989) 1 SCC 494 7 217 Ala. 16 (Ala. 1927)

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“25.  …  ‘The  right  to  the  enjoyment  of  a  private reputation, unassailed by malicious slander is of ancient origin,  and  is  necessary  to  human  society.  A  good reputation  is  an  element  of  personal  security,  and  is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.’”

35. Reputation of an individual is an insegregable facet of his right to

life with dignity.  In a different context, a two Judge Bench of this Court in

Vishwanath Agrawal v. Sarla Vishwanath Agrawal8 has observed:-

“55. … reputation which is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished value this side  of  the  grave.  It  is  a  revenue  generator  for  the present as well as for the posterity.”

36. From the aforesaid analysis, it can be stated with certitude that the

fundamental  right  of  the appellant  under  Article  21 has been gravely

affected.  In this context, we may refer with profit  how this Court had

condemned the excessive use of force by the police.  In Delhi Judicial

Service Association v. State of Gujarat and others9, it said:-

“39.  The  main  objective  of  police  is  to  apprehend offenders,  to investigate crimes and to prosecute them before  the  courts  and  also  to  prevent  commission  of crime and above all to ensure law and order to protect the citizens’ life and property.   The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object  of  Magistracy and police  are complementary  to  each  other.    It  is  unfortunate  that these objectives have remained unfulfilled even after 40 years   of   our   Constitution.    Aberrations  of  police

8 (2012) 7 SCC 288 9 (1991) 4 SCC 406

29

officers and police excesses in dealing with the law and order situation have been subject of adverse comments from this Court as well as from other courts but it has failed to have any corrective effect on it. The police has power  to  arrest  a  person  even  without  obtaining  a warrant  of  arrest  from  a  court.  The  amplitude  of  this power casts an obligation on the police … [and it] must bear in mind, as held by this Court that if  a person is arrested for a crime, his constitutional and fundamental rights must not be violated.”

37. If  the  obtaining  factual  matrix  is  adjudged  on  the  aforesaid

principles and parameters, there can be no scintilla of doubt that  the

appellant,  a  successful  scientist  having national  reputation,  has been

compelled to undergo immense humiliation. The lackadaisical attitude of

the State  police  to  arrest  anyone and put  him in  police  custody has

made the appellant to suffer the ignominy. The dignity of a person gets

shocked  when  psycho-pathological  treatment  is  meted  out  to  him.  A

human being cries for justice when he feels that the insensible act has

crucified his self-respect. That warrants grant of compensation under the

public law remedy. We are absolutely conscious that a civil suit has been

filed for  grant  of  compensation.  That  will  not  debar  the constitutional

court  to grant  compensation taking recourse to public law.  The Court

cannot lose sight of the wrongful imprisonment, malicious prosecution,

the humiliation and the defamation faced by the appellant.   In  Sube

30

Singh v. State of Haryana and others10,  the three-Judge Bench, after

referring to the earlier decisions, has opined:-  

“38.  It  is  thus  now  well  settled  that  the  award  of compensation  against  the  State  is  an  appropriate  and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will,  however, depend upon the facts and circumstances of  each case. Award of  such compensation (by way of public law remedy) will not come in the  way  of  the  aggrieved  person  claiming  additional compensation  in  a  civil  court,  in  the  enforcement  of  the private  law  remedy  in  tort,  nor  come  in  the  way  of  the criminal court ordering compensation under Section 357 of the Code of Criminal Procedure.”

38. In Hardeep Singh v. State of Madhya Pradesh11, the Court was

dealing with the issue of delayed trial and the humiliation faced by the

appellant  therein.  A Division  Bench  of  the  High  Court  in  intra-court

appeal  had  granted  compensation  of  Rs.  70,000/-.  This  Court,  while

dealing with the quantum of compensation, highlighted the suffering and

humiliation caused to the appellant and enhanced the compensation.

39. In the instant case, keeping in view the report of the CBI and the

judgment rendered by this Court in K. Chandrasekhar (supra), suitable

compensation  has  to  be  awarded,  without  any  trace  of  doubt,  to

compensate  the  suffering,  anxiety  and  the  treatment  by  which  the

quintessence  of  life  and  liberty  under  Article  21  of  the  Constitution

withers away. We think it appropriate to direct the State of Kerala to pay

10 (2006) 3 SCC 178  11 (2012) 1 SCC 748

31

a  sum of  Rs.  50  lakhs  towards  compensation  to  the  appellant  and,

accordingly, it is so ordered. The said amount shall be paid within eight

weeks by the State. We hasten to clarify that the appellant, if so advised,

may  proceed  with  the  civil  suit  wherein  he  has  claimed  more

compensation.  We have not expressed any opinion on the merits of the

suit.

40. Mr. Giri, learned senior counsel for the appellant and the appellant

who also appeared in person on certain occasions have submitted that

the grant of compensation is not the solution in a case of the present

nature.  It  is  urged  by  them  that  the  authorities  who  have  been

responsible to cause such kind of harrowing effect on the mind of the

appellant  should face the legal  consequences.  It  is  suggested that  a

Committee should be constituted to take appropriate steps against the

erring officials. Though the suggestion has been strenuously opposed,

yet we really remain unimpressed by the said oppugnation. We think that

the obtaining factual scenario calls for constitution of a Committee to find

out  ways  and  means  to  take  appropriate  steps  against  the  erring

officials.  For the said purpose, we constitute a Committee which shall be

headed by Justice D.K. Jain, a former Judge of this Court. The Central

Government and the State Government are directed to nominate one

officer each so that apposite action can be taken. The Committee shall

meet at Delhi and function from Delhi. However, it  has option to hold

32

meetings at appropriate place in the State of Kerala.  Justice D.K. Jain

shall be the Chairman of the Committee and the Central Government is

directed  to  bear  the  costs  and  provide  perquisites  as  provided  to  a

retired  Judge  when he  heads a  committee.  The  Committee  shall  be

provided  with  all  logistical  facilities  for  the  conduct  of  its  business

including the secretarial staff by the Central Government.

41. Resultantly,  the  appeals  stand  allowed  to  the  extent  indicated

hereinabove.  There shall be no order as to costs.  

..………………………….CJI.  (Dipak Misra)

..…………………………….J. (A. M. Khanwilkar)

      ..…..……………….………..J.

              (Dr. D.Y. Chandrachud) New Delhi; September 14, 2018