1

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 others

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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 Mohanty

2

, 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 others

3

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.

23

(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;

25

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 others

5

, 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 another

6

, this Court

reproduced an observation from the decision in D.F. Marion v. Davis

7

:-

5 (1994) 4 SCC 260

6 (1989) 1 SCC 494

7 217 Ala. 16 (Ala. 1927)

28

“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 Agrawal

8

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 others

9

, 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 others

10

, 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 Pradesh

11

, 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