Madras High Court
Sathyavani Ponrani vs The State Thro' on 2 September, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/09/2010 CORAM THE HONOURABLE MS.JUSTICE R.MALA Criminal Original Petition(MD) No.6549 of 2010 Sathyavani Ponrani .. Petitioner vs 1.The State thro' The District Superintendent of Police, Madurai North, Madurai. 2.The Inspector of Police, Umachikulam Police Station, Madurai. in crime No.361 of 2010 .. Respondent Prayer Criminal Original petition filed under Section 482 of Cr.P.C. to direct the investigation of the case in crime No.361 of 2010 on the file of the respondent police be transferred to CBCID Police of any District other than Madurai. !For petitioner ... Mr.D.Geetha ^For Respondent ... Mr.L.Murugan, G.A., (Crl. Side) :ORDER
The petitioner approaches this Court with a prayer to direct the investigation of the case in crime No.361 of 2010 on the file of the respondent police be transferred to CBCID Police of any District other than Madurai.
2. The case of the petitioner is as follows:
The defacto complainant is the mother of the deceased Ms.Nishana Jebamalar, who was working as a Lecturer in American College, Madurai, died on 19.04.2010 by way of committing suicide. On 02.07.2009, the deceased Nishana Jebamalar was given marriage to one Calvin Christopher, who is an advocate and arrayed as A1. A2 is the father of A1, who is working as an Additional Public Prosecutor in Madurai Bench of Madras High Court. At the time of marriage, based on the demands of the A1 and his parents A2 and A3, 102 sovereign of gold was given for the marriage.
2.1.After the marriage, the petitioner's daughter was subjected to harassment and ill treatment by all the accused stating that her nose is not to his liking and she should fix her nose as per the liking of her husband/A1.
During the month of October 2009, the father of the deceased and husband of the defacto complainant, who was working as Deputy Superintendent of Police, has retired from service. Then, the accused persons have made a demand for cash of Rs.5 lakhs and a car and ill treated the deceased. Due to the ill treatment of the accused persons, the deceased underwent plastic surgery for nose in the month of November 2009. After surgery, on 13.12.2009, her daughter returned to her matrimonial home. Since, her husband was not satisfied with the plastic surgery, he threatened the deceased and driven out from the matrimonial home.
2.2.Thereafter, in the month of January 2010, the deceased was compelled to undergo plastic surgery to fix her nose. A1 has refused to talk with her and rejected her calls. The attempt made by the elders of the petitioner's family, to accept her back to the matrimonial home, turned futile. The deceased contacted her husband on several occasions over phone through SMS and requested him to allow her to join him in the matrimonial home, but all her requests were refused by him. In the end of March 2010, the petitioner's daughter underwent another plastic surgery to fix her nose. When she contacted her mother-in-law from one of her friends' viz., Suganya's mobile phone, her father-in-law abused her in filthy language and affirmed her that she would not be allowed to join with his son forever. Hence, unable to bear the torture meted out to her by the accused persons, the deceased committed suicide by way of consuming poison and died on 19.04.2010.
2.3.On the basis of the complaint given by the petitioner, the 2nd respondent police registered a case in crime No.361 of 2010 under Section 174 Cr.P.C and the Revenue Divisional Officer conducted enquiry and the report would reveal that the death of her daughter was caused due to the dowry harassment by her husband and his family members. Subsequently, on 21.01.2010, F.I.R has been altered into one under Section 498(A) and 304(B) I.P.C. Since the 1st accused is a practising lawyer at Madurai Bench of Madras High Court and the 2nd accused is the Additional Public Prosecutor, the police officials of the southern Districts would get instructions from him, which shall prejudice the fair and proper investigation. The investigation is not proceeding in the right direction and the investigating officer has not examined the colleagues of the deceased and have not seized the cell phones of the deceased and the accused, which are very vital materials in this case. Hence, the petitioner has approached this Court with the petition for the transferring the investigation to CBCID other than Madurai District.
3. The learned Government Advocate (criminal side) has filed the counter affidavit of the Deputy Superintendent of Police, Umachikulam Sub Division, wherein, he has stated as follows:
On the basis of the complaint given by the petitioner, a case was registered in crime No.361 of 2010 under Section 174 Cr.P.C and taken up for investigation. Initially the case was enquired by the Revenue Divisional Officer, Madurai, since it is a case of suspicious death and on the basis of the report of the Revenue Divisional Officer, the case has been altered into one under Section 498(A) and 304(B) I.P.C. and so far 22 witnesses have been examined and their statements have also been recorded under Section 161(3) Cr.P.C. Now they are taking steps to get the call details of Mobile phones from the concerned mobile company and the report is yet to be received and they are awaiting for the final enquiry report of the Revenue Divisional Officer and thus he prayed for the dismissal of the application.
4.The learned counsel appearing for the petitioner would submit his arguments on four folds:
(i) the occurrence has been taken place on 19.04.2010. At the time of inquest and enquiry of the Revenue Divisional Officer, the accused persons have not appeared before him and he has given a report stating that the death of the deceased was caused due to the dowry harassment by her husband and his family members. But, during the pendency of the criminal original petition, A2 herein has given an application to the Collector and on that basis only, the Revenue Divisional Officer has given another report dated 07.07.2010, wherein, he has stated that the death of the deceased has been occurred due to A1 and the parents of law were not responsible which shows that how much A2 has misused his official capacity.
(ii) that the investigation agency has not examined the friends of the deceased and the Cellphones of the deceased and accused persons were also was not seized till now. These things would show that the 2nd respondent is not acted in accordance with law by investigating the matter. Hence, he prayed for the transferring of the investigation to CBCID.
(iii) that after the marriage, the deceased under went nose surgery twice since her nose was not liking her husband. This factum has been evidenced by Doctor Balaji and discharge receipt and it is clearly proved that the accused caused cruelty to the deceased.
(iv) The 2nd respondent has not done a fair and proper investigation, and he has not sent any documents for handwriting expert to find out whether the greeting card sent by the deceased is true and genuine and thus wantonly, they want to create loopholes in investigation to facilitate the accused to escape from the clutches of law and hence, she prayed for the transfer of the investigation to CBCID other than, Madurai District.
(v) that A1 is the practising advocate and A2 is working as Additional Public Prosecutor in Madurai Bench of Madras High Court and hence the petitioner apprehending for fair and proper investigation in the right direction and hence she wants the investigation to be conducted by the independent agency.
To substantiate his case, the learned counsel appearing for the petitioners relied upon the various judgments of Apex Court and this Court.
5.Repudiating the same, the learned Government Advocate (criminal side) would submit that initially the case has been registered under Section 174 Cr.P.C and after receiving the Revenue Divisional Officer's report, the case has been altered into one under Section 498(A) and 304(B) IPC. The investigation is going on in a proper direction. Now, they have called for the report from the mobile company in respect of some of the mobile numbers used by the deceased and accused persons and thus he prayed for the dismissal of the application. He also relied upon various judgments of the Apex Court and this Court.
6.Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate (Criminal side) and perused the materials available on record and also the case diary produced by the respondent police.
7.Admittedly, the marriage between the deceased/daughter of the defacto complainant and the 1st accused had solemnised on 02.07.2009 and due to the torture of her husband/1st accused, she underwent surgery twice for fixing her nose as liking of her husband on 21.11.2009 and 27.03.2010 and subsequently, she died on 19.04.2010 by way of consuming poison. It is also an admitted fact that the deceased was working as a Lecturer in American College Madurai and her father was a retired Deputy Superintendent of Police and her mother is also working as a Teacher in Noyes School, Madurai. The 1st accused is a practising lawyer at Madurai Bench of Madras High Court and A2 is also working as Additional Public Prosecutor, Madurai Bench of Madras High Court. Since the petitioner suspected all the three accused, she gave a complaint before the respondent police and on the basis of the complaint given by the defacto complainant, a case has been registered under Section 174 Cr.P.C and since the death of the deceased had occurred within 7 years from the date of her marriage, the Revenue Divisional Officer had conducted inquest on the dead body of the deceased and made an enquiry, in pursuant of which, he has given his opinion stating that the death is only due to the dowry harassment made by her husband and parents-in-law and hence, the Revenue Divisional Officer has given direction to initiate criminal proceedings against A1 to A3. Thereafter, the offence has been altered into one under Section 498(A) and 304(B) I.P.C. on 21.04.2010. The present application has been filed on 07.06.2010.
8.Ground No.I:
The occurrence has been taken place on 19.04.2010. At the time of inquest and enquiry of the Revenue Divisional Officer, the accused persons have not appeared before him and the Revenue Divisional Officer had filed his report stating that the death of the deceased was caused due to the dowry harassment by her husband and his family members. Since A1, A2 and A3 have not appeared before the Revenue Divisional Officer, A2 and A3 had filed a petition before the Collector to reopen the enquiry of Revenue Divisional Officer and accordingly, as per the order of the Collector, the Revenue Divisional Officer has re-opened the case and examined A2 and A3 and filed the report stating that there is no demand of dowry harassment and A2 and A3 were not responsible for the death of the deceased, which shows that how much A2 has influenced the government machinery by using his official power. T
9.The first Revenue Divisional Officer's report has been filed on 20.04.2010, wherein it has been stated that the death of Nishana Jebamalar is due to dowry harassment of the accused persons and he has given a direction to take criminal action against the husband and parents in law of the deceased. Then, he filed a final report dated 18.06.2010, wherein, he has also stated that the death of Nishana Jebamalar was occurred due to dowry harassment by her husband, father-in-law and mother-in-law. After conducting the 2nd enquiry, 07.07.2010, the Revenue Divisional Officer has sent another report, wherein, he has stated that the death of the deceased has been occurred due to Calvin Christopher and the parents-in-law were not responsible. In that report, it was stated as follows:
"ne;epiyiag; ghh;f;Fk;bghGJk; vd;Dila jdpg;gl;l tprhuiz bra;ag;gl;ljpypUe;Jk; nwe;j ep&hdh b$gkyhpd; nwg;gpw;F mtuJ fzth; bfy;tpd; fpwp!;Blhgh; Kf;fpa fhuzkhf nUe;Js;shh; vd;gJ bjspthfpwJ. nwe;j ep&hdh b$gkyhpd; khkpahh; jpUkjp.c&h thRfp, khkdhh; jpU.rhKBty;uh$; MfpBahh; Bkw;go bgz;zpd; nwg;gpw;F fhuzkhf nUf;ftpy;iy vd;gij gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;"
The learned counsel for the petitioner would submit that this factum will clearly show that the 2nd accused has influenced the government machinery and hence since the interim report and final report of the Revenue Divisional Officer was against all the accused persons, the 2nd final report dated 07.07.2010 is in his favour. Even though the deceased father is a Deputy Superintendent of Police (Retd.) the petitioner has suffered such a mental agony for mis-investigation. Hence, the argument advanced by the learned counsel appearing for the petitioner that how much A2 has influenced the government machinery by using his official power is an acceptable one.
10. Ground No.2:
As per the 161(3) Cr.P.C statement of one Suganya, who is the colleague of the deceased, on 19.04.2010, since the mother-in-law of the deceased was not ready to speak with the deceased, she used her cellphone and contacted his mother-in-law and then only her in-laws have spoken to her. After contacting them, the deceased disclosed to Suganya that her father-in-law has scolded her and since she was in a depressed mood, she has left from the college at 01.00 p.m. Admittedly, the cellphones of the deceased and her friend Suganya were not seized by the investigation agency, which are vital materials for investigation to prove that the harassment meet out by the deceased, will deviate the correct path of investigation.
11.Ground No.3:
A perusal of the case diary would reveal that since the deceased nose was not liking of her husband, she underwent nose surgery for twice and this factum has been proved by Dr.Balaji, who has given 161(3) Cr.P.C. statement stating that the deceased was admitted in hospital on 21.11.2009 and the surgery has been conducted on 22.11.2009 and she was discharged on 24.11.2009 and he has given discharge summary. Subsequently, on 27.03.2010, the deceased again was admitted on 27.03.2010 and surgery was conducted on the same and she was also discharged on the same day and the doctor has also given discharge summary. The above said two surgeries underwent by the deceased shows that even though the deceased had not underwent any surgery till her 26 years, without nine months from her marriage, she had underwent surgeries for twice for re- fixing her nose as liking of her husband. After filing of this petition only, the doctor was examined by the investigation agency, which shows that the respondent police has not done a fair and proper investigation.
12. Ground No.4:
The greeting card and letters written by the deceased have been seized by the investigation agency, but they have not taken any steps to send the same to the handwriting expert for obtaining his opinion to verify as to whether the letters and greeting card were sent by the deceased. The investigation agency can very well obtain the admitted signature of the deceased from the College, where she was working as Lecturer at the relevant point of time, which has clearly proved that the investigation is not going on in a correct direction. At this juncture, this Court is forced to accept the arguments advanced by the learned counsel appearing for the petitioner that the respondent is investigating the matter causing some loopholes with the intention to facilitate the accused to escape from the clutches of law is acceptable.
13. Ground No.5:
Since A1 is the practising lawyer of Madurai High Court and A2 is the Additional Public Prosecutor in Madurai Bench of Madras High Court, each and every day, the police official of 13 Districts are approaching for giving instructions and hence the apprehension of the petitioner that there will not be a fair and proper investigation is appears to be a genuine one and hence the arguments advanced by the learned counsel appearing for the petitioner are acceptable.
14.It is appropriate to consider the following decisions of the Apex Court and this Court filed by the learned counsel appearing for the petitioner.
In Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary Vs. State of Punjab and others reported in AIR 1994 Supreme Court 1023, wherein, the Apex Court has held as follows:
"In the instant case, it was alleged that a practicing lawyer, his wife and child were abducted and murdered. The lawyers fraternity were not satisfied with the police investigation and demanded judicial enquiry. The investigating having been completed by the police and charge sheet submitted to the court, it is not for Supreme Court, ordinarily to re-open the investigation. Nevertheless, in the facts and circumstances of the instant case, to do complete justice in the matter and to instil confidence in the public mind it is necessary to have fresh investigation in this case through a specialised agency like the Central Bureau of Investigation (CBI), CBI was directed to take up the investigation of the case."
In Zahira Habibilla H. Sheikh and another Vs. State of Gujarat and others reported in (2004) 4 Supreme Court Cases 158, wherein, the Apex Court has held as follows:
"If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the relatives or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law."
In Kedar Narayanan Parida and Others Vs. State of Orissa and anothr reported in (2009) 9 Supreme Court Cases 538, the Apex Court has held as follows:
"The High Courts in exercise of their inherent and plenary powers are entitled to intervene to set right the illegality and/or malafide action on the part of the investigating authorities when it notices such illegality and/or malafide action on the part of the investigating authorities. While the courts should not intervene in matters of investigation, which power, under the Scheme of Cr.P.C has been vested in the police authorities, an exception has also been made that in certain circumstances the court could intervene in order to do justice to the parties. The courts and in particular the High Courts, are the guardians of the life and liberty of the citizens and if there is any flavour of deliberate misuse of the authority vested in the investigating authority, the High Court or the Supreme Court may certainly step in to correct such injustice or failure of justice."
In Paramjit Kaur (Mrs) Vs. State of Punjab and others reported in (1996) 7 SCC 20, wherein the Apex Court has held as follows:
"Mr.M.L.Sarin, learned Advocate General, Punjab has very fairly stated that keeping in view the serious allegations levelled by the petitioner against the officers/officials of the Punjab Police, it would be in the interest of justice that the investigation in this matter be handed over to an independent authority. Even otherwise, in order to instil confidence in the public mind and to do justice to the petitioner and his family it would be proper to withdraw the investigation from Punjab Police in this case. We, therefore, direct the Director, Central Bureau of Investigation to appoint an investigation team headed by a responsible officer to hold investigation in the kidnapping and whereabouts of Khalra. We further direct the Director General of Police, Punjab, all Punjab Police Officers concerned, Home Secretary and Chief Secretary Punjab to render all assistance and help to the CBI in the investigation."
In Babubhai Jamnadas Patel Vs. State of Gujarat and others reported in (2009)9 SCC 610 wherein, the Apex Court has held as follows:
"The Various decisions cited by Mr.Dave endorse the view that when required not only could the High Court or this Court direct the investigating agencies to conduct the investigation in a fair and unbiased manner, but that in exercise of its powers under Article 142 of the Constitution, the Supreme Court could also issue directions for enforcement of fundamental rights and to ensure that complete justice was done to the parties."
46.The Courts, and in particular the High Courts and the Supreme Court, are the sentinels of justice and have been vested with extraordinary powers of judicial review and supervision to ensure that the rights of the citizens are duly protected. The courts have to maintain a constant vigil against the inaction of the authorities in discharging their duties and obligations in the interest of the citizens for whom they exist. This court, as also the High Courts, have had to issue appropriate writs and directions from time to time to ensure that the authorities performed at least such duties as they were required to perform under the various statutes and orders passed by the administration."
In Kishan Lal Vs. Dharmendra Bafna and another reported in (2009) 7 SCC 685, wherein, the Apex Court has held as follows:
"The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new of further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary."
In (2010)2MLJ (Crl) 735 (SC) Rubabbuddin Sheikh Vs. State of Gujarat and Others, wherein, the Apex Court has held thus:
"In an appropriate case when the Court feels that the investigation by police authorities is not in the proper direction and in order to do complete justice in the case, it is always open to the Court to hand over the investigation to the independent agency like CBI."
15. It is also appropriate to consider the following decisions of the Apex Court and this Court relied upon by the learned Government Advocate (criminal side).
In Divine Retreat Centre Vs. State of Kerala and others reported in (2008) 3 SCC 542, the Apex Court has held as follows:
"39. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.
40. In our view, the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested.
41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code."
In Sakiri Vasu Vs. State of Uttar Pradesh and Others reported in (2008)2 SCC Page 409, the Apex Court has held as follows:
"33. In Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya1 (SCC vide para 6) this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
34. In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the army authorities as well as by GRP at Mathura, which revealed that it was a case of suicide.
35. It has been stated in the impugned order of the High Court that GRP at Mathura had investigated the matter and gave a detailed report on 29-8-2003. It is not clear whether this report was accepted by the Magistrate or not. If the report has been accepted by the Magistrate and no appeal/revision was filed against the order of the learned Magistrate accepting the police report, then that is the end of the matter. However, if the Magistrate has not yet passed any order on the police report, he may do so in accordance with law and in the light of the observations made above."
In (Hasan Ammal Vs. State of Tamil Nadu and others) reported in 2009(2) TNLR 305 (Mad) (MB), it has been held thus:
"Para 20. On a careful consideration of the submissions made by both the parties and the dicta laid down by the Hon'ble Apex Court in the aforesaid judgments, the investigation and detection of crime, which is a domain of executives and the Investigating Agency need not be interfered by the judiciary without any finding of mala fide on the part of such agencies. Moreover, it is also laid down that the transfer of investigation can be done by the High Court only under Article 226 of the Constitution of India in rare and exceptional cases."
In Rakindo Developers (P) Ltd., No.1, Subburaya Avenue, C.P.Ramaswamy Road, Alwerpet, Chennai 600 018 rep. By its Authorise Representative V.K.Venkatraman, wherein, this Court has held as follows:
"Free and fair investigation is the fundamental right of a citizen under Articles 14 and 21 of the Constitution and Courts i.e., High Courts and Supreme Court can entertain the petitions for CBI investigation only in case of violation of fundamental rights of a citizen. The only requirements for the Court while weighing the prayer is to examine and analyse the case as to whether it is a rare and exceptional one where such a relief should be granted in the interests of justice and to avoid resultant in the event of denial of the prayer."
16.Considering all the decisions relied upon by the learned counsel appearing for the petitioner and the learned Government Advocate (Criminal Side), it is true that the investigation can be transferred by the High Court only under Article 226 of the Constitution of India, in rare and exceptional cases, otherwise the CBCID would be flooded with a large number of cases and would find it impossible to properly investigate all of them.
17.It is on the part of the Court to decide whether this case is a rare and exceptional case ordering for CBCID enquiry. It is true that A1 is a practising lawyer in the Madurai Bench of Madras High Court and his father A2 is working as an Additional Public Prosecutor of Madurai Bench of Madras High Court. It is pertinent to note that the death of the deceased was occurred on 19.04.2010 and on the basis of the complaint given by the petitioner/defacto complainant, a case has been registered in crime No.361 of 2010 under Section 174 Cr.P.C., and during the preliminary enquiry of the Revenue Divisional Officer, since A2 and A3 have not appeared, he has given an interim report stating that because of the dowry harassment of her husband and parents-in-law, the deceased has committed suicide and directed to initiate criminal proceedings against A1 to A3, in pursuance of which the F.I.R. has been altered into one under Sections 498(A) and 304(B) I.P,.C. on 21.04.2010. However, during the pendency of the present application, the 2nd accused has given a petition dated 30.06.2010 before the District Collector, for re-opening the Revenue Divisional Officer's enquiry, in pursuance of which the Revenue Divisional Officer has conducted further enquiry and examined A2 and A3, one Krishnan, one Devasagayam, Deputy Superintendent of Police and one Chandra Prabha, who is the Legal Adviser of the Commissioner of Police, Madurai and filed a report dated 07.07.2010 stating that A2 and A3 were not responsible for the death of the deceased and her death was not due to the dowry harassment of the parents-in-law. Perusal of the records would show that the application for re-opening the Revenue Divisional Officer's enquiry has been given on 30.06.2010, i.e. after filing of the present criminal original petition, which clearly proved that A2 influenced his official power and interfered with the investigation during the pendency of the present criminal original petition and hence, the Revenue Divisional Officer has filed the report stating that there is no allegation against A2 and A3, which is not in accordance with law.
18.Furthermore, while perusing the case Diary, the investigation agency has not taken any steps to seize the mobile phones of the deceased, her friend Suganya and the accused persons. Per contra, the learned counsel appearing for the petitioner filed the documents, which disclose the messages communicated between the deceased and 1st accused, which are very much necessary for the investigation. Since the 2nd respondent is the Additional Public Prosecutor of Madurai Bench of Madras High Court, the police officers attached with Law and Order and Crime are approaching him daily for giving instructions to conduct the cases in High Court. Hence, there is a suspect in the mind of the defaacto complainant that she will not get fair investigation from the hands of the present investigation agency. In such circumstances, the fear of the petitioner that she would not get fair justice, if the present investigation agency, investigate the case is appears to be a genuine one.
19.In such circumstances, this Court finds that the investigation has not conducted a fair and proper and correct direction on the following grounds:
(i) After filing of the criminal original petition, A2 and A3 and other police officials were examined by Revenue Divisional Officer, who filed a second report stating that A2 and A3 were not responsible for the death of the deceased, which shows that how much A2 has misused his official power to influence the government machinery.
(ii) The investigation agency has not taken any steps to seize the cellphones of the deceased, her friend Suganya, and accused persons, which are very vital materials in this case to get the details of phone calls and messages communicated by the deceased and 1st accused even on the date of occurrence.
(iii) The investigation agency has not taken any steps to send the documents viz., letters and greeting card for handwriting expert to verify with the admitted signature of the deceased, which is very much available in the College, where the deceased was working at the relevant point of time, which will facilitate the accused to escape from the clutches of law.
20.As per the decisions relied upon by the learned counsel appearing for the petitioner, it is the duty of the Court to dispell with the suspicion from the mind of the victim family and public and to give fair investigation by the competent authority. As per the decisions stated above, to instil confidence in the mind of the victim family as well as the public, if the court feels that the investigation done by the police authorities is not in a proper direction, it is always open to the court to handover the investigation to the independent agency. Here, since A1 is the practising lawyer of Madurai High Court and A2 is the Additional Public Prosecutor in Madurai Bench of Madras High Court, each and every day, the police officials of 13 Districts are approaching him for giving instructions to A2 and hence the petitioner had fear that she would not get the fair and proper investigation is a sound and genuine apprehension.
19.In such circumstances, this Court is forced to accept the arguments advanced by the learned counsel appearing for the petitioner that the investigation agency has investigated the matter leaving some loopholes to facilitate the accused persons to escape them from the clutches of law and hence, I am of the opinion that to instil confidence in the mind of the victim family as well as the public and to meet the ends of justice, an independent agency will be the competent authority to investigate the matter and file a final report and I am also of the opinion that the CBCID is the competent agency to investigate the matter and file a final report in accordance with law and hence, the investigation in crime No.361 of 2010 shall be transferred to CBCID, from the 2nd respondent police and the criminal petition is liable to be allowed.
20. Accordingly, this criminal original petition is allowed and the case in crime No.361 of 2010 on the file of the 2nd respondent police is transferred to CBCID.
arul To
1.The District Superintendent of Police, Madurai North, Madurai.
2.The Inspector of Police, Umachikulam Police Station, Madurai.
3.Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai