Madras High Court
The vs Unknown on 7 December, 2012
Bench: R.Banumathi, P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07/12/2012 CORAM THE HON'BLE MRS.JUSTICE R.BANUMATHI THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR AND THE HON'BLE MR.JUSTICE S.NAGAMUTHU M.P.Nos.1 of 2011 and 1 and 4 of 2012 in H.C.P.No.643 of 2011 ----------------------------------------- M.P.No.1 of 2011 in H.C.P. No.643 of 2011 ----------------------------------------- R.SANKARASUBBU Vs THE COMMISSIONER OF POLICE EGMORE CHENNAI THE INSPECTOR OF POLICE R-5 TIRUMANGALAM POLICE STATION CHENNAI ----------------------------------------- M.P. No.1 of 2012 in H.C.P.No.643 of 2011 ----------------------------------------- R.SANKARASUBBU . Vs THE COMMISSIONER OF POLICE EGMORE CHENNAI THE INSPECTOR OF POLICE R-5 TIRUMANGALAM POLICE STATION CHENNAI THE DIRECTOR CENTRAL BUREAU OF INVESTIGATION NO.5B, GGO, COMPLEX, LODHI ROAD NEW DELHI THE SUPERINTENDENT OF POLICE SCB, CENTRAL BUREAU OF INVESTIGATION RAJAJI BHAVAN, BESANT NAGAR, CHENNAI ----------------------------------------- M.P. No.4 of 2012 in H.C.P.No.643 of 2011 ----------------------------------------- R.SANKARASUBBU . Vs THE COMMISSIONER OF POLICE EGMORE CHENNAI THE INSPECTOR OF POLICE R-5 TIRUMANGALAM POLIE STATION CHENNAI THE DIRECTOR CENTRAL BUREAU OF INVESTIGATION NO.5B, GGO COMPLEX LODHI ROAD, NEW DELHI THE SUPERINTENDENT OF POLICE SCB, CENTRAL BUREAU OF INVESTIGATION RAJAJI BHAVAN, BESANT NAGAR CHENNAI O R D E R
S.NAGAMUTHU, J.
The petitioner - Mr.R.Sankarasubbu is a practising lawyer and a leading member of "The Madras High Court Advocates Association". His son Mr.S.Sathishkumar, aged 24 years, was also a practising lawyer in the Madras High Court. Mr.R.Sankarasubbu [hereinafter referred to as "the petitioner"] filed the present Habeas Corpus Petition on 10.06.2011, alleging that his son S.Sathishkumar, [hereinafter referred to as the deceased"], came to the High Court along with him on 07.06.2011 and then returned home. Around 9.00 pm. on 07.06.2011, according to the petitioner, the deceased left his house in Anna Nagar, Chennai, in his motor cycle bearing Registration No.TN-02-AQ-6869 along with his cell-phone [bearing No.98846 26124], informing the inmates that he was going out for dinner. Thereafter, he did not return. He further alleges that he went in search of the deceased, but, could not find him anywhere. Therefore, he claims that around 01.00 a.m. on 08.06.2011, he made an oral complaint to the Inspector of Police, Thirumangalam Police Station. On the same day, at 09.00 a.m., he made a written complaint to the 2nd respondent/The Inspector of Police, Thirumangalam Police Station, upon which, a case was registered in Crime No.926 of 2011 for "Man Missing". The petitioner further claims that on 09.06.2011, he met the Commissioner of Police at 01.00 p.m. and made a request to him to trace out the deceased. Thereafter, according to him, at 2.00 p.m. the motor cycle of his son and the cell-phone were found in ICF North Colony Lake Area. But, the deceased could not be traced out. The petitioner further claims that at that stage, he suspected foul play in respect of the life of the deceased. With these allegations, he filed the said Habeas Corpus Petition seeking a direction for the production of the son of the petitioner before this Court and to set him at liberty.
2. The said Habeas Corpus Petition came up before a Division Bench, consisting of Hon'ble Mr.Justice C.Nagappan and Hon'ble Mr.Justice P.R.Shivakumar [one of the members of the present Full Bench], on 10.06.2011. On that day, the Division Bench passed an interim order directing the Commissioner of Police, Chennai, to form a special team immediately for tracing out Mr.S.Sathishkumar with a further direction to the said team to be formed to take all efforts by requisitioning the services of the Fire and Rescue Service personnel and other services for tracing the deceased. The petition was ordered to be adjourned to 13.06.2011.
3. When the petition came up for hearing before the Division Bench on 13.06.2011, on the request of the learned Additional Public Prosecutor representing the State, the same was adjourned to 16.06.2011. On the same day, i.e., 13.06.2011, at about 4.00 p.m. the dead body of the petitioners son was found floating in the lake near ICF Railway Police Station out-post. Therefore, the case was altered into one under Section 174 of the Code of Criminal Procedure. The body was taken out of the lake and kept in the mortuary attached to the Government Kilpauk Medical College Hospital, Chennai. But, post-mortem was not conducted either on 13.06.2011 or on 14.06.2011.
4. Meanwhile, the petitioner filed M.P.No.1 of 2011 seeking a direction for conducting autopsy by a team of Doctors consisting of Forensic Experts. He had also filed M.P.No.2 of 2011 seeking transfer of investigation of the case to the Central Bureau of Investigation. M.P.No.1 of 2011 was heard by the Division Bench on 14.06.2011 and in the said miscellaneous petition, the Division Bench directed constitution of a special team of Doctors to conduct autopsy and to file a copy of the autopsy report before the Division Bench.
5. Accordingly, a special team of Forensic Medicine Experts (1) Capt. Dr.B.Santhakumar, Director and Professor of Forensic Medicine, Institute of Forensic Medicine, Madras Medical College, Chennai; (2) Dr.V.Murugesan, Professor & Head, Department of Forensic Medicine, Kilpauk Medical College, Kilpauk, Chennai and (3) Dr.P.Sampathkumar, Professor & Head, Department of Forensic Medicine, Sri Ramachandra Medical College and Research Institute, Porur, Chennai, was constituted.(Dr.Sampath kumar was the choice of the Petitioner). The said team of Doctors conducted autopsy on the body of the deceased and they submitted the post-mortem certificate dated 15.06.2011.
6. When M.P.No.2 of 2011 and the Habeas Corpus Petition came up for hearing on 16.06.2011, the post-mortem certificate was placed before the Division Bench along with the compact disc containing videograph of post-mortem examination. In the post-mortem report, the Doctors had mentioned that there were four cut throat parallel horizontal injuries on the anterior part of the neck. They also expressed opinion that the deceased would appear to have died of shock and haemorrhage due to cut throat injuries.
7. Meanwhile, the Inspector of Police, Thirumangalam P.S. had altered the case into one under Section 302 of the Indian Penal Code based on the opinion of the expert Doctors, who had conducted autopsy. When the petition came up for hearing, the petitioner insisted for transfer of investigation to the CBI. The learned Advocate General, representing the Government of Tamil Nadu, expressed no objection for transferring the investigation to the CBI. Considering the above facts and circumstances and the grievance expressed by the petitioner, the Division Bench passed an order transferring the investigation to the CBI. The operative portion of the order in para 7 reads as follows:-
7. In the circumstances, we transfer the investigation of the case registered in Crime No.926/2011 on thefile of V-5, Thirumangalam Police Station, Chennai, to Central Bureau of Investigation with immediate effect. The second respondent, namely, the Inspector of Police, V-5, Thirumangalam Police Station, Chennai, shall immediately hand-over the entire case papers in Crime No.926/2011 on his file to the Joint Director, Central Bureau of Investigation, Chennai. The Director of Central Bureau of Investigation, New Delhi shall nominate Officer/Officers to conduct the investigation and the investigation is to be commenced immediately.
This petition is ordered accordingly.
Post the main HCP after two weeks. The Habeas Corpus Petition again came up for hearing before the same Division Bench on 06.07.2011. On that day, the Division Bench issued the following direction:-
3. We deem it appropriate to direct all the three technicians, stated supra, to be present before this Court at 10.30 a.m. on 11.07.2011. The three video cassettes and the Post-mortem Certificate are to be kept in a sealed cover by Register (Judicial) and to be produced at 10.30 a.m. on 11.07.2011.
8. On 11.07.2011, when the Habeas Corpus Petition was taken up for hearing, Mr.K.Ashok Kumar, HC 16273, City Police Photo Section, Egmore, Chennai-8, Mr.V.Murali, Audio Video Technician, Intelligence Wing, Chennai City Police, Egmore, Chennai-8, and Mr.P.Deepak, Videographer, Sponsored by Dr.P.Sampathkumar, Head of Department of Forensic Medicine, Sri Ramachandra Medical College, Porur, Chennai, were present before this Court on the directions issued by the Division Bench. On that day, this Court issued the following direction:-
We enquire them as to the process by which copies can be taken from the original three video cassettes sent along with the Post-mortem Certificate. They said that by using two other Digital Cameras two copies can be taken at a time and that can be done if a room is provided to them in the High Court premises itself and the duration would be nearly three hours. We direct the Registrar (Judicial), High Court, Madras, to provide appropriate room on 12.07.2011 in the forenoon for all the three Technicians referred to above, to take two copies from the three video cassettes. The copies shall be taken in the presence of the Deputy Registrar (Computers) High Court, Madras. After the copies are taken, the original along with two copies shall be handed over to the Registrar (Judicial). The Registrar (Judicial) in-turn shall hand-over the three original video cassettes and one copy to the Investigating Officer, Central Bureau of Investigation, on proper acknowledgement. The other copy shall be retained by the Registrar (Judicial) in a sealed cover and shall be produced as and when required.
9. On 24.08.2011, when the matter came up for hearing, the status report dated 24.08.2011 was filed. On the request of the counsel for CBI, the matter was adjourned for further report. On 05.09.2011, again a request was made by the learned senior counsel for CBI for further arguments. While issuing a direction to the CBI to speed up the investigation and to take all steps including custodial interrogation of the suspects, the Division Bench adjourned the case to 11.10.2011. On 11.10.2011, a status report dated 11.10.2011, was filed by the CBI. The matter was argued at length by the counsel on either side before the Division Bench and it was adjourned to 13.10.2011.
10. On 13.10.2011, the then learned Additional Solicitor General, representing the CBI, submitted to the Division Bench that the investigation would be monitored directly by Mr.Salim Ali, Additional Director, CBI. Therefore, the Habeas Corpus Petition was adjourned by four weeks. On 01.12.2011, when the Habeas Corpus Petition came up for hearing before the same Division Bench, the matter was again heard and yet another status report dated 23.11.2011 was filed by the CBI. The Division Bench directed the status report to be kept in a sealed cover and adjourned the matter to 06.02.2012. The Habeas Corpus Petition was again taken up for hearing only on 06.03.2012. On 06.03.2012, yet another status report dated 05.03.2012 was submitted by the Joint Director, Special Crime, CBI, New Delhi. The Division Bench directed the same to be kept in a sealed cover. On that date, a request was made by the CBI for grant of leave to file final report before the competent Magistrate. The Division Bench, by order dated 06.03.2012, in Paragraph Nos.7 & 8 directed as follows:-
7. In the present Status Report filed today, the Joint Director, Special Crime, CBI, New Delhi seeks leave to file the Final Report in the case. For the purpose of speedy investigation, this Division is monitoring the same. Mr.M.Ravindran submits that the Central Bureau of Investigation will be filing the Final Report in the case within a period of two weeks from today before the competent court. The submission is recorded.
8. We deem it fit to grant leave to CBI to file the Final Report before the competent Court. By granting leave, we do not express any opinion on the merits of the investigation.
Post the matter on 26.03.2012.
11. While things stood thus, the petitioner filed M.P.No.1 of 2012 seeking an interim direction to form a special investigation team headed by a retired Hon'ble Judge of this Court. The said miscellaneous petition and the habeas corpus petition were listed before the same Division Bench on 20.03.2012. The Division Bench heard Mr.S.Prabakaran on behalf of Mr.R.C.Paul Kanagaraj, the learned counsel for the petitioner, Mr.N.G.R.Prasad, Mr.G.Mohana Krishnan, the President of Madras High Court Advocate Association and Ms.Prasanna, the President of Women Lawyers' Association and also Mr.M.Ravindran, the learned then Additional Solicitor General for Special Public Prosecutor for CBI Cases.
12. In the course of arguments, the learned counsel for the petitioner had submitted that the CBI had already filed number of status reports before the Division Bench hearing the Habeas Corpus Petition and they were all kept in sealed covers as requested by the CBI. It was further contended that the petitioner was, therefore, not aware of the contents of the reports, nature and the progress made in the investigation. Therefore, the learned counsel had submitted that the copies of the status report might be furnished to the petitioner or at least he might be permitted to peruse the same. The said request was opposed by Mr.M.Ravindran, the learned senior counsel representing the CBI, on the ground that the petitioner is not entitled for copies of the same as he would be entitled to receive the copies of the documents before the Magistrate after the final report is filed. After hearing the arguments, the Division Bench directed the CBI not to file final report and passed the following order:-
6. Though we have granted leave to C.B.I. to file Final Report before the competent Court by our Order dated 6.3.2012, now, we deem it fit to direct respondents 3 and 4 not to file Final Report till it is permitted by a further Order of this Court. In this context, Mr.Prabhakaran, learned counsel for the petitioner, Mr.N.G.R.Prasad, Mr.Mohana Krishnan, President of Madras High Court Advocates Association and Ms.Prasanna, President of Women Lawyers Association and Mr.M.Ravindran, learned Additional Solicitor General, appearing for Special Public Prosecutor for CBI cases, made a suggestion that the matter may be referred to a Larger Bench. We are also of the view that the matter be dealt with by a larger Bench.
7. The matter is directed to be placed before The Honble The Chief Justice for placing it before another Larger Bench.
13. The matter was accordingly placed before The Honble The Chief Justice and on the orders of The Honble The Chief Justice dated 02.04.2012, a Full Bench was constituted consisting of the Honble Mr.Justice Elipe Dharma Rao, Honble Mr.Justice M.Venugopal and Honble Mr.Justice M.M.Sundresh. The matter was listed before the Full Bench on various dates and the same was heard.
14. On 20.07.2012, when the said Full Bench heard the matter, on considering the request of the petitioner, the Full Bench directed the CBI to furnish copies of the status reports along with enclosures to the petitioner for his perusal within four days. The said order reads as follows:-
As requested by the learned counsel appearing for the petitioner, learned Special Public Prosecutor for CBI Cases is directed to furnish all the status report along with enclosures to Mr.R.Sankarasubbu, petitioner for his perusal within four days. Post on 02.08.2012, at 2.15 PM.
15. Again, the matter was argued and then adjourned to 10.08.2012. On 10.08.2012, the Full Bench passed the following order:-
The Registrar (Judicial) is directed to post this matter before another Bench, where none of us (E.D.R.,J.; M.V.,J. and M.M.S.,J.) is a party, after obtaining necessary orders from My Lord, the Honourable The Chief Justice.
16. Accordingly, the matter was placed before The Honble The Chief Justice and by order dated 17.10.2012, The Honble The Chief Justice has constituted this Full Bench. That is how, the HCP and the MPs are before this Full Bench for disposal.
17. Meanwhile, M.P.No.2 of 2012 has been filed by the Tamil Nadu Advocates Association, High Court Buildings, represented by its Secretary to implead the said Association as a party to the HCP. Similarly, M.P.No.3 of 2012 has been filed by Madras High Court Advocates Association, High Court Buildings rep. by its Secretary to implead the said Association as a party to the HCP. M.P.No.4 of 2012 has been filed by the petitioner Mr.R.Sankarasubbu seeking an interim direction to furnish the documents which are referred to in the status report pending disposal of HCP. M.P.No.4 of 2011 has been filed seeking a direction to the CBI to have custodial interrogation of Mr.Suresh Babu, Inspector of Police, V-5 Thirumangalam Police Station Chennai. All those matters were heard by this Full Bench on 19.11.2012, 27.11.2012 and 28.11.2012. On 28.11.2012, the Full Bench allowed the impleading petitions.
18. We have heard Mr.S.Prabakaran, learned counsel for the petitioner; Mr.T.P.Senthilkumar; learned counsel for The Tamil Nadu Advocates Association; Mr.T.Bojja Tharagam, learned senior counsel for Madras High Court Advocates Association; Mr.N.Natarajan, the learned Senior Counsel for Women Lawyers Association and Mr.M.Ravindran, the senior counsel for the 3rd respondent/CBI.
19. Before going into the rival submissions, narration of some more facts is required. The brief facts and sequence of events so necessary for the disposal of the matters are as follows:-
20. The petitioners son S.Sathishkumar is no more and admittedly, his death is unnatural. He was lastly seen alive by the petitioner when he left the house of the petitioner around 09.00 p.m. on 07.06.2011 in his motor cycle bearing Registration No.TN 02-AQ-6869. He also had a Cell-phone bearing No.98846 26124. On the complaint of the petitioner on 08.06.2011, the Inspector of Police, V-5, Thirumangalam Police Station, registered a case in Crime No.926 of 2011 for Man Missing. On 09.06.2011, the said motor cycle as well as Cell-phone were found somewhere near ICF Lake at Villivakkam. They were secured by the local police and handed over to the petitioner. On the orders passed by this Court on 10.06.2011 in this writ petition, the services of the personnel from Fire and Rescue Department were availed by the police to search for the missing person in the lake. Accordingly, they searched for the diseased using boats and other equipments on 11.06.2011 and 12.06.2011. But, the diseased could not be found out. On 13.06.2011, after the hearing of HCP was adjourned in the morning session, around 4.00 p.m. the body of the diseased was found floating in the lake at a distance about 50 meters from the bank. The face was facing downwards. The back of the head, back of the chest and the buttocks were above the water and the rest of the body was immersed in water. The body was taken out of the water and sent to mortuary.
21. According to the Inspector of Police, Thirumangalam Police Station, inquest was conducted on 13.06.2011. Then, on the night of 13.06.2011, one Mr.Siva, a casual labourer at Mortuary, Government Kilpauk Medical College Hospital, while searching the body of the deceased, found a motor cycle key as well as two blades in the pocket of the deceased with cover. They were allegedly recovered under a mahazer. On the directions issued by this Court, a team of doctors, who are Forensic Science Experts were requisitioned to conduct post-mortem on the body of the deceased. The dead body was kept in the mortuary between 13.06.2011 night and 15.06.2012 morning. The post-mortem examination commenced at 07.40 a.m. on 15.06.2011 in the mortuary at Government Kilpauk Medical College Hospital, Chennai. During post-mortem examination, Doctors, among other things, found four horizontal overlapping cut wounds on the lower part of front of the neck. The injuries noticed by the Doctors as described in the post-mortem Certificate read as follows:-
Multiple (4 in numbers) horizontal overlapping cut wounds on the lower part of front of the neck below the level of cricoid cartilage, over an area of 12 X 1.8 cm. The depth of the wound was 2.1 cm on the right end of the wound and 0.3 cm on the left end of the wound. The upper wound margin was regular, the lower wound margin was irregular in the middle 3rd and regular on both outer 3rds. The upper margin was 7.2 cm below the chin along the midline of neck and thelower margin was 5 cm above the supra sternal notch. At both the ends, the overlapping cut wounds showed acute angles.
The anterior and lateral walls of the trachea 0.5 cm below the cricoid cartilage was found cut and the tracheal lumen was exposed, at the floor of the cut wounds, blackish brown extravagated blood was found adherent onto the surrounding soft tissues of the trachea on the floor of the wound. Blackish brown blood was found adherent onto the mucosal surface of trachea, bronchi and the primary bronchioles.
22. The Doctors further found that fully grown maggots were emerging out of the denuded areas on the back. Plenty of fully grown maggots were emerging out of the anal orifice and fully grown maggots were emerging out of the nostrils. The Doctors opined as follows:-
The deceased would appear to have died of shock and haemorrhage due to cut throat injuries. The injuries on the front of the neck would have been inflicted by sharp, light, cutting weapon.
23. In the final status report dated 06.03.2012, the C.B.I. Investigating Officer Mr.R.P.Agarwal, the Joint Director , Special Crime, CBI, New Delhi has made the following recommendations with the prayer that follows:-
Recommendations:-
In view of the facts and circumstances mentioned above, following recommendations are made:-
1. To initiate major penalty proceedings against Shri.I.Mohd. Yusuf, SSI, Ms.N.K.Vanitha, Sub Inspector, Sh. A.Mohd. Nazar, Inspector and N.Suresh Babu, Inspector for omissions and commissions on their part highlighted in this report.
2. To send a Self Contained Note for such action as deemed fit against Dr.M.Barathan, Assistant Director, Mobile Forensic Science Laboratory, Chennai for omissions and commissions on his part highlighted in this report.
3. To file Final Report in the Competent Court in R.C.5(S)/2011-SCB/CHN/CBI recommending closure of the case being suicide. However, CBI will take appropriate action, if any concrete information is received in this regard.
PRAYER It is respectfully prayed that this Status Report may kindly be accepted and the Writ Petition be disposed off accordingly. It is also requested that the Status Report, after perusal by this Honble Court may be ordered to be kept in a sealed cover for confidentiality.
24. As per the status report, the death of the deceased is not culpable homicide and it is only suicide. The CBI now wants to file the final report in culmination of the investigation before the jurisdictional Magistrate. Though, the Division Bench, which originally heard the matter granted permission to the CBI to file the final report before the competent court [vide order dated 06.03.2012], later on, the Division Bench virtually withdrew the said order [vide order dated 20.03.2012] and directed the CBI not to file the final report with a further direction to the Registrar to place the papers before The Honble The Chief Justice for constitution of a Larger Bench. Thus, though the final police report is ready, the same has not been filed before the jurisdictional Magistrate.
25. The Petitioner and the Advocates Associations are not satisfied with the status report. They complain that investigation has not been conducted thoroughly and properly. Now, let us examine the submissions made on either side.
26. The learned counsel for the petitioner and the counsel representing various Bar Associations would submit that the investigation in this case has not been done properly by the CBI and no effective steps have been taken to find out the real culprits who have committed the murder of the deceased. In other words, according to the learned counsel, the death of the deceased is a clear case of murder and not a suicide. Referring to the status reports filed by the CBI , the learned counsel would submit that the investigation was not done in the right angle and the conclusion that it is a case of suicide is based on irrelevant materials. Therefore, according to the learned counsel, further investigation of the case should be entrusted to a special team of Investigators headed by a retired Judge of this Court. Though the prayer in one of the miscellaneous petitions is for nominating a retired Judge of this Court as the head of the special team, during the course of arguments, the learned counsel Mr.S.Prabakaran submitted that the petitioner would be satisfied, if a different team of skilled experts drawn either from the State Police or retired officials is constituted and he did not press for the team being headed by a retired Judge of this Court. The said statement is recorded.
27. The learned Senior Counsel Mr.M.Ravindran would however raise a preliminary objection regarding the above submissions. According to him, now the investigation has been completed and the final report is ready to be filed before the competent Magistrate. Though on an earlier occasion, the Division Bench, which originally heard the matter, permitted the CBI to file the final police report before the competent Magistrate, since, the said order was subsequently withdrawn by this Court, the CBI could not file the final police report before the competent Magistrate. He would further contend that after filing of the final report, if the petitioner is not satisfied with the investigation and that the final report should not be accepted by the Magistrate, it is always open for him to file a protest petition before the jurisdictional Magistrate. The senior counsel would further submit that thereafter, it is for the jurisdictional Magistrate to consider the entire report of the police along with the records and to pass appropriate orders. Thus, according to him, it is not open for this Court to examine the entire materials including the police report yet to be filed before the jurisdictional Magistrate and to issue any further direction for further investigation as sought for by the petitioner. In this regard, the learned senior counsel has referred to a judgement of the Honble Supreme Court in Writ Petition (CRL) No.1 of 2011 [Bineeta Pandey v. Union of India and another] dated 03.05.2012.
28. In respect of the said preliminary objection, the learned counsel for the petitioner and the learned counsel for various Bar Associations would submit that in the instant case, since the investigation has been continuously under the monitoring of this Court and final report has not so far been filed before the jurisdictional Magistrate, it is open for this Court to examine the correctness of the investigation done so far and to issue further directions for further investigation if it is appropriate. In this regard the learned counsel would rely on certain judgements of the Honble Supreme Court about which we would make reference at the appropriate stages of this order.
29. We have considered the above submissions. Admittedly, the investigation was transferred by this Court to the CBI and the same has been done under the continuous monitoring of this Court considering the fact that a member of the Bar and the son of a leading member of the legal fraternity is the deceased and the case has aroused lot of emotions and commotion among the legal fraternity in the State. The continuous monitoring of the investigation of this case by this Court has not been opposed even by the CBI so far. Admittedly, the CBI has filed as many as seven (7) Status Reports in succession regarding the progress made in the investigation. The last one was filed on 06.03.2012 before this Court. As we have already narrated, in the last status report, the CBI has concluded that the deceased would have committed suicide and it is not homicide. But, the final report is yet to be filed before the jurisdictional Magistrate.
30. In this regard, we may state that every investigation by an investigating agency done under Chapter XII of the Code of Criminal Procedure should culminate in a police final report being submitted to the jurisdictional Magistrate as provided in Section 173(2) of the Code of Criminal Procedure. If any such report is filed before the Magistrate, the learned Magistrate has got three options before him. More particularly, if the report is a negative report, not prosecuting any person, then, as held by the Honble Supreme Court in Bhagwant Sing v. Commissioner of Police, (1985) 1 MLJ (Crl) 536 SC, the Magistrate is bound to issue notice to the complainant. On such notice or even without such notice being served, the complainant is entitled to file a petition known as protest petition, disputing the said final report on any valid ground. After affording sufficient opportunity to the police as well as to the complainant or any other aggrieved person, it is for the Magistrate either to accept the said final report submitted by the police and to close the case or to take cognizance of offence if there are sufficient materials available on record and produced along with final report by the police or to issue a direction for further investigation in the event the Magistrate is not satisfied with the investigation, as provided in Section 173 (8) of the Code of Criminal Procedure. Either one of the above said courses will be available for the Magistrate only after filing of final report as provided in Section 173(2) of the Code of Criminal Procedure. In the case on hand, admittedly, final report has not been filed before the Magistrate and, therefore, there will be no occasion for the petitioner to approach the learned Magistrate and equally the learned Magistrate will have no occasion to decide whether to order for further investigation. Thus, the instant case is at the primitive stage.
31. In Bineeta Pandey v. Union of India, cited supra, relied on by the learned counsel for CBI , the Honble Supreme Court had occasion to consider the case where the final report had already been filed before the jurisdictional Magistrate. It was in those circumstances, the Honble Supreme Court held that it would be appropriate for the parties to approach the jurisdictional Magistrate and it was for the Magistrate to proceed in terms of Section 173(8) of the Code of Criminal Procedure. The operative portion of the order is as follows:-
Now that the investigation is completed, the CBI must submit its report before the jurisdictional Magistrate, who will proceed in the matter in terms of Section 173 of the Code of Criminal Procedure, 1973.
We make it clear that we are not expressing any opinion on the merits of the investigation and conclusions drawn by the CBI on the basis of its investigation. All the courses available under the law are left expressly open for the Magistrate.
With the aforesaid observations and directions, the two writ petitions stand disposed of.
Let the records be put back in the sealed covers.
A copy of the written submissions that was handed over to Mr.Prashant Bhushan by Mr.H.P.Raval on the previous day is handed back by Mr.Bhushan to Mr.H.P.Raval.
32. As we have already stated , if once the final report has been filed before the jurisdictional Magistrate, the party aggrieved has got a remedy to work out only before the jurisdictional Magistrate and, therefore, it may not be open for the High Court to examine the final report filled by the police. This is precisely the view taken by the Honourable Supreme Court in the said case.
33. Before any such final report could be filed before the Magistrate, when especially the investigation is under continuous monitoring of this Court, under Article 226 of the Constitution, we are of the firm view that this Court can very well examine the status report to decide as to whether to permit the CBI to file the final report before the Magistrate concerned or to issue any further direction for further investigation and then to permit the CBI to file the police report.
34. In this regard, we may refer to the judgement of the Honble Supreme Court in Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary v. State of Punjab , (1994) 1 Supreme Court Cases 616. That was a case where the allegation was that an Advocate practising at the District Court, Ropar, his wife and child aged about two years were alleged to have been abducted and murdered. The lawyer fraternity in general and the advocates practising at the High Court and the District Courts in the States of Punjab and Haryana and the Union Territory of Chandigarh were not satisfied with the investigation. The Punjab and Haryana High Court Bar Association (Bar Association) demanded a judicial inquiry into the occurrence by a sitting Judge of the High Court or a District Judge or a Vigilance Judge belonging to the higher judiciary. Their demand, having not been acceded to by the State Government, the Bar Association went on indefinite strike. An action committee was constituted by the Bar Association which went into the killings and prepared a report. While so, a writ petition was filed before the Punjab and Haryana High Court in public interest seeking a direction for judicial inquiry by constituting a committee headed by a High Court Judge or District Judge or Vigilance Judge. The various Bar Associations were impleaded as parties in the writ petition. The writ petition was heard by a Coram of Five Honble Judges and finally the writ petition was dismissed as withdrawn by order dated 19.03.1993. As against the said order, the Bar Association, through its secretary, filed an appeal before the Honble Supreme Court. In para 8 of the said judgement, the Honble Supreme Court has held as follows:-
8. Be that as it may the fact remains that the five-Judge Bench of the High Court was seized of the matter wherein the issues regarding the abduction and alleged murder of Kulwant Singh, Advocate and his family were raised before it. The report of the "Action Committee" of the Bar Association, statements recorded by the police including that of Harpreet Singh @ Lucky and other relevant documents were before the High Court. The High Court was wholly unjustified in closing its eyes and ears to the controversy which had shocked the lawyer fraternity in the region. For the reasons best known to it, the High Court became wholly oblivious to the patent facts on the record and failed to perform the duty entrusted to it under the Constitution. After giving our thoughtful consideration to the facts and circumstances of this case, we are of the view that the least the High Court could have done in this case was to have directed an independent investigation/inquiry into the mysterious and most tragic abduction and alleged murder of Kulwant Singh, Advocate and his family."
35. Nextly, the learned counsel for the petitioner relies on a judgement of the Honble Supreme Court in Rubabbuddin Sheikh v. State of Gujarat and others, (2010) 2 Supreme Court Cases 200. That was a case where already the final police report had been filed before the jurisdictional Magistrate. When a direction was sought for further investigation by the CBI, it was opposed on the ground that since the police report had already been filed before the jurisdictional Magistrate, the remedy for the petitioner was only before the jurisdictional Magistrate and not before the Supreme Court. While rejecting the said objection of the State, the Honble Supreme Court in paras 60 and 61 has held as follows:-
60. Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi learned senior counsel appearing for the state of Gujarat that after the charge-sheet is submitted in the Court in the criminal proceeding it was not open for this court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the court feels that the investigation by the police authorities is not in the proper direction and in order to do complete justice in the case and as the high police officials are involved in the said crime, it was always open to the court to hand over the investigation to the independent agency like CBI. It cannot be said that after the charge sheet is submitted, the court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.
61. Keeping this discussion in mind, that is to say, in an appropriate case, the court is empowered to hand over the investigation to an independent agency like the CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in court. [Emphasis supplied].
36. From a close reading of the above judgement relied on by the learned counsel for the petitioner, it is crystal clear that there is no bar for the High Court to exercise its power under Art 226 of the Constitution or under Section 482 of Cr.P.C. to examine the status reports and to issue a direction to the Investigating Agency to investigate further or to direct a different agency to further investigate. The power of this Court, under Article 226 of the Constitution of India, is so wide and it is not either limited or restricted by any other provision of the Constitution. Nor can there be any such restriction / limitation imposed by the Code of Criminal Procedure. But, in course of the time, the Courts have evolved certain self imposed restrictions for exercising the said power under Article 226 of the Constitution of India. One such self imposed restriction is not to entertain a Writ Petition, when the party aggrieved, has got an efficacious alternative remedy. But, it is also the law that in appropriate cases, despite the availability of the alternative remedy, the High Courts are inclined to exercise the power under Article 226 of the Constitution of India.
37. As we have seen in the above judgement, even after filing of final police report before the jurisdictional Magistrate, though party aggrieved has got remedy to approach the jurisdictional Magistrate, there is no bar for the higher judiciary to examine the same and to issue a direction for further investigation. But in the instant case, as we have already pointed out, the final report has not been filed so far and, therefore, at any rate, there can be no bar for this Court to examine the rival submissions regarding the correctness of the investigation done so far to prima facie satisfy the conscience of this Court as to whether to permit the CBI to file the final police report before the jurisdictional Magistrate or to issue any further direction, like a direction for further investigation by the CBI or by some other agency. Thus, the preliminary objection raised by the learned senior counsel for the CBI is rejected.
38. It is the consistent case of the petitioner that his son Sathishkumar would have been done to death by some body by causing injuries on his neck and the body would have been later on thrown into the water. Thus, according to him, it is a clear case of homicide. But, in the latest Status Report dated 06.03.2012, the CBI has concluded that the evidence on record i.e. the statement of witnesses, documents, medical records, opinion of the scientific experts and the circumstances reveal that Sathishkumar committed suicide due to depression, frustration and his mental condition. In this regard, we may, at the outset, refer to the opinion offered by the team of Doctors who conducted the postmortem. As we have already noticed, it is the opinion of the doctors that the deceased would appear to have died of shock and haemorrhage due to cut throat injuries and that the injuries on the front of the neck would have been inflicted by sharp, light, cutting weapon.
39. After the case was transferred to the CBI, the CBI had requested the services of Dr.T.D.Dogra, HOD, Forensic Medicine and Toxicology, AIIMS, New Delhi and Dr.Rajendra Singh, Director, Central Forensic Science Laboratory, CBI, New Delhi, who visited Chennai and they had occasion to go through the postmortem report and all other connected records. The said Medical Board have opined as follows:
The cause of death in this case could be haemorrhagic shock due to cut throat injury in neck region caused by sharp edged weapon. In view of the fact that the deceased was suffering from Psychotic disorder (Unspecified Nonorganic Psychosis), absence of diatoms in bone marrow of femur bone, recovery of two 7 O Clock blades, cut throat injuries caused by sharp edged weapon indicates that the cut throat injury could be possibly suicidal in nature. However, the investigating agency may correlate and corroborate with other oral and circumstantial evidences to arrive at logical conclusion in this regard. [emphasis supplied].
It is mainly based on the above report of the Medical Board headed by Dr.T.D.Dogra, the CBI has concluded that the deceased committed suicide.
40. Referring to these two opinions offered by the two teams of Doctors, it is stated by the CBI that these injuries are self inflicted injuries, whereas, according to the petitioner, the same could have been caused by some other person or persons. We do not wish to delve more on these contentions and express a definite conclusion as to whether these injuries are only suicidal injuries or not, as any opinion expressed in this regard may influence the further investigation.
41. We only say, from the opinion of the two teams of Doctors, that there were two possibilities for the injuries to have been caused i.e. either suicidal or homicidal. But the team of Doctors headed by Dr.T.D.Dogra, in their opinion, have not ruled out the possibility of the injuries having been caused by someone else. They have only opined that it is for the investigating agency to correlate and corroborate with other oral and circumstantial evidences to arrive at a logical conclusion in this regard. Therefore, at no stretch of imagination, it can be said that the team of Doctors headed by Dr.T.D.Dogra ruled out the possibility of homicide. In otherwords, he has not given any definite opinion that it is suicide.
42. Now, let us see whether the other circumstances would lead to the only inference that the death was suicidal. The CBI submitted its first report on 26.07.2011 and in that report, the CBI did not conclude that it was a case of suicide. In Paragraph No.27 of the said report the CBI has stated as follows:
27. During the course of investigation, so far 109 witnesses including friends, classmates, neighbours etc., of the deceased, residents near the scene of occurrence and the probable suspects have been examined. This only indicates that the CBI had thus suspected some foul play in the death of the deceased.
43. The second Status Report submitted to this Court by CBI is dated 03.08.2011, wherein in paragraph 13 the CBI has stated as follows:
13.It may be mentioned that the case is totally blind, where the motive and the identity of the culprits are not known and CBI is putting its best and sincere efforts in making a breakthrough, by pursuing all perceivable theories..
44. In the third Status Report filed on 24.08.2011, the CBI, in paragraph 20, has stated as follows:
20. It is said that modus operandi adopted in this case is seen in many murders committed by the transgenders. To probe this angle, a special team identified and traced various transgenders/commercial sex workers in and around SOC and questioned them in detail to find out any clue and involvement of any of them, if any. But no purposeful information could be emerged from them with regard to the incident.
45. In paragraph 23 of the same report, the CBI has stated as follows:-
23.. During the course of investigation information received to the effect that two suspect hard-core criminal gangs are reportedly involved in the commission of crime. More information is being collected to find out their complicity in the commission of crime. Best efforts are being taken to unravel the mystery of the crime and arrest the accused persons.
46. In paragraph 25 of the report the CBI has stated as follows:-
25.The efforts put in this case are extraordinary. These much efforts have not been put in any other single case of the Zone in recent times. Still, it can be said that no result could be achieved.
47. In the next Status Report filed on 11.10.2011, the CBI has stated as follows in paragraph 6:-
6. Another known criminal Container Sudha and his associates are also suspected to be involved in the crime..
48. In para 26, the CBI has stated as follows:-
26. During the course of investigation the complicity of Shri Viji of Anna Nagar West was examined.
49. In para 27 the CBI has stated as follows:-
27. During the course of investigation, an information was received from a source to the effect that convicted prisoners namely Pozhilan, Baskaran, Venkatesan and Selvam @ Bomb Selvam are suspected in the present crime
50. In the next Status Report filed on 01.12.2011, the CBI has stated as follows:
That the investigation by the local police is not as per procedure and therefore, has raised some doubts about the fairness of the investigation conducted by the local police. It has been further stated as follows:
The involvement of the police is being thoroughly examined during the course of further investigation in this case. Apart from this, all other angles are being looked into the aspect of alleged murder of Shir Sathish Kumar. Though there is no direct evidence in this case, all efforts are being made to identify and trace out the accused persons, if any, in the alleged killing of the deceased. The involvement of criminals is also being looked into through scientific and technical investigation. The CBI investigation will cover all the aspects including the involvement of police officials, if any, in this case.
51. In the next Status Report filed on 06.02.2012, the CBI has stated that 122 witnesses had already been examined and 32 documents had already been examined and substantial part of the field investigation has already been completed. However, some scientific reports were yet to be received and doctors/experts were to be examined on the basis of the said report.
52. From the above reports, it could be seen that the CBI was investigating the case in the angle that it was a murder. That is the reason why the CBI examined several hardcore criminals and suspected persons. The CBI was thus of the firm belief that it was only a murder and not a suicide. While so, the CBI filed its last report on 06.03.2012, in which suddenly the CBI submitted to this Court that the deceased died of suicidal injuries and it was not a murder. To arrive at such a conclusion, as we have already pointed out, the opinion of the team headed by Dr.T.D.Dogra is mainly relied on. The opinion of the said doctors that the four cut injuries found on the body could be self inflicted is also based on the alleged recovery of two 7 O Clock blades by Thirumangalam Police. These two 7 O clock blades, according to the local police were found in the shirt pocket of the deceased by a casual labourer in the mortuary along with the two wheeler key and they were recovered. Now, the CBI has concluded that the 7 O clock blades were not really recovered from the shirt pocket of the deceased by Thirumangalam Police and records have been falsely created as though 7 O clock blades were recovered from the shirt pocket by the local police. Thus, according to the CBI, two 7 'O' Clock blades have been planted by the police and a false theory of recovery has been concocted.
53. Now, according to the CBI, at the time of the post mortem a half blade was found in the shirt pocket of the deceased and It was also taken by doctor Sampathkumar, who conducted the autopsy. For this, the CBI has referred to the statement of Dr.V.Murugesan, who was one of the doctors who conducted the postmortem. Dr.Murugesan, in his statement, has stated that Dr.Sampath Kumar lifted a half blade by his right hand during the postmortem from the upper edge of the right side shirt pocket of the deceased Sathishkumar. He has further stated that on finding the half blade, Dr.Sampath examined the said blade closely by using his both hands and after examination, placed the said blade at the same place from where it was lifted. Dr. Murugesan has further stated that Dr.Sampath did not present the blade and so it remained with him and so it got omitted to be noted in the records.
54. Yet another Doctor, Capt.Dr.B.Santha Kumar, in his statement has also stated that Dr.Sampath Kumar lifted by his right hand, a half blade from the upper edge of the right side shirt pocket of the deceased Sathish Kumar and that having found the half blade, Dr.Sampath Kumar examined the said blade closely by using his both hands and after examination by using his right hand, placed the said blade at the same place from where it was lifted. He has further stated that Dr.Sampath Kumar did not bring it to his notice again for further photography and for recording the same.
55. Referring to these statements, it is contended by the CBI that the other half of the said blade would have been used by the deceased for causing injuries to himself. But, the CBI has not explained as to what had happened to the half blade, which was allegedly found at the time of postmortem. But it is the contention of the petitioner that no such blade was ever found in the shirt pocket of the deceased. According to the petitioner, Dr.Sampath Kumar, in his statement, has stated that he did not take out any such blade from the shirt pocket of the deceased.
56. But according to the CBI, Dr.Sampath Kumar, in his statement has stated that he lifted an article from the upper edge of the right side shirt pocket of the deceased, and that after examining the said article by using his right hand, placed the said article at the same place from where it was picked up by him. He has further stated that he brought the same to the notice of Dr.Santha Kumar, who in turn took out the same, examined and handed over the same to him to keep the said article in line so that afterwards photograph could be taken. He has further stated that the article so found seems to be a thin article but he did not remember whether it was a blade or a metal strip or anything else. According to the CBI, one Dr.K.Thunderchief, Post Graduate Student of Madras Medical College, Chennai also was associated in the postmortem examination. According to him, he only prepared the rough sheets of postmortem. He has further stated that the said record made by him does not contain the entry regarding the recovery of half blade from the right side shirt pocket of the deceased.
57. From these statements of the doctors, it could, at the most, be inferred that some material was found in the shirt pocket of the deceased which is evident from the video recording. It has not been definitely found out that it was a blade. It is also not explained to the Court as to what had happened to the material which was allegedly found in the shirt pocket of the deceased. This requires further investigation.
58. Assuming that a half blade was found in the shirt pocket of the deceased and the same was taken out by Dr.Sampathkumar, the possibility that the same would have been planted by the local police has not been ruled out by thorough investigation. When the CBI has concluded that the 7 'O' Clodk blades were planted in the shirt pocket of the deceased and a false theory of recovery was concocted, the equal possibility that the "half blade" could have also been planted cannot be ruled out, unless this aspect is thoroughly investigated into.
59. Nextly, the time of the death is seriously disputed by the petitioner. According to the report of the CBI, the death would have occurred on the intervening night on 07.06.2011 and 08.06.2011. The motor cycle and cell phone of the deceased were all found near the lake on the morning of 09.06.2011. From this, the CBI states that the death would have occurred on the night between 07.06.2011 and 08.06.2011. Admittedly the deceased was lastly seen alive around 9.00 pm on 07.06.2011. Whether the deceased would have died on the intervening night on 07.06.2011 and 08.06.2011, is a matter to be inferred mostly from the medical opinion. The doctors have opined that the death would have occurred on the night intervening on 07.06.2011 and 08.06.2011. From this opinion as well as from the fact that the motor cycle was found on the morning of 09.06.2011, one may come to a logical conclusion that the deceased would have died during the night intervening 07.06.2011 and 08.06.2011.
60. But, according to the petitioners, the deceased would have been done to death elsewhere and the decomposed body would have been thrown into water some time later. But the CBI has concluded that the deceased, after inflicting injuries to himself, would have fallen into the water. In this regard, we may say that after infliction of the above four injuries, if the deceased had fallen into the water immeditely, certainly he would have fallen so while alive. After he had fallen into the water alive, the water would have gone into the lungs through the trachea, but the lungs were found shrunken and the diatom examination confirms that the dead body would have been either thrown or fallen into the water.
61. We have got our own doubt on this aspect regarding the conclusion arrived at by the CBI. As we have already narrated, had it been true that the deceased had fallen into the water immediately after sustaining all the four injuries, he would have fallen alive in which case, the lungs would have been full of water. This aspect has not been properly investigated by the CBI. However, the CBI has concluded that by sitting near the water, the deceased would have inflicted injuries and fallen into the water and died. We have our own doubts about the correctness of this conclusion, in view of the above discussion.
62. The other possibility considered by the CBI, is that after sustaining these injuries, he would have died on the bank of the lake and thereafter the body would have been drawn into water by some animals. The CBI itself has ruled out this possibility in its report. Had it been true that any animal, living in water, like crocodile, had dragged the body from the land into water, certainly the body would have been eaten away, at least in part. But, there was no injury of this nature found in the body. Therefore, the dead body would not have been dragged by animals living in the water. For the animals living on land, there is no possibility to drag the same into water. It would have been natural for such land animals to drag the body on the land elsewhere. In such event also, there would have been injuries indicating animal bite. There was no such animal bite found on the body at all. Thus, the CBI has concluded that the dead body would not have been dragged into the water by any animal. Thus, the CBI has concluded that by the side of the water in the lake, in a sitting posture, the deceased would have inflicted injuries to himself and then suddenly fallen into the water. As we have already stated, this may not be possible because there was no water in the lungs. This would indicate that the dead body would have been either dragged into the water or thrown into water.
63. Now, according to the CBI, the body would have been bloatted after decomposition changes had occurred. It is common knowledge that the dead body will remain immersed for at least 36 to 48 hours from the time of death and thereafter it will start bloatting and as a result it would float. It is also possible that in the decomposed body, since in the intracellular cavities, air is filled, if the bloatted body is thrown into water, it will straightaway float and the same would not immerse. In the case on hand, according to the petitioner, after committing the murder, the assailants would have kept the body elsewhere for some time and thereafter the same would have been thrown into water. This argument needs to be considered in the light of the searches conducted by the fire service department men. On the directions of this Court, the local police had engaged the fire and rescue service personnel to search for the deceased in the lake. Using boats, the fire service men conducted through search for two days, during day time, on 11.06.2011 and 12.06.2011. According to the petitioner, had it been true that the deceased had fallen into water on 07.06.2011, the body would have been floating on 11.06.2011 and 12.06.2011, and so, there would have been no difficulty for the fire service men to locate the body. But the entire thorough search conducted on 11.06.2011 and 12.06.2011 proved that the dead body was not found either floating or immersed. One can say that the search for the immersed body might not be thorough, but, one can say that the search for the floating body must have been thorough and complete. It is contended by the petitioner that not only the fire service and rescue personnel, a large number of lawyers and general public were also present during the search operations and nobody noticed the dead body.
64. In this regard, the explanation offered by the CBI is that the body would have been under vegetation on 11.06.2011 and 12.06.2011 and therefore the dead body would not have been noticed by the rescue operation people. But, we find that the forensic experts have not offered any opinion as to whether the bloatted body would have been underneath the vegetation for such a long period. It all depends upon the weight of the body, the concentration of the water, strength of the vegetation and its capacity to bear the upward force. All these aspects have not been investigated. It is not at all the opinion of the experts, more particularly the forensic experts, that the dead body, after bloatting, would have been underneath the vegetation for such a long period. This aspect also needs further investigation.
65. The petitioner would make reliance on the presence of the maggots all over the body. From the age of the maggots, the experts have opined that the body would have come to the surface on 09.06.2011. The maggots collected from the body of the deceased were sent for examination to the Department of Veterinary Parasitology, Madras Veterinary College and one Dr.S.Abdul Basith, Professor and Head of Deaprtment of Veterinary Parasitology, Madras Veterinary College who has got 31 years of experience in the field examined the same. According to him, the oldest maggot found was 3rd stage larva and it would have taken two to three days for it to reach the 3rd stage from the time of laying of the eggs. He would further opine as follows:-
It means those maggots appeared to be 2-3 days old and it can be safely presumed that the body would have started floating on the surface of water either on 10.06.2011 or latest by 11.06.2011 (morning).
66. Going by his opinion, one can contend that the body would have been floating on 10.06.2011 and 11.06.2011, had the body been immersed in water prior to 10.06.2011. If really the body had been in water on 10.06.2011 and 11.06.2011 it would have been certainly floating and the same would not have been omitted to be noticed by the fire service men who were fully engaged in the job on 11.06.2011 and 12.06.2011. It is from this, the petitioner contends that the deceased would have been killed elsewhere and the body would have been thrown only after the fire service personnel had completed their search operations and returned. They completed the search operation on 12.06.2011 evening itself. The contention of the petitioner is that the body would have been thrown into water either on the night of 12.06.2011 or on the next day in the decomposed condition. It is the opinion of the experts that the eggs and the maggot would not be alive in water. Therefore, assuming that the body was decomposed already on land and there were eggs and larvae when the body was thrown into the water they would have died. This possibility needs to be thoroughly investigated and ruled out by the CBI.
67. Yet another aspect we have noticed is that the decomposition changes were uniform all over the body. It is common knowledge that if the body is on land and exposed to the atmospheric temperature and pressure, mostly the decomposition changes on the body will be uniform. But, when the body immersed in water starts floating, the portion of the body which is exposed to air and sun, due to high degree of temperature, would start decomposing rapidly than the portion of the body which is immersed in water. But in this case, the doctors have opined that the decomposition changes like peeling of the cuticles were uniform all over the body. This aspect also has not been thoroughly investigated by the CBI.
68. Nextly, when the body was found floating, two havai chappels (Slippers) were found tightly fitted to the foot. The medical opinion is that the chappels would have got tightly fitted to the legs due to bloatting of the body. Had it been true that immediately after causing injuries to himself, the deceased had fallen into the water, the chappels would have fallen into the water due to the reflex attitude in the arms and legs when the deceased was struggling for life. Until the body was bloatted, it is doubtful as to whether the chappels would have remained on the legs. One may contend that the dead body would have been on the land and due to bloatting of the body on account of the decomposition, the chappels would have got tightly fitted to the foot and thereafter the body would have been thrown into water and that is the reason why the chappels have not fallen into water. This aspect appears to have been not properly investigated by the CBI.
69. The CBI further states that the deceased was under severe mental pressure and he had suicidal tendency. But the petitioner would submit that the deceased never had such tendency and the CBI is creating records which amounts to character assassination of the deceased. In this regard, we do not want to go into the same at this stage.
70. As we have already pointed out there were lot of suspects including some hardcore criminals. The possibility of involvement of any of those people should have been thoroughly investigated.
71. Laslty, we would like to make reference about clause (3) of the recommendations made by the CBI in its dated 06.03.2012. At the risk repetition, we would like to reproduce the same as under:-
"3. To file Final Report in the Competent Court in R.C.5(S)/2011-SCB/CHN/CBI recommending closure of the case being suicide. However, CBI will take appropriate action, if any concrete information is received in this regard." [emphasis supplied]
72. The said statement of the CBI that if any concrete evidence is received in this regard, the CBI will take appropriate action will go to indicate that the CBI is not firm in its conclusion that it is a case of suicide. This statement of the CBI gives an inference that as of now, the CBI does not have fullest information regarding the occurrence. This is yet another reason as to why we are not inclined to permit the CBI to file the present final report. As a matter of fact, the learned counsel for the petitioner, as well as the learned Senior Counsel for the Bar Association, took us through various records including the last report of the CBI and pointed out many more flaws. In this order, we do not intend to elaborate all those points and discuss on the same in detail. We are conscious of the fact that if any elaborate discussion is made in this order and observation is given, it may tend to influence the mind of the Investigating Agency. Therefore, we confine our discussion with the points referred to above alone for the purposes of this order. We would like to clarify that we have not given any finding as to whether the death was homicidal or suicidal.
73. For a moment, we are not prepared to say that the CBI has prepared the records deliberately to make out a case of suicide. We only say that the CBI has not investigated the case thoroughly from various angles to come to a logical conclusion. We further say that the conclusion arrived at by the CBI that the deceased died of suicide has not been fully supported by the facts and circumstances gathered during investigation. Unless the possibility of homicide is ruled out, it cannot be logically concluded that it is a case of suicide. Therefore, we are of the view that the matter requires thorough further investigation.
74. The learned senior counsel N.Natrajan, appearing for the Lawyers Association would submit that in view of the fact that the investigation done by the CBI is not satisfactory, it would be appropriate to nominate a different set of skilled investigators to continue the investigation. So is the contention of the learned counsel Mr.S.Prabhakaran and the learned counsel appearing for the Madras High Court Advocates Association.
75. Though the prayer made in the miscellaneous petition is for nominating a retired Honble Judge of this Court as head of the investigating team, we are of the firm opinion that the said course is not possible. In our considered view, it would be appropriate only to nominate an independent skilled team of investigating officers to thoroughly investigate the matter.
76. In view of the above conclusions,
(i) We hereby appoint Mr.R.K.Raghavan, former Director of Central Bureau of Investigation, as Investigating Officer of Special Investigation Team (SIT), to be assisted by Dr.M.Narayana Reddy, former Professor and Head of the Department of Forensic Medicine, Osmania University, Hyderabad, Andhra Pradesh to investigate this case.
(ii) Mr.R.K.Raghavan, shall select his own Team of Officers from the Tamil Nadu State Police to be the members of the Special Investigating Team.
(iii) We further direct the Director General of Police, Government of Tamil Nadu, to spare the services of those Police Officers, whom Mr.R.K.Raghavan, requires to be part of the Special Investigating Team.
(iv) The Director General of Police, Government of Tamil Nadu, is further directed to render fullest co-operation and provide all assistance, including manpower to assist the Special Investigating Team and to provide vehicles and other modes of conveyance for the Special Investigating Team.
(v) The Director, Tamil Nadu Forensic Science Laboratory, shall provide all assistance to the Special Investigating Team as and when required by them.
(vi) The Home Secretary, Government of Tamil Nadu, is directed to pay initial remuneration of Rs.1,50,000/- [Rupees One Lakh Fifty Thousand only] to Mr.R.K.Raghavan and Rs.75,000/- [Rupees Seventy Fifty Thousand only] to Mr.M.Narayana Reddy within a period of four weeks from today. The final remuneration to be paid shall be decided later.
(vii) The C.B.I. is directed to hand over all the records and materials in their hands relating to this case to Mr.R.K.Raghavan, the Head of the Special Investigating Team forthwith.
(viii) The Special Investigating Team shall take up the investigation from the C.B.I., thoroughly investigate the matter and submit a Status Report to this Court within a period of three months from today.
The Registry is directed to list this matter for further hearing on 15.03.2013.
NB