Madras High Court
R. Sankarasubbu vs The Commissioner Of Police
Author: G. Jayachandran
Bench: P.N. Prakash, G. Jayachandran, N. Sathish Kumar
H.C.P. No.643 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.01.2021
DELIVERED ON : 04.02.2021
CORAM:
THE HONOURABLE MR. JUSTICE P.N. PRAKASH
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
AND
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
H.C.P. No.643 of 2011
1 R. Sankarasubbu
2 The Tamil Nadu Advocates Association
Represented by its Secretary
M. Baskar, Tamil Nadu Advocates Association
High Court Buildings
Chennai
3 The Madras High Court Advocates Association
Represented by its Secretary, Arivazhagan
M.H.A.A., I Floor, High Court Buildings
Chennai Petitioners
(Petitioners 2 & 3 impleaded as per order
dated 28.11.2012 made in M.P. Nos.2 & 3
of 2012)
vs.
1 The Commissioner of Police
Egmore, Chennai 600 008
2 The Inspector of Police
Thirumangalam Police Station
Chennai 600 040
https://www.mhc.tn.gov.in/judis/
H.C.P. No.643 of 2011
3 The Director
Central Bureau of Investigation
No.5B, G.G.O. Complex
Lodhi Road, New Delhi 110 003
4 The Superintendent of Police
S.C.B., Central Bureau of Investigation
Rajaji Bhavan
Besant Nagar, Chennai 600 090 Respondents
(RR 3 & 4 impleaded as per order dated
18.07.2011 passed by this Court in M.P.
No.5 of 2011)
Petition filed under Article 226 of the Constitution of India seeking a writ of
habeas corpus seeking a direction to the respondents to produce the body of
Sathish Kumar, S/o Sankarasubbu, aged about 24 years, before this Court and set
him at liberty.
For 1st petitioner Mr.S. Prabakaran, Sr. Counsel
for Mr.R.C. Paul Kanakaraj
For 2nd petitioner Mr.T.P. Senthil Kumar
For 3rd petitioner Mr. G. Mohanakrishnan
For RR 1 & 2 Mr. A. Natarajan, Public Prosecutor
assisted by Mr.M.Md. Muzammil
Government Advocate
For RR 3 & 4 Mr. K. Srinivasan
Special Public Prosecutor for CBI Cases
For Special Mr. R. Sankaranarayanan
Investigating Team Additional Solicitor General
assisted by Mr. R. Karthikeyan
https://www.mhc.tn.gov.in/judis/
H.C.P. No.643 of 2011
ORDER
On 10.06.2011, this habeas corpus petition was filed by Thiru.R.Sankarasubbu, Advocate, seeking the relief of production of the body and person of his son Sathish Kumar, aged 24 years. As per the affidavit sworn to by the petitioner, on 06.06.2011, Sathish Kumar met the Controller of Examinations of Dr.Ambedkar Law University and made a request to furnish provisional certificate to enrol himself before the Tamil Nadu State Bar Council, Chennai, on completion of his Law course. The next day, i.e., on 07.06.2011, his son Sathish Kumar came along with him to the High Court and returned home. After dinner, about 9.00 p.m., he left home in his motor cycle bearing registration No.TN 02 AQ 6869. Since Sathish Kumar did not return home, the petitioner tried to contact him through his cell number 98846 26124, but, there was no response. Immediately, about one hour past midnight, i.e. 1.00 a.m. of 08.06.2011, he met the Commissioner of Police and requested him to find out his son Sathish Kumar by tracing his whereabouts with the help of the cell phone tower location by the Cyber Crime police. The Commissioner accordingly referred the matter to the Cyber Crime police and about 2.00 a.m., they were able to locate the motor cycle of the petitioner’s son near I.C.F. North Colony Lake and the cell phone kept in https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 the motor cycle pouch. Based on the written complaint given by the petitioner, a ‘man missing’ complaint was registered by the second respondent police, viz., Thirumangalam Police Station, in Crime Number 926 of 2011 on 08.06.2011. On seeing the abandoned motorcycle and cell phone, apprehending danger to the life of his son, the petitioner had approached this Court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India.
2 In his affidavit, the petitioner has specifically stated that due to lack of manpower, the Inspector of Police, Thirumangalam Police Station (second respondent) is not conducting any effective scientific investigation to secure his son and hence, he is left with no other option, but, to invoke the writ jurisdiction of this Court.
3 On 10.06.2011, when this habeas corpus petition came up for hearing, a Division Bench of this Court directed the Commissioner of Police (first respondent) to form a special team immediately for tracing Sathish Kumar and adjourned the hearing to 13.06.2011. On that day, the learned Additional Public Prosecutor appearing for respondents 1 and 2 reported to this Court that five teams were formed and serious efforts were being taken to trace Sathish Kumar. Recording the same, the hearing of the petition was adjourned to 16.06.2011. https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 4 Meanwhile, on 13.06.2011, by 4.00 p.m., a TV news channel broadcast the news of a male body floating in the ICF Lake near ICF Railway Police Rest Room. Later, the body was identified as that of Sathish Kumar. Hence, the petitioner immediately approached this Court by filing M.P.No.1 of 2011, with a prayer to issue an interim direction to the first respondent to conduct post mortem of Sathish Kumar’s body by a team of doctors comprising forensic experts and a doctor of his choice and also to videograph the post mortem. The hearing of this habeas corpus petition along with M.P. No.1 of 2011 was advanced and was heard by the Division Bench on 14.06.2011.
5 After paying its anxious consideration to the submissions made, this Court constituted a special team of 3 doctors, including a doctor of the petitioner’s choice. The special team was instructed to videograph the entire post mortem examination and file a copy of the report to the Court soon after the conclusion of post mortem. Accordingly, post mortem report dated 15.06.2011 was submitted to the Court by the special team of doctors constituted by the Court. The special team opined that Sathish Kumar appeared to have died of shock and haemorrhage due to cut injuries in the throat.
6 At that stage, the petitioner filed M.P. No.2 of 2011 praying for transfer of investigation to the C.B.I., Chennai. This Court, after hearing the https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 petitioner and the respondents, by order dated 16.06.2011, transferred the investigation to the C.B.I., Chennai and directed the second respondent to hand over the entire case papers in Crime No.926 of 2011 to the Joint Director, C.B.I., Chennai. Further, this Court directed the Director, C.B.I., Delhi, to nominate officer(s) to conduct the investigation immediately. Subsequently, the Director, C.B.I. at Delhi and the Superintendent of Police, S.C.B., C.B.I. at Chennai were impleaded as respondents 3 and 4 respectively.
7 While the investigation of the case by the CBI was under progress, the petitioner filed M.P. No.4 of 2011 seeking an appropriate direction to the C.B.I. to do custodial interrogation of Suresh Babu, Inspector of Police, R-5 Thirumangalam Police Station, alleging grave omission and commission leading to tampering of evidence. The said Suresh Babu, who was, by that time transferred to Thirupanandhal Police Station, Thanjavur District, filed M.P. No.8 of 2011 to implead himself as one of the respondents in this case. When M.P. Nos.4 and 8 of 2011 came up for hearing on 05.09.2011, Suresh Babu withdrew his petition in M.P. No.8 of 2011. This Court, in M.P. 4 of 2011, vide order dated 05.09.2011, directed the C.B.I. to speed up the investigation by taking all steps, including custodial interrogation of the suspects and come out with a result. https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 8 Since this Court was monitoring the investigation, the C.B.I. was periodically submitting status reports. On 13.10.2011, Mr. S. Prabakaran, learned Senior Counsel appearing for the petitioner expressed his apprehension regarding the constitution of the C.B.I. investigation team from Chennai. Hence, Mr.M.Ravindran, learned Senior Advocate and Additional Solicitor General of India assured to re-constitute the team comprising senior police officers hailing from northern States and that the investigation will be monitored directly by Mr.Salim Ali, Additional Director of the C.B.I. The said assurance was recorded and the case was adjourned.
9 On completion of the investigation, the Joint Director, S.C.B., C.B.I., Delhi, sought leave of this Court to file the final report. This Court, vide order dated 06.03.2012, granted leave to the C.B.I. to file final report before the competent Court. However, the said order was not given effect to.
10 While so, the petitioner filed M.P. No.1 of 2012 alleging that the C.B.I., rather than bringing the truth before this Court, was trying to close the case as one of suicide and hence, sought an interim direction for formation of a Special Investigation Team (for short “S.I.T.”) headed by a retired Judge of the Madras High Court.
https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 11 When the matter came up for hearing on 20.03.2012, the learned counsel for the petitioner and office bearers of various Advocate Associations also made a request to furnish the copies of the 8 status reports filed in the Court by the C.B.I. The said request was opposed by the learned Additional Solicitor General on the ground that on filing the final report, the de facto complainant can get the copies of the documents relied upon by the prosecution and not before that. In view of the common request made by the learned counsel for the petitioner as well as the Presidents of Madras High Court Advocates Association (MHAA) and Women’s Lawyers Association (WLA), the Division Bench did not permit the C.B.I. to file the final report till a decision is taken on the question of either furnishing of the copies of the status reports or grant of permission for perusal of the same 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 06.03.2012, 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. Prabakaran, learned counsel for the petitioner, Mr. N.G.R. Prasad, Mr. Mohanakrishnan, 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 the 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 Hon’ble Chief Justice for placing it before another Larger Bench.” https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011
12 Accordingly, a larger Bench of this Court comprising 3 learned Judges was constituted for hearing this case. Meanwhile, the Secretaries of Tamil Nadu Advocates Association and MHAA got impleaded as 2nd and 3rd petitioners respectively. On 07.12.2012, the Full Bench, considering the rival submissions in respect of the prayers sought in M.P. No.4 of 2011 (seeking custodial interrogation of Suresh Babu, Inspector of Police), M.P. No.1 of 2012 (to form a special investigation team headed by a retired Judge of this Court) and M.P. No.4 of 2012 (to furnish copy of documents relied upon by the C.B.I. in its status reports) and after a detailed discussion, constituted a S.I.T. headed by Mr. R.K.Raghavan, former Director, C.B.I., after observing that the conclusion arrived at by the C.B.I. that the petitioner’s son 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; and that therefore, the matter requires a thorough further investigation.
13 The order dated 07.12.2012 passed by the Full Bench sets out exhaustively the reasons for not accepting the conclusion arrived at by the C.B.I. and also for constituting a S.I.T. to thoroughly investigate the matter. Suffice it to https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 re-produce the operative portion of the order dated 07.12.2012 passed by the Full Bench:
“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 cooperation 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/- to Mr. R.K. Raghavan and Rs.75,000/- 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.
https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 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.”
14 The S.I.T. so constituted submitted its reports to this Court periodically and the 24th report dated 05.12.2017 of the S.I.T. was filed concluding that the instant case is one of homicide and that the accused, despite best efforts, remains undetected.
15 By order dated 09.01.2018, this Court directed the Registry to make copies of the status reports along with the annexures and furnish the same to the petitioner and the Additional Public Prosecutor. Further, in the 24 th report, the S.I.T. recorded its failure to detect the perpetrator of the crime, but, recommended penal action against six police officials of the Tamil Nadu State Police and departmental action against two police officials of the C.B.I. This Court, therefore, in the order dated 09.01.2018, directed the State / Central Government to file affidavit with regard to the steps taken on the recommendations made in Part XIV of the status report.
16 In response to the 24th report filed by the S.I.T., the C.B.I. filed a report dated 11.09.2018 disputing the findings of the S.I.T. and taking a stand that the S.I.T. had exceeded in its jurisdiction by recommending departmental action https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 against their officers and that the opinion arrived at by the C.B.I. was based on a thorough, fair and proper investigation. In response to this contention of the C.B.I., the S.I.T. has filed its 25th status report dated 23.12.2020 attacking the findings of the C.B.I. and justifying the stand taken in their 24th report. Mr. A. Natarajan, learned Public Prosecutor for the State contested the report of the S.I.T. and submitted that the investigation of the case was with the State police only for eight days and within that period, the State police had done their best in the given fact situation. He further submitted that on the orders passed by this Court, the entire case diary was handed over to the C.B.I. on 16.06.2011 and therefore, there is no justification in finding fault with the investigation that was conducted by the State police in the said short time period.
17 In our opinion, we have to keep a full stop to this internecine warfare between the C.B.I. and the S.I.T. Since this Court was not satisfied with the investigation of the C.B.I., the S.I.T. was constituted to unravel the mystery behind the murder of Sathish Kumar, independently and not with any intent to pick holes in the investigation of the other agencies.
18 Investigation under Chapter XII of the Code of Criminal Procedure culminates with the final opinion of the Investigating Officer expressed in the report filed by him termed as ‘final report’ under Section 173 Cr.P.C. On the same https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 materials, two Investigating Officers can form different opinions. That is why, under the scheme of the Code of Criminal Procedure, the Magistrate is not bound to accept the final opinion arrived at by the Investigating Officer and he is required to apply his mind on the materials placed before him by the Investigating Officer and come to an independent conclusion as to whether to accept it, reject it, etc. In fact, even a constitutional Court cannot direct the Investigating Officer to form a certain opinion vide the judgment of the Supreme Court in State of Punjab vs. Davinder Pal Singh Bhullar and others1. In this case, since both the C.B.I. and S.I.T. were appointed by this Court, the exercise of choosing to accept either of the reports was undertaken by this Court and after careful consideration and in the light of the findings of this Court in the order dated 07.12.2012, this Court accepts the finding of the S.I.T. that the death of Sathish Kumar was one of homicide and not one of suicide.
19 As regards the recommendation of the S.I.T. for taking penal and departmental action against certain officers, this Court cannot issue a positive direction, inasmuch as those officers are not before this Court and further, no judicial order can be passed behind the back of a person as that would violate the fundamental principle of natural justice, viz., audi alteram partem. Being aware of this legal position, Mr. S. Prabakaran, learned Senior Counsel submitted that 1 (2011) 14 SCC 770 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 neither he nor the petitioner is vengeful, demanding an eye for an eye but they are only expressing their anguish that the accused remains undetected till now. We also share their anxiety. In this context, apposite it is to allude to the Division Bench judgment of this Court in V.Lingasamy v. The Secretary to Government, Home Department, Chennai – 9 and others2 on the power of this Court to direct the State to initiate departmental or penal action based on such reports, wherein, while awarding compensation of Rs.5,000/- to a prisoner who had suffered injuries in the prison, it was held as under:
“15. The next, question relating to the prayer of the petitioner for taking appropriate action against the person responsible. The learned Additional Public Prosecutor for the respondents submitted that there is no categorical material to come to a conclusion as to whether the respondent No. 4 was responsible and if so, whether he was alone responsible or whether other persons were responsible and such aspects cannot be finalised in such a writ petition. Whether respondent No. 4 is responsible or whether some other persons are also responsible can obviously be found out if there is a detailed enquiry regarding the matter by giving opportunity of hearing to all persons concerned, including the fourth respondent. If, ultimately, after such enquiry, any individual person is found responsible, it is for the Government to take appropriate action against such person in the form of any departmental proceedings or even if prosecution, depending upon the facts and circumstances of the case and it would not be appropriate for us to fix the responsibility on any particular individual in this writ petition.” (emphasis supplied) It is also pertinent to refer to the judgment of the Supreme Court in State of Maharashtra and others vs. Saeed Sohail Sheikh and others3, wherein, it was held as under:2
2005 (1) CTC 639 3 (2012) 13 SCC 192 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 “36. That leaves us with the only other aspect, namely, whether the High Court was justified in directing the Government to hold an inquiry against those responsible for using excessive force and for dereliction of duty by the medical officer.
38. . . . . Consequential directions issued by the High Court in directing the State Government to initiate disciplinary inquiry against all the officers involved in the incident were, therefore, premature. We say so because the question whether any disciplinary inquiry needs to be instituted against the jail officials would depend upon the outcome of a proper investigation into the incident and not a preliminary enquiry in which the investigating officer, apart from statements of the respondents, makes use of information discreetly collected from the jail inmates. The report of the Sessions Judge could in the circumstances provide no more than a prima facie basis for the Government to consider whether any further investigation into the incident was required to be conducted either for disciplinary action or for launching prosecution of those found guilty. Beyond that the preliminary report could not in view of what we have said above serve any other purpose.” (emphasis supplied) 20 In this case, the S.I.T. conducted a police investigation under Chapter XII of the Code to unravel the mystery behind the death of Sathish Kumar. They did not conduct a civil enquiry to fix responsibility, either departmental or criminal, on the other two investigation agencies for their lapses in the investigation. That is why, they did not afford any opportunity to the officials of the State police and the C.B.I. to give their explanations, frame charges thereon, examine witnesses on oath, permit the alleged delinquents to cross-examine the witnesses and thereafter, give a finding on their culpability or otherwise. At best, the S.I.T. report is a police investigation report on the death of Sathish Kumar and that cannot form the foundation for a direction to the authorities to take action https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 thereon. Borrowing the words of the Supreme Court in Saeed Sohail Sheikh (supra), the report of the S.I.T. “could, in the circumstances, provide no more than a prima facie basis for the Government to consider whether any further investigation into the incident was required to be conducted, either for disciplinary action or for launching prosecution, of those found guilty.” 21 Ergo, the exercise of taking action on the recommendations of the S.I.T. is left to the authorities concerned, viz., the Union Government vis-a-vis the C.B.I. and the State Government vis-a-vis the State police officials. Hence, the 24th report of the S.I.T. is directed to be forwarded by the S.I.T. to the Central and State Governments.
Police custody:
22 The petitioner has filed an affidavit dated 06.01.2021, wherein, he has prayed for custodial interrogation of Suresh Babu and other suspects for unravelling the mystery of his son’s death. Mr. S. Prabakaran, learned Senior Counsel reiterated the said request and submitted that unless custodial interrogation of Suresh Babu and others is done, the mystery can never be unearthed. In support of this submission, he placed reliance on the judgments of the Supreme Court in Vinubhai Haribhai Malaviya and others vs. State of Gujarat and another4 and Punjab and Haryana High Court Bar Association, 4 (2019) 17 SCC 1 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 Chandigarh vs. State of Punjab and others5, wherein, the powers of the Magistrate in ordering investigation and further investigation have been set out in detail.
23 It is true that custodial interrogation of an accused would yield qualitative results than merely treating him as a suspect and questioning him. In this case, the S.I.T. has thoroughly investigated the matter and has not found that Suresh Babu or other police officers named by them in their report were involved in the homicide of Sathish Kumar. Had there been some materials implicating Suresh Babu and other police personnel in the offence, the S.I.T. would have arrested them and subjected them to custodial interrogation. What the S.I.T. in its wisdom had not done, cannot be made to be done by an order of this Court. Mr. Prabakaran and the petitioner were aware of this legal position and that is why, even in their submission, they have not stated as to which agency should take police custody of the suspects. It may be pertinent to recapitulate here that a similar request was made by the petitioner in M.P. No.4 of 2011 and this Court had consciously not ordered police custody of the suspects, because, it is trite that no Court, including a constitutional Court, can direct the police as to how they should investigate a case. For taking a person into police custody under Section 167 Cr.P.C., he should first be arrested. In this case, the S.I.T. had not chosen to 5 (1994) 1 SCC 616 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 arrest anyone, because, they did not find the involvement of Suresh Babu and other State policemen in the offence under investigation.
24 At this juncture, it is worth referring to the judgments of the Supreme Court in M.C. Abraham and another vs. State of Maharashtra and others6 and P.Chidambaram vs. Directorate of Enforcement7, wherein, it was held in unequivocal terms that the High Court cannot order arrest of the accused in the event of the Investigating Officer finding it not necessary:
M.C. Abraham and another vs. State of Maharashtra and others:
“15. .... What is, however, significant is that the investigating officer did not consider it necessary, having regard to all the facts and circumstances of the case, to arrest the accused. In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case.” P.Chidambaram vs. Directorate of Enforcement:
“59. As rightly submitted by the learned Solicitor General that if the accused are to be confronted with the materials which were collected by the prosecution/Enforcement Directorate with huge efforts, it would lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences. If the contention of the appellant is to be accepted, the investigating agency will have to question each and every accused such materials collected during investigation and in this process, the investigating agency would be exposing the evidence collected by them with huge efforts using their men and resources and this would give a chance to the accused to tamper with the evidence and to destroy the money trail apart from paving the way for the accused to influence the witnesses. If the contention of the appellant is to be accepted that the accused will have to be questioned with the materials and the investigating agency has to satisfy the Court that the accused was “evasive” during interrogation, the 6 (2003) 2 SCC 649 7 (2019) 9 SCC 24 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 Court will have to undertake a “mini trial” of scrutinising the matter at intermediary stages of investigation like interrogation of the accused and the answers elicited from the accused and to find out whether the answers given by the accused are “evasive” or whether they are “satisfactory” or not. This could have never been the intention of the legislature either under PMLA or any other statute.
60. Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are “satisfactory” or “evasive”, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini trial at various stages of the investigation.” 25 Thus, in the light of the aforesaid authoritative pronouncements of the Supreme Court, this Court cannot direct the arrest of any person and give further directions for his custodial interrogation.
Future course of action:
26 Before bringing the curtains down, we have to set out the future course of action in this case. As stated above, the S.I.T. has concluded that the death of Sathish Kumar was a homicide, but, the accused is undetected. What should be done of such a case has been set out in paragraphs 40 and 44(iv) of the Full Bench judgment of this Court in Chinnathambi @ Subramani vs. State represented by Inspector of Police, Vellakovil Police Station, Tiruppur District8 which read as under:
8
2017-1-L.W. (Crl.) 485 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 “40. In this regard, we may further refer to a judgment of an Hon’ble single Judge of this Court [M. Karpagavinayagam, J. as he then was] in R. Ramamurthy v. State, 1999 (1) LW (Crl.) 352. The question formulated by the learned single Judge as found in para 1 of the judgment is as follows:
“Could the Magistrate permit the police to reopen the case for further investigation, once the said Magistrate passed an order earlier on the report filed by the police as “recorded as undetected”? The learned Judge after having elaborately dealt with the judgment by referring to the judgment of the Hon’ble Supreme Court in State of Rajasthan vs. Aruna Devi and various other judgments, held in para 16 of the judgment as follows:
“16. It is also relevant to note in this case that even when the report was filed earlier as “undetected”, it was mentioned in the report that if fresh information comes to light, the further investigation would be done. Therefore, it cannot be contended that once it is recorded as “undetected”, neither the Magistrate would have power to permit for further investigation nor the police would have power to reopen the case to make further investigation, especially, when fresh information has been received by the police to detect the offence alleged.” We approve the said view taken by the Honble Judge (M.Karpagavinayagam, J.) in view of the law declared by the Hon’ble Supreme Court in State of Rajathan vs. Aruna Devi case cited supra.
44 (iv) An order of a Magistrate recording the report of the police as “undetectable” is not a judicial order.”
27 Since the S.I.T. has completed the task entrusted to it by this Court commendably under great constraints and Mr. R.K. Raghavan has also been relieved of his duties on filing of the 24th status report, we formally wrap up the S.I.T. and place the services of Mr. S. Mani, Superintendent of Police, S.I.T. and other police personnel, who were sent on deputation to the S.I.T., at the disposal of https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 the State Government. We also place on record our commendation to the S.I.T. for the manner in which they have completed the task assigned by this Court. However, the task of bringing the offender to book when materials surface against him should be entrusted to someone and this task cannot be given to the local police, because, the investigation conducted by them initially was not satisfactory and that is why, this Court handed over the investigation to the C.B.I. Further, this task cannot be entrusted to the C.B.I. also, because, they have come to the conclusion that it was a case of suicide and therefore, they would be reluctant to take any steps to search for the offender. Under such circumstances, we are of the opinion that the task of detecting the offender should be entrusted to the CB-CID (Metro), Chennai and it is ordered accordingly.
28 Now that the C.B.I. has completed the investigation and has made its final report ready, it has to be perforce filed before the jurisdictional Court and while holding so, we are aware that the C.B.I. has arrived at the opinion that it was a case of suicide. Nevertheless, the C.B.I. should have to file their final report along with the materials collected by them, including the statements recorded by them, before the Additional Chief Metropolitan Magistrate, Egmore, Chennai, where, the FIR is now pending. Only then, can copies of those records be furnished to the petitioner or anyone else. Ergo, we direct the C.B.I. to file their https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 final report along with the materials collected by them during investigation before the Additional Chief Metropolitan Magistrate, Egmore, Chennai. The C.B.I. shall also file an additional photocopy of the final report and relied upon documents, which shall be served on the petitioner by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. However, the Magistrate shall not accept the final opinion arrived at by the C.B.I. that the case is one of suicide in the light of the reasoning given by this Court in the order dated 07.12.2012 and the finding given by this Court in paragraph 18 of this order (supra) that the case is one of homicide.
29 This Court also directs the S.I.T. to file their final report along with the materials collected by them, including the statements recorded by them, before the Additional Chief Metropolitan Magistrate, Egmore, Chennai. They shall also file an additional photocopy of the final report and relied upon documents, which shall be served on the petitioner by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai. After filing the final report in the said Court, the S.I.T. shall hand over all the records with them, including the case diary, to the CB-CID (Metro).
30 Since the perpetrators of the offence are yet to be traced, following the Full Bench judgment in Chinnathambi @ Subramani (supra), the CB-CID https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 (Metro), Chennai, shall keep the case alive and as and when they stumble upon any evidence implicating anyone, they shall proceed with the investigation without any formal permission from this Court and bring the guilty to justice. The CB- CID (Metro), Chennai, shall file their status report every four months before the Additional Chief Metropolitan Magistrate, Egmore, Chennai.
With the above directions, this habeas corpus petition stands closed. Connected M.P(s.), if any, also shall stand closed.
(P.N.P.,J.) (Dr.G.J., J.) (N.S.K., J.) 04.02.2021 cad P.S.:
The Registry shall keep the records of this case, including the reports filed by the C.B.I. and the S.I.T. separately in a trunk box.
https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 To:
1 The Secretary Ministry of Home Affairs North Block, Central Secretariat, New Delhi 110 001 2 The Chief Secretary Government of Tamil Nadu Fort St. George, Chennai 600 009 3 The Additional Chief Metropolitan Magistrate Egmore, Chennai 4 The Director Central Bureau of Investigation No.5B, G.G.O. Complex Lodhi Road, New Delhi 110 003 5 The Director General of Police, CB-CID (Metro) CB-CID Complex Pantheon Road, Egmore, Chennai 600 008 6 The Superintendent of Police S.C.B., Central Bureau of Investigation Rajaji Bhavan, Besant Nagar, Chennai 600 090 7 The Superintendent of Police Special Investigation Team Purasaiwalkam, Chennai 600 084 8 The Commissioner of Police Egmore, Chennai 600 008 9 The Inspector of Police Thirumangalam Police Station, Chennai 600 040 10 The Public Prosecutor Madras High Court, Chennai 600 104 https://www.mhc.tn.gov.in/judis/ H.C.P. No.643 of 2011 P.N. PRAKASH, J., Dr. G. JAYACHANDRAN, J.
and N. SATHISH KUMAR, J.
cad H.C.P. No.643 of 2011 04.02.2021 https://www.mhc.tn.gov.in/judis/