Madras High Court
Unknown vs The Superintendent Of Police on 25 January, 2022
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 CRL.O.P.(MD)NO.709 OF 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.01.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.(MD)No.709 of 2022
xxxx ... Petitioner
Vs.
1. The Superintendent of Police,
Madurai District,
Madurai.
2. The Inspector of Police,
Saptur police station,
Madurai District.
(Crime No.101 of 2019)
3. The Additional Deputy Superintendent of Police,
Investigation Unit for
Crime against Women Wing(IUCAW),
O/o.The Superintendent of Police,
Alagarkovil Road,
Madurai. ... Respondents
Prayer: Criminal Original petition is filed under Section
482 of Cr.P.C, to directing re-investigation of the criminal case
registered in C.C.No.95 of 2021 on the file of the learned
District Munsif cum Judicial Magistrate, Peraiyur in Crime No.
101 of 2019 on the file of the second respondent afresh
including Forensic Laboratory Analysis by transferring the
investigation to the third respondent herein or any other
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2 CRL.O.P.(MD)NO.709 OF 2022
appropriate investigating authority and further direct the
learned District Munsif cum Judicial Magistrate, Peraiyur to
permit the petitioner along with her Advocates to examine /
peruse the Forensic Report attached with C.C.No.95 of 2021 in
Crime No.101 of 2019 to rule-out any infirmities in the said
analysis and further direct the first respondent to monitor the
investigation.
For Petitioner : Mr.K.R.Laxman
For Respondents : Mr.E.Antony Sahaya Prabahar,
Additional Public Prosecutor.
***
ORDER
Heard the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents.
2. The petitioner is the defacto complainant in Crime No.101 of 2019 registered on the file of the second respondent for the offences under Sections 354C and 509 of I.P.C. and Section 66E of the Information Technology (Amendment) Act 2008.
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3. The case of the defacto complainant is that the accused had video-recorded, when the petitioner and another staff of the department were taking bath. The petitioner had specifically alleged that the occurrences had taken place on 28.06.2019 and 29.06.2019 in the evening and early morning respectively. The accused had kept his pen camera in his trouser pocket. The second respondent had taken some two years and two months to file the final report. The jurisdictional Magistrate has taken cognizance of the offences also. At this stage, this criminal original petition has been filed seeking denovo investigation and also for entrusting the same to the third respondent. Since a number of lacunae had been pointed out in the memorandum of grounds, I called upon the third respondent to file a status report. The third respondent after a careful perusal of the entire materials on record, has confirmed almost all the contentions made by the petitioner. For instance, the original pen camera was handed over by the petitioner even at the time of lodging the First Information Report. This has been duly set out in the First Information Report itself. The investigation officer has prepared a statement under Section 161 of Cr.P.C., as if at the time of https://www.mhc.tn.gov.in/judis 3/10 4 CRL.O.P.(MD)NO.709 OF 2022 recording the said statement, pen camera was handed over to the Inspector of Police. This according to the petitioner's counsel would give rise to a doubt as to whether there were two pen cameras. Actually, there is only one pen camera in which the offending shots were taken and they were handed over by the petitioner at the time of lodging the First Information Report itself. According to the petitioner's counsel, the investigation officer never enquired the petitioner or recorded her statement and that the statement had been prepared on his own. This contention of the petitioner's counsel cannot be brushed aside in view of what has been set out above.
4. The specific case of the petitioner is that the offending shots were taken on the evening on 28.06.2019 and in the early morning on 29.06.2019. But in the final report is completely silent on what happened on 29.06.2019. The petitioner's counsel would point out that only in the shots taken on 29.06.2019, the face of the accused is also seen. https://www.mhc.tn.gov.in/judis 4/10 5 CRL.O.P.(MD)NO.709 OF 2022
5. The investigation officer had not collected the photographs of the victim ladies. Only with such photographs, the forensic lab could have compared the same with the offending shots and confirm if the offending shots are genuine or morphed. The failure on the part of the investigation officer to collect the photographs of the victim ladies definitely goes to the root of the matter. In the same way, the photo of the accused should also have been taken and confirmation should have been obtained as to whether the face of the accused as seen in the shot taken on 29.06.2019 is that of the accused or not. Recoveries made from the accused have not at all been dealt with in the final report. More than anything else, even the sketch and the observation mahazar have not been properly drawn. The investigation officer should have drawn the sketch and mahazar in such a way as to correctly reflect the real position of the place where the victim ladies took bath and from where the trouser of the accused was hung and where the pen camera was fixed in the pant pocket. This is absolutely crucial so as to establish the case of the prosecution.
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6. On account of the confirmation of contentions raised, I have no doubt whatsoever in my mind that the second respondent had conducted a shoddy investigation and filed final report in such a way as to favour the accused. If the case goes to trial on the basis of this investigation, then certainly the case is bound to end in acquittal. Therefore, I order denovo investigation. I wondered for a moment, if only further investigation can be ordered or denovo investigation can be ordered. The learned counsel appearing for the petitioner draws my attention to the decision of the Hon'ble Apex Court reported in CDJ 2020 SC 726 ( Neetu Kumar Nagaich V. The State of Rajasthan and Others ). The Hon'ble Apex Court in the said decision held as follows:-
“ 9. Normally when an investigation has been concluded and police report submitted under Section 173(2) of the Code, it is only further investigation that can be ordered under Section 173(8) of the Code. But where the constitutional court is satisfied that the investigation has not been conducted in a proper and objective manner, as observed in https://www.mhc.tn.gov.in/judis 6/10 7 CRL.O.P.(MD)NO.709 OF 2022 Kashmeri Devi vs. Delhi Administration, (1988) Suppl. SCC 482, fresh investigation with the help of an independent agency can be considered to secure the ends of justice so that the truth is revealed. The power may also be exercised if the court comes to the conclusion that the investigation has been done in a manner to help someone escape the clutches of the law. In such exceptional circumstances the court may, in order to prevent miscarriage of criminal justice direct de novo investigation as observed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254. A fair investigation is as much a part of a constitutional right guaranteed under Article 21 of the Constitution as a fair trial, without which the trial will naturally not be fair. The observations in this context in Babubhai (supra) are considered relevant at paragraph 45 as follows:
45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India.
Therefore, investigation must be fair, transparent https://www.mhc.tn.gov.in/judis 7/10 8 CRL.O.P.(MD)NO.709 OF 2022 and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation. ”
7. The aforesaid ratio is squarely applicable to the case on hand. The first respondent is directed to issue proceedings withdrawing the case from the file of the second respondent and for entrusting the same in the hands of the third respondent. The third respondent shall carry out denovo investigation and file final report as early as possible.
8. I am conscious that the forensic lab is heavily overburdened and it takes long time to give the reports sought for by the investigation. But the present case will have to be taken on an out of turn basis. This is for two reasons; the https://www.mhc.tn.gov.in/judis 8/10 9 CRL.O.P.(MD)NO.709 OF 2022 occurrence itself had taken place in June 2019 and secondly, this is a case involving crime against women. Therefore, the forensic lab is directed to give their report and answer all the queries raised by the investigation officer as early as possible. The third respondent is directed to record fresh statement from the petitioner as well as the other victim women and take all appropriate steps. I hope that the final report is filed within a period of five months from the date of receipt of a copy of this order. As and when the forensic report is made available, the petitioner along with her Advocate is permitted to peruse the same for the purpose of assisting the prosecution.
9. This criminal original petition is allowed.
25.01.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. https://www.mhc.tn.gov.in/judis 9/10 10 CRL.O.P.(MD)NO.709 OF 2022 G.R.SWAMINATHAN,J.
PMU To:
1. The Superintendent of Police, Madurai District, Madurai.
2. The Inspector of Police, Saptur police station, Madurai District.
3. The Additional Deputy Superintendent of Police, Investigation Unit for Crime against Women Wing(IUCAW), O/o.The Superintendent of Police, Alagarkovil Road, Madurai.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.O.P.(MD)No.709 of 2022
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