Madras High Court
A.Ramalingam vs The Government Of Tamil Nadu on 24 January, 2012
Author: T.S.Sivagnanam
Bench: M.Y.Eqbal, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :- 24 .01.2012
Coram
The HONOURABLE MR.M.Y.EQBAL THE CHIEF JUSTICE
and
The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.19370 of 2011 &
M.P.No.1 of 2011
A.Ramalingam ... Petitioner
vs.
1.The Government of Tamil Nadu
rep. by its Secretary to Department
Department of Home
Secretariat, Chennai 600 009.
2.The Superintendent of Police
Villupuram District,
Villupuram.
3.The Inspector of Police
Kallakurichi Police Station
Villupuram District.
4.The Deputy Superintendent of Police,
CBCID, Villupuram District,
Villupuram.
5.S.Kalaiselvi
(R4 & R5 impleaded as per order dated 31.10.2011 in M.P.Nos. 3 & 4 of 2011)
... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus to all for the records pertaining to the order passed by the third respondent in Memo. Ref. No. Nil dated 14.8.2011 and quash the same and consequently, directing the third respondent to permit the petitioner to conduct a Public Demonstration at Specified Place near Ambedkarj Statue Opposite to State Bank, Kallakurichi, Villupuram District, within the jurisdiction of the third respondent at about 4.00 p.m. on 20.8.2011.
For Petitioner : Mr.P.G.Thiyagu
For Respondents : Mr.A.Navaneethakrishnan,
Advocate General
Mr.I.Subramaniam, Public Prosecutor
Assisted by
Mr.S.Venkatesh, G.P. - R1 to 5
Mr.K.Venkataramani, Sr.Counsel
for Dr.Athitha Anandhi
Mr.P.N.Prakash
for Dr.Shyamala Devi
*********
J U D G M E N T
THE HON'BLE THE CHIEF JUSTICE & T.S.SIVAGNANAM, J.
This Writ Petition designed as a Public Interest Litigation has been filed challenging the proceedings of the third respondent dated 14.8.2011, by which the third respondent declined permission to the petitioner to conduct a demonstration on 17.8.2011, condemning the sexual abuse made on a girl child studying U.K.G. class in A.K.T. Matriculation School, Kallakurichi, demanding arrest of the lady Teachers who were involving in the case. The permission was rejected on the ground that it may cause disturbance to the public and may also interfere in the pending criminal complaint.
2.Initially the writ petition was listed before the learned single Judge who by an order dated 19.8.2011, opined that the petitioner is focusing a public cause and therefore the matter may be posted before the Division Bench dealing with the public interest matters. Accordingly, the matter is before us.
3.It was alleged that a four year old girl child studying in UKG in the A.K.T.Matriculation School, Kallakurichi, Villupuram District was sexually abused by two lady Teachers namely the School Principal and the L.K.G. class Teacher. F.I.R. in this regard was filed before the Police on 3.8.2011 and the petitioner claiming himself to be a Member of the Human Rights Protection Centre, Villupuram District, sought for permission from the third respondent to hold a demonstration on 17.8.2011 near Ambedkar Statue, Kallakurichi, to ventilate their grievances.
4.When the matter came up for hearing before this Bench on 26.9.2011, taking note of the seriousness of the allegations, we passed the following order:
"By this writ petition, it has been brought to our notice that a serious and heinous crime is alleged to have been committed by a teacher and the Principal of the School. As per the complaint given by the mother of the four year girl child, her daughter Janani, who is studying in U.K.G 'A' Section in the A.K.T.Marticulation School, Kallakurichi, has been sexually harassed by one Boshiya, the class teacher of the LKG standard, and Lasi Bosco, who is the Principal of the School.
2. The complaint given by the mother of the child reads as follows:-
"My daughter Janani, four years old has been studying in UKG CBSC A Section in the A.K.T.School. Boshiya, was my daughter's LKG Teacher and Lasi Bosco is the Principal of the CBSC. Both of them used to take my child to a separate room and compel her to remove her clothes and used to pinch my daughter's breasts, try to insert their fingers into the vital part of my daughter, asking my daughter to lick their vulva, touch their vulva, such their breasts, nakedly make her lie down and insert pencil into her vulva. They also lift their dresses and asking my daughter to insert pencil in their vulva. These kind of sexual abuses were done to my child. They did not stop even if my daughter cries in pain. Every time, when this happens they used to threaten my daughter not to tell this to any one outside and if so she will be locked up in the snack room. They also told my daughter they already locked a girl who did not obey their words. My daughter told all these one by one crying as we gave her courage. From the day my daughter joined in UKG she did not study well. My daughter says even when the class is going on Boshiya us to take her with permission of the UKG miss for the above stated acts. This is also known to the Class Teacher and the LKG Section Teacher. Therefore, I request you to take action against the above said four persons."
3. On the basis of the aforesaid complaint a case has been registered in Crime No.585 of 2011 on 08.11.2011 for the offences punishable under Section 342, 323, 506 (i) and 377 IPC.
4. A counter affidavit has been filed by the Inspector of Police, Kallakurichi Police Station, Villupuram District stating inter alia that on receipt of complaint with regard to sexual abuse committed against a girl child aged four years, investigation was conducted and six witnesses were examined . It is stated that after investigation, one accused was arrested and another one accused is yet to be arrested.
5. It is a matter of great concern, and even astonishing to note, that even the Police Department of the State is not in a position to arrest the named persons, who have committed such a heinous crime on a girl child, aged four years. The Inspector of Police concerned has not even disclosed the name of the person, who has been arrested after investigation.
6. Before we pass any order, we direct all the respondents, including the Director General of Police, to immediately arrest all the accused involved in such a barbarian act, within 24 hours and submit a report to this Court.
7.So far as the relief sought for by the petitioner in this writ petition is concerned, we are not inclined to permit the petitioner to hold a public demonstration, since we have taken notice of this matter on judicial side.
8.Put up this matter tomorrow (27.09.2011). The Inspector of Police Kallakurichi Police Station and the Superintendent of Police, Villupuram District shall appear in person before this Court."
5.When the matter was heard on 27.9.2011, after taking note of the report of Dr. M.Shyamala Devi of Appollo Children's Hospital, Chennai, who had examined the child and after seeing the manner in which the investigation was done on the complaint by the mother of the victim girl, we were constrained to record our dissatisfaction and deep anguish with the way in which the Police Officials behaved with the Doctor of Apollo Children's Hospital and tried to influence her and therefore we were of the opinion that CBCID must take charge of the investigation.
6.The learned Advocate General fairly submitted that the State has no objection in transferring the investigation to CBCID to be headed by a lady Deputy Superintendent of Police and agreed to transmit the entire file immediately. Accordingly, on 27.9.2011, we passed the following order:
A reference may be made the order dated 26th September, 2011, which reads as under:-
"By this writ petition, it has been brought to our notice that a serious and heinous crime is alleged to have been committed by a teacher and the Principal of the School. As per the complaint given by the mother of the four year girl child, her daughter Janani, who is studying in U.K.G 'A' Section in the A.K.T.Marticulation School, Kallakurichi, has been sexually harassed by one Boshiya, the class teacher of the LKG standard, and Lasi Bosco, who is the Principal of the School.
2. The complaint given by the mother of the child reads as follows:-
"My daughter Janani, four years old has been studying in UKG CBSC A Section in the A.K.T.School. Boshiya, was my daughter's LKG Teacher and Lasi Bosco is the Principal of the CBSC. Both of them used to take my child to a separate room and compel her to remove her clothes and used to pinch my daughter's breasts, try to insert their fingers into the vital part of my daughter, asking my daughter to lick their vulva, touch their vulva, such their breasts, nakedly make her lie down and insert pencil into her vulva. They also lift their dresses and asking my daughter to insert pencil in their vulva. These kind of sexual abuses were done to my child. They did not stop even if my daughter cries in pain. Every time, when this happens they used to threaten my daughter not to tell this to any one outside and if so she will be locked up in the snack room. They also told my daughter they already locked a girl who did not obey their words. My daughter told all these one by one crying as we gave her courage. From the day my daughter joined in UKG she did not study well. My daughter says even when the class is going on Boshiya us to take her with permission of the UKG miss for the above stated acts. This is also known to the Class Teacher and the LKG Section Teacher. Therefore, I request you to take action against the above said four persons."
3. On the basis of the aforesaid complaint a case has been registered in Crime No.585 of 2011 on 08.11.2011 for the offences punishable under Section 342, 323, 506 (i) and 377 IPC.
4. A counter affidavit has been filed by the Inspector of Police, Kallakurichi Police Station, Villupuram District stating inter alia that on receipt of complaint with regard to sexual abuse committed against a girl child aged four years, investigation was conducted and six witnesses were examined . It is stated that after investigation, one accused was arrested and another one accused is yet to be arrested.
5. It is a matter of great concern, and even astonishing to note, that even the Police Department of the State is not in a position to arrest the named persons, who have committed such a heinous crime on a girl child, aged four years. The Inspector of Police concerned has not even disclosed the name of the person, who has been arrested after investigation.
6. Before we pass any order, we direct all the respondents, including the Director General of Police, to immediately arrest all the accused involved in such a barbarian act, within 24 hours and submit a report to this Court."
2. Pursuant to the direction issued by us, the Superintendent of Police, Villupuram District and the concerned Inspector of Police, Kallakurichi appeared before us today.
3. Today, a report and additional counter affidavit has been filed by the second respondent-Superintendent of Police, Villupuram District, wherein he has stated that on receipt of the complaint by the Inspector of Police on 3rd August, 2011 by one Kalaiselvi W/o Suresh reporting about the sexual abuse committed against her child Janani aged about four years, the Inspector of Police went to the spot and investigated the matter and examined the witnesses. The complaint was taken on file and registered as a case in Crime No.585 of 2011 under Sections 342, 323, 506 -Part I and 377 IPC. The FIR copies were sent to the Court of Judicial Magistrate, Kallakurichi, and a case was registered against Mrs.Juno Portia, Class Teacher and Mrs.Lisy Bosco, working as School Principal of A.K.T.Matriculation School. The Police Department started the search vigourously to apprehend the first accused Mrs.Juno Portia. However, the accused moved this Court for anticipatory bail in Crl.O.P.No.19247 of 2011 and she was granted anticipatory bail on 8th September, 2011. Similarly, the second accused Mrs. Lisy Bosco approached this Court for bail in Crl.O.P.No.20139 of 2011, and she was also granted bail on 30th August, 2011. Lastly, it is stated that the matter is being taken up seriously and investigation is proceeding in a proper manner. Steps are also being taken to examine the child by a Psychiatrist, Government Hospital and a petition to that effect has been filed before the Judicial Magistrate.
4. Learned counsel appearing for the petitioner produced before us the medical examination report of the child conducted by a Doctor attached to Government Head Quarters Hospital, Kallakurichi, Villupuram District dated 04th August, 2011, and the following facts emerge from the report:-
"History Recorded 4 yr/female child alleged sexual assault
Physical abuse by two female (class teacher + principal)
o/e Child conscious complained of pain in both breast
PA- soft
No injury in both breast
tenderness (1+) in both breast region.
External genitalia no injury at present
hymen rupture, admit tightly with little finger"
5. The child was also brought to Apollo Children's Hospital, Chennai and was examined by Dr.M.Shyamala Devi, DCH., MRCP (UK), MRCH (UK) with the history of child sexual abuse. The Doctor was informed by the parents that the child Janani showed some sexualised behaviour at home, and on enquiry with her daughter, she told that her school teacher is doing this to her. The parents also brought before the Doctor a DVD, which contains the full conversation of the child relating to what the teacher did to her. The Doctor advised for many tests. In her report, the Doctor has stated that on 12th August, 2011 at about 12.42 p.m. she received a call from a number (918825020003) and one Mr.Vivekananthan, Inspector of Police, Kallakurichi spoke, and asked her about the patient Janani, to which the Doctor replied to get a consent letter from Janani's parents and also Apollo management for receiving information about Janani. It is alleged by the Doctor in the report that on the same day at about 3.15 p.m. Mr.Vivekananthan, Inspector of Police, Kallakurichi came to her room (Room No.4, OP Room) asking information about the child . When the Doctor again asked him to produce the consent letter from the parents, the Inspector replied that the Doctor has to come to Court, for which she replied that she is ready to support the police department, but needs the consent letter.
6. While physically examining the child at the Apollo Children's Hospital, the following facts reveal:-
" Both breast big + painful Genitalia signs of abuse hymen rupture. "
7. These reports are also available with the Investigating Agency, which forms part of Case Diary Docket Sheet produced before us.
8. As noticed above, the accused namely, Mrs.Juno Portia has been granted anticipatory bail on 6th September, 2011 by one of the Single Bench of this Court (Hon'ble Mr.Justice C.T.Selvam) and another accused namely, Mrs. Lisy Bosco has been granted regular bail on 30th August, 2011 by another single Bench of this Court (Hon'ble Mr.Justice G.Rajasuria). Therefore, the Superintendent of Police, Villupuram, in his affidavit filed today, expressed his inability to arrest the accused persons.
9. Prima facie from the complaint made by none-else than the mother of the victim girl child aged four years about the sexual abuse, supported by medical examination conducted both in the Government Hospital, Kallakurichi and Apollo Children's Hospital, Chennai, it can safely be concluded that the matter is a serious one and the offence committed is horrendous in nature. Further the conduct of the Inspector of Police, Kallakurichi in asking information from the Doctor under the guise of undue influence and threat shows that the investigation will not be conducted by the investigating agency in a proper manner.
10. Taking into consideration the gravity of the situation, we are of the opinion that CB-CID must take charge of the investigation. Learned Advocate General fairly submitted that the State has no objection in transferring the investigation to CB-CID to be headed by a lady Deputy Superintendent of Police. Learned Advocate General submitted that the file relating to the case will be transferred to the CB-CID immediately. Learned Advocate General also submitted that liberty may be given to move for cancellation of bail allowed to both the accused, which prayer we allow, and give liberty as prayed for.
11. In the circumstances, we direct the CB-CID to hold an investigation into the matter, and submit the final report within a period of four weeks from today. We are constrained to observe that we record our dissatisfaction and deep anguish with the way in which the police officials behaved with the Doctor of Apollo Children's Hospital and tried to influence her, as alleged by her in her report. We hope and trust that the CB-CID will take up the matter seriously and conduct the case in the manner known to law, uninfluenced by the pressure, if any, put by any sources.
12.Put up this case after four weeks, awaiting the final report. "
7.When the case came up for further hearing on 23.12.2011, the learned Advocate General sought extension of time to examine further witnesses and subject the child for psychometric test. After perusal of the entire records placed before the Court and after hearing the learned counsel appearing for the mother of the victim girl, we noticed that the child was already subjected to various tests in different institutions including the panel of Doctors and we opined that no further tests are required and this sort of extension of time on the ground of conducting psychometric test for the child appears to be under the influence of the school authorities. Accordingly, on 23.12.2011, the Investigation Agency was directed to file a final report on 2.1.2012.
8.When the case came up for further orders on 2.1.2012, the final report was filed by the CBCID stating that the child was examined by a team of Doctors which included Dr. Athitha Anandhi, who had conducted the previous examination on the child on 4.8.2011. We were of the opinion that the report submitted by the Team of Doctors contradicted the findings recorded by Dr. Athitha Anandhi attached to the Government Headquarters Hospital, Kallakurichi and Dr.M.Shyamala Devi of Apollo Children's Hospital, Chennai. After noticing certain contradictions in the reports submitted from time to time by the Panel of Doctors as well as the two individual Doctors named above, we directed Dr.Athitha Anandhi attached to the Government Headquarters Hospital, Kallakurichi and Dr.M.Shyamala Devi of Apollo Children's Hospital, Chennai, to show cause and file affidavits as to why they should not be prosecuted for giving false information and false medical examination after examining the child. Accordingly, we passed the order on 2.1.2012 issuing notice to both the Doctors, which is to the following effect:
"In compliance of the order dated 23.12.2011, the final report has been submitted by the Deputy Superintendent of Police, Crime Branch- CID, Villupuram along with an affidavit seeking some more time.
2. The matter relates to the alleged sexual abuse on a four year old girl child, who is studying in U.K.G 'A' Section in A.K.T.Marticulation School, Kallakurichi, by the lady teachers of the School. It appears that after the incident took place, a complaint was lodged and a case was registered in Crime No.585 of 2011. The child was subjected to medical examination conducted by a Doctor attached to the Government Head Quarters Hospital, Kallakurichi, Villupuram District. The extract of the report is reproduced herein below:-
"History Recorded 4 yr/female child alleged sexual assault
Physical abuse by two female (class teacher + principal)
o/e Child conscious complained of pain in both breast
PA- soft
No injury in both breast
tenderness (1+) in both breast region.
External genitalia no injury at present
hymen rupture, admit tightly with little finger"
3. The child was also examined by Dr.M.Shyamala Devi of Apollo Children's Hospital, Chennai and a report was submitted to the following effect:-
" Both breast big + painful Genitalia signs of abuse hymen rupture."
4. In the final report, it is mentioned that the Crime Branch-CID got the child examined by a Team of Doctors, which included Dr.Anitha Anandhi, who had done the previous examination of the Child on 04.08.2011. The report submitted by the Team of Doctors contradicted the earlier finding recorded by Dr.Anitha Anandhi and also the finding of Dr.M.Shymala Devi of Apollo Childrens Hospital.
5. It is stated in the final report that Dr.Anitha Anandhi admitted that her opinion and the opinion of the Team of Doctors differed, and further admitted that the opinion given by the Team of Doctors was correct. In paragraph-34 of the report, it is also mentioned that Dr.M.Shyamala Devi has also contradicted her statement made earlier to the fact that a police officer had intimidated and threatened her. She denied her earlier statement that on 12.08.2011 an Inspector of Police, attached to Kallakurichi Police Station came to her room and threatened her.
6. In the aforesaid premises, before we proceed further in the matter, we direct Dr.Anitha Anandhi, attached to Government Headquarters Hospital, Kallakurichi, Villupuram District and Dr.M.Shyamala Devi, Apollo Children's Hospital, Chennai to show cause and file an affidavit as to why they should not be prosecuted for giving false information and false medical report after examining the child.
7. Let notice be issued to both the Doctors. Simultaneously, notice shall also be served on both the Doctors through Deputy Superintendent of Police, CB-CID.
8. Put up this case on 18th January, 2012"
9.As directed the matter is listed today. Today both the Doctors to whom notices have been issued have appeared and filed affidavits. Dr. Athitha Anandhi, is a Doctor working in Government Headquarters Hospital, Villupuram and she has stated on oath that when she was on duty on 4.8.2011, the victim girl was brought to the Hospital by the third respondent with a Police Memo and she medically examined the victim girl at about 2.45 p.m. and issued Accident Register copy wherein she had mentioned apart from other facts that the hymen of the victim girl was found ruptured. It has been further stated that within a few days, the victim girl was taken to Apollo Children's Hospital at Chennai, and Dr.Shyamala Devi medically examined the girl and she has also opined that the victim girl's hymen was ruptured and thereby concurred with the findings and opinion recorded by Dr.Athitha Anandhi. It is further stated that subsequently, the fourth respondent Police arranged for medical examination of the victim girl by a team of Doctors attached to the Government Headquarters Hospital at Kallakurichi, Villupuram, comprising of one Pediatrician, one Gynaecologist, one Forensic Medicine Expert and two Psychiatrists. It is further stated that the said Team persuaded Dr.Athitha Anandhi to be a member of the Team. However, it appears that she was not part of the Team, but was present when the entire medical examination was carried out by the Team of Doctors.
10.In the affidavit, the Doctor has stated that the examination done by the Team was on 18.10.2011 i.e. after 75 days after she had examined the victim girl. The Medical Team gave its report and opined that the hymen of the victim girl was found intact. It is stated that since the examination of the Team of Doctors was done after a lapse of 75days from the date on which Dr.Athitha Anandhi examined the victim girl, there is a reasonable possibility of healing of the ruptured hymen of the girl that too it is faster in a growing child. However, an emphatic statement has been made that she stands by her report submitted pursuant to the medical examination conducted on 4.8.2011. Further, it has been stated that she did not put her signature in the opinion given by the Team of Doctors and that she has not given any false information or false medical report.
11.The Doctor attached to Apollo Children's Hospital, Chennai namely M.Shyamala Devi, has also filed an affidavit inter alia stating that on 8.8.2011 at about 1.30 p.m., the father of the victim girl approached the Hospital and wanted the girl child to be examined and treated at the Paediatric clinic as an out patient. The said case was allotted to Dr.M.Shyamala Devi and she examined the child and has recorded her observation in the report and in order to maintain confidentiality, she has not stated elaborately about the report and she is willing to provide the case record in a sealed cover for the perusal of the Court. Further, it has been stated that she did not examine the child from the perspective of a medico legal case because the child was not referred to the hospital by the Police for the purpose of examination and only her parents brought the child to rule out the possibility of any infection. Further, it is stated that on 12.8.2011, at about 12.42 pm., she received a phone call in her mobile phone from a person who introduced himself as Vivekanandan, Inspector of Police, Kallakurichi and sought information about the patient. The Doctor appears to have informed the Inspector of Police to get a consent letter from the parents of the girl and also from the Hospital Management. Later, on the same day i.e. on 2.8.2011 at about 3.00p.m., the Inspector came to the Chamber of the Doctor and when she asked to produce his identity card, the Inspector produced the same and the Doctor informed him that she cannot reveal any information as it would amounts to violation of patient's confidentiality/Medical ethics. On such information the Inspector of Police said "Madam you may have to come to the Court", for which the Doctor appears to have stated that she is happy to support the Police in their investigation, but things should be done officially. The Doctor also informed the concerned higher authorities as to what had transpired on 12.8.2011.
12.Therefter on 13.8.2011, the patient was once again examined by the medical panel comprising of three Doctors including Dr.Shyamala Devi and the Doctor is willing to place the observation and the report of the panel of Doctors in a sealed cover for the perusal of the Court. It is further stated that CB CID Police obtained two medical reports dated 17.10.2011 and 15.11.2011 from the Hospital. Further, the Doctor has stated that she has not contradicted her earlier statement with regard to the interaction with the Inspector of Police and she has not given any false information or false medical record. The Doctor has further stated about her academic career and that she never suffered any insinuations as having given false information.
13.The learned counsel appearing for the mother of the victim girl contended that the investigation is not proceedings in the proper direction and the concerned Teachers against whom allegations of sexual abuse have been made, have not been examined and there appears to be attempt to derail the investigation so as to save the Teachers. Further, the learned counsel would submit that the Correspondent of the School Authorities in a meeting of Mill owners had openly stated that he is very happy that CBCID has taken up the matter. The learned counsel further submitted that all the relatives of the parents of the victim girl have been examined and as many as 50 people have been examined and it all shows that CBCID is not interested in property investigating the matter, but attempting to defuse the entire situation with a view to help the school Authorities and the teachers who have been accused of committing the sexual assault.
14.The learned Advocate General by placing reliance on the final report filed by the Deputy Superintendent of Police, contended that the investigation is proceeding in a proper manner and the accused will be dealt with in accordance with law.
15.When the case came up before us on 27.9.2011, we did not appreciate the manner in which the Inspector of Police, Kallakurichi under the guise of seeking information from the Doctor was attempting to impead the investigation to be conducted in a proper manner. Therefore, taking into consideration the gravity of the situation, we opined that CBCID must take up the investigation. The learned Advocate General fairly submitted that State has no objection in transferring the investigation to CBCID. Now after a lapse of more than three months, it appears that CBCID is also dragging its feet and the final report submitted by them does not infuse confidence in the mind of this Court that the investigation is proceeding in the right direction. Earlier, when the mater came up on 23.12.2011, a Status Report was filed by the Deputy Superintendent of Police, CBCID, stating that the girl should be subjected to further tests. Since we were of the opinion that already the victim girl has been examined by the Doctor attached to the Government Hospital namely Dr. Athitha Anandhi, who confirmed that the hymen was ruptured and that finding was concurred by Dr.Shyamala Devi of Apollo Children's Hospital, Chennai. Subsequently, a differing opinion was recorded by a team of Doctors which was submitted pursuant to a medical examination done on the victim girl after nearly 75 days. The team of Doctors appear to have requested Dr.Athitha Anandhi to be a part of the medical team, which she declined though she was present at the time when the medical examination was done by the Team of Doctors on 18.10.2011. Further, Dr.Athitha Anandhi refused to sign the information recorded by the Team of Doctors. In the affidavit filed by Dr.Athitha Anandhi, she has specifically stated that since the third examination done by the Team of Doctors was done after a lapse of 75 days, there is reasonable possibility of healing of ruptured hymen that too such healing is faster in a growing child. The report was filed by the Deputy Superintendent of Police, CBCID on 2.1.12. In that, we are surprised to find that the investigating officer has stated that an anonymous person had called and made certain allegations against the teachers and that investigation is being done on the basis of such anonymous call and both the Teachers have denied any such abnormal behaviour and steps are being taken to trace the anonymous caller.
16.We fail to understand as to what is the relevance of such anonymous call making certain allegations against the lady Teachers. The complaint before the CBCID is that the four year old girl studying in the A.K.T. Matriculation School, Kallkurichi was subjected to sexual assault by two lady teachers of the said School. Therefore, the investigation ought to have proceeded in such a direction to bring the books to culprits. Turn of events, particularly the above statement made in the report submitted by CBCID, primafacie establishes that all is not well with the manner in which the investigation is being proceeded by the CBCID. The repeated insistence by CBCID to subject the child to further medical examination creates a serious doubt in the minds of this Court as to whether the CBCID is serious in prosecuting the matter or is it an attempt to shield the accused. When sufficient medical records were available with the CBCID,it defies logic as to why CBCID insists upon the further medical tests to be conducted on the victim girl, which undoubtedly would not only amount to an harassment, it may leave an indelible mark in the mind of the child which is not healthy for her growth and development. The manner and conduct of an investigating agency should infuse confidence in the minds of the Court and if there is any such lack of confidence, this Court will not be a silent spectator to the turn of events, but would not hesitate to intervene and restore the rule of law.
17. In the light of the above facts, we are of the view that the investigation should be handled by a different agency uninfluenced by any of the investigation done by the CBCID and with the available medical records, which have been given by the Doctors after conducting examination of the child. We make it clear that the child shall not be subjected to any further medical examination. Since the specialised agency of the State, has failed to proceed with the investigation in a manner so as to infuse confidence in the minds of this Court, this is a fit case, where the investigation should be transferred to the CBI. The Hon'ble Supreme Court in several decisions, has considered the aspect as to under what circumstances, the Court can direct investigation to be done by CBI and it would be worthwhile to take note of the few of the decisions.
18. The Hon'ble Supreme Court in a decision reported in 1992 (1) SCC 397 (Gudalure M.J.Cherian and others Vs. Union of India and others) was dealing with a petition under Article 32 of the Constitution of India, which was filed as a PIL, regarding the rape two nuns at Gajraula in Uttar Pradesh wherein the petitioners contend that the investigation of the case should be entrusted to the Central Bureau of Investigation. After discussing about the factual averments in the said case, the Hon'ble Supreme Court held that the investigation having been completed by the Police and charge sheet submitted to the Court, it is not for the Supreme Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like CBI. The Supreme Court further observed that they were conscious, that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless in a given situation, to do justice between the parties and to instil confidence in the public mind, it may become necessary to ask the CBI to investigate a crime as it only shows the efficiency and the independence of the agency. Therefore, in the light of the averments made and keeping in view the facts and circumstances of the said case, the Hon'ble Supreme Court has held that ends of justice would be met if the CBI is directed to hold further investigation in respect of the offences committed.
19. The Hon'ble Supreme Court in 2004 (7) SCC 768 (Gangadhar Janardan Mhatre Vs. State of Maharashtra and others) was dealing with the legality of the order passed by a Division Bench of the Bombay High Court dismissing a criminal writ petition filed seeking for a direction to transfer of investigation from State CID to any other impartial investigating agency. While considering the question of maintainability of the writ petition for such relief, the Hon'ble Supreme Court observed thus:
"13.When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India 4. It was specifically observed that a writ petition in such cases is not to be entertained.
14.The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application".
20 .In Sasi Thomas Vs. State and others reported in 2006(12) SCC 421, the Hon'ble Supreme Court while considering the scope of interference with criminal, trials held as follows:
"26.The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under sub-section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case.
33.Such a direction, thus, can be issued where there had been complete failure of justice and in a case where the investigating and prosecuting agencies were found to have not performed their role in the manner they were expected to do". (emphasis supplied)
21. .In Sakiri Vasu v. State of U.P.,(2007) 4 Crimes 338 SC, the Hon'ble Supreme Court while discussing the scope of interference in criminal matters under Article 226 of the Constitution of India and when High Court can direct enquiry by CBI has held as follows:
"26.The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under sub-section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case.
33.Such a direction, thus, can be issued where there had been complete failure of justice and in a case where the investigating and prosecuting agencies were found to have not performed their role in the manner they were expected to do". (emphasis supplied)
22. In Divine Retreat Centre Vs. State of Kerala reported in AIR 2008 SC 1614, relied on by the learned counsel for the petitioner, the Hon'ble Supreme Court dealt with the scope, content and ambit of the inherent power conferred on the High Court under Section 482 of Cr.P.C., 1974. While dealing with the said question, the Hon'ble Supreme Court observed as follows:
35.It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.
23.Thus, based on the above referred judgments, the following could be culled out:
"i)That the power under Article 226 of the Constitution of India can always be invoked to issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide.
ii)That power of the High Court is to be exercised in rarest of rare cases where a clear case of abuse of power and non compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High court cannot direct as to how the investigation has to be conducted but can always insist for observation of process as provided under the Code.
iii)None can dispute the power of the High Court under Article 226 of the Constitution to direct inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a conclusion that there is need for such inquiry. It is not sufficient to have such materials in the pleadings.
iv)Setting the criminal liability and fraught with serious consequences which cannot lightly be taken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution.
v)The High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a Special Investigation Team on the strength of vague allegations".
24. Based on the above legal principal, if we examine the case on hand, we have no hesitation to hold that this is one of the rare cases, where the investigation had not proceeded in a proper manner despite several orders passed by us, which have been referred to in the preceding paragraphs. It is not one such routine case, where this Court has come to a conclusion merely on allegations made by a party. We have noticed the manner in which, the investigation has proceeded and also recorded our dissatisfaction. Therefore, this is a fit case, where the investigation has to be transferred to the CBI.
25. In that view of the matter, we deem it appropriate that the case shall be transferred to the Central Bureau of Investigation for investigating and filing final report. The CBCID, Villupuram shall handover all records concerning Crime No.585 of 2011 to the CBI forthwith and the report of Dr.M.Shyamala Devi as well as the further report of the Team of Doctors of Apollo Children's Hospital, Chennai, shall also be handed over in a sealed cover to CBI forthwith. The CBI shall immediately commence investigation and file final report within a period of sixty days from the date of receipt of a copy of this order. As stated earlier, the victim girl shall not be subjected to any further medical test and investigation shall proceed based on the available medical opinion. No costs. Consequently, connected Miscellaneous Petition is closed.
(M.J.E.,C J) (T.S.S.,J.)
24.01.2012
Index :Yes
Internet:Yes
rpa/pbn
Note: Issue Today
THE HON'BLE THE CHIEF JUSTICE
and T.S.SIVAGNANAM, J.
rpa/pbn
To
1.The Government of Tamil Nadu
rep. by its Secretary to Department
Department of Home
Secretariat, Chennai 600 009.
2.The Superintendent of Police
Villupuram District,
Villupuram.
3.The Inspector of Police
Kallakurichi Police Station
Villupuram District.
4.The Deputy Superintendent of Police,
CBCID, Villupuram District,
Villupuram.
5.N.Chandrasekharan,
Spl. P.P/CBI Cases,
21, High Court chambers,
Madras 104.
Judgment in
W.P.No.19370 of 2011
24.01.2012