Gujarat High Court
V. K. Sudhakaran vs State Of Gujarat on 8 December, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/3857/2022 ORDER DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (DIRECTION - TO LODGE
FIR/COMPLAINT) NO. 3857 of 2022
With
CRIMINAL MISC.APPLICATION (FOR STAY) NO. 3 of 2023
In
R/SPECIAL CRIMINAL APPLICATION NO. 3857 of 2022
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V. K. SUDHAKARAN
Versus
STATE OF GUJARAT
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Appearance:
MR HRIDAY BUCH WITH MS MINI M NAIR(2689) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 4
NOTICE SERVED for the Respondent(s) No. 2,3
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 08/12/2023
ORAL ORDER
1. By way of this application, filed under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973, the applicant - original informant seeks direction to register the offences punishable under Sections 302, 498(A) and 420 of the IPC and also transfer the investigation to CBI or any other independent agency to re- investigate, further investigation and/or denova investigation of the case in relation to the FIR being I- C.R.No.11216008220206 of 2022 dated 19.05.2022 registered with Sector-7 Gandhinagar Police Station, Page 1 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined Gandhinagar for the offences punishable under Sections 498(A) and 304(B) of the Indian Penal Code and Section 4 of the Dowry Prohibition Act.
2. This Court has heard learned counsels Mr. Hriday Buch with Ms.Mini Nair for the applicant, and Ms.Maithili Mehta, learned APP for the respondent - State.
3. Facts in brief giving rise to file present application are that, the applicant is a retired Principal, NSS College, Palakkad, State Kerala. His elder daughter Dr.Anupama Sudhakar was married to Mr.Ashitij Pillai son of Ravindran Pillai and Mrs.Savitha Pillai. The marriage was solemnized on 06.09.2018 at Palakkad. At the relevant time, Dr.Anupama Sudhakar, was pursuing MDS Course at Vivekanand Dental College for Women at Tiruchenjode, Tamilnadu. Dr.Anupama completed her master course in the month of December-2021. During 2018-2021, she used to visit her matrimonial home at Gandhidham and lastly at Ahmedabad in a vacation or during her leave period. When Dr.Anupama was at her parental home, her husband called her at Ahmedabad and accordingly, she came at Ahmedabad on 12.01.2022 and stayed there with husband and in-laws. On 14.01.2022, at about 04:30 hours, the father of Dr.Anupama i.e. Page 2 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined present applicant was informed that her daughter is no more as she suddenly fell in the bathroom and died. The police registered case of accidental death and proceeded to investigate the case and pursuant to this, the necessary panchnama were being drawn and necessary articles seized by the police for FSL purpose. During the investigation, it reveals that on the day of incident, when deceased went to take bath in bathroom, the husband had gone to market to purchase necessary foods whereas mother in law went to Gandhidham. It further reveals that when husband came to house, the deceased was still in the bathroom and after some time, she did not respond, the door of the bathroom was broken out as it was closed from the inside. The body of the deceased was taken to Civil Hospital for postmortem. The cause of death was kept pending till the result of viscera. The report of viscera is in negative as ingredients of the poison having not been found. The exact cause of death was inconclusive. The fresh report was sought with regard to cause of death from the experts. After considering the material placed before the expert penal, the opinion given on the theory "diagnosis of exclusion". It was opined that the cause of death could be stated to be on account of inhaling carbon monoxide gas which had been released from the gas geyser inside the bathroom when the deceased had Page 3 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined gone to take bath.
4. The father of the deceased applicant, after funeral which was scheduled at Kerala, filed a written complaint dated 23.02.2022, addressed to Dy.S.P., Gandhinagar and also made a representation to Minister of State of External Affairs, inter alia stating that the deceased died under mysterious circumstances and she was subjected to mental and physical harassment by husband and in-laws as husband and in-laws were demanding cash amount from the deceased to purchase the new house at Ahmedabad and she was cheated emotionally and financially by the husband and in-laws and she was under tremendous stress as there were serious differences with the husband and mother in law.
5. The present application filed to direct the police authority to register an FIR for the offences punishable under Sections 420, 498(A) and 302 of the Indian Penal Code. The notice was issued and appropriate report called for. During the pendency of present application, the police has registered the offence under Sections 498(A), 304(B) and 114 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act against the husband and mother in law.
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6. The applicant father of the deceased by necessary amendment, is seeking transfer of investigation to CBI to re-investigate the case in relation to the aforesaid FIR.
7. This Court has heard learned counsels Mr.Hriday Buch for the applicant with Ms.Mini Nair for the applicant, and Ms.Maithili Mehta, learned APP for the respondent - State.
8. Mr. Hriday Buch, learned counsel, referring the case records as well as the contentions, raised in the affidavit, has stated that the entire investigation is conducted in a casual manner. That after registration of the FIR, and at the conclusion of the investigation, despite the offence registered under Section 304(B) of the Indian Penal Code, the police authority filed 'C' Summary Report stating therein that there are no sufficient materials for the constitution of the offence under Section 304(B). That the conversation of the deceased with her husband made on whats-app are sufficient to establish prima facie involvement of the husband and mother in law for the death of the deceased as it has occurred otherwise than under normal circumstances within seven years of the marriage span and she was subjected to cruelty and Page 5 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined harassment in connection with the demand for dowry. That whats-app conversation during the period from 2019 to 2021, would show that deceased was fed up with the continues mental harassment and tortured given by mother in law. That the copy of the bank account produced by the applicant having been ignored by the agency. That the applicant father transferred a huge amount to the bank account of the deceased to towards the fees and others. That 800 grams gold ornaments and other things given to the husband and in-laws for which no satisfactory explanation given by them as said valuable things having been used for personal use and despite of this, they were demanding cash amount from the deceased. That the injury marks found on the body of the deceased, mentioned in the P.M. Report clearly shows that the death was not on account of inhaling the carbon monoxide released from the gas geyser. That the I.O. did not seize the necessary articles from the bathroom promptly and allowed the accused to destroy the evidence. That before registration of the offence, the police official have forced the applicant to settle the matter with the accused.
9. In view of the aforesaid contentions, learned counsel Mr. Hriday Buch has submitted that the investigation Page 6 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined officer intentionally left out the certain aspects of investigation and there is a serious laps in the investigation. Referring the judgment of the Apex Court delivered in the case of Bhartiya Tamang (2013 (15) SCC 578), counsel Mr.Buch contended that in a case of deficient and/or satisfactory investigation, it is the duty of the Court to ensure that full and material facts are brought on record so that there might not be a miscarriage of justice and considering the peculiar facts and circumstances of the present case, it would fall under the rarest of rare case.
10. On the other hand, countering to the submissions, Ms. Maithili Mehta, learned APP for the respondent - State has submitted that no case is made out for transfer of investigation to CBI or any other independent agency. She would further submit that the extraordinary power must be exercised sparingly, cautiously and in exceptional situation where it becomes necessary to provide credibility and instill confidence in investigation and considering the allegations of domestic dispute and the medical evidence collected during the course of investigation, this is not fit case to entrust the investigation to the CBI, as there is no laps in the investigation and the material collected does not disclose a prima-facie case for transferring the investigation. Lastly, she Page 7 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined has submitted that the summary report so far as Section 304(B) is concerned is still pending before the Court concerned and the applicant being an original informant having statutory right to file an objection against the acceptance of the summary and therefore, he may pursue the case before the Trial Court.
11. Having heard learned counsels for the respective parties, the issue falls for my consideration whether in the facts and circumstances of the case, the case is made out to transfer the investigation to the CBI or any other independent agency for further investigation?
12. I have perused the material placed on record, sworn affidavit of the applicant, police report and original investigation papers.
13. In the facts of present case, the father of the deceased is seeking investigation to be carried out by the CBI.
14. It is settled position of law that where and under what circumstances the investigation by the CBI should be allowed. In the case of State of West Bengal Vs. Committee for protection of Page 8 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined democratic rights, West Bengal, 2010 (3) SCC 571, the Apex Court in Para-70 of the judgment observed thus:
"70. In so far as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such powers should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory Page 9 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined investigations."
15. In the case of Secretary, Minor Irrigation and Rural Engineering Services, U.P. Vs. Sahngoo Ram Arya (2002 (5) SCC 521), the Apex Court held that an order directing an enquiry by the CBI should be passed only when the High Court after considering the material on record comes to a conclusion that such material does not disclose a prima facie case calling for an investigation by CBI or any other similar agency.
16. In the case of K.B. Rajendra Vs. Superintendent of Police, CID South Zone, Chennai (2013 (12) SCC 480), three Judges Bench of the Apex Court, in Para-13 of the judgment observed that the power of transferring such investigation must be in rare and exceptional cases where the Court finds it is necessary in order to do justice between the parties and instil confidence in the public mind or where investigation by the State police lacks credibility and it is necessary for having a fair, honest and complete investigation and particularly when it is imperative to retrain public confidence in the impartial working of the State agency.
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17. In light of the above settled law and applying the same to the facts of the present case, this Court is of the considered view that, the State police agency has properly investigated the case and examined all the possible angles of the investigation to find out the truth and thus, the investigation was undertaken in a proper manner and in right direction. The applicant raises grave suspicion with regard to investigation. However, the suspicion must have some sort of base and foundations. Mere allegation that, police would not investigate the case properly, would not be sufficient ground to transfer the investigation to the CBI or any independent agency. The State Police Agency examined the entire whats-app conversation including the chats submitted by the complainant. The injuries noted in the PM report, having also been considered by the investigating officer to rule out the act of suicide or culpable homicide. The record indicates that the deceased was having serious grievance about the conduct and attitude of husband and in-laws, for which, the investigating agency has invoked Section 498A and Section 4 of the Dowry Prohibition Act. In such circumstances, the present case does not fall under the rarest of rare case nor the reasons raised for entrustment of the investigation to CBI made out an exceptional case to entrust the investigation. Thus, on careful Page 11 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined examination of the records, it does not disclose prima-facie case to entrust the investigation to CBI or any other independent agency.
18. So far as directing the State agency to carry out further investigation or re-investigation is concerned, this Court is of considered view that, the chargesheet with C-summary report so far as Section 304B is concerned is pending before the trial Court. Where the final report is submitted, the trial Court is not bound to accept it and on proper scrutiny of the case and after hearing the complainant, the court may reject it and direct further inquiry. Even, the Court can take cognizance of the offence, despite the report that no case is made out under Section 304B. In such circumstances, where the matter is pending before the trial court, it would not proper to discuss the merits of the summary report as it would cause prejudice to the rights of either parties. Thus, it is open for the applicant to protest the C-Summary report and raise all the contentions before the Court for issuance of necessary directions for further investigation of the case.
19. For the reasons aforestated, the application stands dismissed. Notice discharged. The observation made hereinabove are confine to decide present Page 12 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023 NEUTRAL CITATION R/SCR.A/3857/2022 ORDER DATED: 08/12/2023 undefined application. The trial Court shall decide the acceptance of final report on its own merits, in accordance with law.
20. In view of the disposal of main matter being SCR.A No. 3857 of 2022, no order in Cr.M.A No. 3 of 2023 and is disposed of accordingly.
(ILESH J. VORA,J) P.S. JOSHI Page 13 of 13 Downloaded on : Tue Dec 12 20:36:59 IST 2023