Gujarat High Court
Patel Lilabhai Ambalal And Etc. vs Patel Kanubhai Mafatlal And Ors. on 22 February, 1988
Equivalent citations: 1989CRILJ1898, (1988)2GLR1175
ORDER R.A. Mehta, J.
1. Both these applications are by the same petitioner for substantially same relief. The petitioner is the original complainant and brother of deceased Babiben, wife of one Kanubhai/Mafatlal Patel, respondent No. 1 in Cr. Misc. Application No. 2095/87. The other respondents are the family members of the husband and in-laws of the deceased It is not in dispute that this is a case of unnatural death of Babiben. The complainant petitioner suspects that his sister has been murdered by the respondents accused He gave written complaint to Chanasma police station which is annexure-A to the Special Criminal Application. The incident had taken place at about 9-00 p.m. on 8-8-1987. The written complaint was given on 10-8-1987. However, that was not recorded as FIR. Therein it was stated that the in-laws had done his sister to death.
(matter in vernacular omitted - Ed.) However, on the next day i.e. on 11-8-1987, a statement of the complainant was recorded which has been registered as FIR at CR No. 97 of 1987 and it is treated as offences punishable under Sections 496A, 204 B and 201 of IPC. In this statement, a clarification is taken from the complainant that even though it is stated in the application that these persons have intentionally murdered his sister, it was not the purpose or intention of his say, but his intention was to state that his sister had committed a suicide or had died a suspicious death and therefore he had made that application because the in-laws have not informed the police; had not taken the deceased to Government hospital and had also not got the post-mortem done and that he was given false intimation that his sister was suffering from cholera However, when he went to see his sister, she was already dead and he was not allowed to see her dead body. Thereafter on 26th Aug. 1987, the complainant has addressed a letter to Special Inspector General of Police, CID (Crimes) as he felt that the police was not properly making investigation and some influential persons were bringing pressure in the case. In respect of this FIR of 11-8-1987, a charge-sheet is filed on 24-9-1987 for offences punishable under Section 498A and 202 read with Section 114 of I.P.C.
2. The grievance of the complainant is that he has given written information of an offence under Section 302 of IPC and the police has not recorded the complaint for offence punishable under Section 302 of IPC and the police has right from the beginning started with a case of suicide and made investigation to that end only and this investigation is highly improper casual and deliberately towards the desired end and therefore the prayer is that the investigation be directed to be made by other independent agency like CID (Crimes) and to register the FIR for offence punishable under Section 302 of IPC. There is also a prayer for cancellation of bail which has been granted to the respondent by the learned Judicial Magistrate, First Class.
3. On behalf of the respondents/accused, it has been submitted that this is an unfortunate case of suicide and all the accused are absolutely innocent. It is submitted that after due investigation, the police have filed a charge-sheet for offences punishable under Sections 498A, 201 read with Section 114 of IPC and that the trial will take place in accordance with law and there is no case for interference with the executive function of police of investigation and statutory duty and right of the police to investigate into cognizable offence and the trial of such offence by the competent court.
4. The Supreme Court, in the case of State of West Bengal v. Sampat Lal , has observed as under (para 13):
It is certainly not for this Court at the present stage to examine and come to a conclusion as to whether this was a case of suicide or murder. If as a result of investigation, evidence is gathered and a trial takes place, the Sessions Judge will decide that controversy and it may be that in due course such controversy may be canvassed before this Court in some form or the other. It would, therefore, be wholly inappropriate at this stage to enter into such a question.
In that case, two young boys were found missing since 2-3-1983 and their dead bodies had been thrown on a railway track on 5-4-1983 and they had been disposed of by the local police without taking any steps for their identification. It seems that it was taken as a case of suicide. However, there was great public uproar and the High Court came to be moved by some public spirited citizens and the High Court had directed investigation by special officer i.e. Dy. Inspector General of Police, CBI to inquire into the matter. However, no hearing was afforded to the State Government or its officers when direction to appoint the Special Officer was made and the Supreme Court observed that there could be no scope for appointing a special officer unless the statutory channel of investigation was found not to have functioned properly. In that case, the authorities were not given an opportunity to show how they were discharging their statutory obligation to carry out investigation. The Supreme Court observed as under (para 15):
The appointment of a Special Officer with a direction to inquire into the commission of an offence can only be on the basis that there has not been a proper investigation. There is a well defined hierarchical administrative set up of the police in the State of West Bengal as in all other States and to have created a new channel of inquiry or investigation is likely to create an impression that everything is not well with the statutory agency and it is likely to cast a stigma on the regular police hierarchy.
The Supreme Court also referred to King Emperor v. Khwaja Nasim Ahmed AIR 1945 PC 18 : 1945-46 Cri LJ 413, where the Privy Council observed as under:
The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course subject to the right of the Court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.
The case of State of Bihar v. J.A.C. Saldanna was also referred where also the above Privy Council judgment was followed, and the following observations were made (para 26):
This view of t he Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.
More apposite case and facts were of Bhagwant Singh v. Commr. of Police, Delhi which was also a case of bride burning. The investigation had come to an end and a conclusion of the case being one of suicide was reached. At that time, the Government had taken a decision to entrust the investigation to C.B.I. In that ease, after dealing with the material placed before it, the Court came to the conclusion that the investigation by the police was suffering from casualness, lack of incisiveness and unreasonable dilatoriness. The entries in the police case diary were also unsatisfactory. The investigation of the case was transferred from police administration to CBI by the Government and therefore nothing further was required to be done by the Court. The Supreme Court also noted that the Court has to be alive to the fact that the scheme of law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the Court. The Supreme Court therefore came to the conclusion that the appointment of special officer was not called for at that stage in that ease. In para 29 the Supreme Court emphasized that it is necessary that the investigating agency must disabuse its mind of the tentative conclusion that death was suicidal; adding that it does not mean that after a proper investigation, they may not reach the same conclusion and it was emphasized that the conclusion should not have been the basis upon which the investigation should have proceeded The Supreme Court observed that normally one would not commit suicide unless there are strong and compelling reasons for it and ordinarily there has to be a very pressing motive behind every case of suicide and sufficient material to prima facie establish the existence of such a motive has to be brought on record of investigation.
5. In the case of Bhagwant Singh (1983 Cri LJ 1981) (supra), the Supreme Court observed that in cases of dowry deaths, ordinary police investigation is inadequate and perpetrators of such crime not infrequently escape from the nemesis of the law because of inadequate police investigation and the Supreme Court suggested that high priority be given to the expeditious investigation of such cases by a special magisterial machinery created for the purpose and efficient investigative techniques and procedures be adopted taking into account the peculiar features of such cases. The Supreme Court also suggested that a female police officer of sufficient rank and status in the police force should be associated with the investigation from its very inception. After referring to several features of investigation, the Supreme Court held that the investigation by police did not inspire confidence.
6. The learned Counsel for the accused has also relied on the case of State of West Bengal v. S. N. Basak wherein it has been held that the statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or under the inherent power of the Court under Section 561 A.
7. In the ease of S. N. Sharma v, Bipen Kumar Tiwari , the Supreme Court observed that power of the police to investigate into the cognizable offence is uncontrolled by the Magistrate and it is only in the cases in which the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. It was further observed that though the Code gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence had been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 228 of the Constitution of India.
8. In the case of Kanaksinh H. Jadeja v. Balbhadrasinh N. Jhala 1987 (2) 28 Guj LR 1219 : 1988 Cri LJ 578, it is held that the investigation being the exclusive field of the executive, it is not desirable to prevent the police from investigating in the offence by the High Court in exercise of the inherent powers under Section 482 of the Code. Reliance was placed on the case of Eastern Spinning Mills v. Rajiv Poddar wherein the Supreme Court observed that save in exceptional cases where non interference would result in miscarriage of justice, the Court and the judicial process should not interfere at any stage of investigation of the offences.
9. Relying on these cases, it was submitted by the learned Counsel for the respondents-accused that in the matter of investigation, there is no scope for the High Court to interfere and there are remedies provided under the Code itself to an aggrieved person. It is suggested that if the FIR was not recorded by Police Station Officer, the remedy was to approach the Superintendent of Police under Section 154(3) of the Code. The second remedy was to file a private complaint directly in the Court. The third remedy was to apply to the Court where the charge-sheet is filed to direct further investigation under Section 173(8). However, it is to be noted that in a case like this, unless there is a proper investigation by a proper independent agency, no useful purpose will be served by filing a private complaint or the Magistrate directing further investigation by police. The highest officer of the State was also approached and nothing happened. Therefore, these remedies cannot be said to be of any effective purpose in the present case.
10. From the above judgments of the Supreme Court, it is clear that investigation in cognizable offences in the field reserved for the executive and the police authorities have statutory right to investigate into the cognizable offence and to file a charge-sheet and the scope for judicial interference in this investigative process is restricted. However, as laid down in the aforesaid Supreme Court judgments, where the investigation is casual, unsatisfactory or directed towards a particular conclusion right from the beginning, such investigation can be interfered with and even can be transferred from ordinary police agency to other agencies.
11. In the present case, right from the first interrogation of the complainant himself, the police has tried to change the suspicion of murder to suicide, as if the police wanted the complainant himself to commit to the theory of suicide even though he had strong reasons to suspect murder. It is true that he had no personal knowledge about the incident. But he had his own reasons to suspect which ultimately may or may not prove to be good and sufficient. The registration of the complaint under Section 302 of IPC was necessary when such complaint was made in writing, The circumstances pointed out by the complainant were sufficient to justify investigation into the suspicion of murder. In fact, at the investigation stage, it is elementary for the police to suspect everything and everyone and thereafter by process of elimination and inclusion come to the conclusion. However, that conclusion has to be the last thing on the completion of investigation and not the first thing at the beginning of the investigation. The complainant had pointed out the following circumstances.
1. Even though his sister had died unnatural death, he was sent an intimation at his village that his sister was ill and suffering from Cholera.
2. That his sister is not given any medical treatment until she became unconscious,
3. The statements of two doctors who are said to have given treatment are taken in a very very casual manner without putting the obvious and necessary questions to them.
4. She is not taken to any public hospital.
5. No post-mortem examination is done.
12. Dr. Babubhai Purshottam whose statement is recorded on 14-8-1987 states that at about 10-15 in the night on 8-8-1987, Babiben was brought to his residence in a jeep and she was unconscious and there was vomitting and he felt that the patient had drunk poison and therefore he had given three injections. However, as the patient had not become conscious, he directed the patient to be taken to public hospital at Mehsana and therefore they had gone to Mehsana. This Doctor has not been put any questions as to what was t he history given to him at that time, what were the symptoms, what was the poison and why did he not report the case of attempted suicide or murder to any police authority. Even thereafter she was not taken to any public hospital, but she was taken to a private Doctor (Dr. N. T. Patel) who is said to have directed the relatives of the patient to go to the civil hospital and get the postmortem done. However, it was not done. Even this Doctor has not been put any questions as to the history given by the relatives, symptoms and as to why he did not report the matter to the police and to see that the post-mortem is done in case of unnatural death. There is total lack of incisiveness in the interrogation and investigation.
13. It would thus appear that not only the deceased was not allowed to speak any word and not allowed to see anyone till she became unconscious, none else is allowed to speak anything about the incident. The police do not seem to have posed obvious questions to the medical persons; to the relatives as to what history they had given and why deceased was not taken to any public hospital or institution and why no information was given to police and why no post-mortem was carried out. It would appear that the police have recorded statements only from one angle to establish suicide and not tried to search for the evidence and did not interrogate witnesses. This investigation is thoroughly and highly unsatisfactory. However, this observation is not to be taken to mean that after proper and thorough investigation, same conclusion may not be reached It may be reached, it may not be reached. The trial of offence under Section 302 of IPC may take place, may not take place. Even if it takes place, there may be conviction there may not be any conviction. At this stage, it is impossible to jump to any conclusion. The discussion of some of the circumstances in this judgment is only with a view to ascertain whether the investigation was proper and satisfactory and whether the police had performed the duty properly.
14. Having come to the conclusion that the investigation by the police is highly improper and unsatisfactory, there is no alternative but to see that proper investigation is carried out by proper investigating agency. Nor that, I will first direct the police to register the written complaint dt. 10-10-1987 annexure-A as FIR for offence punishable under Section 302 of IPC and other sections and thereafter the investigation shall be taken over by CID(Crimes)and shall be conducted by an officer of higher and senior level. At this stage, there is no question of cancelling bail to the respondent-accused against whom the only charge recorded was under Sections 498A and 201 of IPC and in respect of these offences, the bail had been granted So far as the offence punishable under Section 302 of IPC is concerned it is so far neither registered nor has been the subject matter of any arrest or bail. It would be for the investigating agency to consider and take appropriate steps at appropriate time before appropriate court and there is no necessity of making any observation at this stage by this Court.
15. Before parting with this matter, a reference to the recent Supreme Court case of dowry death would be proper. It is the case of Joint Women's Programme v. State of Rajasthan . In that case, the Supreme Court had by an interim order directed investigation into unnatural deaths of two women by an officer not below the rank of Superintendent of Police. The Supreme Court gave a further direction to the States of Rajasthan and State of Haryana by way of an interim order to create a special dowry cell at the State level to investigate into dowry death through specialised investigating units and one or two leading social women workers to be named by the Ministry dealing with the Social Welfare and Women's problems to be associated with such dowry cells. Although the Supreme Court direction was for the States of Rajasthan and Haryana, such special investigative cell seems to be the necessity of the day having regard to frequency of such occurrences in this State also. I was told by the learned Public Prosecutor Mr. M. D. Pandya that there is some special arrangement in Gujarat State also. However, he was not very specific about the same. 1 would only direct that a copy of this judgment be sent to the Secretary, Home Department, to take such general action as may be deemed necessary for investigation of suspected cases of dowry death & bride burning in the light of observations made by the Supreme Court.
16. In the result, these applications are allowed by directing the police and State authorities to register the application of the complainant dt. 10-10-1987 as FIR for offence punishable under Section 302 and other sections of IPC and to transfer the investigation to CID (Crimes) of State of Gujarat to be conducted by an officer of senior and high level and after completing the investigation, to take such further steps in accordance with law as may be necessary and the proceedings consequent upon the filing of the charge- , sheet under Section 498A shall remain stayed till then.
Copy of the judgment to be sent to Home Secretary, Gandhinagar, drawing attention to paragraph 15 above.
Rule made absolute accordingly, in both the matters.