P. Murugan vs State of Tamil Nadu and three others

D. Raju, J.—The above writ petition has been filed for a writ of mandamus, directing the fourth respondent to conduct an investigation into

the death of Virupalingam on 16-3-1992 at the hands of Kullanchavadi Police, Cuddalore Taluk, South Arcot District, the 1st respondent to take

appropriate action against the officials found guilty and the first respondent to pay compensation of Rs.5 lakhs to the legal heirs of the deceased

Virupalingam.

The petitioner, who is said to the brother of the deceased Virupalingam, has stated in the affidavit filed in support of the writ petition, that the

deceased was a graduate and had been the President of the Vazhuthalampattu Agricultural Cooperative Bank, that he was a bachelor and eldest

member of the family, that he was a social worker fighting for the cause of downtrodden and oppressed, that he was convicted to life by the

Sessions Court at Cuddalore and C.A.No.774 of 1986 is pending before this Court against such conviction, that he was on bail granted by this

Court, that he was keeping good health and no bad habits to his credit and that due to his activities on the political front and co-operative

movement in the area he used to often go to the Police Station, which was not liked by the Sub-Inspector Sankaran. It is also stated that on 15-3-

1992 one Ramalingam, the brother-in-law of the deponent was taken to the Police Station at midnight along with others, that the deponent and his

brother went to the Police Station, that when the deceased went into the Station, he was abused by the Sub-Inspector and Inspector, Vadalur, that

when the deceased insisted for the release of the father he was chased out by the Police, that there was an attempt to hit the deponent and he

heard a shot being fired and his brother falling down, that the petitioner saw his brother being dragged and that the Police themselves created

pandemonium in the Station and took pictures of the same to create an impression of anti-socials attacking and damaging the Police Station, that

the deceased brother of the petitioner was moved in a van to the Hospital and at the hospital he was declared dead and they were asked to take

the body by the Police, that though they refused they have forced the two ladies to take the body and when the body was brought extensive

injuries including bullet and bayonet marks were noticed and there was no visible sign of proper post-mortem, and that they contacted two

Advocates from Madras who came on 17.3.1992 and also had a look of the body and on their instructions, they came to understand the need for

doing second postmortem to establish the true facts. It is also claimed that the subsequent statements published in the press create a strong

suspicion and doubt about the manner of postmortem. And that they cannot expect a fair and impartial investigation from the Police, and

consequently this Court should direct an enquiry by an impartial agency so that justice would not become a casually slating that it may not be

possible for them to get their grievances redressed in the hands of the respondents. Hence, the above writ petition with the reliefs referred to

above.

2 Kashmeri Devi Vs. Delhi Administration and Another,

During the course of argument for admission, the learned senior counsel for the petitioner confined his submissions at this stage, only in respect

of the relief for a direction to the 4th respondent to conduct investigation and the relief in W.M.P. for getting a second post-mortem done on the

deceased by a Medical Officer, not below the rank of a District Medical Officer.

Mr. N.T. Vanamamalai, learned Senior counsel, forcefully argued in support of the plea made in the writ petition contending that, on the facts

and circumstances of the case, there is justification to have the investigation done under or by an impartial agency like the CBI. It was also

contended that this Court has ample powers to issue such a direction in exercise of its jurisdiction under Article 226 of the Constitution and relied

upon some judicial pronouncements to which a reference will be made hereinafter. In the decision in Bhagwant Singh v. Commissioner of Police,

Delhi AIR 1983 Crimes. 480 the Supreme Court issued certain directions and guidelines for expeditious completion of investigation within a

stipulated time in the case of suspected dowry death. It could be seen from the said judgment that the Court found that the Police did not display

the promptitude and efficiency which the investigation in that case required and that there was much that called for comments from the Court. That

apart, on representations, the investigation of the case was already transferred from the Police administration of Delhi to the Central Bureau of

Investigation. The apex Court also found as a fact that the investigation in that case suffered from casualness, lack of incisiveness and unreasonable

dilatoriness and this was demonstrated by the manner in which the case was shifted to successive officers already burdened with their day to day,

normal work. In the case on hand, the investigation is still in progress only.

In Kashmeri Devi Vs. Delhi Administration and Another, , the apex Court directed the trial Court before whom the charge sheet has been

submitted to exercise its powers u/s 173 (8) of the Cr.P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of

the case in an independent and objective manner and submit additional charge sheet, if any, in accordance with law. The court, in that case, came

to the conclusions that the case before it tends to shake the credibility of Police investigation and undermines the faith of common man in Delhi

Police and prima facie it appeared that the Police acted in partisan manner to shield real culprits. This is not also a case where even when the

investigation was under progress and that too even at the threshold, the court countenanced or sustained any plea for proper investigation by an

independent agency other than the normal agency contemplated in law. In W.M.P. No. 8712 of 1988 in W.P. No. 6000 of 1988 by an order

dated 7.10.1988, a learned single Judge of this Court issued a direction to arrange for the exhumation of the body of the petitioner''s daughter in

that case, and have a post mortem conducted by a senior Medical officer and send the medical Report to this Court. The learned Judge also

permitted the petitioner therein to have his doctor and a lawyer at the time of exhumation and post mortem examination. In that case certain

discretionary directions appear to have been issued by the learned Judge without any objective or judicial consideration of the issue as such and in

my view the order in the W.M.P. could not serve as a judicial precedent for being adopted as the normal course, in all subsequent cases or

circumstances. In special leave to Appeal No. 360 of 1990 filed against W.A. No. 417 of 1988 on the file of this Court, the apex Court by an

order dated 27.3.1990 issued certain directions as hereunder, pending final orders in the Appeal:

Alter hearing the learned counsel for the parties, we are of the view that the matter needs a further investigation by the Central Bureau of

Investigation (CBI), Government of India. The learned Counsel for the petitioner stated that a prayer to this effect was actually made before the

High court but was not accepted. We think that such an enquiry must be expeditiously made. We, therefore, direct the Director, CBI to take all

steps and pass necessary order so that the enquiry is expeditiously completed by an officer of the rank of DIG. The petitioner is desirous of

assisting the enquiry and she, therefore, should be given copies of all the relevant documents in time. We expect the report to be submitted within a

period of two months. The case will be listed for further orders thereafter.

It could be seen from the above order also, that the Court felt, on the facts of the case that the matter needed a further investigation by the CBI,

Government of India and that was also not a caseof substitution of the normal investigation agency in the beginning itself or even at the stage of

commencement of the investigation by the stipulated authority.

Reliance was also placed for the petitioner on the decision reported in Sunil Batra Vs. Delhi Administration and Others etc., and particularly the

declaration of law in the following terms:

After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re-transfer he was

neglected; but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way. Nevertheless, we

cannot but remark that whatever damage might have been done up to now, a second investigation by a C.B.I. officer is justified, if truth has been

suppressed. Dr. Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case

of anal infliction. We do not make comments on them although we are unhappy at the way the business of investigation has been done. Indeed, the

potential for oblique mutual help between the police and the prison staff makes jail offences by jail officials undetectable; and so, to obviate this

possibility, the C.B.I, may well be entrusted, as a regular practice, with such cases. The prisoner being a person, we cannot write him off.

Farewell to this case is not final so far as the jailor and the police investigator are concerned. The former will stand his trial and shall receive

justice. We say no more here. The investigator invites our displeasure and the Assistant Public Prosecutor, whom he consulted, makes us unhappy

since we have had a perusal of the case diary. The crime alleged is simple, the material relied on is short and yet, despite repeated observations

from the Bench the investigator has delayed dawdily the completion of the collection of evidence and the laying of the charge-sheet. The prisoner

who is the victim has been repeatedly questioned under different surroundings and divergent statements are recorded. We do not wish to state

what we consider to be the obvious inference, but we are taken aback when the Assistant Public Prosecutor has given an opinion which, if we

make presumptions in his favour, shows indifference and, if we make contrary inferences, makes us suspect. When offences are alleged to have

taken place within the prison, there should be no tinge or trace of departmental collusion or league between the police and the prison staff. We

make these minimal observations so that the State may be altered for appropriate action. Surely, the conduct of the prosecution cannot be

entrusted to one who has condemned it in advance.

That was also a case of second investigation, after the Court found particularly, the investigation already was not satisfactory in its view. The

decision reported in 1985 SCC Cri 62 also is one where directions came to be issued after finding the investigation already conducted to be

unsatisfactory.

I have ordered notice to the State Public Prosecutor to hear his views before issuing any directions and Mr. B. Sriramulu, learned Public

Prosecutor appeared and made submissions as hereunder: It is the stand of the learned Public Prosecutor that in this case, there had been an

inquest by the Sub-Collector of the Division, an I.A.S. Officer as contemplated under S.O.144 of the Police Standing Orders, and he has

conducted an on the spot enquiry with open public participation and that it is thereafter the body was sent for post mortem and the body has been

handed over to the family of the deceased after such post-mortem, that regular investigation in accordance with law is under progress and that this

Court, may not be pleased to interfere in the matter at this stage. Reliance was placed upon the decision of S. Janarthanam, J. dated 11.3.1992 in

Crl.O.P. No. 9952 of 1991 to contend that it is the prerogative of the police, in exercise of their statutory powers to investigate and the Courts

come only at the subsequent stage of adjudication with powers visualised and conferred u/s 173 of the Cr.P.C. Reliance was also placed on the

decision reported in State of Bihar and Another Vs. J.A.C. Saldanha and Others, and the observations in paras 25, 26 and 28 in the following

terms:

There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is

the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The

executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have

been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having

been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits

report to the Court requesting the Court to take cognizance of the offence u/s 190 of the Code its duty conies to an end. On a cognizance of the

offence being taken by the Court, the Police function of investigation comes to an end subject to the provision contained in Section 173 (8), there

commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or

persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved

to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent

adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad (1944) 71 Ind.

App. 203 at p. 213, where the Privy Council observed as under:

(Extract omitted)

This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the filed of detection of crime and its

subsequent trial and it would appear that the power of the police to investigate into cognizable offence is ordinarily not to be interfered with by the

Judiciary.

Is there anything more required to write the final epitaph and say amen by the learned Additional Chief Judicial Magistrate after the finding is

recorded by the High Court, more especially finding of fact that railway organisation has profited rather than lost by the unusual procedure? It is a

clear case of usurpation of jurisdiction vested in the learned Addl. Chief Judicial Magistrate to take or not to take cognizance of a case on the

material placed before him. The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on

seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our

opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is

complete. We say no more.

Relying upon the decision reported in Saroja v. State of Tamil Nadu 1990 L.W. (Cri) 335 the learned Public Prosecutor contended that in the

absence of specific notification or consent u/s 6 under Delhi Special Police Establishment Act, 1946, there is no scope for issuing any direction as

prayed for, even in exercise of jurisdiction under Article 226 of the Constitution of India. The decision reported in 1990 L.W. (Cri) 335 (supra) is

the decision of Kanakaraj, J., where the learned Judge held that the offence u/s 302 I.P.C. is not an offence notified u/s 3 of the Delhi Special

Police Establishment Act, 1946 and that it will not be possible for this Court to direct the CBI at Madras to conduct the investigation into the death

of the husband of the petitioner in that case. It may be noticed that even in the letter of the Government of India dated 5.6.1972 referred to by the

learned Judge, it is stated, ""The CBI has no great advantage over the local police in investigating ordinary crimes like murder, riot burglary and

dacoity etc., Investigation of these crimes requires lot of oral evidence as well as knowledge of local criminals. Such crimes should, therefore, be

left to the local police for investigation unless in any particular case, there are special reasons for which its investigation needs to be entrusted to the

CBI"". Interference in respect of any matter prior to the stage of charge sheet, according to the learned Public Prosecutor, is also not permissible in

view of the Full Bench decision of this Court in Selvanathan @ Raghavan v. State by Inspector of Police G5 Police Station, Madras 1988 L.W.

Cri 503

The submissions of the learned counsel have been carefully considered. The decisions relied upon for the petitioner, in my view do not justify

interference in the matter even at this stage. A supporting affidavit sworn to on 25.3.1982 by one Mr. T. Kalaimani, a member of the Bar

practising at Madras and said to be one of the counsels appearing for the deceased in the appeal filed before this Court in C.A. No. 774 of 1986

and also in this writ petition was also filed in Court on 26.3.1992 at the time of hearing. So far as it is relevant for the present consideration, it is

stated by the said person, that he saw a number of deep cut wounds all over the body including on the back side, that deep cut wounds on the side

of the back portion of the head, that the left eye was not in shape, that he found ""from the appearance of the body of Virupalingam, the unusual

marks of cutting and stitching done during post mortem."" and that he suspected that police have taken extraordinary pains to cover up the real

cause of death. I am not really impressed by the too general and vaguely worded aspersions cast in the affidavit except stating that the claim so

made appears to be some opinion formed by the deponent of the supporting affidavit and that such claims alone may not be a safe basis or provide

strong guidance to decide the matter either way. The non-disclosure of public inquest by the I.A.S. Officer under the Police Standing Orders in any

of the affidavits also dissuade me from countenancing the plea of the nature in this regard.

So far as the powers of this Court under Article 226 of the Constitution of India are concerned, they have been designed and couched in a

wide language and sufficiently secured and safeguarded to enable the High Courts to reach injustice wherever it is found by issuing to any person

or authority, including in appropriate cases, any Government, throughout the territories in relation to which it exercises jurisdiction, or within which

the case of action arose, directions, orders or writs of the nature specified. But, at the same time, it should not be forgotton that wider, as the

powers are, greater are the responsibilities for those entrusted with such powers and caution should guide and circumspection and sagacity should

streamline its exercise. In my view neither the decisions of Janarthanam, J, nor that of Kanakaraj, J. could be construed to mean that this Court is

precluded from exercising its powers in a given case even if the circumstances warranted such exercise. The observations of D.A. Desai, J. who

spoke for the Bench consisting of himself and R.S. Sarkaria, J. and O. Chinnappa Reddy, J. in the decision reported in State of Bihar and Another

Vs. J.A.C. Saldanha and Others, may be usefully quoted on this vital aspect. The learned Judge pithily summarised the position, thus--

Reverance and anxiety to the same degree, if not more, to shoot at sight even a remote intrusion into the field preserved for judiciary must inform

the judicial approach whenever assistance of the judicial machinery is sought for an unwarranted encroachment into the field of activity reserved for

the other branch of Government, more so, when extraordinary power conferred on the High Court to issue prerogative writ in aid of justice is

invoked to thwart a possible detection of a suspected offence. How dangerous it is to rush in where one should be wary to tread is amply

demonstrated by the facts revealed in these two appeals.

The decisions relied upon for the petitioner are all cases in which the court issued directions for second or further investigation after being not

satisfied with the investigation already conducted and not in total negation or even initial substitution of the normal and statutorily designated

Investigating Authority by an outside agency or authority like CBI. There can be no universal assumption that CBI alone is the independent Agency

and in my view entrusting a matter for investigation even at the threshold would amount to an imposition of an outside authority over and above the

normal authority functioning in the State and unless extraordinary situation is substantiated to exist, there is no warrant or justification for this court

to adopt such a course. The news items published and made available by themselves do not justify any need to adopt the course sought for by the

petitioner. On the facts of the case, I cannot come to the conclusion, even at this stage, and in the absence of any concrete or positive material to

assume that the normal statutory Investigating agency has failed in this case so that it becomes necessary for this Court to intervene at this stage by

directing a special agency to undertake the investigation. The learned Public Prosecutor sought to highlight details regarding the mixed conduct and

character of the deceased and his involvement in several high handed actions, but I consider it unnecessary for the purpose of this case to really

consider any of them.

Consequently, I consider it inappropriate also to direct or grant the other claim regarding the second post mortem made in the form of an

application in W.M.P. No. 6012 of 1992. Respondents 1 and 2, in my view, need not be directed to interfere at this stage of the matter. On the

other hand, it is always expected of the 3rd respondent who is at the helm of affairs in the Police department at the District level to look into the

position and do what is required and take suitable steps to ensure a fair investigation. As a matter of fact, the Apex court, in J.A.C. Saldahna''s

case (supra) has considered the impact of Section 36 and Section 173 (8) of the Code of Criminal Procedure and declared the position of law in

the following terms:

Undoubtedly, such direction will be given to a person competent to investigate the offence and as has been pointed out, the police officer in rank

superior to the Police Officer in charge of the Police Station, to wit the Inspector General, Vigilance, has been directed to carry on further

investigation. An Officer superior in rank to an officer in charge of a Police Station could as well exercise the power of further investigation u/s

173(8) in view of the provision embedded in Section 36 of the code. If that be so, such superior officer could as well undertake further

investigation on his own and it is immaterial and irrelevant that he does it at the instance or on the direction of the State Government. Such a

direction in no way corrodes his power to further investigate on his own.

The post mortem certificate already available and the report of the Sub-Collector who conducted a public enquiry and Inquest alone would,on a

consideration, go to show whether the post mortem already done was not complete or perfect. There is no scope for assuming that the Sub-

Collector who was an I.A.S. Officer who conducted the Inquest as well as the Professional Man who conducted the Post-mortem, would not

have noticed or referred to all injuries or wounds, visible or latent on the body of the deceased. Not only the 3rd respondent is expected, but has a

duty and obligation cast upon him to ensure a fair, proper, perfect and expeditious investigation to bring out the truth, as the authority in charge of

the maintenance of law and order in the District. Except clarifying the above position and emphasising the need, on the part of the 3rd respondent

or still higher authorities in the hierarchy to keep a watch on the situation to ensure a fair and proper deal to all those concerned or felt affected, no

further directions as such are called for or required to be issued in this case. The writ petition, therefore, fails and shall stand rejected. The rejection

of the Writ Petition shall not be construed as any rejection of the other claims made in prayers (b) and (c) in the Memorandum of W.P. but not

argued at this stage or the right of the petitioner or anyone aggrieved to take such steps as are open to them in law, either before this court or any

other court/forum/or authority at the appropriate stage after the filing of this report u/s 173 of the Code of Criminal Procedure. No costs.