P. Pugalenthi vs The Secretary to Government, Public (L and O) Department, The Collector and The Revenue Divisional Officer

R. Banumathi, J.—In this public interest litigation, petitioner who is the Director of Prisoners Rights Forum, Chennai seeks a writ of

mandamus directing the third respondent to file his report u/s 176 of the Criminal Procedure Code in connection with the custodial death of one

Rajan @ Shanmugasundaram of West Saidapet, Chennai on 25.08.2009 at Adyar Police Station.

Earlier, petitioner herein has filed writ petition in W.P. No. 18045 of 2009 seeking for a direction to register a case u/s 302 IPC against all the

police personnel involved in the custodial death of the said R. Rajan @ Shanmugasundaram. The said writ petition was dismissed as premature,

giving liberty to the petitioner to vindicate the grievance as and when it become necessary.

Now the grievance of the petitioner is that as required under the provisions of the Criminal Procedure Code, the 3rd respondent who has

conducted the enquiry has not filed the report within the stipulated time of 20 days from the date of death in police custody.

We have heard Mr. M. Radhakrishnan, learned Counsel for petitioner and Mr. J Raja Kalifulla, learned Government Pleader for respondents.

The learned Counsel for the petitioner submitted that as per the circular issued, the Enquiry Officer should complete the enquiry expeditiously

and should submit the report to the District Collector concerned within 20 days from the date of incident and that the enquiry report should be a

full fledged one.

The learned Government Pleader, Mr. J Raja Kalifulla submitted that the time limit allowed for conducting the statutory enquiry is only directory

and not mandatory. The third respondent is a Revenue Divisional Officer / Sub-Divisional Magistrate, who has conducted the enquiry along with

his other routine official duty as Revenue Divisional Officer. In the counter affidavit filed by the third respondent, it is stated that the third

respondent has enquired 28 witnesses and that within a short span of one week, there were two alleged custodial death enquiries and that he has

to conduct both the enquiries. The third respondent has also stated that he has taken the enquiry of alleged custodial death which occurred on

18.8.2009 on a priority basis and completed the enquiry. It is further averred that he started the enquiry of the alleged death of Rajan @

Shanmugasundaram and enquiry is under progress. In the counter affidavit filed by the third respondent on 11.11.2009, it is averred that ""summons

have been served on 26 witnesses and enquiry has also been conducted"" and Notice for public hearing on 13.11.2009 has also been published in

local dailies. In the counter affidavit, third respondent has further averred that there are 26 more witnesses to be enquired, which has caused the

delay in enquiring into the alleged death of Rajan @ Shanmugasundaram. In the counter affidavit filed on 17.12.2009, it is stated that the ""report

would be submitted to the Government through the District Collector within a time span of two weeks from the date of submission of this affidavit"".

The learned Counsel for petitioner submitted that whenever custodial death is alleged, Court has to take a serious note of it and a continuous

mandamus has to be issued so that the Court can monitor the further progress and also could go into the contents of the report. In the instant case,

the report of RDO is yet to be filed. Whether the death of Rajan @ Shanmugasundaram is due to custodial torture, is the question to be examined

only after third respondent submits his report to the Government and therefore, we are of the view that at this stage, no continuous mandamus need

be issued.

The learned Counsel for the petitioner nextly contended that the report has to be filed before the Court so that the Court could monitor the

further progress. As per the Police Standing Order 151(5) (a)& (b), Officer who conducts the enquiry has to submit a report to the Government

through the Collector. PSO 151(5) (a)(b) reads as under:

(5)(a)When the affected party files no such complaint in the Court of a Judicial Magistrate, the officer holding the Magisterial enquiry should

complete his investigation and arrive at specific findings as required under paragraph (3)(a) and submit a report to the Government through the

Collector, if he is subordinate to the Collector, otherwise direct to the Government, who will pass final orders in the further course of action to be

taken.

(b) Whenever an Officer who conducts an enquiry under the above order, finds that the Police official concerned has been guilty of some other

offence not coming under this order, he should forward the report of enquiry to the Government through the Collector, if he is subordinate to the

Collector, otherwise direct to the Government, who will transfer the record of enquiry to the Director - General of Police for further action.

Police Standing Order contemplates only filing of the report before the Government and we are not inclined to issue direction to the respondents to

file the report before the Court.

Recording the submissions of learned Govt. Pleader and the averments in the additional counter affidavit filed by the third respondent that the

report would be submitted to the Government through the District Collector within the time span of two weeks, this writ petition is disposed of. It

is open to the petitioner to approach the Government for obtaining the copy of the RDO report. No costs.