Paul Durai vs Principal Sessions Judge, City Civil Court, Madras and 3 others

Bakthavatsalam, J.—The prayer in the writ petition is as follows:

... to issue a writ of mandamus directing the first Respondent to direct the fourth Respondent for fresh and proper investigation of the case in S.C. No. 298/91 lying before the Principal Sessions Judge, City Civil Court, Madras...

The Petitioner came up before this Court by way of a petition u/s 482 of the Code of Criminal Procedure praying for the very same relief as asked for in this writ petition, and Janarthanam, J. by order dated 11.3.1992 in Crl.O.P. No. 9952 of 1991 dismissed the same. The facts can be culled out from the order of Janarthanam, J. mentioned above, to understand the case.

2-A. One Andiappan alias Pichai Rajavelu is a Scrap Merchant, residing in Madras. He married one Selvi of Thangammalpuram in Chidambaranar district on 28.11.1990. At the time of marriage, it is said, parents of the girl gave double row gold chain, gold necklace weighing six sovereigns, in addition to one pair of ear- stud, nose screw and a 1-1/2 sovereign minor chain as dowry. After the marriage, the spouses were said to be living together at No. 18, Bharathi Street, Tharamani, Madras. It appears that the husband sustained loss in the course of his business as Scrap Merchant and as there was shortage of fluid circumstances in his business, he appeared to have pledged the jewels of his wife against her wish. In course of time, want of cordial atmosphere came to prevail in the matrimonial abode, due to frequent skirmishes and quarrels arising between the spouses, as a consequence of the alleged indiscriminate act of the husband, in pledging the jewels of the wife for the so-called revival of the business, in which serious loss was stated to have occasioned. Despite rumblings between the spouses, she however got conceived, but unfortunately the foetus got aborted quite unexpectedly. The husband, it is said, was alleged to have expressed a desire to perform some rites and ceremonies at the grave yard situate at Velachery Tambaram Main Road for the aborted foetus. Under such pretext, he was stated to have taken his wife from the house to the grave-yard, in a bi-cycle at about 9. p.m. on 1.3.1991. He was stated to have carried with him a bag stated to be containing the requisite materials for the performance of the rites. The wife, it is said, did not perceive any foul-play, till she reached the graveyard. The true form and colour of the husband, it is said, got revealed at the grave- yard. The bag carried by him is said to have actually contained a plastic can filled with Kerosene and an iron rod. Wielding the iron rod, he was said to have beaten his wife, with the intention of causing her death and performed repeatedly such a feat by mounting brutal violence on her and she is said to have instantaneously died. Thereafter, he was stated to have removed her ear-stud, nose-screw, thali chain and silver anklet. It is further said that he laid the body into the heap of debris and burnt it by pouring Kerosene from the plastic can carried in a bag from his house, thereby attempted to cause disappearance of evidence in orders to screen himself from legal consequences to be following from such action. On the information furnished by one P. Linga Nadar son of one Periasami Nadar of Vijayanagaram, Madras -42 at 10.45 hours on 14.3.1991, the station house Officer, J-7 Velachery Police Station, registered a case in Crime No. 168 of 1991 for alleged offence under Ss.302 and 201 of the Indian Penal Code and further investigation had been taken up. On completion of the investigation, a final report u/s 173(2) of the Code had been laid on 21/23.8.1991, for the alleged offences under Ss. 302 and 201 of the Indian Penal Code against the husband, namely, Andiappan alias Pichai Rajavelu, as an accused, which was taken on file as C.C. No. 5260 of 1991 on the file of the IX Metorpolitan Magistrate Saidapet, Madras on 23.8.1991. On compliance with the required procedural formalities, the case had been committed to Court of Session, Madras and the same had been taken on file as S.C. No. 298 of 1991 and the same is ripe for trial. At that stage, the Petitioner filed the criminal original petition and it has been dismissed by Janarthanam, J. as stated above, on 11.3.1992. After the dismissal of the Criminal Original Petition, mentioned above, this Writ Petition has been filed by the Petitioner with the prayer stated above.

The Petitioner alleges in the affidavit that the death of his sister was not intimated to any of his relatives and that when accidently the Petitioner and his mother came over to Madras on 10.3.1991 for some other purpose, it was found that his sister was missing. It is also alleged in the affidavit that even before the Petitioner laid a police complaint the accused had given an extra-judicial confession to one Linga Nadar who in turn gave the complaint as stated in the facts stated supra. It is also alleged in the affidavit that when the Petitioner attempted to give a complaint against the accused, the third Respondent herein refused to take up his complaint into file stating that already a complaint has been given by one Linga Nadar for the same cause. It is also alleged in the affidavit that the Petitioner pleaded to the third Respondent that though his complaint was refused to be taken by the Respondents, his sister''s death could be considered as a dowry death. It is also alleged in the affidavit that at the F.I.R. stage itself valid evidence and circumstance warranted to show that the Petitioner''s sister''s death would attract the provisions of Section 304-B, I.P.C. and 34, I.P.C. and that the third Respondent failed deliberately to proceed against the accused under that Sections. It is also alleged that the third Respondent resorted to take up the matter only as an ordinary death. The case of the Petitioner, as alleged in the affidavit, is that the third Respondent failed to intimate about the death of the sister of the Petitioner to the Executive Magistrate and thus violated to follow the mandatory provisions u/s 174(1) Code of Criminal Procedure It is also alleged in the affidavit that an enquiry which would be reconducted in such cases of dowry death could not be conducted in this case. The Petitioner narrates in paragraphs 16, 17, 18 and 19 of the affidavit as to how the third Respondent failed to follow the procedures in such cases and as such it is stated that because of the failure on the part of the third Respondent in the investigation conducted by the third Respondent, the Petitioner was before this Court by way of filing a Criminal Original Petition which was dismissed as stated earlier. In such circumstances, the Petitioner is before this Court with the prayer stated supra.

A Counter affidavit has been filed by the third Respondent, who is the Inspector of Police Station J-7, claiming that a complaint was lodged by one Linga Nadar on 14.3.1991 since the accused gave an extra-judicial confession to the said Linga Nadar. The allegation made in the affidavit that the Petitioner made attempts to file a complaint is denied. It is stated that the complaint given by the said Linga Nadar was registered under Ss. 302 and 201, I.P.C. by the then Inspector of Police who took up the investigation. It is specifically denied in the counter affidavit that the Petitioner did not give any complaint. It is also claimed that it is true that the Petitioner was examined by the then Inspector of Police, Velachery u/s 161(3) Code of Criminal Procedure on 20.3.1991, that the statement of demand of dowry and supporting evidence of letters were received by the investigating officer that the same were sent for hand writing expert, Madras to find out the actual author of the handwriting, that the experts report was also received. It is also stated in the counter- affidavit that the letter purported to have been written by the deceased to the Petitioner in support of demand of dowry was received by the Petitioner, that as per the complaint the accused has murdered the deceased on the other motive that it had been revealed in investigation, that in the absence of such clinching evidence to prove the act of dowry harassment leading to death of the deceased, it is difficult to prove the common intention of the accused''s father with accused in this regard and that in such circumstances after finishing the investigation and entire materials were placed before the City Public Prosecutor and after obtaining the legal opinion with proper draft final report under Ss. 302 and 201, I.P.C. the final report was filed in this case. It is also claimed in the counter affidavit that the F.I.R. did not disclose anything as to the fact of dowry harassment that in the absence of dowry harassment the offence u/s 304-B did not attract. It is also claimed in the counter affidavit that the fact of demand of dowry was brought to the notice of the investigating officer only on 20.3.1991 while recording statement u/s 161(3), Code of Criminal Procedure from the Petitioner, that the letter dated 10.12.1990 was produced said to have been written by the deceased, that as per experts opinion it was not written by the deceased. The allegation made in para 14 of the affidavit is denied. It is also stated that there is no intention and need for the Inspector of Police to do any deliberate act in the investigation against the accused under ordinary statute instead of special provision provided under the Indian Penal Code, and that after collecting the materials and the opinion of the Public Prosecutor, final report has been filed stating that the accused is liable to be punished under Ss. 302 and 201, I.P.C. It is further claimed in the counter affidavit that there was a pre- planned murder and an act of concealing the evidence of commission of such murder and not any dowry harassment and as such Ss. 302 and 201, I.P.C. had been incorporated in the F.I.R. that if complaint of Linga Nadar raised any reasonable suspicion in respect of commission of offence of dowry death then alone the necessity for making intimation to nearest Executive Magistrate will arise and that the proceedings u/s 174 Code of Criminal Procedure will come into existence. It is further claimed in the counter affidavit that the investigation officer had taken reasonable steps in the investigation, that he sent all the materials seized in the case to Forensic Laboratory and that he obtained the opinion of the experts with regard to the letters. It is specifically stated in the counter that the occurrence took place on 1.3.1991, that it had been reported on 14.3.1991 at about 10.45 hours, that the place of occurrence is a public place and as such the possibility of obtaining any foot, finger and boot prints was meagre. It is also claimed that the offence under Ss. 403 and 405, I.P.C. is meagre comparing with the charge under Ss. 302 and 201, I.P.C. It is also stated that even if it warranted it may be framed by the trial court or the additional final report can be filed before the Court to that effect if the charge is available in this case. It is also stated that the Petitioner has exaggerated the facts. It is categorically stated that the investigation of the Inspector is made impartially and that he collected more reliable and available evidence and on that basis only proper final report had been filed in the Court.

Learned Counsel for the Petitioner contended that there is a failure on the part of the third Respondent to register the case under a special enactment. It is stated that the Indian Penal Code has been amended to cope with the deaths of newly married wives who within a short span of time died in suspicious circumstances for not meeting demands of dowry by husband or in- laws. Section 304-B has been inserted in the Indian Penal Code, by Criminal Law (Second Amendment Act 1983). It is also argued by the learned Counsel for the Petitioner that the F.I.R. is sufficient to show that this is a fit case of dowry death, attracting offence u/s 304 B, I.P.C. It is stated that when the deceased was married to accused on 10.11.1990 and has died on 1.3.1991 within four months of the marriage and as such it should have been taken as a dowry death. It is also argued that on facts it is seen that the third Respondent proceeded with the provisions under Ss. 302 and 201, I.P.C. and that the explanation given by the Respondent that offence u/s 304-B is not attracted is not correct. It is also argued by the learned Counsel for the Petitioner that the third Respondent could have corrected the F.I.R. at the time of filing report u/s 173, Code of Criminal Procedure that the third Respondent deliberately failed to file the final report inspite of receiving the valuable evidence and complaint from the Petitioner to substantiate that it was a fit case of dowry death, and that it amounts to defective investigation by the third Respondent. It is also argued that the explanation given by the third Respondent with regard to letter dated 10.12.1990 is not correct because in that letter the deceased herself stated that she did not know to read or write and that she is writing that letter through another person. It is also argued that the third Respondent should not have taken the literal sense of that letter. The other contention raised by the learned Counsel for the Petitioner is with regard to failure to forward the case to the Executive Magistrate u/s 174, Code of Criminal Procedure It is argued by the learned Counsel for the Petitioner that in the instant case that the first information report given by Linga Nadar is only on the basis of extra-judicial confession given by the accused and as such the third Respondent cannot complain that on the evidence that the offence will not come as a dowry death. Learned Counsel further contends that the case has to be registered under special enactment, i.e., under the Dowry Prohibition Act wherein the burden of proof is cast upon the accused to show that he was not responsible for the death of the deceased, and that it is the very important matter to be considered. It is also stated by the learned Counsel for the Petitioner that the third Respondent also failed to establish the time of death, which is a very important fact to be considered. Learned Counsel further states that the investigation officer has failed to collect foot, finger and boot prints from the scene of occurrence. In fact the learned Counsel points out that the third Respondent has failed to investigate the case properly. Learned Counsel relies upon the decisions in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, , in support of the contentions raised in this petition.

Mr. V. Raghupathy, the learned Additional Government Pleader relies upon the counter affidavit and contends that proper investigation has been done in this case by investigation officer under the provisions of Code of Criminal Procedure and that this is not a fit case to give directions as prayed for by the Petitioner.

I have considered the arguments of the learned Counsel on both sides. The simple point that arises for consideration in this case whether a W Rit of Mandamus should issue to direct the first Respondent to direct the fourth Respondent for fresh and proper investigation of the case in S.C. No. 298 of 1991 on the file of Principal Sessions Judge, City Civil Court, Madras.

There cannot be any dispute that the matter is pending before the Principal Sessions Court, Madras, framing charges under Ss. 302 and 201 I.P.C. The Supreme Court in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, while considering Section 227, Code of Criminal Procedure with regard to the powers of the Sessions Court to discharge an accused observed as follows: (at page 723)

We wish to add a word regarding interference by the High Court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self- restraint on the part of the High Court should be the rule unless there is a glaring injustice which stress the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.

In all the decisions cited by the learned Counsel for the Petitioner it is seen that the said issue was raised before the respective Sessions Courts and the Courts were concerned with the decisions given by the Sessions Courts, with regard to the framing of charge or failure to frame charge. The scope of Ss.154 to 157 Code of Criminal Procedure with regard to investigation in a cognizable offence, has been succinctly put by the Supreme Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, in which the Supreme Court has held at p.620 as follows:

The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance has to consider the nature and extent of the breach and pass appropriate orders as maybe called for without leaving the citizens to the mercy police echelons since human dignity is a clear value of our constitution. Needs no emphasis that no one can demand absolute immunity even if he is wrong and claim unquestionable right and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of ''Divine Power'' which no authority on earth can enjoy...

In so far as the facts of this case are concerned, it is seen that investigation has been done one Linga Nadar on the basis of extra- judicial confession of the accused, after the date of occurrence. In such circumstances, considering the facts of this case, I am fully satisfied that the investigation has been done properly and that the contention of the learned Counsel for the Petitioner that the 3rd Respondent has failed to register the case under ''dowry death'' cannot be accepted. May be the burden of proof is put on the accused u/s 8(b) of Dowry Prohibition Act, but that does not mean that every case of murder has to be treated as a case of dowry death''. I do not see any infirmity in the investigation made by the 3rd Respondent in this case.

That apart, it is always open to the learned Sessions Judge, if he finds during the course of trial that another charge has to be framed, there is time enough for him do so under the provisions of Criminal Procedure Code. In my view, there are no grounds to interfere with the trial of the said Sessions Case and that no directions can be given to the first Respondent as asked for in this writ petition, especially when the first Respondent is exercising a judicial function. If the learned Sessions Judge is satisfied, on the facts and circumstances of this case, it is for him to exercise the power under the provisions of the Code of Criminal Procedure and I do not think that a mandamus can issue for such purpose. There are no merits in this writ petition and accordingly it is dismissed. No costs.