IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 1253 of 2011(F) ------------------------- CC.930/2010 of J.M.F.C.,THALASSERY .................... PETITIONER(S): ------------------------- V.P. MOHANAN, S/O. NARAYANAN, V.P. HOUSE, THAZEH CHOVVA, KANNUR-18. BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH. RESPONDENT(S): STATE & ACCUSED: ---------------------------------------------------------- 1. THE DEPARTMENT OF HOME OF THE KERALA GOVERNMENT, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. SUPERINTENDENT OF POLICE, KANNUR - 670 001. 3. DEPUTY SUPERINTENDENT OF POLICE, KANNUR - 670 001. 4. RATHEESH, S/O. SREEDHARAN, SREELAKSHMI NIVS, KANJIROD AMSOM, NEAR SANKARAVILASAM U.P SCHOOL,KANNUR - 670 010. 5. LATHIKA, W/O. SREEDHARAN, SREELAKSHMI NIVAS, KANJIROD AMSOM, NEAR SANKARAVILASAM UP SCHOOL, KANNUR - 670 010. R1 TO R3 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.1253 of 2011 --------------------------------------- Dated this 09th day of February, 2011 JUDGMENT Petitioner's daughter Dileena, married to the 4th respondent (first accused in the case) on 18.06.2009 committed suicide on 22.03.2010. According to the petitioner, witnesses gave statements in the course of investigation that the deceased was subjected to severe mental and physical cruelty by the 4th and 5th respondents (accused Nos.1 and 2) and their relatives who included wife of 4th respondent's brother. The police found that the suicide was caused by dowry demand and mental and physical torture but charge is only under Secs.498A and 420 r/w Sec.34 of the Indian Penal Code (for short, "the Code”). Complaint is that the 3rd respondent, Dy.S.P who investigated the case has incorporated only charge under 498A and 420 r/w Sec.34 of the Code and failed to incorporate Sec.304B of the said Code. It is alleged that the deceased was using a laptop, computer and mobile phone. But the investigating agency even though informed of them, failed to seize the laptop, computer and mobile phone from her matrimonial home and no investigation was conducted in that line. Petitioner therefore, dissatisfied with W.P(C).No.1253 of 2011 -: 2 :- the investigation conducted by the 3rd respondent had filed this petition seeking a direction to hand over investigation to the CBCID of police department for further investigation. Learned counsel in support of his argument placed reliance on the decisions in Rajbir Vs. State of Haryana (2010(4) KLT 751) and Thanu Ram Vs. State of M.P (2010(2) KLD 820). According to the learned counsel on the set of allegations 3rd respondent has made in the final report offence under Sec.304B of the Code is attracted but, not incorporated. It is also the contention of learned counsel that in such a situation presumption under Sec.113A of the Evidence Act (for short, "the Act”) should have been applied. Learned Public Prosecutor submitted that investigation was conducted by the Dy.S.P, Kannur, investigation did not reveal that the deceased was subjected to any harassment with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand and much less there was any material to show that there was any demand for dowry as understood by the Dowry Prevention Act. So offence under Sec.304B of the Code is not made out. W.P(C).No.1253 of 2011 -: 3 :- 2. Learned Public Prosecutor has handed over the file concerning investigation conducted by the Dy.S.P to me for perusal. I have gone through the file and the statement of witnesses of deceased and her relatives. That file contains a signed complaint submitted by the father of deceased (petitioner) and the statement he is said to have given on further questioning by the Dy.S.P. On going through the file, I do not find any complaint from any of the witnesses that there was any unlawful demand on the part of any of the accused or their relatives to meet any unlawful demand much less any demand for dowry. Sec.304B of the Code can apply only when death was within three years of the marriage under suspicious circumstances and soon before death there was a demand for dowry. 3. According to the petitioner, as the Supreme Court has held in every case of charge under Sec.304B of the Code, trial courts are ordinarily to add offence under Sec.302 of the Code also to the said charge. That decision speaks of the responsibility of the trial courts to frame charge on the materials on record and not that whenever there is a death of married woman otherwise than under normal circumstances within seven years of marriage, the police straight away should jump into the conclusion that W.P(C).No.1253 of 2011 -: 4 :- offence under Secs.304B or 302 of the Code is made out. Nor am I impressed by the contention that Sec.113A of the Act would apply in any and every case. That should depend upon facts of the case. Petitioner has a case that the laptop, computer and mobile phone of the deceased were not inspected by the investigating agency. If any further investigation in the matter is required since final report has already been submitted to the court concerned, it is open to the petitioner to approach that court under Sec.173(8) of the Code of Criminal Procedure. I also make it clear that if petitioner files any such application learned Magistrate shall, untrammeled by any of the observation I have made here decide whether further investigation is required in the matter. With the above direction this criminal miscellaneous case is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-