IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.09.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.6804 of 2009 M.R.Babu ..Petitioner Vs. State by Inspector of Police, Manavala Nagar Police Station Tiruvallur District ..Respondent (Cr.No.418/07) Criminal Original Petition filed under Section 482 of Criminal Procedure Code to transfer the investigation in Cr.No.418/2007 from the file of the respondent police to the Inspector of Police, CBCID, Tiruvallur for investigation. For Petitioner : Mr.Munirathnam Naidu For Respondent : Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl.Side) O R D E R This petition has been filed under Section 482 Cr.P.C for a direction to transfer the investigation of the case registered in Cr.No.418 of 2007 on the file of Manavala Nagar Police Station, Tiruvallur District to the file of the Inspector of Police, CBCID, Tiruvallur. 2. The above said case was initially registered for alleged offences punishable under Section 279 and 337 IPC based on the information furnished by one Kumar, an auto-rickshaw driver to the effect that the deceased was found lying with injuries on the road side along with his motorcycle bearing Regn.No.TN-04 V-6672; that he suspected that some unidentified vehicle could have hit him and caused the injuries or that the deceased himself could have dashed his motorcycle against another motor vehicle and that he was able to find out the name and particulars of the deceased from the address found in his money purse when the deceased was admitted in the Government hospital, Tiruvallur for treatment. The said case was registered at 10.00 p.m on 14.11.2007. The occurrence is said to have taken place at about 8.00 p.m on the same date. The deceased https://hcservices.ecourts.gov.in/hcservices/ B.Dinesh Kumar, after having referred to and admitted in the Government General Hospital, Chennai for better management, succumbed to the injuries at 1.30 hours (a.m) on 15.11.2007 without regaining consciousness. On receipt of the intimation regarding his death, the case was altered into one for an offence punishable under Section 304-A IPC and an alteration report prepared for that purpose was sent to the jurisdictional Magistrate on 15.11.2007 itself. 3. After the alteration of the case into one for an offence punishable under Section 304-A IPC, the Inspector of Police, Manavala Nagar Police Station conducted inquest and sent a requisition to the police surgeon for autopsy. Accordingly, autopsy was also conducted and the medical officer, who conducted autopsy, opined that the deceased appeared to have died of multiple injuries found on the dead body of the deceased. There was no opinion expressed by the medical officer, as to how and in what manner the injuries leading to the death of the deceased could have been caused. Under such circumstances, the petitioner seems to have submitted a representation in writing to the respondent police, marking a copy of the same to the following persons:- 1) the Hon'ble Chief Minister's special cell, 2) the Hon'ble Home Minister, Government of Tamil Nadu, 3) the District Collector, Tiruvallur District, 4) the Superintendent of Police, Tiruvallur, 5) the Deputy Superintendent of Police, Tiruvallur and 6) the Commissioner of Police, Chennai city. In the said representation, the petitioner had informed the respondent police that the deceased had a love affair with one Yamuna and in pursuance of the said love affair, they got married on 07.06.2006; that the said marriage was also registered; that the parents of the said Yamuna cunningly took her to their place after making a false promise that they would arrange for a marriage reception and clandestinely gave her again in marriage to one Veeraraghavan, son of Loganathan of Korattur; that after the said marriage, the said Veeraraghavan, who came to know the previous episode, started treating the said Yamuna with cruelty; that the said Yamuna wrote letters to the deceased informing him of the tortures she had to face in the hands of Veeraraghavan and her occasional impulse to commit suicide; that the said Veeraraghavan had also chosen to give complaint to the police to the effect that he was being threatened by the deceased and Yamuna and that there was every reason to strongly suspect that the death of Dinesh Kumar, son of the petitioner herein could be a planned murder and the same was reported to the police, as if it was a road accident through a person loyal to the said Veeraraghavan. It was also stated therein that the deceased had taken along with him a sum of Rs.60,000/- to make payment to the Teacher Training Institute towards fees; that the said amount and the SIM cards used in two mobile phones of the deceased were found missing and that the same would strengthen, rather probablise the suspicion of the petitioner that the deceased was done away with either by Veeraraghavan or the parents of Yamuna. https://hcservices.ecourts.gov.in/hcservices/ 4. It is the further contention of the petitioner that even after furnishing of such information to the police in the form of the representation, there was utter failure on the part of the investigating officer to make even an attempt to verify whether the same could be true; that the investigating officer, namely the respondent herein, even after the receipt of representation, simply proceeded with the investigation on the assumption that the death of the deceased was an accident and that the failure on the part of the present investigating officer/respondent will give room for a suspicion that the investigating officer is biased and that is why he is trying to project the case as if it was an accident, whereas even according to the complaint there was no clear-cut assertion that it was an accident. Having registered the case suspecting the same to be an accident, according to the contention of the petitioner, the police should not have omitted to conduct investigation based on the reasonable suspicion expressed by the petitioner herein which was also supported by the documents produced along with the representation. 5. The respondent herein has filed a counter affidavit simply re-stating what has been incorporated in the petition and narrating the way in which the case was registered and altered after receiving the death intimation from the Government General Hospital, Chennai. He has also stated in the counter affidavit that before the death of the deceased Dinesh Kumar, four persons were examined on 14.11.2007 itself and after the death of the deceased three more persons were examined on 15.11.2007. The respondent even before the submission of a final report has taken a stand in the counter affidavit that the death was not a murder as contended by the petitioner and that the rough sketch prepared by the police at the place of occurrence, the examination of the motor-cycle of the deceased and the medical report would be enough to conclusively arrive at a conclusion that the death of the deceased was not a murder and it was only an accident. It was also contended in the said counter affidavit that on 15.11.2007 when the petitioner was examined, neither the petitioner nor the friends of the deceased gave any statement to the effect that the death of the deceased Dinesh Kumar could be a murder. Based on the above said contentions, the respondent submitted that the investigation of the case was so far conducted in a fair and unbiased manner and that therefore, the plea for change of investigating officer should be rejected as untenable. 6. The point that arises for consideration in this petition is "whether there is failure on the part of the respondent to conduct investigation in a fair and unbiased manner? and "whether the investigation of the case is to be entrusted to the CBCID on the ground of failure on the part of the respondent to conduct the investigation in a fair and unbiased manner or on any other account?" https://hcservices.ecourts.gov.in/hcservices/ 7. The submissions made by Mr.Munirathnam Naidu, learned counsel for the petitioner and by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the respondent were heard. The materials placed by the petitioner in the form of a typed set of papers and the documents available in the case diary file produced by the respondent for reference in this petition were also perused. 8. The petitioner herein is the father of the deceased Dinesh Kumar. According to the first information report, the said Dinesh Kumar, with injuries all over the body, was taken to the Government hospital, Tiruvallur at about 8.40 p.m on 14.11.2007 in an unconscious stage. The hospital authorities were informed by the person who brought the deceased for treatment that the deceased had become unconscious after having been hit by an unidentified motor vehicle at about 8.30 p.m on the said date at Vengathur Koot Road. After preparing the Accident Register and first aid treatment, the petitioner was referred to the Government General Hospital, Chennai for better management. The same is obvious from the duplicate of accident register found in the CD file bearing sl.No.2736830. However, the case was registered by the police at 10.00 p.m on 14.11.2007 based on the alleged complaint given by one Kumar in writing. The said Kumar is said to be an auto-rickshaw driver in whose auto-rickshaw, the deceased was taken to Government hospital, Tiruvallur for treatment. Why the police did wait till the said Kumar (informant) went to the police station to give a representation in writing? — there is no explanation forthcoming. It is not a case of the respondent that the said Kumar himself took the deceased to the hospital without informing the police and hence after admitting him in the hospital, he had to go over to the police station to give complaint. On the other hand, it has been stated in the complaint that on seeing the deceased lying on the road side with bleeding injuries, he gave information to the police over phone and that after the police came to the place of occurrence, along with the police, he took the deceased to the Government hospital, Tiruvallur in his auto- rickshaw and admitted him there. Therefore, it is quite obvious that even before the deceased was transported to the hospital, the police were informed of the occurrence and only on the arrival of the police to the spot, the deceased was taken to the hospital. The accident register itself shows that the deceased had been brought to the hospital by one Selvam, Head Constable No.326 of Manavalanagar police station. If it is true that the said Kumar was the person who informed the police, the said Head Constable himself should have recorded his statement. Why the said Kumar was asked to go over to the police station and lodge a complaint while the head constable of the very same police station was very much available in the scene of occurrence, where from the deceased was taken to the hospital and also in the hospital when the deceased was admitted? — has not been explained. Therefore, the suspicion expressed by the petitioner that the said first informant Kumar could have been a person arranged by https://hcservices.ecourts.gov.in/hcservices/ the culprits to project the case as if an accident cannot be brushed aside as unreasonable. 9. It is not the case of the respondent that in the complaint (first information in writing) lodged by the said Kumar there was a clear assertion that it was a road accident. On the other hand, the informant himself had expressed his suspicion that the deceased could have been hit by an unidentified motor vehicle, meaning that it could be a hit and run case. It is curious to note that he did not stop with that and proceeded further to add that the deceased himself would have caused the accident by hitting his motorcycle with any other vehicle. The very way in which the said opinion was incorporated in the complaint, according to the submissions made by the learned counsel for the petitioner, will create suspicion that the said Kumar could have been introduced in order to screen the real offenders and to convert a case of culpable homicide into an accidental death. There is substance in the above said contention of the learned counsel for the petitioner and hence the said contention cannot be rejected as untenable. 10. As pointed out supra, one M.Selvam, Head Constable No.326 attached to Manavalanagar police station was the person who had taken the deceased to the Government hospital, Tiruvalur and got him admitted for treatment. In fact, the first information report was prepared and the case was registered by the said Head Constable M.Selvam. Therefore, it is quite obvious that the said Head Constable did not accompany the deceased when he was transported from Government hospital, Tiruvallur to the Government General Hospital, Chennai. In the printed first information report, the name and designation of the investigating officer has not been noted. The signature of the person furnishing the information is also not found in the first information report. Therefore, there is substance in the contention of the learned counsel for the petitioner that due to some kind of pressure, the police could have set up the said Kumar to lend his name and registered the case as a road accident case. It is also curious to note that the above said Head Constable Selvam himself has prepared the rough sketch in which he has chosen to sign in Tamil, whereas his signature in the first information report is found in English. In the note appended to the complaint for the registration of the case, the said Head Constable has signed in Tamil. The observation mahazar was also prepared by the said Head Constable. 11. All the witnesses allegedly examined on 14.11.2007 were examined by the said Head Constable himself. The statement of Kumar is nothing but the verbatim repetition of the facts found in the first information report. Statement of another auto-rickshaw driver by name Durai Murugan was also recorded by the said Head Constable to the effect that, it was he, who found the deceased lying with injuries and that it was he, who took the deceased to the Government https://hcservices.ecourts.gov.in/hcservices/ hospital, Tiruvallur in the auto-rickshaw of Kumar. In other respects, the same reflects the statement of Kumar including the opinion expressed by him. The statements of other persons by names Siva and Sathyanathan are said to have been recorded by the said Head Constable on 14.11.2007 itself. The same was recorded as if on receipt of information they went to the government hospital, Tiruvallur to see the deceased Dinesh Kumar and that after Dinesh Kumar was sent to the Government General Hospital, Chennai, they went to the place of occurrence whereupon they were examined by the head constable, who had gone there to conduct investigation. It is curious to note that the statements of the said persons were recorded, as if they were also of the opinion that an unidentified vehicle could have hit the deceased or that the deceased himself could have hit another vehicle. 12. It should also be noticed that the alleged statement of the petitioner herein found in the CD file had been dated 14.11.2007. But, subsequently, the date was scored out and 15.04.2007 has been written. The very same defect is found in the statement of yet another person by name Janardhanam. It is the contention of the petitioner that when he arrived at the Government General hospital, Chennai after receiving the information regarding his death, he came to know that the dead body, after postmortem had been handed over to another person belonging to the village of the petitioner. Who received the dead body of the deceased is not found in the documents available in the CD file? None of the witnesses examined either by the above said Head Constable or by the respondent herein (the second investigating officer after the case was altered into one for offences punishable under Sections 279 and 304-A) has asserted that the death of the deceased was an accidental one. All of them simply expressed opinion that the death could be accidental. Therefore, it is quite obvious that the case itself was registered based on suspicion and assumption that the deceased could have sustained injuries in a road accident. When such is the nature of information furnished to the police and the nature of statements given by the witnesses examined by the investigating officer, the investigating officer should have investigated the matter in the other angle also, namely based on the suspicion expressed by the petitioner that his son could have been murdered and the informant could have been set up by the murderers to show the death of the deceased to be accidental. 13. The respondent (investigating officer) was not in a position to find out the other vehicle which was involved in the accident if at all such an accident could have occurred. There is no eye witness for the accident. No one has come forward to give statement to the effect that the deceased, who was travelling in the motorcycle met with an accident because of any collusion with any other identified or unidentified vehicle. When such is the case, the investigating officer should have opted for approaching the problem in the other angle suggested by the petitioner also. The suspicion expressed by https://hcservices.ecourts.gov.in/hcservices/ the petitioner is not a mere suspicion, which can be dismissed outright as an illusion. Strong reasons have been assigned for entertaining such suspicion. In fact there are materials to show that the deceased had married one Yamuna on 07.06.2006 in Tiruvallur at Sri Veeraraghava Sami Temple and that the same was also registered on the very same day in the office of the Sub-Registrar, Tiruvallur. The petitioner has enclosed a copy of the receipt for payment of fees to Sri Veeraraghava Samy Devasthanam for the solemnization of the marriage. The same is dated 07.06.2006. The deceased Dinesh Kumar and Yamuna were shown to be the bridegroom and bride respectively. A copy of the marriage certificate has also been produced in the typed set of papers. In addition to that copies of the letters allegedly written by the said Yamuna to the Sub-Inspector of police, All Women Police Station and to the deceased Dinesh Kumar were also produced in the typed set of papers. The said letters support the contention of the petitioner that she was married to the deceased without the consent of her parents and later on the parents of the said Yamuna clandestinely gave her in marriage to one Veeraraghavan and that the said Veeraraghaan, after coming to know the affairs of Yamuna with the deceased, started ill treating the said Yamuna regarding which alone she had written letters to the deceased. 14. It should also be noted that the said Veeraraghavan had given complaint to the police as if he was being threatened by the deceased as well as the said Yamuna as he reprimanded Yamuna for continuing to have contact with the deceased. Newspaper cuttings showing the news report in this regard have also been produced. The said news items appeared on March 14, 2007. It is also seen from the copies of the acknowledgment cards included in the typed set of papers that the representation informing the respondent about the said developments as the basis for the petitioner's suspicion that his son could have been murdered, were sent to the respondent as well as the higher officials of the police department including the Deputy Superintendent of Police and Superintendent of Police concerned. Even after such a representation was made, that too when the investigation was not completed, the respondent (present investigating officer) has not chosen to investigate the matter in that direction also, at least for the purpose of ruling out such a suspicion. None of the persons mentioned in the representation, namely Yamuna, her parents, her second husband Veeraraghavan, one Lakshmiammal referred to in the letter of Yamuna or any other person connected therewith, has been either arrested or examined at least as a witness by the investigating officer. The flat refusal on the part of the respondent to consider the representation and to investigate the matter in the other direction at least to rule out the theory suggested by the petitioner will make it clear that the respondent is not proceeding with the investigation impartially and in an unbiased manner. The very fact that the respondent has chosen to simply rule out the suspicion expressed by the petitioner without even making an attempt to investigate the case in that line also will probablise the https://hcservices.ecourts.gov.in/hcservices/ case of the petitioner that there is bias on the part of the respondent in so far as he has not chosen to verify the correctness of the particulars furnished by the petitioner and that he has failed to conduct investigation with an open mind without having any pre- conceived notion. It is not enough that justice is rendered, but it must be manifestly seem to be rendered. 15. In this case, as pointed out supra, there are sufficient circumstances to hold that the investigation of this case has not been done in a proper and unbiased manner and that if the investigation is allowed to remain in the hands of the respondent, it will result in miscarriage of justice. When such is the case, this court will be justified in transferring the investigation to some other agency. This court, is of the considered view that it is a fit case in which the inherent powers of this court under Section 482 Cr.P.C could be exercised in favour of the petitioner and that the investigation of the case in Cr.No.418/2007 registered on the file of Manavalanagar Police Station is directed to be transferred forthwith to the file of the Inspector of Police, CBCID, Tiruvallur, who in turn, shall conduct investigation in a fair and impartial manner. 16. In the result, this petition is allowed and the case in Cr.No.418/2007 pending on the file of Manavalanagar Police Station, Tiruvallur District is directed to be transferred forthwith to the file of the Superintendent of Police, CBCID, Tiruvallur, who in turn shall depute a competent officer not below the rank of an Inspector of Police, CBCID, who shall along with his team conduct investigation in the case in a fair and impartial manner following the procedure established by law and submit a final report within a period of three months from the date of receipt of copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar asr To 1. The Inspector of Police, Manavala Nagar Police Station Tiruvallur District 2. The Inspector of Police CBCID Tiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 3. The Public Prosecutor High Court Madras 600 104 4. The Superintendent of Police, CBCID, Thiruvallur. Crl.O.P.No.6804/2009 SGL (CO) GSK 30.09.2009. https://hcservices.ecourts.gov.in/hcservices/