IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.10.2010 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.O.P.No.13862 of 2007 and M.P.No.1 of 2007 A.Ezhumalai .. Petitioner Vs. 1.State of Tamil Nadu rep. by its Home Secretary Fort St. George Chennai – 600 009 2.The District Collector Villupuram & District 3.The District Superintendent of Police Villupuram & District 4.The Deputy Superintendent of Police Tindivanam Sub-Division Villupuram District 5.The Station House Officer Brammadesam Police Station Villupuram District 6.The Joint Director Central Bureau of Investigation Haddows Road Nungambakkam, Chennai – 600 034 .. Respondents PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. to direct the 6th respondent to take over the investigation of the case in Crime No.159 of 2007 on the file of the 5th respondent police station, investigate and proceed with the same as per law within a time frame fixed by the Hon'ble Court. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.S.Sathia Chandran For Respondents : Mr.I.Paul Nobel Devakumar Govt. Advocate (Crl.Side) for R1 to R5 Mr.N.Chandrasekaran, Spl. PP for CBI Cases for R6 O R D E R The de-facto complainant in a case registered as Crime No.159/2007 for alleged offences punishable under Sections 147, 364, 302 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the file of Brammadesam Police Station, Villupuram District is the petitioner herein. The present petition has been filed under Section 482 Cr.P.C. seeking transfer of investigation of the said case to Central Bureau of Investigation and a direction to the Joint Director, Central Bureau of Investigation, Nungambakkam, Chennai shown as the 6th respondent to take over the investigation of the said case from the Station House Officer of Brammadesam Police Station, Villpuram District. 2. The averments of the petitioner, in brief, are as follows:- a) The petitioner herein/de-facto complainant belongs to Scheduled Caste. He had got a daughter by name Sujatha and a son by name Raja. Raja studied upto 9th Standard and of late he was employed at Velachery in Chennai. He developed a love affair with one Sudha, daughter of Govindasamy Gounder of Kalur village, who belongs to a Most Backward Community. Pursuant to the said love affair, the said Sudha eloped with Raja on 04.04.2007. Thereafter, the father of Sudha and his men went to the residence of the petitioner/de-facto complainant and asked Sujatha, the daughter of the petitioner regarding the whereabouts of Raja for which her reply was that he had gone to work. They caused intimidation by stating that they would murder Raja if he would not return on the said night itself. Thereafter, Govindasamy Gounder along with his relatives including one Devaraj, the President of Manur Panchayat, went to the house of Velayudham, the sister's son of the petitioner in a Tata Sumo car and an Ambassador car. They forcibly pushed Velayudham into the Tata Sumo car and proceeded towards Chennai in search of Raja and Sudha. They made a search at the residence of Renu Selvi, sister of Velayudham where they could not find either Raja or Sudha. They made enquiries at various places in Chennai and at last they were able to find Raja and Sudha taking lunch in the house of Sakthivelu in Thiruverkadu at about 12.00 noon on 05.04.2007. The mob caught hold of Sudha and forcibly took her in the said car from the said place. Raja was found running behind the vehicle in which Sudha was taken. Some of the relatives of https://hcservices.ecourts.gov.in/hcservices/ Sudha came there in seven motorcycles and enquired with the inmates of the said car about the whereabouts of Raja. One of the inmates of the car by name Arivoli informed them that Raja was running after the vehicle and ordered them to kill Raja. Thereafter those persons who came by the motorcycles and the Ambassador car took Raja in the said Ambassador car. The mob dropped Sudha at the house of Arivoli in Tindivanam and Velayudham at Manur-Marakkanam road. b) When Velayudham came back to his house, his wife enquired as to whether Raja and Sudha were found out. At that point of time, the petitioner, his wife and his daughter also went to the residence of Valayudham whereupon Velayudham narrated what happened. After sometime they were informed that Raja was found hanging from a tree near Aiyanar koil. After seeing the dead body of Raja at the said place, the petitioner preferred a complaint on the file of Brammadesam Police station, which was registered as Crime No.159/2007 for offences under Sections 147, 364, 302 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Govindasamy Gounder, Arivoli, Vijayakumar, Elumalai, Dhanusu and others had been arraigned as accused. Instead of properly investigating the case and arresting the accused, the Deputy Superintendent of Police, Tindivanam sub- division and the Station House Officer, Brammadesam Police Station, who figure as respondents 4 and 5 respectively, were actively assisting and helping the accused by playing all kinds of tactics to dilute the murder case, which forced the petitioner and his supporters to hold agitation and demonstrations in a democratic way pressing for the immediate arrest of the accused. Despite the same, no prompt action was taken. Therefore, Sujatha, the daughter of the petitioner herein, above said Velayudham and one Roopavathy made separate representations to the District Collector, Villupuram District furnishing vital details regarding the murder of Raja. One Sakthivelu from whose house Sudha was taken by the mob and his wife Poongkodi also made separate representations on 10.04.2007 to the District Superintendent of Police, Villpuram, the third respondent herein. c) Similarly, one Renu Selvi also made a representation to the Deputy Superintendent of Police (4th respondent herein) on 12.04.2007 narrating the facts she knew about the occurrence. When the petitioner and others were hoping for the officials to take appropriate action against the culprits, the Deputy Superintendent of Police, namely the 4th respondent herein submitted an alteration report on 21.04.2007 on the file of the learned Judicial Magistrate, Tindivanam to the effect that Raja had committed suicide as he was depressed due to the separation of Sudha from him and altering the case by substituting Section 306 IPC for Section 302 IPC. The fourth respondent, instead of taking an impartial investigation, misled the investigation to come to the conclusion that Raja had committed suicide. For that purpose he carefully manipulated the statements of the witnesses in order to help the accused to escape from the charge of murder. The alteration report https://hcservices.ecourts.gov.in/hcservices/ dated 06.04.2007 was submitted by the fourth respondent on 09.04.2007 so as to coincide with the arrest of the first accused. The same was done without even obtaining a copy of the postmortem report. The facts stated by the eye witnessess such as Velayudham, Sakthivelu and Poongkodi did not inspire the fourth respondent to investigate the case, based on their statements. It was impossible for Raja to reach his native place which is near Tindivanam within a short time after Sudha was forcibly taken. The fact that Raja was found hanging using the shawl (duppatta) of Sudha had not been considered by the Investigating Officer on proper perspective. Only the fifth accused Dhanusu besides the first accused Govindasamy Gounder was arrested, that too, at a belated stage and he was also released on bail. Due to his release on bail, A5- Dhanusu ventured to threaten Velayaudham with dire consequences, if he did not refrain from following the case. All the above said factors go to show that the investigation left in the hands of the local police resulted in their manipulation of things and obstruction of the lawful attempts of the petitioner to have a fair and just investigation of the case in accordance with law. Therefore, it has become necessary that this court passes an order exercising its inherent power under Section 482 Cr.P.C for transferring the investigation to CBI. 3. The fourth respondent, namely the Deputy Superintendent of Police, Tindivanam sub-division, Villupuram District alone has filed a counter. Besides stating the fact that the case was registered in Crime No.159/2007 on the file of Brammadesam Police Station for offences under Sections 147, 364, 302 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the brief contents of the complaint of the petitioner based on which the said case was registered, the following contentions were raised in the said counter:- a) The investigation of the case was taken up by the then Deputy Superintendent of Police on 06.04.2007, who conducted the inquest on the body of deceased Raja at the Government Hospital, Tindivanam. On the requisition of the Investigating Officer, autopsy was conducted by a team of doctors. Thereafter, the Investigating Officer went to the scene of occurrence and prepared observation mahazar and rough sketch in the presence of Mahazar witnesses Meiyazhagan and Venkatesan. On 07.04.2007 seven witnesses, including the petitioner, were examined by the Investigating Officer. Subramani, Arumugam, Palani, Rajagopal and Ravichandran, who were the panchayatdars for the inquest were also examined on the same day. They opined that the death was due to suicide. No external injury was found on the dead body of the deceased. During the course of the investigation i.e. on 06.04.2007. Mr.Kumar, the then Deputy Superintendent of Police altered the sections from 147, 364, 302 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to 147, 364, 306 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. He also arrested the accused Govindasamy https://hcservices.ecourts.gov.in/hcservices/ Gounder on 09.04.2007 and produced him before the Judicial Magistrate-1, Tindivanam for remand to judicial custody. On 24.07.2007, the Investigating Officer arrested A5 – Dhanusu and sent him for remand to judicial custody. On 23.07.2007, A2-Arivoli and on 24.04.2007-A3 Vijayakumar and A4-Elumalai surrendered before the Sessions Court, Villupuram and thereafter they were also released on bail on 25.04.2007. Postmortem certificate was issued by the team of doctors attached to the Government Hospital, Tindivanam incorporating an opinion "the deceased Raja would appear to have died of asphyxia". b) On 05.05.2007, the Investigating Officer enquired Sudha, daughter of A1-Govindasamy Gounder. In her statement she stated that the deceased Raja had taken her to Chennai and she returned along with her father when her father came to Chennai after sometime and asked her to come along with him. On 06.05.2007, the Investigating Officer enquired one Devaraj, who stated that he did not know about the details of the case. After completion of the investigation, the Investigating Officer, namely the then Deputy Superintendent of Police, laid a charge-sheet against the accused persons 1 to 5 for offences under Sections 147 and 306 IPC r/w Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the file of the Judicial Magistrate No.2, Tindivanam and the same was taken on file as PRC No.22/2007. The case was subsequently, committed to the Court of Session, Villupuram and numbered there as S.C.No.194/2010. The Investigating Officer conducted proper and impartial investigation in accordance with law. Therefore the prayer for transfer of investigation to CBI should be rejected. 4. In the light of the above said averments made in the petition and the counter averments made in the counter filed by the fourth respondent, the question that arises for consideration before this court is "whether the investigation in Crime No.159/2007 on the file of the Brammadesam Police Station was not done in proper, fair and unbiased manner and whether it is necessary in the interest of justice to direct investigation of the case by CBI or any other specialised agency?" 5. The arguments advanced by Mr.S.Sathia Chandran, learned counsel for the petitioner, by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side) representing the respondents 1 to 5 and by Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases representing the sixth respondent were heard. 6. Complaining bias and improper investigation in a case of murder which resulted in the alteration of the case into a case of suicide, the de-facto complainant, the father of the deceased has knocked at the doors of this court invoking its inherent power under Section 482 Cr.P.C. for the transfer of investigation of the https://hcservices.ecourts.gov.in/hcservices/ case to Central Bureau of Investigation and a consequential direction to the sixth respondent, namely the Joint Director of Central Bureau of Investigation to take over the investigation of the case in Crime No.159/2007. 7. Admittedly the case was registered based on the complaint of the petitioner (de-facto complainant) against five named accused and others for alleged offences punishable under Sections 147, 364 and 302 IPC r/w section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The case was registered on 05.04.2007. Within a day thereafter, namely 06.04.2007, the Deputy Superintendent of Police, Tindivanam Sub- division, (the Investigating Officer) signed an alteration report and submitted the same to the committal magistrate on 09.04.2007. By the alteration report, the case was altered by substituting Section 302 IPC with Section 306 IPC and thereby converting a case of murder into a case of abetment of suicide. The said act on the part of the Investigating Officer, according to the petitioner, was committed in a haste with intention to screen the offenders and save them from prosecution for a capital offence, namely murder. 8. The learned counsel for the petitioner would submit that the haste with which the Investigating Officer had acted will go to show that he was biased and the alteration report itself was the result of such bias, which shall also be obvious from the fact that even before obtaining a copy of the postmortem certificate containing the opinion of the doctors who conducted autopsy regarding cause of death, the said alteration was made. The second respondent may not have any interest in the outcome of this petition and hence nothing has been canvassed on behalf of the second respondent. Of course, the respondents 3 to 5 being police officials out of whom one was the Investigating Officer have contended that there was no substance in the contention raised by the petitioner and the petition should be dismissed. The stand of the sixth respondent is not committal as there is no role for the sixth respondent to play before ever the investigation of a case is entrusted to CBI. So, in the light of the rival contentions, the issue involved in this petition has to be considered. 9. Before making a decision in this petition, this court wanted to peruse the Case Diary file and thus the fourth respondent was directed to produce the Case Diary file. Accordingly, the case diary file has also been placed before the court for its perusal and reference in this petition. Crime No.159/2007 was registered on 05.04.2007 at 23.00 Hrs. (11.00 p.m) showing Govindasamy Gounder, Arivoli, Vijayakumar, Elumalai, Dhanusu and few other unnamed persons as accused for offences punishable under Sections 147, 364 and 302 IPC r/w section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 relating to the death of Raja, son of the petitioner herein. The case was registered based on the complaint of the petitioner herein. In the said complaint, clear averments have been made to the effect that the deceased developed a love affair with one Sudha, the daughter https://hcservices.ecourts.gov.in/hcservices/ of the first accused; that on 04.04.2007 she contacted Raja over cellphone, who was at that point of time employed at Velacherry in Chennai, and informed him that she would commit suicide if he did not marry her; that pursuant to the same the deceased Raja came to Kalur and took the said Sudha to Chennai; that the first accused (father of Sudha) and others after making enquiries in the village, took one Velayudham, the sister's son of the petitioner to take them to the place wherein Raja and Sudha were hiding in Chennai; that thereafter they caught hold of Sudha and Raja, brought them back to the village; that then they separated Sudha from Raja and took her with them; that subsequently at 4.00 p.m on 05.04.2007 when the friends of Raja went near the Aiyanar Koil, they saw Govindasamy Gounder, Arivoli, Vijayakumar, Elumalai, Dhanusu (A1 to A5) and others in the process of hanging something in the tree near the said temple; that on seeing them the accused fled away from the place; that there upon they identified the person hanging to be Raja and that when they brought down Raja from the tree he was found dead. Petitioner had also averred in the complaint that his son Raja had been done to death by the named and unnamed accused persons. As the case was one for an offence punishable under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also, the investigation of the case was taken up by the Deputy Superintendent of Police, Tindivanam sub-division. 10. Admittedly, at the inception itself, the case was registered for an offence under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 also, besides other offences under the Indian Penal Code including one for a murder punishable under Section 302 IPC. The offences of the atrocities on the members of the scheduled caste and scheduled tribes punishable under the provisions of the SC/ST Act, 1989 are to be investigated by a police officer not below the rank of Deputy Superintendent of Police appointed by the State Government / Director General of Police / Superintendent of Police. Such appointment of Investigating Officer should be made after taking into account the officer's past experience, sense of ability and justice to perceive the implications of the case and to investigate it along with right lines within the shortest possible time. 11. Rule 7 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 prescribes the officers by whom the offences under the Act shall be investigated and by whom such Investigating Officer shall be appointed and what are the considerations to be made before making such appointments. For the purpose of easy reference, Rule 7 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 is reproduced here under:- "7. Investigating Officer. - (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The Investigating Officer shall be https://hcservices.ecourts.gov.in/hcservices/ appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. (2) The investigating officer so appointed under the sub-rule (1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police to the State Government. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer." 12. In this case, there is nothing to show who appointed Mr.Kumar, the then Deputy Superintendent of Police, Tindivanam sub- division to be the Investigating officer of the case. There is nothing on record to show that Mr.Kumar, the then Deputy Superintendent of Police was appointed as Investigating Officer specifically for this case or was authorised by the State Government or the Director General of Police or the Superintendent of Police concerned by a general or special order to investigate the cases involving offences punishable under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 arising within his sub-division. Copy of such order, if any, is also not produced. Even if an order could have been passed, whether the qualities of the officer to be appointed as the Investigating Officer in such cases, as recited in Rule 7 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 has been considered, is not known. Under such circumstances, the investigation conducted by Mr.Kumar, the then Deputy Superintendent of Police without getting an order of appointment appointing him as Investigating Officer generally in cases of offences under SC/ST Act, 1989 within the Tindivanam sub-division or specifically in this case shall also vitiate the investigation and consequently the prosecution. In the CD file produced for the perusal of the court, there is nothing on record to show that such an order was passed. No copy of the order appointing him as Investigating Officer is found in the CD file. Even in the list of documents submitted along with the final report, a copy of which is available in the CD file, wherein 12 documents have been mentioned, the order of appointment appointing him as the Investigating Officer is not found. The final report submitted in this case also does not refer to any such order appointing him as Investigating Officer in accordance with Rule 7 of the Scheduled Caste and Scheduled Tribes https://hcservices.ecourts.gov.in/hcservices/ (Prevention of Atrocities) Rules, 1995. 13. An attempt was made on behalf of the respondents 1 to 5 to contend that the second respondent conducted investigation in accordance with the general circular issued by the Director General of Police. The validity of such circulars issued by the Director General of Police came to be considered by this court in V.P.Kuppurao versus Director General of Police, Tamil Nadu Government DGP Office, Mylapore, Chennai 4 and others reported in (2010) 1 MLJ (Crl) 247 and this court by order dated 05.10.2009 held that such an order is invalid and ineffective. The following comprehensive directions were issued regarding appointment of Investigating Officers in cases involving commission of offences punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989:- " i) As per Rule 7(1) only police officers not below the rank of Deputy Superintendent of Police/Assistant Superintendent of Police (Sub-divisional Officers) can be appointed as Investigating Officers. ii) Before appointing a person as Investigating Officer to investigate a case involving the commission of offences punishable under the provisions of the Scheduled Tribes (Prevention of Atrocities) Act, 1989, the qualities of such officer indicated in Rule 7(1) should be considered. iii) The circular memos issued by the Director General of Police in a) Rc.No.244989/1 Cr. 3(2)/96 dated 03.12.1996, b) Rc.No.244989-2/Cr.3(2)/97 dated 17.03.1997 and c) Rc.No.116040/Cr.3(1)/98 dated 27.07.1998 are not in conformity with Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 in its letter and spirit and hence they are invalid. iv) The restrictive clause for consideration of the qualities mentioned in Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 shall be applicable only when the officers below the rank of Superintendent of Police viz. Additional Superintendent of Police, Assistant Superintendent of Police or Deputy Superintendent of Police, are sought to be appointed as Investigating Officers and such restriction shall not be applicable in case of appointment of the Superintendent of Police or the officers above such rank as investigating officers since Superintendent of Police is one of the appointing authorities under Rule 7(1). https://hcservices.ecourts.gov.in/hcservices/ v) The appointment of Investigating Officers may be made on case to case basis. But there is no prohibition for issuing general directions for appointment of Investigating Officers provided such general directions are in conformity with Rule 7(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995. For example a list containing the names of the police officers below the rank of Superintendent of Police and not below the rank of Deputy Superintendent of Police (viz. Additional Superintendent of Police, Assistant Superintendent of Police or Deputy Superintendent of Police), after considering their qualities as mentioned in Rule 7(1) may be prepared and published periodically declaring them eligible to function