1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.1090 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 S.Murugaperumal ... Petitioner/De facto Complainant Vs. 1.The State represented by, The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Inspector of Police, Ambasamudram Police Station, Tirunelveli District. Crime No.2 of 2011 3.The Inspector of Police, C.B.C.I.D. Wing, Tirunelveli District. .. Respondents/Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to transfer the investigation in crime No.2 of 2011 from the file of the 2nd Respondent to the file of the 3rd respondent and consequently direct the 3rd respondent to conduct proper investigation in an expeditious manner and to file the final report within the stipulated period as prescribed by this Court. For Petitioner :Mr.R.Anand For Respondents :Mrs.S.Devasena, Govt. Advocate (Crl.side) For Intervenor : Mr.R.Appavu Rethinam O R D E R This petition has been filed by the petitioner/defacto complainant seeking for the transfer of investigation pending in crime No.2 of 2011 from the file of the 2nd respondent to the file of the 3rd respondent police. 2.M.P.(MD) No.2 of 2011 has been filed by the accused in crime No.2 of 2011 pending on the file of the 2nd respondent seeking permission to intervene in the main criminal original petition. 3.Heard Mr.R.Anand, learned counsel appearing for the petitioner and Mrs.S.Devasena, learned Government Advocate (criminal side) appearing for the respondents/State and Mr.R.Appavu Rethinam, learned counsel for the intervenor/accused. 4.The learned counsel appearing for the petitioner would submit in his argument that the petitioner has given a complaint to the 2nd respondent police on 29.12.2010 against his son-in-law viz., Ramesh and it was registered by the 2nd respondent police in crime No.2 of 2001 for the offences under Sections 364, 307 and 379 (N.P.) I.P.C. and the investigation is carried on. 5.He would further submit that according to the complaint of the petitioner, her daughter M.Maragathavalli was abducted by his son-in-law in a car, she was compulsorily administered poison and due the poisoning, she became unconscious and she was admitted in the hospital and therefore, the case was registered for the offences under Sections 364, 307 and 379 (N.P.) I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 2 6.He would further submit in his argument that subsequently, the daughter of the petitioner died, however, the 2nd respondent did not alter the offence either under the provision of Dowry death or Murder, but, it was altered to one under Section 306 I.P.C. He would further submit in his argument that the accused Ramesh had applied for bail and for which the 2nd respondent police had facilitated to get out of bail and it was granted immediately before the death of the daughter of the petitioner, when she was taking treatment in the hospital. 7.He would further submit that even after the alteration of offence, the 2nd respondent police did not take steps to cancel the bail and arrest the accused, but had colluded with the accused person and created a forged suicidal note as if it was written by the deceased daughter. He would further submit that the signature in the suicidal note was abnormal and it was signed as Sunitha, but the daughter of the petitioner used to sign as Maragathavalli, only. 8.He would further submit that the Revenue Divisional Officer's Report would clearly show that the death was caused due to the dowry harassment and therefore, the alteration of offence should have atleast been made as 304(B) I.P.C. if the 2nd respondent is not willing to alter the case into one under Section 302 I.P.C. He would further submit that the 2nd respondent police is not faithful in investigating the case and therefore, the said investigation has to be transferred to the 3rd respondent for continuing the further investigation. 9.He would further submit that the intervening of the accused person is not sustainable germane because during the course of the investigation, the accused has no say and the right of the petitioner/defacto complainant seeking for transfer of investigation cannot be agitated by the accused person since he has to face the trial and he cannot participate in proceedings for the transfer of the investigation and therefore, he would request the Court to dismiss the impleading petition filed by the accused person. 10.The learned Government Advocate (criminal side) would submit in her argument that the 2nd respondent is doing the investigation promptly and the case was altered into one under Section 306 I.P.C. on the death of Maragathavalli and on the basis of suicidal note. She would further submit that the Inspector of Police, Ambasamudram went to Galaxy Hospital, Tirunelveli and conducted an elaborate enquiry and recorded the statements of the complainant and his wife Pandiamala and other witnesses were also examined and their statements were also recorded. Similarly, the 2nd respondent had recorded the statement of Secretary of Saradha College, where the deceased Maragathavallui was studied. The accused was also arrested on 04.01.2011 and was remanded to judicial custody on 04.01.2011 itself. She would also submit that the 2nd respondent had taken steps to conduct inquest through the Revenue Divisional Officer and got back the body for postmortem. 11.She would further submit in his argument that parallel enquiry by both the D.S.P. as well as the R.D.O. Tirunelveli is in progress for inquest and the inquest report of the R.D.O is awaited. She would therefore submit that the investigation pending before the 2nd respondent is proceeding promptly and it need not be transferred. https://hcservices.ecourts.gov.in/hcservices/ 3 12.The learned counsel appearing for the proposed party/accused in M.P (MD) No.2 of 2011 would submit in his argument that the petitioner being the accused is also a necessary party and he must be given audience in the criminal original petition to state his objection regarding the transfer of investigation. He would further submit that he would be an aggrieved person, if any order has been passed by this Court without given audience to him and therefore, he may be permitted to intervene the main petition. 13.I have given anxious thoughts to the arguments advanced on either side. 14.As far as the request of the petitioner in M.P.(MD) No.2 of 2001 to permit him to intervene in the criminal original petition is concerned, he is the accused and he has to face the trial of any charge sheet is filed against him and there could be no part played by the accused person in the investigation or ordering the transfer of the investigation. It is the dictum of the Hon'ble Apex Court that accused has no say in this matter since he is an accused and the scope of the petition is in between the petitioner and the investigation agency and therefore, the petition filed by the intervenor is not sustainable and the same is liable to be dismissed and accordingly dismissed. 15.As regards the transfer of investigation sought for by the petitioner, we could see that the status report filed by the 2nd respondent would go to show that the inquest is being conducted by the Revenue Divisional Officer as well as the Deputy Superintendent of Police simultaneously and is pending at that level only. It is not disputed that the deceased woman Maragathavalli was intoxicated due to poison and gone to unconscious stage and it has also been stated that the husband, who had taken the said Maragathavalli to hospital had informed the petitioner immediately and took her to a private hospital and thereafter to the Tirunelveli Medical College Hospital, Tirunelveli. 16.It would go to show that there are disputes in between Maragathavalli and her husband Ramesh, the accused and they have also jointly filed divorce application before the competent Court and it is pending for orders. In the meantime, the said deceased woman Maragathavalli resumed her studies in Saradha College in B.Sc., I.T. and was attending the college regularly. However, the F.I.R. would go to show that the accused had phoned up to the petitioner stating that her daughter consumed poison at the office of the accused and therefore, the accused took the victim to the hospital. 17.The contention of the petitioner is that the accused himself had administered the poison and had attempted to kill the deceased Maragathavalli. No doubt, the 2nd respondent police had registered the complaint for the higher offence under Section 307 I.P.C., however, the said F.I.R. has been altered into one under section 306 I.P.C. on the death of the said Maragathavalli on 04.01.2011. It has not been explained by the 2nd respondent in the status report on what circumstances, the attempt to murder has been converted into an abetment of suicide. If really, the death of the Maragathavalli was caused due to the consumption of poison, there must be some evidence collected by the investigation agency after the conversion of the F.I.R. from Section 307 I.P.C. to Section 302 I.P.C and thereafter to Section 306 I.P.C. But, the investigating officer has straightaway altered the F.I.R. into Section 306 https://hcservices.ecourts.gov.in/hcservices/ 4 I.P.C. Therefore, the suspicion raised by the petitioner against the investigating officer appears to be sound. Moreover, the 2nd respondent has to await the report of the Revenue Divisional Officer for the purpose of considering the nature of death. But, straightaway, it cannot be altered into one under Section 306 I.P.C., especially the marriage in between the deceased and the occurrence took place within 7 years prior to the death of the deceased. 18.Moreover, investigation conducted by the 2nd respondent would go to show that even the deceased woman was in an unconscious state, the accused applied for bail and bail was ordered by the learned Sessions Judge and it was not agitated by the 2nd respondent before the said Court. The said circumstances would go to show that the continuance of investigation on the file of the 2nd respondent will not produce any correct result as doubted by the petitioner. Therefore, I have no hesitation to hold that the investigation pending before the 2nd respondent is liable to be withdrawn and to be handed over to the file of the 3rd respondent for investigation. 19.Accordingly, the investigation in crime No.2 of 2011 from the file of the 2nd respondent is withdrawn and the same is transferred to the file of the 3rd respondent C.B.C.I.D., Tirunelveli District and the 3rd respondent, who is to be entrusted with the case, is directed to do the further investigation or if necessary, to do the re-investigation afresh depending upon the circumstances of the case and to file the final report preferably within a period of three months from the date of entrustment of the said case. 20.With the aforesaid observation and direction, this criminal original petition is ordered. Consequently, connected miscellaneous petition in M.P.(MD) No.1 of 2011 is closed. M.P.(MD) No.2 of 2011 is dismissed. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR arul To 1.The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Inspector of Police, Ambasamudram Police Station, Tirunelveli District. Crime No.2 of 2011 3.The Inspector of Police,C.B.C.I.D. Wing, Tirunelveli District. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 1CC TO MR. R. APPAVURATHINAM, ADVOCATE, SR: 10169: DM:2011::MARCH:03::: Crl.O.P.(MD)No.1090 of 2011 24.02.2011 4P:5C:: https://hcservices.ecourts.gov.in/hcservices/