High Court
Case Details
WP(C) 1003/2012 BEFORE HON’BLE MR JUSTICE B.K. SHARMA
Legal Reasoning
By means of this writ petition, the petitioner has prayed for a directio n to the respondents to hand over the case being Sarbhog P.S. Case No. 247/2011 (GR Case No. 2302/2011) under Section 306 IPC to another superior agency by inco rporating Section 302 IPC. The aforesaid case has been registered on the basis o f the FIR lodged by the petitioner on 12.10.2011 pursuant to death of his daught er, namely Mampi Ghosh who is the wife of the respondent No. 7. The marriage be tween the deceased daughter of the petitioner and the respondent No. 7 was perfo rmed in the month of March, 2011. From the materials on record, it appears that necessary formalities like post-mortem, inquest etc were carried out and thereafter the investigating agen
Legal Reasoning
cy submitted charge sheet with the following observation. (cid:28)Though the case was registered u/s. 302 IPC on the basis of ejahar but after in vestigation the case is established u/s. 306 IPC against the accused, as such th e charge sheet is submitted u/s. 306 IPC against the accused Shri Arup Sarmah, S /o. Shri Girish Sarmah vill- Sorbhog town ward no. 4, P.O. Sorbhog Dist. Barpeta to face trial. The witnesses mentioned in column No. 6 will prove the case. One P.M. report and one seizure list are enclosed with charge sheet. (cid:29) According to the petitioner, who is the father of the deceased, the investigatin g agency did not carry out the investigation in its true perspective and hurrie dly submitted the charge sheet without obtaining the materials/ evidence which w ere otherwise available. Mr. J.I. Borbhuyan, learned counsel for the petitioner submits that when the petitioner had approached the Police by his application da ted 12.11.2011 praying to record his statement under Section 164 Cr.P.C before t he Judicial Magistrate, Barpeta in connection with the case, the Police declined to do so. According to him, some witnesses cited in the charge sheet are intere sted witnesses and thus, from their statements which might be made during the tr ial the truth would not come out. He has also referred to the inquest report dat ed 12.10.2011 to show that there was injury mark on the victim hands and thigh. According to him, because of such injuries in the normal circumstances, a suspic ion regarding causing of death of the victim should have arisen and the Police o ught to have proceeded with the matter taking note of the said injuries. It is in the aforesaid circumstances, the petitioner has prayed for a direction for further investigation by an independent agency other than the police who has already conducted the investigation and has submitted the charge sheet. Be it s tated here that pursuant to framing of charges etc. the Trial Court has proceede d with the trial and till filing of the writ petition, as many as seven witnesse s including the Doctor had been examined. In the counter affidavit filed by the respondent Nos. 6 and 7, the allegations a nd contentions raised in the writ petition have been denied. It has been stated that from the materials on record, it is a case of suicide and is not an offence under Section 302 IPC. Mr. R.P. Sarmah, learned Sr. counsel assisted by Ms. R. Devi, learned counsel for the respondent No. 7, submits that the petitioner has remedy in the Trial Court itself and there is no need to approach the writ Cour t by invoking the writ jurisdiction. Mr. A. Upadhya, learned counsel appearing f or the respondent No. 6, also submits that the writ petition is misconceived and that merely on asking of the petitioner, this Court cannot issue any direction for further investigation. Mr. B.J. Ghosh, learned State counsel also submits t hat the petitioner has the opportunity to invoke the provision of the Cr.P.C. in the Trial Court itself. On perusal of the charge sheet, it appears that there are as many as 16 cited w itnesses including the petitioner. The petitioner has drawn my attention to the persons named at serial No. 2, 3, 4 and 13 to show that they are interested witn esses. While the person at serial No. 2 is the father of the accused, the person at serial No. 13 is his mother. The persons at serial No. 3 and 4 are the tenan ts of the respondent No. 7, i.e. the accused. Merely because the said witnesses have been listed in the charge sheet alongwith 12 others including the Doctor and the investigating officer, it cannot be said that the investigation was vitiated. The said witnesses who had deposed under S ection 161 Cr.P.C. are necessarily relevant and no objection can be raised towar ds inclusion of their names in the charge sheet on behalf of the prosecution. As regards the plea of the petitioner that Police declined to record his stateme nt under Section 164 of Cr.P.C., as noted above, the petitioner as a witness as indicated in the charge sheet and thus, he will get ample opportunity to make a statement before the Trial Court. In fact, as submitted by Mr. Sarmah, learned c ounsel appearing for the respondent No. 7, the petitioner has avoided giving st atement in the Trial Court. However, Mr. Borbhuyan, learned counsel for the pet itioner submits that he has not given the statement in view of the interim orde r operating in this proceeding. According to Mr. Sarmah, learned counsel for the respondent No. 7, the petitioner was summoned for his evidence even before the interim order was passed in this proceeding. As regards the inquest report, although there is an indication regarding injury on the back side of the upper thigh and the remark against the column appeared t he case of death is (cid:28)suicide (cid:29). In the post-mortem report also a copy of which h as been annexed as Annexure -2A to the writ petition, the cause of death has bee n recorded as (cid:28)due to mechanical asphyxia due to hanging and is in suicidal in n ature (cid:29). Although the above materials have been referred to in this order, I hasten to ad d that by referring to the said materials no prejudice is sought to be caused in respect of trial which is presently on. Needless to say that the Trial Court wi ll proceed with the matter taking into account the entire materials and evidence s on record. While doing so, it is always open for the said court to deal with the procedure laid down in the Cr.P.C. In this connection, learned counsel for t he parties have referred to the provisions of Sections 173 (a) and 311 of the Cr .P.C. Mr. Borbhuyan, learned counsel for the petitioner has referred to the decisions reported in (1) (2009) 6 SCC 332 (Mithabhai Pashabhai Patel vs. State of Gujarat ), (2) (2011) 9 SCC 182 (State of Punjab vs. Central Bureau of Investigation and ors.), (3) (2010) 2 SCC 200 (Rubabbuddin Sheikh vs. State of Gujarat and ors.) and (4) (2011) 5 SCC 79 (Narmada Bai vs. State of Gujarat and ors.), so as to contend that this Court exercising the writ jurisdiction under Article 226 of th e Constitution of India is entitled to issue direction for further investigation in the matter. He submits that having regard to the facts and circumstances ref
Decision
erred to above, it is a fit case for such direction. As to what are the grounds on which the writ petition has been filed have been n oted above. In my considered opinion, the said grounds cannot justify issuance o f Mandamus to the investigating authority for further investigation and/or furth er investigation by an independent agency other than the one that has carried ou t the same. At the same time, it is always open for the petitioner to make his s tand clear in the Trial Court for which he will get ample opportunity since he i s one of the witnesses. In view of the above, the writ petition is disposed of declining to issue any di rection for further investigation. However, liberty is granted to the petitioner to appear before the Trial Court to make the version of his case as a witness. It will be entirely upon to the Trial Court to proceed with the matter in accord ance with law. It will be always open for the petitioner to take recourse to the aforesaid provisions of the Cr.P.C.