High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 09-10-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.19158 OF 20071.M.Ravichandran2.R.Sundari...Petitioners-vs-1.The Inspector General of Police, CBCID, Chennai.2.The State, rep.by the Superintendent of Police, Cuddalore District, Cuddalore.3.The Inspector of Police, Chidambaram Taluk Police Station, Chidambaram.4.The Inspector of Police, Annamalai Nagar Police Station, Annamalai Nagar.5.The Sub-Inspector of Police, Killai Police Station, Cuddalore District.6.Jaishankar @ Shankar7.Nagaraj...RespondentsPetition under Section 482 of the Code of Criminal Procedure.For petitioners : Mr.A.R.SureshFor respondents : Mr.A.Saravanan,1 to 5 Govt.Advocate (Crl.Side).O R D E RThis petition has been filed to direct the Inspector General ofPolice, CBCID, Chennai, first respondent herein, to take up the further https://hcservices.ecourts.gov.in/hcservices/ investigation of the case in Crime No.13 of 2007 on the file of Sub-Inspector of Police, Killai Police Station, Cuddalore District, fifthrespondent herein, in accordance with law.2. Facts of the case go thus :2.1. Petitioners are husband and wife. Father of firstpetitioner got two wives and first petitioner is the son through firstwife, while sixth respondent and one Arumugham are the progeny throughsecond wife. Bad- blood was existing between first petitioner and hisstep-brothers with regard to properties. 2.2. It was alleged that on 13.02.2007 at about 07.00 p.m.,when the petitioners were in their house, Jaishankar and Arumugam gainedentry into the house and asked first petitioner to remove his FIAT car tofacilitate unloading blue metal for their building, for which thepetitioner replied that he would do it sometime later, stating that thecar was under repair. However, the duo shouted at the petitioners andpicked up a quarrel. Then, seventh respondent Nagaraj and his son Anandrajalso entered into the house and threatened the petitioners with direconsequences. Nagaraj was armed with Koduval. 2.3. In the melee, sixth respondent attempted to trample firstpetitioner, but, since second petitioner intervened, she received a kickby leg from sixth respondent. At that time, she was pregnant. Sixthrespondent is reported to have hurled filthy language also at her.Neighbourers came, intervened and settled the dispute. 2.4. On 15.02.2007, since second petitioner was suffering fromabdominal pain, petitioners met Dr.Amutha at Parangipettai, who prescribedsome tablets. However, on 17.02.2007 also at about 11.00 a.m., as secondpetitioner was suffering from pain, they came to Government Hospital,Chidambaram, at about 01.30 p.m., by an auto, but, on the way, shedelivered a child, but it was declared dead in the infirmary.2.5. The above said allegations were set out in the complaint,lodged by first petitioner before Killai Police Station, which wasregistered in Crime No.13 of 2007, under Section 316 IPC.3. During the course of investigation, the police, afterexamining the witnesses, inclusive of Dr.Amutha, and recording theirstatements under Section 161 Cr.P.C., learnt that sixth and seventhrespondents were not culprits, but, in order to settle their score, thepetitioners falsely utilised the death of foetus and implicated sixth andseventh respondents as if they gained entry into the house and trampledthe petitioner. https://hcservices.ecourts.gov.in/hcservices/

4. This Court called for Case Diary from the learned GovernmentAdvocate (Criminal Side) and, on its production, it was carefullyscrutinised. It is seen that police have examined the de factocomplainant as well as the witnesses. It also transpires that firstpetitioner, being proprietor of a medical shop, gave tablets to his wife,to terminate pregnancy, since she was already having a suckling baby, agedabout eight months. Since the attempt got aborted by unwanted result, heused this circumstance to rope his step-brothers into the case and lodgedthe complaint belatedly.5. In this context, it is to be noted that even though theoccurrence is stated to have taken place on 13.02.2007 at about 07.00p.m., the complainant, namely, first petitioner was keeping quiet till17.02.2007 and only at 11.30 p.m. on that day, he lodged the complaint,after the death of foetus. None of the witnesses examined by the policesupported the version in the First Information Report. On the other hand,they appear to have told that a brawl ensued between first petitioner andsixth respondent, which did not result in any exchange of blows, and, whenthe neighbourers intervened, they did not pursue further. In the post-mortem certificate, the cause of death was mentioned as, the foetus wouldhave died due to non-viability and the approximate age of foetus was 22 to24 weeks.6. Pertinent it is to mention that post-mortem was conducted bytwo lady doctors of Chidambaram Government Hospital. Police examinedDr.Amutha, who gave a certificate and statement under Section 161 Cr.P.C.to the effect that on 15.02.2007 at about 11.30 a.m., she examined secondpetitioner; she had got eight month old baby under mother feeding with thehistory of progressive distension of lower abdomen since the birth of thechild. By examining the scan, the doctor confirmed that second petitionerwas 24 weeks pregnant and she referred her to higher scan centre to ruleout any anomalies of the baby. The doctor further stated that the patientdid not complain of any stomach pain nor did she prescribe any tablets forthe same.7. Wound Certificate of second petitioner shows that she wasexamined on 17.02.2007 and she stated that she was assaulted by a knownperson on 13.02.2007 at 07.00 p.m., at her home; the patient wasconscious; foetus expelled outside; there were no external injuries;abdominal pain and bleeding per vagina present and that she was admittedto Government Hospital, Chidambaram. It was opined that she sufferedsimple injury. 8. After scrutinizing all the above said materials, the policealtered the provisions of IPC and laid charge sheet under Sections294,452,316,506 (ii), and 201 read with 316 and 34 IPC against thepetitioners. The memo of evidence contains the names of sixth and seventhrespondents also among other witnesses. https://hcservices.ecourts.gov.in/hcservices/

9. Learned counsel for the petitioners would contend that firstpetitioner is the complainant to the incident, but he is arraigned asaccused, which is not tenable, and that the investigation was carried outby the police in a slipshod manner. It is his further contention thatthere was nothing to show that first petitioner himself gave medicines tohis wife, to terminate her pregnancy.10. On the contrary, learned Government Advocate (Criminal Side)would submit that the police have investigated the case in a properdirection and, on the basis of the valid materials available in the case,they have arrayed the petitioners as accused and filed charge sheet.11. Learned counsel for the petitioners draws attention of thisCourt to a decision of this Court in Madhu v. The Inspector of Police,CBCID, Chennai, 1998 (III) CTC 42, wherein it is held that even though theinvestigation was completed, the High Court has got every power to issuemandamus, directing the CBCID, to reinvestigate the case as per law.12. In the above said case, the Government side had not producedthe Case diary, Post-mortem Certificate and other connected records.However, the circumstances under which the investigation was transferredto CBCID by this Court should be taken into account.13. Learned counsel for the petitioner also cited the followingauthorities of the Supreme Court, in support of his contention :(i) Gudalure M.J.Cherian v. Union of India, 1992 M.L.J. (Cri)508, wherein it was held as under :"Four accused persons have been arrested inconnection with the crime and the trial against themis likely to commence. The investigation having beencompleted by the police and the charge-sheetsubmitted to the court, it is not for the SupremeCourt, ordinarily, to reopen the investigationspecially by entrusting the same to a specialisedagency like C.B.I. The Court is also conscious thatof late, the demand for C.B.I. investigation even inpolice cases is on the increase. Nevertheless in agiven situation, to do justice between the partiesand to instil confidence in the public mind, it maybecome necessary to ask the C.B.I. to investigate acrime. It only shows the efficiency and theindependence of the agency..."(ii) Punjab and Haryana High Court Bar Association v. State ofPunjab, AIR 1994 SUPREME COURT 1023, in which it was observed as follows :"10. We are conscious that the investigationhaving been completed by the police and charge-sheetsubmitted to the court, it is not for this Court,ordinarily, to reopen the investigation.Nevertheless, in the facts and circumstances of the https://hcservices.ecourts.gov.in/hcservices/ present case, to do complete justice in the matter andto instil confidence in the public mind, it isnecessary, in our view, to have fresh investigation inthis case through a specialised agency like theCentral Bureau of Investigation (CBI)."14. The principles laid down in the aforementioned decisions ofthe Apex Court are to the effect that even though the investigation wascompleted by the police and charge-sheet laid before the Court,considering the peculiar circumstances of the case, to do complete justicein the mater and to instil confidence in the mind of public, a freshinvestigation may be ordered. 15. Law of the land is for a direction for reopening andreinvestigating a case with reference to its circumstances and that powershall be exercised sparingly, to instil confidence in the mind of thesociety.16. As regards the question, whether such a direction could beissued in this case, the answer would be emphatically NO, the reasonbeing, first and foremost, there is an unexplained delay in lodging theFIR. While the occurrence allegedly took place on 13.02.2007 at about07.00 p.m, the complaint came to be lodged only on 17.02.2007 at 11.30p.m. Neither in the F.I.R. nor in the statement of first petitioner underSection 161 Cr.P.C., he had furnished his explanation, for the delay.Nextly, the statement of Dr.Amutha goes to the effect that secondpetitioner did not complain of any stomach pain and she had not prescribedany medicines. It appears that second petitioner had gone to the ladydoctor, to get clarification as regards progressive distension of lowerabdomen since the birth of the child and the doctor confirmed at that timethat second petitioner was pregnant by 24 weeks. Another reason is, theneighbourers themselves did not support the version of first petitioner.Had the occurrence been true, at least, some witnesses would have hintedabout the same. Under the circumstances, it is very difficult to accede tothe prayer of the petitioners.17. The contention that first petitioner has made use ofoccasion of expulsion of foetus from second petitioner to falselyimplicate sixth and seventh respondents in the case, in order to wreakvengeance, is tenable.18. As far as the case on hand is concerned, this Court ishaving only prima facie materials, to reach a conclusion and the Courtsbelow will not, in any way, be influenced by the observations made in thisorder. Courts may consider transfer or reopening of investigation orreinvestigation of a case even after filing of charge sheet only when itwas done in an uncharitable manner, violating the procedures. If no foul https://hcservices.ecourts.gov.in/hcservices/ play is smelt in the investigation, Courts would be left with no optionexcept to reject the prayer for reinvestigation or transfer. In this case,no such irregularity is found. Hence, this petition is dismissed.Consequently, the connected Crl.M.P.Nos.1 and 2 of 2007 are also dismissed.dixitSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Inspector General of Police, CBCID, Chennai.2.The Superintendent of Police, Cuddalore District, Cuddalore.3.The Inspector of Police, Chidambaram Taluk Police Station, Chidambaram.4.The Inspector of Police, Annamalai Nagar Police Station, Annamalai Nagar.5.The Sub-Inspector of Police, Killai Police Station, Cuddalore District.6.The Public Prosecutor, High Court, Madras.+ One cc to Mr. A.R. Suresh Advocates SR 62566Scd (co)sg 16/10/07CRL.O.P.No.19158 OF 200709-10-2007