CORAMTHE HONOURABLE Mr v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.1.2005CORAMTHE HONOURABLE Mr.JUSTICE V.KANAGARAJCRIMINAL ORIGINAL PETITION No.35899 of 2004Muthulakshmi...PetitionerVs.1. State rep. by Inspector of Police Dharmapuri Town Police Station Dharmapuri.2. The Regional Medical Officer, Govt. General Hospital, Dharmapuri....Respondents* * *Petition filed under Section 482 of Cr.P.C., prayingfor the relief as stated therein.* * *For petitioner :Mr.R.SankarasubbuFor respondents :Mr.K.Duraisamy,Public Prosecutor,High Court, Madras.* * *O R D E RThis Criminal Original Petition has been filedpraying to direct the second respondent to furnish a copyof the postmortem report of the deceased Munusamy Veerappanin connection with Crime No.1221/04 on the file of thefirst respondent to the petitioner.2. The grievance of the petitioner is that herdeceased husband, viz., Munusamy Veerappan and three otherswere killed by the STF at Papparapatti near Dharmapuri on18.10.2004 at about 10.45 pm and the second respondent hasconducted the postmortem on the body of her deceasedhusband Veerappan on 19.10.2004; that the Human RightsOrganizations, journalists and public have suspected thedeath of her husband and three others. The fact finding https://hcservices.ecourts.gov.in/hcservices/ team has collected many incriminating materials with regardto her husband's death. 3. The petitioner would further submit that theTamilnadu Government has ordered an RDO enquiry and sheappeared for the enquiry on 01.11.2004 as she had to submither explanation before the RDO because she suspected herhusband's death. However, she could not submit her furtherexplanation effectively since the postmortem report was notfurnished to her. The petitioner has also submitted thatshe gave her requisition to the second respondent for theissuance of the postmortem report, but the secondrespondent refused to issue the same. Hence the petition.4. On the part of the respondents, the DeputySuperintendent of Police, Prohibition & Enforcement Wing,Dharmapuri, has filed a counter affidavit narrating thefacts of the case and would also cite Rule 591 of theMadras Police Standing Orders, which reads:"Postmortem and Wound Certificates:- (1) Theoriginal postmortem certificate has to be sent bythe Medical Officer direct to the Magistrateconcerned in a sealed cover, the Police beinggiven a copy of it immediately the examination isover. In order to facilitate this procedure, thePolice should specify in their requisition forpostmortem examination the Magistrate to whom thepostmortem certificate should be sent. (2) WoundCertificates will be delivered to the Police."5. It is further stated in the counter affidavit thatas per the Standing Orders, the petitioner is not entitledto a copy of the postmortem certificate and the same wouldbe directly sent to the Magistrate in a sealed cover; thatbased on the complaint preferred by the S.P., STF, Erode,an F.I.R. has been registered and the Revenue DivisionalOfficer, Dharmapuri is conducting the enquiry into thedeath of the petitioner's husband and his associates andthe same is in progress. Hence, under these circumstances,the petitioner is not entitled to the copy of thePostmortem certificate which would hamper the enquiry andinvestigation. Thus, the respondents would seek to dismissthe petition as devoid of merits.6. During arguments, the learned counsel appearing onbehalf of the petitioner, besides reiterating the pleadingsof the above criminal Original Petition, would submit thatthe petitioner is the widow of the deceased Veerappan whoalong with three others were shot dead in an encounter in https://hcservices.ecourts.gov.in/hcservices/ the forest; that the petitioner is very much in doubtregarding the story being told by the police regarding themanner in which the death of her husband and others havebeen brought forth and serious doubts have been raisedregarding the manner in which her husband has been done todeath and therefore in order to ascertain the real cause ofdeath and the manner in which the death had been carriedout by the Special Task Force, the learned counsel wouldlay emphasis that she has the right to know the facts andwould cite from the Tamil Nadu Right to Information Act1997 (Act 24/97) wherein in the preamble itself it has beenmentioned:"An Act to make provision for securing the rightto information in the State of Tamil Nadu and formatters relating thereon" 7. The learned counsel would then cite Section 176 ofthe Code of Criminal Procedure regarding the MagisterialEnquiry to be held into the death of such encounters and infact there has been an enquiry by the Revenue DivisionalOfficer and without being able to equip herself with thedetails regarding the death of her husband, the petitionerwould say that she is in need of the Post MortemCertificate to demonstrate before the authorities concernedthat it was a fake encounter in which her husband has beendone to death.8. The learned counsel would further argue to theeffect that under Section 74 of the Evidence Act, the PostMortem Certificate the copy of which is sought to be issuedin favour of the petitioner is a 'public document' andthere is no secrecy or privacy in the issuance of the copyof the said document and therefore it could very well beissued in favour of the petitioner. He would then citeArticle 19(1)(a) of the Constitution of India and wouldexhort that the petitioner has got the freedom to expressher views particularly regarding the death of her husbandand therefore she is in dire necessity of the copy of thePost Mortem Certificate. The learned counsel would thencite Section 123 of the Evidence Act and would say that theHead of the Department concerned can permit issuing thecopy of the Post Mortem Certificate.9. The learned counsel would also cite a judgment ofthe Honourable Apex Court in THE STATE OF U.P. vs. RAJNARAIN AND OTHERS reported in (1975) 4 SCC 428 wherein ithas been held:"In a government of responsibility like ours, https://hcservices.ecourts.gov.in/hcservices/ where all the agents of the public must beresponsible for their conduct, there can be butfew secrets. The people of this country have aright to know every public act, everything thatis done in a public way, by their publicfunctionaries. They are entitled to know theparticulars of every public transaction in allits bearing. The right to know, which is derivedfrom the concept of freedom of speech, though notabsolute, is a factor which should make one wary,when secrecy is claimed for transactions whichcan, at any rate, have no repercussion on publicsecurity. To cover with veil of secrecy, thecommon routine business, is not in the interestof the public. Such secrecy can seldom belegitimately desired. It is generally desiredfor the purpose of parties and politics orpersonal self-interest or bureaucratic routine.The responsibility of officials to explain and tojustify their acts is the chief safeguard againstoppression and corruption. To justify aprivilege, secrecy must be indispensable toinduce freedom of official communication orefficiency in the transaction of officialbusiness and it must be further a secrecy whichhas remained or would have remained inviolablebut for the compulsory disclosure. In how manytransactions of official business is thereordinarily such as secrecy? If there arises atany time a genuine instance of such otherwiseinviolate secrecy, let the necessity ofmaintaining it be determined on its merits."10. The learned counsel for the petitioner would alsocite a judgment of the Honourable Apex Court in UNION OFINDIA vs. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHERreported in AIR 2002 SC 2112 wherein the Honourable ApexCourt referring to its earlier judgment delivered in DINESHTRIVEDI M.P. AND OTHERS vs. UNION OF INDIA AND OTHERSreported in (1997) 4 SCC 306, would hold:"The right to get information in democracy isrecognised all throughout and it is natural rightflowing from the concept of democracy. At thisstage, we would refer to Article 19(1) and (2) ofthe International Covenant of Civi and PoliticalRights which is as under:-(1) Everyone shall have the right to hold opinionswithout interference. https://hcservices.ecourts.gov.in/hcservices/ (2) Everyone shall have the right to freedom ofexpression; this right shall include freedom toseek, receive and impart information and ideas ofall kinds, regardless of frontiers, either orally,in writing or in print, in the form of art, orthrough any other media of his choice."On such arguments, the learned counsel for the petitionerwould ultimately pray to grant the relief as prayed for inthe above criminal original petition.11. On the contrary, on the part of the learned seniorcounsel and the Public Prosecutor, High Court, Madras, hewould question the entitlement of the petitioner for thecopy of the Post Mortem Certificate particularly at a stagewherein the case registered is under investigation. Thelearned Public Prosecutor would seek to know the purposeand the object sought to be achieved by getting a copy ofthe document sought to be issued. Regarding entitlement,the learned Public Prosecutor would cite Rule 591 of theMadras Police Standing Orders, which is extracted inparagraph 4 supra and would state that as per this Rule,'the original Post Mortem Certificate has to be sent by theMedical Officer direct to the Magistrate concerned in asealed cover, the police being given a copy of itimmediately the examination was over .... Wound Certificatewill be delivered to the Police'.12. Citing the above Rule, the learned PublicProsecutor would categorically state that the secondrespondent herein can only send the Post Mortem Certificateto the concerned Court direct. At this juncture, thelearned Public Prosecutor would cite a Full Bench judgmentof this Court delivered in SELVANATHAN @ RAGHAVAN AND 9OTHERS vs. STATE BY INSPECTOR OF POLICE, MADRAS AND OTHERSreported in 1988 L.W. (Crl.) 503 = 1989 (1) MWN (Crl.) 117wherein the Full Bench of this Court has held:"... the Rules cannot be construed to have givenany right to the parties to obtain copies againstthe provisions of the Code. At any rate, R.339(of the Criminal Rules of Practice) does notpostulate that the accused is entitled to copiesat any stage, i.e. even before the forwarding ofthe police report to the Magistrate, on paymentof prescribed charges."It has been further held therein:".... For all the foregoing reasons, we hold that https://hcservices.ecourts.gov.in/hcservices/ accused are not entitled to certified copies ofthe inquest report, statements recorded underS.174 of the Code, Post-mortem certificate,requisition given by the police officers to theMedical Officer for conducting post-mortem andmedically treating the injured, rough sketch ofthe scene place, and observation mahazar preparedby the investigating officer, before the finalreport is forwarded to the Magistrate, ascontemplated under S.173(2) of the Code." On such arguments, the learned Public Prosecutor would prayto dismiss the above Criminal Original Petition since thesame is without merit.13. In consideration of the facts pleaded, havingregard to the materials placed on record and upon hearinghearing the learned counsel for the petitioner and thelearned Public Prosecutor, High Court, Madras and seniorcounsel, what this Court could assess is that thepetitioner is the wife of Veerappan who was killed alongwith three others by the Tamil Nadu Special Task Force, nomention need be made that he was wanted in many number ofcases ranging from murder to forest offences. Thepetitioner stating that there are considerable doubts inthe manner in which the Task Force claimed that her husbandwas done to death along with three others in an encounter,but he was secured along with others and keeping under thecustody of the police for two or three days illegally,tortured and ultimately killed, as it comes to be argued onthe part of her counsel and therefore in order to projectthe proper case before the Human Rights Commission againstthe concerned authorities as against the fake encounter,she has sought for the copy of the Post Mortem Certificatewhich would tell tales of the fake encounter perpetratedagainst her husband.14. The learned counsel would cite from variousSections of law and even from Article 19(1)(a) of theConstitution of India which generally pronounce the rightto information by citizen; that it is a public documentthat parties are entitled to normally get the copies of thedocuments and that freedom every citizen of this country isenshrined with. But, all these rights generally declaredeither in favour of citizens of this country or parties tothe prosecution or litigation are only subject to certainreasonable restrictions either imposed by law or even byRules, conventions, precedents etc. and one suchrestriction that is imposed regarding the issuance of acopy of the Post Mortem Certificate, which is the subject https://hcservices.ecourts.gov.in/hcservices/ matter of the above petition, is Rule 591 of the MadrasPolice Standing Orders which is positive to the effect that'originally the Post Mortem Certificate has to be sent bythe Medical Officer direct to the Magistrate concerned in asealed cover, the police being given a copy of itimmediately after the examination is over' thus setting theprocedure as to the issuance of the Post Mortem Certificateand therefore revoking such procedures established by law,this Court or any other court for the matter is notentitled to order to issue the copy of the Post MortemCertificate particularly when the investigation into thecase registered regarding the death in encounter by therespondent Police is still pending finality of decision bythe police themselves and since the field is occupiedentirely by the respondent, as it is held on the part ofthe Honourable Apex Court in general regarding any criminalcase registered which is under investigation that theCourts are little or no chance to order such applications,citing the general provisions of law or even theConstitutional provision which would set the outer linewithout specifying anything which has to be decided in themanner provided under the law on the specific subject andthe propositions held by the upper forums of law do nothelp the case of the petitioner and therefore this Courtis only inclined to dismiss the above Criminal OriginalPetition and hence the following order:In result, the above criminal original petition doesnot merit acceptance but becomes liable only to bedismissed and is dismissed accordingly.Sd/Asst.Registrar/true copy/Sub Asst.Registrargs/RaoTo1. The Inspector of Police Dharmapuri Town Police Station Dharmapuri. https://hcservices.ecourts.gov.in/hcservices/

2. The Regional Medical Officer, Govt. General Hospital, Dharmapuri.+1cc to The Public Prosecutor, High Court, Madras Sr 1789SMK (CO)km/28.2.Crl.O.P.35899/2004.