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1996 DIGILAW 357 (KER)

Jomon Puthen Purackal v. Union Of India

1996-08-20

K.S.RADHAKRISHNAN

body1996
Judgment :- This, Writ Petition has been moved by the father of Sister Abhaya, who died on mysterious circumstances in the morning of 27-3-1992, while she was staying in room No. 8 of St. Pious X Convent Hostel, Kottayam. On the basis of the complaint of Mother Superior Addl. Sub-Inspector of Police, Kottayam, West Police Station, registered Crime No. 187 of 1992 at about 8.30 a.m. on 27-3-1992 under the caption 'unnatural death'. Later investigation of the case was taken over by the Crime Branch, CID, Kottayam, renumbering the case as 142/CR/92 and final report under Section 173 of the Cr.P.C. was filed before the Sub-Divisional Magistrate Court, Kottayam, on 30-1-1993 by the Deputy Superintendent of Police, Crime Branch, CID, Kottayam with the finding that the death of Sister Abhaya was one of suicide by drowning. 2. In pursuance of the request made by the Government of Kerala to Government of India, the Director of Central Bureau of Investigation, hereinafter referred to as 'CBI', ordered investigation of the above case relating to "unnatural death" of Sister Abhaya by the CBI, Cochin Branch. Accordingly, investigation was conducted by the Deputy Superintendent of Police, CBI, under the supervision of SP/CBI/Cochin, DIG/CBI/Madras and Joint Director (A) CBI/New Delhi. Later, the investigation was taken over by SIC/II New Delhi. 3. A team headed by Joint Director and consisting of one Deputy Inspector General of Police, two Superintendents of Police, four Deputy Superintendents of Police and other staff reached Kottayam on 5-7-1994. They visited the spot and examined the inmates of the hostel, the doctor who conducted post-mortem and some of the Police Officers who conducted investigation. During the course of investigation CBI examined 120 persons. In order to find out whether it was a case of suicide or homicide, it was decided to organise a dummy experiment with the help of experts. Dr. S. K. Pathak, Prof. and Head of the Department of Forensic Medicines, SMS College, Jaipur, Dr. Mahesh Verma, Retd. Head of Department of Anatomy, of the College, conducted dummy experiment at St. Pious X Convent Hostel on 7-4-1995. Dr. G. R. Bhaskar, Retd. Prof., Department of Forensic Medicines, Medical College, Hyderabad, who could not witness the dummy experiment, also reached Kottayam, saw the scene of crime and held discussions with various experts including Dr. C. Radhakrishnan. Later three persons were subjected to polygraph test at New Delhi. 4. Pious X Convent Hostel on 7-4-1995. Dr. G. R. Bhaskar, Retd. Prof., Department of Forensic Medicines, Medical College, Hyderabad, who could not witness the dummy experiment, also reached Kottayam, saw the scene of crime and held discussions with various experts including Dr. C. Radhakrishnan. Later three persons were subjected to polygraph test at New Delhi. 4. Complaining that there is no head-way in the investigation, and the CBI is in dilemma as to whether the cause of death is suicide or homicide, father of deceased Sister Abhaya wanted this Court to go through the entire records of the case for an effective and complete adjudication. 5. I called for the entire records of the case which were made available to me. I have perused the entire records. CBI is yet to complete the investigation. They filed a statement before this Court stating that it is not possible to say clearly as to whether it was a case of suicide or homicide. According to them, investigation is still going on, and the same is yet to reach its logical conclusion. In the course of investigation, CBI conducted a dummy experiment and obtained the expert opinion of Dr. S. K. Pathak, Dr. Mahesh Verma, and Dr. G. R. Bhaskar. They also held discussions with Dr. C. Radhakrishnan. The experts did not give any final opinion. However, they expressed the opinion that the possibility of homicidal drowning cannot be ruled out. 6. Investigation primarily consists in the ascertainment of facts and circumstances of the case. By definition, it includes all the proceedings under the Cr.P.C. for the collection of evidence conducted by a Police Officer. Investigation under the Cr.P.C. takes in several aspects, and stages, ending ultimately with the formation of an opinion by the police as to whether, on the material covered and collected, a case is made out to place the accused before the Magistrate for trial, and the submission of either a charge-sheet and a final report is dependent on the nature of the opinion so formed. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the investigating authority and not by other authority. 7. Crime detection and investigation are the props of criminal adjudication. In the absence of crime detection the stage of criminal adjudication is never reached. The formation of the said opinion, by the police, is the final step in the investigation, and that final step is to be taken only by the investigating authority and not by other authority. 7. Crime detection and investigation are the props of criminal adjudication. In the absence of crime detection the stage of criminal adjudication is never reached. Privy Council in King Emperor v. Khwaja Nazir Ahmed, (1944) 71 Ind App 203 : (1945 (46) Cri LJ 413), held the functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own function. Supreme Court had occasion to consider the scope of Magistrate's power and the Investigating Authority in S. N. Sharma v. Bipen Kumar Tiwari, AIR 1970 SC 786 : (1970 Cri LJ 764). Power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation or in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate. 8. Supreme Court in State of Bihar v. JAC Saldanna, AIR 1980 SC 326 : (1980 Cri LJ 98), held that there is a clear-cut and well-demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is complete and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is complete and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8) there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well-defined and well-demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. 9. The above mentioned legal position has been reiterated by the Supreme Court in State of Haryana v. Ch. Bhajan Lal, 1992 SCC (Cri) 426 : (1992 Cri LJ 527); Janata Dal v. H. S. Chowdhary, (1992) 4 SCC 305 : (1993 Cri LJ 600) and Union of India v. N. Chadha, 1993 Supp (4) SCC 260 : (1993 Cri LJ 859) 10. Criminal Procedure Code gives the Investigating Authority unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution of India, under which, if the High Court could be convinced that the power of investigation has been exercised by a Police Officer mala fide, the High Court can always issue a writ of mandamus restraining the Police Officer from misusing his legal powers. These are all only in very exceptional cases. However, appreciation of evidence is the function of the Criminal Court. Criminal Court is vested with that power either to accept a report submitted by the Investigating Officer or reject it. In other words, appreciation of documents, affidavit, and the evidence collected by the Investigating Officer, and dealing with various disputed questions of facts do not come within the jurisdiction of Articles 226 and 227 of the Constitution of India. Criminal Court is vested with that power either to accept a report submitted by the Investigating Officer or reject it. In other words, appreciation of documents, affidavit, and the evidence collected by the Investigating Officer, and dealing with various disputed questions of facts do not come within the jurisdiction of Articles 226 and 227 of the Constitution of India. It is essentially the function of a criminal Court. Criminal Court can either accept the report and drop the proceedings or it may disagree with the report and take the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or direct further investigation by the police. Therefore, this Court will do well in not to trench upon, in exercise of inherent jurisdiction and supervisory jurisdiction under Articles 226 and 227 of the Constitution of India, the freedom of the Investigating Authority. I have already held that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Therefore, request of petitioner that this Court should conduct an effective and complete adjudication of the question raised cannot be acceded to. 11. A statement has been filed by the CBI before this Court that they are not in a position to decide as to whether the death was due to suicide or homicide, and the CBI is making all efforts to workout the case and so far no workable clue could be found which may lead to the culprits. In the matter of crime detection, Investigating Authority has to reach definite and clear-cut finding and cannot waiver (sic), and judiciary cannot be expected to function as the Investigating Authority, and to assess itself the evidence collected and reach a conclusion, usurping the functions of the Investigating authority. In other words, the functions of Judiciary and Investigating Authorities are complementary, and not overlapping. The purpose of investigation is to find out the truth and present it to Court with admissible evidence, it is as much as to protect the innocent and never to let the guilty escape. The duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real untarnishable truth. 12. Death of Sister Abhaya occurred as early as on 27-3-1992. The duty of the Investigating Officer is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real untarnishable truth. 12. Death of Sister Abhaya occurred as early as on 27-3-1992. More than four years have elapsed. Investigation is yet to reach its final stage. CBI has undertaken the investigation and registered a case on 29-3-1993. About 120 persons were examined in the process. Exhumation was not ordered as no useful purpose will be served after four years of burial. They conducted dummy experiment and obtained expert opinion, but no workable clue could be found which may lead to the culprits. It is the duty and obligation of the Investigating Agency to find out whether the death occurred due to homicide or suicide. The formation of opinion by the Investigating Agency on the materials collected by it is an integral part of investigation. 13. Considering the entire facts and circumstances of the case, and considering the fact that death of Abhaya occurred in 1992, and that three years are already over since CBI took up the investigation, I direct the CBI to complete the investigation and submit a report before a Magistrate Court within a period of three months from today. Original Petition is disposed of as above. Order accordingly.