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2012 DIGILAW 1167 (MAD)

T. Tamilarasi v. State

2012-03-02

VINOD K.SHARMA

body2012
Judgment 1. The petitioner is the wife of accused Thandayuthapani, facing trial under Section 302 of IPC. A case in Crime No.154 of 2011 was registered against the husband of the petitioner under Sections 294(b), 452, 506(i) and 307 IPC, which was later on converted to Section 302 IPC. The case was registered on the statement of deceased Suguna on 26.06.2011. 2. It is the submission of the petitioner that the deceased deposed that Thiru Thandayuthapani and his brother Kothandapani abused the deceased and threatened to hang her for not severing illicit relationship of her husband with Tamil Selvi, daughter of the second accused. 3. Being ashamed by this allegation, she attempted to commit suicide, and entered her house where accused ran after her and by pouring kerosene put her on fire. She was brought to the hospital on 26.06.2011 and her declaration was recorded where she named the accused persons, including husband of petitioner. 4. It is the submission of the petitioner that the case was foisted against the husband of petitioner on account of previous enmity to cover up the dispute between the deceased and her husband Karunamurthy, who is addicted to all vice and is a drunkard. It is also submission of the petitioner that on the date of alleged occurrence, i.e. 25.06.2011, husband of the deceased Karunamurthy under the influence of alcohol, had trespassed into the house of petitioner, where her daughter Tamilselvi was alone and he tried to misbehave with her, which resulted in huge crowd gathering, on account of alarm by daughter of the petitioner. 5. It was on account of this that wordy quarrel picked up between the family of petitioner and the family of the deceased with village people. The deceased thereafter picked up quarrel with husband of petitioner and due to sudden emotion, that deceased committed suicide, by pouring kerosene in the presence of her family members and relatives, who were called at the instance of husband of the deceased to check his immoral activities. 6. The submission of the petitioner is that if the family members of the deceased were interested in saving her life, then they should have prevented the incident from taking place in front of them. 7. 6. The submission of the petitioner is that if the family members of the deceased were interested in saving her life, then they should have prevented the incident from taking place in front of them. 7. Furthermore, if the deceased wanted to make dying declaration, she could have done so at the hospital itself in the present of the Magistrate, Doctors and independent witnesses and not in her house in the presence of Police. The dying declaration is, therefore, said to be suspicious. 8. The case of the petitioner is that the second respondent is conducting enquiry in biased manner, and has implicated the husband of petitioner and his brother with collusion of the family of the deceased, as the second respondent has not taken into consideration the real facts and recorded evidence of the witnesses, who saw the incident. 9. The petitioner therefore filed a detailed representation for handing over the investigation to CBCID, so that fair investigation could be conducted to bring out the truth. 10. The reading of affidavit shows that the petitioner is pleading defense to the crime, and has levelled vague allegations, which lacks material particulars to allege that respondent is conducting enquiry in the biased manner. The investigating agency cannot be changed on such vague allegations or on the defense to prosecution case. 11. Learned counsel for the petitioner vehemently contended that investigation deserves to be transferred to CBI or any independent agency, because the petitioner has no faith in the Police. In support of this contention, learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in Narmada Bai vs. State of Gujarat & Ors., 2011 (3) Supreme 153 , wherein the Hon'ble Supreme Court was pleased to lay down that where investigation by the State Police is not in the proper direction due to involvement of high police officials, it is always open to the Court to hand over the investigation to an independent and specialised agency like CBI. 12. It is not understood how this case is helpful to the petitioner. In the said case, it was on the facts of that particular case and keeping in view the faulty investigation under the influence of high police officials, that the Hon'ble Supreme Court was pleased to direct CBI to conduct enquiry, even after filing of the charge sheet. 12. It is not understood how this case is helpful to the petitioner. In the said case, it was on the facts of that particular case and keeping in view the faulty investigation under the influence of high police officials, that the Hon'ble Supreme Court was pleased to direct CBI to conduct enquiry, even after filing of the charge sheet. The Hon'ble Supreme Court nowhere laid down that merely because the petitioner does not have faith in the Police that the investigation can be ordered to be conducted by an independent agency. 13. In the case in hand, except vague allegations, that investigation is held in biased manner, there is absolutely no material pointing finger of accusations against Police, nor it is alleged that family of the deceased is highly influential, which can influence the police investigation. 14. Learned counsel for the petitioner thereafter placed reliance on the judgment of the State of Maharashtra vs. Farook Mohammed Kasim Mapkar and others, (2010) 8 SCC 582 , wherein the order of High Court to transfer investigation to CBI was upheld. The Hon'ble Supreme Court in the said case was pleased to lay down as under: 24. The principles enunciated in the above decisions make it clear that if any person is aggrieved by the inaction on part of the police or not getting proper response, there are adequate remedies provided under the Code and it is for such person to seek relief with the aid of these provisions. However, we have already adverted to the specific allegation in the complaint of Respondent 1, how the Special Task Force conducted investigation, as seen from the Report of Srikrishna Commission. Further, in the case on hand, Respondent 1 has asserted at many places which were supported by the Commission's Report, more particularly, the information that the State Police did not examine the injured witnesses who were available at the spot and suffered a lot. 25. In view of the demolition of Babri Masjid on 6-12-1992, and riots in various places all over India including Mumbai on 10-1-1993, specific assertion by Respondent 1 who is an affected person coupled with the findings of the Srikrishna Commission accepted by the State, we are of the view that it is an ?extraordinary case? 25. In view of the demolition of Babri Masjid on 6-12-1992, and riots in various places all over India including Mumbai on 10-1-1993, specific assertion by Respondent 1 who is an affected person coupled with the findings of the Srikrishna Commission accepted by the State, we are of the view that it is an ?extraordinary case? and we hold that Respondent 1 herein is fully justified in approaching the High Court seeking extraordinary jurisdiction for direction for entrusting the investigation to independent and special agency like CBI. Accordingly, we reject the said contention also. 26. Finally, as rightly pointed out by Mr Gonsalves, learned Senior Counsel for Respondent 1, after the Notification of the Government of Maharashtra dated 7-2-2008 consenting CBI to investigate the incident relating to Hari Masjid, it is not understandable as to the opposition of the direction of the High Court ordering CBI inquiry. 27. It is useful to refer to the notification of the Government of Maharashtra which reads as under: "Government of maharashtra Notification Home Department (Special) Mantralaya, Mumbai 400 032 Dated: 7-2-2008 No. MIS 0807/CR 276/Part-II/Spl-2. In pursuance of the provisions contained in Section 6 of the Delhi Special Police Establishment Act, 1946, (Act 25 of 1946), the Government of Maharashtra is pleased to accord consent to the exercise of the powers and jurisdiction of the members of the Delhi Special Police Establishment for the inquiry into the incident as dealt with by the Srikrishna Commission in its Report, Vol. II in Paras 24.17 to 24.24 relating to the Hari Masjid incident. The consent is also accorded for the inquiry/investigation of attempts, abetments and conspiracies in relation to or in connection with the offence in the said case and any other offences committed in the course of same transaction or arising out of the same facts. By order and in the name of the Governor of Maharashtra. sd/- A.N. Naiknaware Deputy Secretary to Government? 28. It is not in dispute about the said notification and the follow-up action by CBI after examining several persons. No doubt, the learned Senior Counsel for the State by drawing our attention to certain affidavits filed by the officers of CBI in the High Court submitted that CBI itself was reluctant to accept the investigation due to various reasons. 28. It is not in dispute about the said notification and the follow-up action by CBI after examining several persons. No doubt, the learned Senior Counsel for the State by drawing our attention to certain affidavits filed by the officers of CBI in the High Court submitted that CBI itself was reluctant to accept the investigation due to various reasons. On going through those affidavits filed by some of the officers, we feel that there is no need to give much importance to the same. 29. About the direction by the High Court, in exercise of its jurisdiction under Article 226, requesting CBI to investigate a cognizable offence within the territory of a State without its consent was considered recently by a Constitution Bench in a decision reported in State of W.B. v. Committee for Protection of Democratic Rights, which reads as follows: (SCC p. 602, para 69) “69. In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.” In view of the above pronouncement, we hold that in order to protect civil liberties, fundamental rights and more particularly Article 21, this Court and High Courts can very well exercise the power, no doubt, must be sparingly, cautiously and in exceptional situations as observed in para 70 of the said judgment." 15. This judgment goes against the petitioner, as the Hon'ble Supreme Court was pleased to lay down that in rare and exceptional case, that investigation can be transferred to CBI, but not of mere allegation that investigation is being conducted in biased manner or on the ground that the petitioner does not have faith in the police. 16. No merits. Dismissed. 17. No costs. Consequently, connected miscellaneous petition is closed.