V. Chikkan, v. The Inspector General Of
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.03.2019
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI W.P.(MD) No.7281 of 2013 and M.P.(MD) No.1 of 2013 V.Chikkan ... Petitioner vs.
1.The Inspector General of Police, South Zone, Madurai.
2.The Inspector General of Railway Police, No.8, Varadarajulu Street, Chennai 600 008.
3.The Superintendent of Police, Railway Police (Trichy Division) (Incharge at Chennai), No.8, Varadarajulu Street, Chennai 600 008.
4.The Superintendent of Police, Railway Police, Trichy Division, Trichy.
5.The Superintendent of Police, Dindigul District.
6.Mr.Sivakumar, The Inspector of Police, Railway Police Station, Dindigul.
... Respondents PRAYER : Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, directing the respondents 1 to 5 to change the investigation of the criminal case registered under the Crime No.44 of 2013 from the hands of the 6th respondent to any other appropriate authority as deem fit and further direct the respondents 1 to 5 to supervise the investigating officer, ensuring fair investigation.
For Petitioner : Mr.K.R.Laxman For Respondents : Mr.A.Robinson Government Advocate (Crl. side)
ORDER
The Writ Petition is filed seeking transfer of investigation in Crime No.44 of 2013, from the file of the sixth respondent to some other investigating agency.
2.According to the petitioner, his 14 year old daughter, namely, C.Suganthi was found dead in the railway track on 07.03.2013 and the sixth respondent police has registered a case in Crime No.44 of 2013 for the offence punishable under Section 174 of Cr.P.C., as if the petitioner's daughter had committed suicide due to exam fear. According to the petitioner, the investigation was not carried out in a proper manner and therefore, he sought for the relief of transfer of investigation.
3.The learned Government Advocate (Criminal side), on instructions from the respondent police, would submit that the investigation in Crime No.44 of 2013 has been concluded and a final report was also filed before the concerned executive magistrate as required under Section 174 of Cr.P.C.
4.Though the case is registered under Section 174 Cr.P.C., this Court in the decision reported in 2018 (3) MWN (Cr.) 143, in the case of Manohari and others v. District Superintendent of Police, Sivaganai District and others, has held that the final report has to be filed only before the concerned Judicial Magistrate and not before the Executive Magistrate. The relevant portion from the said decision is extracted hereunder:
"22. ...... the inquiry that is held by the Executive Magistrate under Section 174 of Criminal Procedure Code is a plain and simple non judicial function. The report submitted by the Executive Magistrate relating to the inquiry shall form part of the investigation conducted by the Police and such report shall be used by the Investigating Officer in the course of investigation.
The investigation conducted by the Investigating Officer has to proceed independently in accordance with law and the inquiry conducted by the Executive Magistrate is not a bar for the Police to go ahead with the investigation. 23.From the above discussion, it is clear that the Police after registration of a FIR under Section 174 of Cr.P.C will have to conduct an inquest in accordance with Section 174(1) of Cr.P.C and submit a report to the Executive Magistrate under Section 174(2) of Criminal Procedure Code. The Executive Magistrate will independently conduct an inquest in line with the power given under Section 174(4) of Cr.P.C. This power has been given to the Executive Magistrate, since the legislature thought that an inquest should be conducted
by an independent authority distinct from the Investigating Agency. Where a report is prepared by the Executive Magistrate after the inquest, the same shall be submitted to the Investigating Officer who shall make it a part of his investigation and may also proceed to make further investigation based on the report. The powers of the Investigating Officer is not curtailed in any manner and he has to proceed independently like in every other case and file a Final Report. This Final Report must be filed only before the jurisdictional Magistrate and not before the Executive Magistrate.
24. In view of the above, this Court proceeds to answer the issue that was raised in this case as follows:
a)The Police on receipt of an information about the suspicious death shall registered an F.I.R under Section 174 of Criminal Procedure Code and thereafter he can proceed to the scene of occurrence and prepare an Inquest Report.
b)When a Police Officer receives an information to the effect that the deceased is lying in a serious condition, he can rush to the scene of occurrence, in order to see if he can save the victim and if in case the victim does not survive he can proceed to prepare the Inquest Report in accordance with Section 174(1) of Cr.P.C, and thereafter register an F.I.R under Section 174 of Cr.P.C. The Inquest Report has to describe the wounds, fractures, bruises and other marks of injuries as are found on the dead body and state in what manner, or by what weapon or instrument [if any], such marks appear to have been inflicted.
c)The Police Officer shall also prepare a Rough Sketch of the place of occurrence.
d)The Inquest Report and the Rough Sketch shall be prepared in the presence of two or more respectable inhabitants of the neighborhood.
e)The object of the Inquest Proceedings is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. The Inquest Report need not contain details such as how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted and these facts are not within the scope of Inquest Proceedings and they fall within the scope of the investigation to be conducted by the Police.
f)immediately after the preparation of the Inquest Report in accordance with Section 174(1) of
Criminal Procedure Code, the Police shall submit the same to the Executive Magistrate under Section 174(2) in order to enable the Executive Magistrate to hold an independent inquest as contemplated under Section 174
(4) of Criminal Procedure Code.
g)The Executive Magistrate on completion of the inquest shall submit a report to the Police and such report shall form part of the investigation conducted by the Police and the Police shall collect details from such report and conduct the investigation accordingly. h)The power of the Police to investigate is in no way stopped or curtailed or interfered with by the inquest held by the Executive Magistrate and the freedom of the Police to proceed with the investigation will be left untouched.
i)The Police on the conclusion of the investigation shall file a Final Report under Section 173(2) of Cr.P.C only before the jurisdictional Magistrate and not before the Executive Magistrate. This will apply, in both cases, whether the Final Report is a positive report or is a Closure Report. j)If in case the Police proceeds to file a Closure Report, the victim shall be entitled to be served with a R.C.S notice in order to enable him to file a protest Petition before the concerned Magistrate.
k)On such protest Petition being filed, the concerned Judicial Magistrate shall act in accordance with law laid down by the Hon'ble Supreme Court in Vinay Tyagi .Vs. Irshad Ali, reported in [2013 (5) SCC 762].
5.Hence, the respondent police is directed to file a final report before the concerned Judicial Magistrate within a period of four weeks from the date of receipt of copy of this order and the concerned Judicial Magistrate shall issue notice to the complainant enabling him to file a protest petition. The learned Magistrate, after considering the protest petition shall pass orders on the protest petition, in accordance with law.
6.With the above directions, this Writ Petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar(Crl.Side) // True Copy // Sub Assistant Registrar(CS )
To 1.The Inspector General of Police, South Zone, Madurai.
2.The Inspector General of Railway Police, No.8, Varadarajulu Street, Chennai 600 008.
3.The Superintendent of Police, Railway Police (Trichy Division) (Incharge at Chennai), No.8, Varadarajulu Street, Chennai 600 008.
4.The Superintendent of Police, Railway Police, Trichy Division, Trichy.
5.The Superintendent of Police, Dindigul District.
6.Mr.Sivakumar, The Inspector of Police, Railway Police Station, Dindigul.
7.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+1 CC to M/s.K.R.LAXMAN, Advocate in SR-53432 W.P.(MD) No.7281 of 2013 and M.P.(MD) No.1 of 2013 11.03.2019 sji PK/25.04.2019 :5P/9C