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CASE NO.: Appeal (crl.)  1211 of 2006

PETITIONER: Sasi Thomas                                                              

RESPONDENT: State & Ors.                                                             

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1540 of 2006)

S.B. Sinha, J.

       Leave granted.

                One Achamma (deceased) was married with Jose Paul Respondent  No. 4 herein.  After their marriage, they went to USA.  Jose Paul was a  Vice-President in a reputed bank in USA.  The deceased was a nurse.  They  obtained naturalized citizenship in USA.  Allegedly, the couple was not  leaving a happy married life.  Respondent No. 4 developed intimacy with  one divorcee, viz., Lissy P.C.  The deceased thereafter came back to India  with her children on five years visa.  She purchased a house in the year  1994.  In 1996, Respondent No. 4 also came back to India.  Appellant is her  younger brother.  She died on 24.01.1998.  She was stated to have died of  heart failure.  Respondent No. 5 gave a certificate to that effect.  The  appellant made complaints to various authorities whereupon the body was  exhumed on 22.04.1998.  Thereupon only a post mortem was conducted.  A  final opinion was given on 18.06.1998 stating that she died of Organo  Phosphorous Insecticide poisoning.  No injuries on her person could have  been found as mentioned in the report.  The appellant contended that the  dead body had injuries.

       One Shri Durairaj, Inspector of Police who investigated into the  matter issued a final form stating that the deceased could have committed  suicide.

       A writ petition came to be filed by the appellant herein praying that  further investigation in terms of Sub-section (8) of Section 173 of the Code  of Criminal Procedure should be directed to be carried out by the Central  Bureau of Investigation (CBI).  By an order dated 14.07.2000, further  investigation was directed to be done by CB-CID.  They submitted another  final report on 19.11.2002 charging Respondent No. 4 for commission of  offence of abetment of suicide under Section 306 and Respondent No. 5 for  commission of offence under Section 201 of the Indian Penal Code.

       Cognizance of the offence was taken.  The trial has already  commenced and it is stated that 47 witnesses have been examined.  The  appellant filed an application before the High Court of Madras purported to  be under Section 482 of the Code of Criminal Procedure inter alia praying  for further investigation in the aforementioned case by the CBI.  A learned  Judge of the said Court dismissed the said application stating:

       "The learned counsel appearing for the  petitioner would submit that some poisonous  substance was found in the intestine of the

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deceased as per the post mortem examination.  He  would further contend that there are materials  already collected by the investigating agency,  which makes out an offence under Section 302 of  I.P.C.  The first respondent had conducted the  investigation and laid charge sheet for offences  under Sections 306 and 201 of I.P.C.  Now, the  case is ripe for trial after the charges have been  framed by the learned Assistant Sessions Judge,  Ooty.  The charge can be altered at any time under  Section 216 of Cr.P.C., by the trial court, if it  comes to the conclusion that a different offence is  attracted.  

       Considering the facts and circumstances of  the case, this Court finds that further investigation  at this distance of time is not necessitated..."

       The appellant is, thus, before us.

       Mr. V.J. Francis, learned counsel appearing on behalf of the appellant,  would submit that the High Court was not correct to take the said view  without taking into consideration two important developments in the case,  viz.  a case from heart attack was made out at an initial stage, whereafter a  case of abetment of suicide was made out, which would go to show as to  how the investigation has been carried out both by the general police or by  the CB-CID in the State of Madras.   

       The learned counsel would contend that there are various  circumstances which would clearly point out that Respondent No. 4  murdered the deceased, some of which are as under:

i.      The death of Smt. Achamma was alleged to  be sudden as per the version given by the servant  of respondent no. 4 to the petitioner.  This proved  to be false later on. ii.     The petitioner had asked the respondent no.  4 to keep the dead body of his sister till the arrival  of all her relatives.  This request was turned down  by respondent no. 4 and the dead body was ready  for burial at 2 pm on 25.1.1998. iii.    No post mortem was conducted on the dead  body. iv.     Respondent no. 5 informed the petitioner  that the cause of death of the deceased was heart  attack and Respondent No. 5 had tried her best to  revive the body. v.      The deceased was said to be seriously sick  from 6.30 p.m. on 24.1.1998, but she was taken to  the hospital only at about 12.30 night.  The body  was carried to the hospital at the back of the jeep  accompanied by the Respondent No. 4, one Father  Mathew Edakkara, another brother of the  Respondent No. 4 and one Shri Mathukutty and  Shri Mani.  Thereafter the information was  conveyed by Respondent No. 4 about death after  about 3 am on 25.1.1998. vi.     The Respondent No. 4 was alleged to have  been found happy after the death of his wife and he  was found drinking happily in front of the room of  the deceased, without letting anybody go in. vii.    The children of the deceased had made a  complaint to the Judicial Magistrate that their  ’Daddy’ was in the habit of beating their mother

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(the deceased). viii.   On or about 16.3.1998 an application being  made on behalf of the two children of the  deceased, the Judicial Magistrate, Gudalur, had  passed an order that the children be kept in the  Hostel run by Mr. Herman.  Despite the said  specific order, Respondent No. 4 had taken away  the children.  No orders were obtained by  Respondent No. 4 for their custody by him. ix.     The final report given by the Police Surgeon  and Professor of Forensic Medicine of  Coimbatore, Medical College, had reported that  the deceased had died of Organo Prosperous  Insecticide Poisoning. x.      On the basis of the said report dated 18-06- 1998 the police had converted the whole incident  from heart attack to one of suicide by the deceased  herself by consuming poison.  This was neither the  case of Respondent No. 4 nor Respondent No.  5/Doctor, who had attended on her when the body  was taken to the Pushpagiri Medical Hospital,  where Respondent No. 5 was there. xi.     If the incident of consuming poison by the  deceased as based on the report submitted by the  post mortem doctor on 18.6.1998 there was no  reason as to why such a report was not submitted  by the police till 2002. xii.    One of the persons who accompanied the  body (of the person who had committed suicide or  had heart attack) is one Father Mathew Edakkara,  Principal of Morning Star School.  It is on record  that the said priest was given a Maruti car by  Respondent No. 4, as he had helped the family,  and also to buy property. xiii.   Driver Shri Mani who had taken the  deceased to Hospital, stated that he had brought  the poison, and kept in the store room. xiv.    The Respondent No. 4 had suddenly gone to  the United States to settle the Insurance Claim and  get the benefits.

       Our attention has been drawn to the counter-affidavit filed by  Respondent No. 1 herein which is to the following effect:

"5. That there is no evidence to prove that it was a  case of murder.  The petitioner has listed out  fourteen points in paragraph No. 5 to create  suspicion against Jose Paul in respect of the death  of Achamma.  Certainly they are material  circumstances to prove that Jose Paul was behind  the death of his wife Achamma.  These facts would  support the case of the prosecution that Jose Paul  committed cruelty as a result of which his wife  achamma could have committed suicide.  But these  fourteen points are not sufficient to prove a theory  that Jose Paul murdered his wife Achamma, as  suspected by the petitioner."

       Mr. R. Sundaravaradan, learned senior counsel appearing on behalf of  the State, on the other hand, would contend that this Court should not  exercise its discretionary jurisdiction to direct further investigation at this  stage in the matter as the same would amount to a re-investigation.

       Mr. K.V. Vishwanathan, learned counsel appearing on behalf of  Respondent No. 4, would submit that if sufficient evidences are brought on

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record, the Trial Judge could alter the charge in exercise of its jurisdiction  under Section 216 of the Code of Criminal Procedure.   

       Mr. Dayan Krishnan, learned counsel appearing on behalf of  Respondent No. 5, submitted that the question of directing a further  investigation as against Respondent No. 5 does not arise as he has been  charged only under Section 201 of the Indian Penal Code.

       Before us, a counter-affidavit has been filed on behalf of the CBI.  In  its counter-affidavit the CBI has supported the impugned judgment.   

       Mr. A. Sharan, learned Additional Solicitor General, however, would  contend that the same may be treated to be withdrawn and in the event, this  Court forms an opinion that a case has been made out for further  investigation, the CBI would take up the same.

       The learned Additional Solicitor General urged that unfortunately it is  possible that adequate materials had not been collected during investigation  and in the event it is found that the investigating officers have failed to  perform their statutory duties, this Court may issue appropriate direction in  exercise of its jurisdiction under Article 142 of the Constitution of India.

       Proper and fair investigation on the part of the investigating officer is  the backbone of rule of law.  A proper and effective investigation into a  serious offence and particularly in a case where there is no direct evidence  assumes great significance as collection of adequate materials to prove the  circumstantial evidence becomes essential.  Unfortunately, the appellant has  not been treated fairly.  When a death has occurred in a suspicious  circumstance and in particular when an attempt had been made to bury the  dead body hurriedly and upon obtaining apparently an incorrect medical  certificate, it was expected that upon exhumation of the body, the  investigating authorities of the State shall carry out their statutory duties  fairly.  The appellant alleges that no fair investigation has been conducted.   It is clearly a matter of great concern that the authorities did not become  alive to the situation.  Although the dead body was buried on the premise  that she died of heart attach, a final report was submitted stating that she  might have committed a suicide.  We do not know on what material, such an  opinion was arrived at by the investigating officer.  It is only because of the  persistent efforts on the part of the appellant to move the High Court, a  further investigation was directed to be made by CB-CID.  Another final  report was submitted that Respondent Nos. 4 and 5 have committed the  offence under Sections 302 and 201 respectively.

       While doing so, it is not known, whether fourteen circumstances  enumerated by the appellant herein had been duly taken note of and  investigation in this behalf had been carried out.  Although the CBI in its  counter-affidavit has supported the impugned judgment of the High Court  but as noticed hereinbefore, it without looking into the documents opined  that although the said circumstances are relevant but they themselves had not  proved commission of offence of murder of the deceased by Respondent No.  4 herein.  We regret to state that it was not expected of the CBI to file such  an affidavit.  Even the learned Additional Solicitor General appearing on  behalf of the CBI was not satisfied therewith and as indicated hereinbefore  sought to withdraw the same.

       The investigating officer and particularly CB-CID should have made a  thorough investigation.  If the allegations made by the appellant are correct,  the same depicts a sordid state of affairs.

       The job of the investigating officer is to make investigation in right  direction.  The investigation must be inconsonance with the ingredients of  the offence.  It cannot be haphazard or unmethodical.   

       We may notice that in MC v. Bulgaria [15 BHRC 627], where the  investigation was carried out in a case of rape of minor by two boys as to

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find out as to whether she was subjected to sexual intercourse upon applying  a force in contradistinction "with her consent".  The European Court of  Human Rights referring to Article 3 of the Convention for the Protection of  Human Rights and Fundamental Freedoms, 1950 opined that the general  approach should be : (a)     the existence of a positive obligation to punish rape and to investigate          in rape cases. (b)     the modern conception of the elements of rape and its impact on the          substance of member states’ positive obligation to provide adequate          protection. (c)     the court’s task.

       As regards application of the court’s approach, it opined: "180. Furthermore, it appears that the prosecutors  did not exclude the possibility that the applicant  might have not consented, but adopted the view  that in any event, in the absence of proof of  resistance, it could not be concluded that the  perpetrators had understood that the applicant had  not consented (see the text of the prosecutors’  decisions in paras 64 and 65, above).  The  prosecutors forwent the possibility of proving the  perpetrators’ mens rea by assessing all the  surrounding circumstances, such as evidence that  they had deliberately misled the applicant in order  to take her to a deserted area, thus creating an  environment of coercion, and also by judging the  credibility of the versions of the facts proposed by  the three men and witnesses called by them (see  paras 21, 63 and 66-68, above).

186. As regards the government’s argument that  the national legal system provided for the  possibility of a civil action for damages against the  perpetrators, the court notes that this assertion has  not been substantiated.  In any event, as stated  above, effective protection against rape and sexual  abuse requires measures of a criminal law nature  (see paras 124 and 148-153, above).

187. The court thus finds that in the present case  there has been a violation of the respondent state’s  positive obligations under both arts 3 and 8 of the  convention.  It also holds that no separate issue  arises under art 13 of the convention."

       It was further found that there has been a violation of Articles 14 and  41 of the Convention and on that ground granted damage of 8000 euros to  the prosecutrix besides costs and expenses.

       Indisputably, in a given case, this Court can direct an investigation by  the CBI.  [See Paramjit Kaur (Mrs.) v. State of Punjab and Others (1996) 7  SCC 20]

       In Gudalure M.J. Cherian and Others v. Union of India and Others  [(1992) 1 SCC 397], this Court held:

"8. It is obvious from the affidavit of the Senior  Superintendent, Police that the nuns who are  victims of the tragedy are not coming forward to  identify the culprits in an identification parade to  be held by the Magistrate. The petitioners on the  other hand, have alleged that the four persons who  have been set up as accused by the police are not  the real culprits and the police is asking the sisters

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to accept the four arrested persons as culprits. In  the face of these averments and keeping in view  the facts and circumstances of this case, we are of  the view that ends of justice would be met if we  direct the CBI to hold further investigation in  respect of the offences committed between the  night of July 12 and 13, 1990 as per the FIR  lodged at Police Station, Gajraula."

       Yet recently, in Ramesh Kumari v. State (NCT of Delhi) and Others  [(2006) 2 SCC 677] this Court directed the CBI to register a case and  investigate the complaint filed by the appellant therein in September, 1997.   [See also Shashikant v. C.B.I. & Others 2006(11) SCALE 272]

       The powers of this Court both under Articles 32 and 142 of the  Constitution of India are plenary in nature.

       The High Court or this Court in exercise of the said power is entitled  to reach injustice wherever it is found.  But, it is not a case where  cognizance had not been taken.  It is not even a case where a direction under  Sub-section (8) of Section 173 of the Code of Criminal Procedure can be  issued at this stage.  It is also not a case, in our opinion, to interfere with the  trial of the case.   

       Reliance has been placed by Mr. Sundaravaradan on Amar Chand  Agarwala v. Shanti Bose and another [AIR 1973 SC 799] wherein for  quashing the charges at a preliminary stage, the High Court was found to  have relied on oral and documentary evidences adduced on behalf of the  complainant in presence of accused.  The said decision, although in our  opinion, cannot be said to have any direct application in the instant case but  signifies the justifiability or otherwise of exercise of the jurisdiction of this  Court at this stage.  

       We may furthermore notice that a Division Bench of this Court in  Rajesh and Others v. Ramdeo and Others [(2001) 10 SCC 759] refused to  direct a fresh and further investigation opining:

"\005Since the investigation agency has already filed  the charge-sheet on the basis of which the accused  persons are being proceeded against, if any further  materials are available, the Court may alter the  charge framed. In the circumstances, we have no  hesitation to come to the conclusion that the High  Court has overstepped its jurisdiction in issuing the  impugned direction calling upon further  investigation into the matter, which in our  considered opinion, would be an abuse of the  process of the court\005"

       This decision albeit is not supported by any reason.  It has not taken  into consideration the binding precedents as was urged by the learned  Additional Solicitor General.  But, as at present advised, we do not intend to  take a contrary view.

       We may, however, note that in Hasanbhai Valibhai Qureshi v. State of  Gujarat and Others [(2004) 5 SCC 347], a Division Bench of this Court  stated the law, thus:

"10. Therefore, if during trial the trial court on a  consideration of broad probabilities of the case  based upon total effect of the evidence and  documents produced is satisfied that any addition  or alteration of the charge is necessary, it is free to  do so, and there can be no legal bar to  appropriately act as the exigencies of the case

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warrant or necessitate.  11. Coming to the question whether a further  investigation is warranted, the hands of the  investigating agency or the court should not be tied  down on the ground that further investigation may  delay the trial, as the ultimate object is to arrive at  the truth."

       As such an option is maintainable, we have no doubt that the learned  Judge if any occasion  arises, may take recourse thereto.

       We may furthermore notice that this Court in Zahira Habibulla H.  Sheikh and Another v. State of Gujarat and Others [(2004) 4 SCC 158]  opined:

"18. According to the appellant Zahira there was  no fair trial and the entire effort during trial and at  all relevant times before also was to see that the  accused persons got acquitted. When the  investigating agency helps the accused, the  witnesses are threatened to depose falsely and the  prosecutor acts in a manner as if he was defending  the accused, and the court was acting merely as an  onlooker and when there is no fair trial at all,  justice becomes the victim.  54. Though justice is depicted to be blindfolded,  as popularly said, it is only a veil not to see who  the party before it is while pronouncing judgment  on the cause brought before it by enforcing law  and administer justice and not to ignore or turn the  mind/attention of the court away from the truth of  the cause or lis before it, in disregard of its duty to  prevent miscarriage of justice. When an ordinary  citizen makes a grievance against the mighty  administration, any indifference, inaction or  lethargy shown in protecting his right guaranteed  in law will tend to paralyse by such inaction or  lethargic action of courts and erode in stages the  faith inbuilt in the judicial system ultimately  destroying the very justice-delivery system of the  country itself. Doing justice is the paramount  consideration and that duty cannot be abdicated or  diluted and diverted by manipulative red herrings. 55. The courts, at the expense of repetition we may  state, exist for doing justice to the persons who are  affected. The trial/first appellate courts cannot get  swayed by abstract technicalities and close their  eyes to factors which need to be positively probed  and noticed. The court is not merely to act as a  tape recorder recording evidence, overlooking the  object of trial i.e. to get at the truth. It cannot be  oblivious to the active role to be played for which  there is not only ample scope, but sufficient  powers conferred under the Code. It has a greater  duty and responsibility i.e. to render justice, in a  case where the role of the prosecuting agency itself  is put in issue and is said to be hand in glove with  the accused, parading a mock fight and making a  mockery of the criminal justice administration  itself."           Such a direction, thus, can be issued where there had been complete  failure of justice and in a case where the investigating and prosecuting  agencies were found to have not performed their role in the manner it was

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expected to do.

       The question has again been considered by this Court in Rajiv Ranjan  Singh ’Lalan’ (VIII) and Another v. Union of India and Others [(2006) 6  SCC 613] wherein referring to Union of India v. Sushil Kumar Modi [(1998)  8 SCC 661, this Court opined:

"\005It is thus clear from the above judgment that  once a charge-sheet is filed in the competent court  after completion of the investigation, the process  of monitoring by this Court for the purpose of  making CBI and other investigative agencies  concerned perform their function of investigating  into the offences concerned comes to an end and  thereafter, it is only the court in which the charge- sheet is filed which is to deal with all matters  relating to the trial of the accused including  matters falling within the scope of Section 173(8).  38. We respectfully agree with the above view  expressed by this Court. In our view, monitoring of  the pending trial is subversion of criminal law as it  stands to mean that the court behind the back of  the accused is entering into a dialogue with the  investigating agency. Therefore, there can be no  monitoring after the charge-sheet is filed."

       The decisions referred to hereinbefore clearly show that the Trial  Court even is not powerless.  It, if a case is made out, can exercise its  discretionary jurisdiction under Section 311 of the Code of Criminal  Procedure as also Section 391 thereof.  In the event of open marshalling of  the evidence, it comes to the opinion that a case has been made out for  alteration of charge, it indisputably can do so in exercise of its power under  Section 311 of the Code of Criminal Procedure.  In a given case again it can  consider the question from the viewpoint of the appellant herein as regards  the existence of circumstances which point out to the guilt of the Respondent  No. 4.             We are also of the opinion that it is a fit case where the appellant  should be permitted to engage a lawyer on his behalf who would assist the  public prosecutor.  We place on record that the learned Counsel for the State  assured us that the same shall not be objected to.  We hope and trust that in  the event the State is of the opinion that the prosecution should be conducted  by a public prosecutor of repute and having sufficient experience, it would  not hesitate to appoint one.

       We would also direct the learned Trial Judge if any occasion arises  therefor,  to exercise his power under Section 311 of the Code of Criminal  Procedure upon considering the facts and circumstances of this case.   

       We may reiterate that although it is not beyond the jurisdiction of this  Court to direct further investigation by the CBI as contradistinguished from  reinvestigation at this stage, but we decline to do so keeping in view the fact  that 47 witnesses including the appellant himself have already been  examined and recourse thereto can be taken if during trial a case therefor is  found to be have been made out.

       This appeal is disposed of with the aforementioned directions.