W.P.No.7300 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.09.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
W.P.No.7300 of 2021
P.Muthukrishnan
... Petitioner
Vs.
1.The Director General of Police,
Puducherry State,
Puducherry.
2.The Inspector of Police,
D.Nagar Police Station,
Puducherry State,
Puducherry.
... Respondents
PRAYER : Writ Petition is filed under Article 226 of the Constitution of India
to issue a Writ of Mandamus, directing the respondent No.1 to take legal
action based on the representation of petitioner's son dated 26.09.2017 by
ordering reinvestigation of entire case in Cr.No.148 of 2012 for conducting
denova investigation not below the rank of Superintendent of police with
CBCID, Puducherry.
For Petitioner : Mr.V.Jayaprakash Narayanan for
Mr.V.Jaisankar
For Respondents : Mr.Raj Sharath for
Mr.V.Balamurugane, PP (Puducherry)
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W.P.No.7300 of 2021
ORDER
This Writ Petition has been preferred to direct the first respondent to take legal action based on the representation of petitioner's son dated 26.09.2017 by ordering reinvestigation of entire case in Cr.No.148 of 2012 for conducting denova investigation not below the rank of Superintendent of police with CBCID, Puducherry.
2. Heard Mr.V.Jayaprakash Narayanan, learned counsel for the petitioner, Mr.Raj Sharath, learned Public Prosecutor (Puducherry) appearing for the respondents and also perused the materials placed on record.
3. The short facts of the case are as follows:
A case has been registered in Crime No.148 of 2012 in D.Nagar Police Station, Puducherry, out of the complaint given by one Mayavan who was the AH-SG Guard of Jipmer Hospital, Puducherry. He has given the complaint by stating that on 04.04.2012 at about 10.00 p.m., when he was on duty, he got an information that in the toilet of the Hospital casuality, a male child was found dead. On getting the information from the duty doctor through MLC, the Complainant gave a complaint to the police for taking appropriate action 2/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 against the mother of the child. On the basis of the above complaint, FIR was registered under Section 318 of I.P.C. After completing the investigation, a charge sheet was filed against the mother of the deceased and the case was taken on file in STR No.479 of 2013 before the Judicial Magistrate-II, Puducherry and the accused was found guilty for the offence under Section 318 of I.P.C. Since the accused was an unmarried girl and was studying in final year B.Sc, she was released on admonition under Section 3 of P.O. Act and the case was disposed on 26.03.2013.
3.1. A representation was given by one Elumalai on 26.09.2017 to the first respondent who is the accused in S.C.No.319 of 2014 for seeking further investigation. The said Elumalai has stated that for the offence committed by the accused in Crime No.148 of 2012, the police ought to have registered a case under Section 315 of I.P.C., along with Section 318 of I.P.C. Since the first respondent did not take any action on the said representation, the petitioner who is the father of Elumalai, has filed this writ petition seeking direction to the first respondent to take action on the representation given by his son Elumalai on 26.09.2017.
3/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 3.2. It is revealed from the representation of the Elumalai that the mother of the deceased child who is the accused in STR No.479 of 2013 (Cr.No.148 of 2012) has given a complaint against Elumalai on 09.04.2012 on the allegations of rape. An FIR has been filed in Cr.No.2 of 2012 on 11.04.2012. After the completion of investigation, a charge sheet has been filed before the Mahila Court, Villupuram and the case was taken on file in S.C.No.319 of 2014. After a full fledged trial, Elumalai was found guilty for the offence of rape and he was convicted. The judgment in the above case was pronounced on 30.11.2015. The criminal appeal filed by the accused Elumalai in Crl.A.No.79 of 2015 before this Court was also dismissed on 05.07.2019. Since the said Elumalai is in prison, the present writ petition is filed by his father Muthukrishnan.
3.3. As per the case of the prosecution in S.C.No.319 of 2014 against Elumalai, he had committed an offence of rape against the mother of the deceased child. So the accused in Crime No.148 of 2012 is the victim in S.C.No.319 of 2014. The case of the prosecution is that the victim got conceived in view of the offence of rape committed against her by Elumalai. The child was born to the victim on 02.04.2012 at the toilet of Jipmer 4/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 Hospital. Since the victim is an unwed mother who had given birth to the child, she left the child in toilet, fearing social stigma. Only in view of that, a case has been registered against her for the offence under Section 318 of I.P.C. Despite the case against the victim girl had charge sheeted and the case was disposed, the convict in S.C.No.319 of 2014 had given a representation to do further investigation by alleging that the police ought to have registered the case against the victim under Section 315 of I.P.C.
4. Mr.V.Jayaprakash Narayanan, learned counsel for the petitioner submitted that the post mortem report of the deceased child would reveal that there are enough materials available on record to do further investigation for the offence under Section 315 of I.P.C; in the post mortem report given by the Doctor, the opinion regarding the cause of the death of the child was shown as under:
“A live born fetus of around 10 months of Intra Uterine Age. Cause of death is due to shock from feto placental hemorrhage and complication thereof.” 5/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021
5. Though in the representation of Elumalai, it is stated that the child was still born, the post mortem report would show that the child was born alive. The cause of death of the child was due to shock from feto placental hemorrhage. However the cause of feto placental hemorrhage is not stated any where. If the new born child is left at the toilet, the child would have got affected due to the environment and could have developed hemorrhage and complications. It is to be noted that the victim was just 19 years old at the time of occurrence. She did not know how to be a mother of a child that would born without marriage and only due to such fear, she had left the child in the toilet.
6. To attract the offence under Section 315 of I.P.C., the accused ought to have prevented the live birth of the child or after it was born, the death of the child should have been concealed. Any such action is done without the good faith for saving the life of the mother, the person causing death of the new born child should be punished for the offence under Section 315 of I.P.C. So far as the offence under Section 318 of I.P.C. is concerned, it is for secretly burying or disposing the dead body of the child where such child died before or after or during its birth and thereby intentionally concealing the birth of the child.
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7. The case on hand, the mother of the child had an intention to conceal the birth of the child by hiding the child in the toilet. No material is available on record to show that the mother of the child had done some specific action to kill the child. At the time when the child was seen in the toilet, it was a few days after it was born. The mother ought to have delivered the child in the toilet and left it there itself. Because no material is produced to show where the child was delivered by the mother. The case of the prosecution is that the mother of the child came to the Hospital and in the toilet itself she delivered the baby which was still born. But in the post-mortem, it is stated that the child was live born, without any basic information.
8. It cannot be known from the report whether placental hemorrhage was caused to the child after it was born or before it was born or during its birth. The materials available on record, it is only seen that the child was born dead. Had the child born alive and if the mother of the child attempted to kill the child, the materials would show such facts. Without any sufficient materials to show that the mother had killed the child after it was born alive, it is difficult to accept the Investigation Authorities to do investigation in the 7/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 line that the mother had killed the child. Even the post-mortem report is not much helpful.
9. The mother of the child was just 19 years would have got scared immediately she saw the child. Without knowing how to handle the situation, she left the child there itself. So the investigating agency had rightly tracked its investigation for the offence under Section 318 of I.P.C. Since none of the witnesses have stated that the child was born alive, no purpose will be served for doing further investigation in this matter for the reasons stated by the petitioner.
10. Even according to the representation made by the son of the petitioner, it is seen that he had stated that the child was born dead. Since the delivery of the child had happened without anyone's assistance at the toilet, it would have been possible for some untowardness even without any intentional act of commission and omission on the part of the mother of the child.
11. The convict in S.C.No.319 of 2014 had bothered to file this petition seeking for re-investigation only because he got convicted on the complaint given by the mother of the child. Since the mother of the child was 8/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 released on admonition in view of her young age and lack of awareness, that had enraged the accused in S.C.No.319 of 2014 and on his behalf, his father has filed this Writ Petition. The petition filed for seeking further investigation is nothing but with the sole motive to harass the mother of the deceased child. The respondent police had already registered the case under Section 318 of I.P.C. against the mother of the child and on that score charge filed and the case was taken on file on STR No.479 of 2013 and the case was disposed already. The woman who was the victim of the offence of rape, is being harassed by the accused in the rape case and his father just for the purpose of settling their vengeance with her for giving the complaint.
12. It is needless to add that once the investigation has been completed, the permission for further investigation can be sought only by police on the ground that there are some fresh materials available. Without any fresh materials and without any prima reasons, but out of grudge, the accused in the rape case had given representation which is not worth for any consideration.
13. In view of the above stated reasons, this Writ Petition stands 9/12 https://www.mhc.tn.gov.in/judis W.P.No.7300 of 2021 dismissed. No costs.
Index: Yes/No 08.09.2022
Speaking / Non Speaking Order
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W.P.No.7300 of 2021
To
1.The Director General of Police,
Puducherry State,
Puducherry.
2.The Inspector of Police,
D.Nagar Police Station,
Puducherry State, Puducherry.
3.The Public Prosecutor,
High Court of Madras.
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W.P.No.7300 of 2021
R.N.MANJULA, J.
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W.P.No.7300 of 2021
08.09.2022
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