Crl.Pet./32/2021
2021 Latest Caselaw 2230 Gua

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GAHC010014622021




                       THE GAUHATI HIGH COURT AT GUWAHATI
             (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                              PRINCIPAL SEAT AT GUWAHATI


                               Criminal Petition No.32/2021




     Mira Sen Sutradhar and Anr.             ...... Petitioners.


                          -Versus-


     State of Assam                           ...... Respondent.

     Advocate for the petitioners     :      Mr. P. Dutta.


     Advocate for the State            :     Mr. R.J. Baruah,
                                              Addl. P.P., Assam.



                                           BEFORE
                      HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN




       Date of hearing & judgment     :      16.09.2021.
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                             :: JUDGEMENT AND ORDER ::

Heard Mr. P. Dutta, learned counsel for the petitioners as well as Mr. R.J. Baruah, learned Addl. Public Prosecutor representing the State of Assam.

2. Two petitioners are the residents of Goalpara and the parents of their only son who died

in a mysterious circumstance. Their son Jyoirmoy Sen after securing 1 st Class in Postgraduate Course came to Guwahati on 28.08.2020 for pursuing coaching class for UPSC examination and amidst his coaching period he was also working as a part-time online Data Entry Operator for TDC Technology Company.

3. The deceased Jyotirmoy Sen had a brilliant academic career and he was also a good footballer who participated in many football tournaments. In Guwahati, their (petitioners') son was residing as a tenant under the landlord Prabhat Ch. Talukdar, Zoo Road Tiniali, Bylane- 6, House No.18 and the petitioners were in regular touch with their son. But on 12.09.2020, when their son was not responding to their calls, they asked the landlord to see the matter through the ventilator and after a while, Mr. Talukdar informed over the phone that their son was lying on the floor upside down and his door was locked from inside. Then and there, the petitioners informed the friends and their relatives to go to the place of occurrence and they also arrived at night at about 11.30 P.M. In the meantime, the body was taken to the police station but when the other persons arrived there saw that the deceased (petitioners' son) was lying with blood stain over his face, ear and nose and injury was also visible on his face, forehead and other parts of the body. Thereafter, deceased's body was taken to the hospital for post-mortem examination. On the basis of the suicide note found inside the house and as reported by other persons that their son has committed suicide, the father Subal Chandra Sen lodged the FIR and accordingly Geetanagar P.S. Case No.276/2020 under Section 120(B)/306 IPC was registered and the investigation was carried out.

4. Subsequent to the incident, the petitioners noticed various aspects of the matter, which according to them, is not a case of suicide but a case of murder. The basis of such suspicion Page No.# 3/8

is meaningful, which is categorized as below:

(a) The roof of the room where the deceased resided was of GIS Tin and other room was vacant. The height of the room was 8/9 feet and stubled bodily person like deceased whose height was 6 feet cannot hang himself at a little distance and there was no tool, chair etc. present in the room, which could not be used to commit suicide by hanging, that too by a piece of torn cloth which was tied with the fan which is very thin and cannot take the weight of their son. One iron road was also found outside the room.

(b) The purported suicide note was not written by their son and if written, it was under compulsion and threat and it was a cold blooded murder.

(c) The petitioners came to know about that their son was working as a Data Entry Operator in TDC Technology Company where he was harassed and the possibility of killing of their son by some miscreants is apparent in such suspicious circumstances, but the case of suicide has now been projected.

(d) Post-mortem Report reveals that the cause of death was due to asphyxia, as a result of ante-mortem hanging. Injury over forehead was ante-mortem and caused by blunt force impact, which is indicative of commission of murder.

(e) The I/O has not seized the relevant documents including fan, torn gamosha, and no panchnama was prepared. No CC TV camera footage has been seized/collected nor the officials of the TDC Technology Company was examined. No crime scene was prepared, no relevant witness who can give the clue of the offence has been examined by the I/O.

5. Being dissatisfied with the progress of investigation, the petitioners herein filed an application on 03.12.2020 under Section 156(3) CrPC, before the learned Chief Judicial Page No.# 4/8

Magistrate, Kamrup(M) at Guwahati for issuance of direction for proper investigation and monitoring of the case. The learned Magistrate obtained a status report from the I/O about the progress of investigation and on the basis of the status report, learned trial court was of the view that there is no infirmity in the investigation carried on by the I/O. However, the I/O was directed to complete the investigation at the earliest by its order dated 24.12.2020. On that day, however, there was no representation on behalf of the petitioners' side.

6. Challenging the aforesaid order dated 24.12.2020, the petitioner is before this Court with this petition under Section 482 CrPC for setting aside and quashing the aforesaid order contending inter alia that the learned court below has not taken into consideration various facets of the case, which needs proper investigation, and the court has not exercised its jurisdiction of monitoring the investigation as envisaged under the law. The petitioners will be denied proper justice in the hands of law for not adhering to proper investigation by the I/O would result miscarriage of justice.

7. This Court has also obtained a present status report from the I/O, which is on record.

8. The learned counsel for the petitioners has submitted that the petitioners has earnestly prayed for proper investigation of the case and monitoring by the learned trial court, which was, however, denied by the impugned order dated 24.12.2020.

9. Relying on the decision in Sakiri Vasu -versus- State of Uttar Pradesh and Others., reported in (2008) 2 SCC 409, it has been submitted that the learned trial court is empowered to issue such direction and monitoring of investigation within the purview of Section 156(3) CrPC.

10. On perusal of the status report submitted before the trial court as on 24.12.2020 and the present status report submitted on 07.09.2021, reflects that nothing more has progressed than that of earlier status report. In a peculiar circumstances, the deceased was found to be dead inside his locked room with another history which states that he was working as a Data Page No.# 5/8

Entry Operator in the TDC Technology Company, and certain threat elements that has also been exposed during the course of investigation including analysis of mobile phone, data in the laptop etc. are of paramount importance. Although the I/O has taken steps for examination of the same by asking technical assistant from Deputy Commissioner of Police (Crime), the result of same has not been seen. In the report, the I/O has submitted that he has requested the SP, CID to depute expert team for supervision and conducting scientific investigation, but the result is not brought on record. So far as the examination of the officials of TDC Technology Company, has not yet been done, except sending of notice under Section 41(1)(A) CrPC, which appears to be a mere formality, as several months has elapsed for the same.

11. In view of the Post Mortem report with regard to the cause of death, the case cannot be stated as a matter of suicide, but a case of murder, but the I/O has not added 302 IPC in the FIR.

12. In the impugned order, the learned trial court has not addressed the issue set forth by the petitioners in their petition in true perspective of law and has summed up the entirety of the matter only on the status report given by the I/O. Being a court of law, the court has a solemn duty to perform and appreciate every aspect of the matter laid before the court and to give proper reasons for accepting or rejecting a subject-matter. An unfortunate parents has lost their only son, who came to Guwahati in pursuit of higher education and it is their constitutional right to get justice while they have already set the law in motion. In our criminal justice system litigants repose their trust and hope upon the investigating authority to secure justice after lodgement of fresh FIR in a criminal case. The misery and grief of such persons who lost their son cannot be measured, but can be perceived by every sensible person. Such a matter cannot be taken in a lighter side and dealt in mechanical way, as of other category cases- theft, trespass etc. Every hour and day is counted by such person in the hope of booking the culprits in the claws of law by the investigating agency. Proper and adequate investigation is of great importance in the days of well-developed technology and the manner of investigation will depend upon the nature and gravity of the crime and so and Page No.# 6/8

so forth.

13. In the present case, in view of the nature of the offence and the scenario behind, where there appears no eyewitness to the offence and in that event, indepth investigation is necessary to assess pros and cons of the matter with requisite technical manner as has been indicated by the I/O in its report. Although the I/O has adhered to various authority for such technical assistance, but the result of the same, is not known, which has necessitated prompt and proper investigation. Delay in proper investigation may destroy the credibility of various evidence, which need not be mentioned again. The Hon'ble Supreme Court in Sakiri Vasu (supra), has categorically held that the Magistrate has ample power for monitoring the case with direction for proper investigation. Relevant observation in Sakiri Vasu is reproduced below:

"14. Section 156 (3) states:

"156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."

The words "as abovementioned" obviously refer to Section 156 (1), which contemplates investigation by the officer in charge of the Police Station.

15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII Cr.P.C. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.

16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha (SCC : AIR para 19).

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the Page No.# 7/8

police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution.

24. In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and /or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision.

27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself)."

14. In view of the above, this Court is of the opinion that the prayer made by the petitioners deserve consideration in the given facts and circumstances and the order passed by the learned trial court reflects that it has not applied its mind towards the said prayer and has failed to act upon as per mandate of law as discussed above.

15. Resultantly, the impugned order dated 24.12.2020 passed by the learned Magistrate is hereby quashed and set aside with direction to pass an appropriate order on the petition so preferred by the petitioners. Nonetheless, the learned court will monitor the investigation by obtaining proper report from the I/O so that effective investigation is carried out and as a Page No.# 8/8

result, actual culprits can be apprehended and brought to justice for killing of the petitioners' deceased son.

The petition stands disposed with the observation and directions made above.

JUDGE

Comparing Assistant