Madras High Court
V.Kumar vs The Superintendent Of Police on 21 September, 2021
W.A.No.2351/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.2351 of 2021
V.Kumar .. Appellant
Vs.
1.The Superintendent of Police,
Central Bureau of Investigation,
EVK Sampath Salai, Sastri Bhavan,
College Road, Chennai - 600 006.
2.The Secretary to the
Government to Tamil Nadu,
Home Department, Fort St. George,
Chennai - 600 009.
3.The Director General of Police,
Mylapore, Chennai - 600 009.
4.The Commissioner of Police,
Coimbatore.
5.The Inspector of Police,
Karamadai Police Station,
Karamadai, Coimbatore.
6.The Sub Inspector of Police,
Karamadai Police Station,
Karamadai, Coimbatore.
7.The Head master,
Vidhya Vikas School,
Karamadai, Coimbatore. .. Respondents
***
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Prayer : Writ Appeal filed under Clause 15 of Letters Patent against
the order dated 29.01.2021 in W.P.No.5519 of 2020.
***
For Appellants : Mr.C.Deivasigamani
For Respondents : Mr.C.Jayaprakash
Govt. Counsel for R2 to R6
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
This intra-court appeal is directed against the order of the learned
single Judge dated 29.01.2021 made in W.P.No.5519 of 2020, by which
the writ court, declined the relief sought for by the appellant/writ
petitioner to direct the Inspector of Police, Karamadai to withdraw
himself from investigating the case in Crime No.354 of 2019, pending
on his file and transfer the investigation to the Superintendent of Police,
Central Bureau of Investigation, Chennai and direct him to investigate
the same.
2. The case of the appellant herein/writ petitioner is that, his son
K.Harish, who studied 11th Standard in Vidya Vikas School, Karamadai,
Coimbatore, by staying in the hostel run by the School, committed
suicide on 19.12.2019 by hanging himself in the fan of the hostel room
and the same was informed to the petitioner at 4.00 p.m., by one
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Nagarajan, Sub-Inspector of Police, Karamadai. Suspecting the cause
of death of his son and the circumstances narrated by the Sub-
Inspector of Police and the School Authorities for the death of his son
Harish and having not satisfied with the manner in which the
investigation was conducted, the appellant has filed the writ petition for
the above relief.
3. The learned single Judge, upon hearing the arguments of both
sides, and after perusing the case diary with regard to Crime No.354 of
2019, dismissed the writ petition on 29.01.2021. The penultimate and
the concluding paragraphs of the order are extracted hereunder for
better understanding:
"11. The classmates and roommates of
Harish(deceased) Krishnan, Hari Prabu, Sabari Ganesh,
Haswath, Jittender State about the petitioner-s son in
pensive mood, depressed and always with the thought of
missing his classmate, Sasi Prbha of -Sri Sai Bramha
Maharishi Matriculation School-, Sulur, Coimbatore. The
roommates state that Harish had left early to hostel room
informing he had stomach pain. It was Krishna, roommate,
who first saw the Harish hanging in the hostel room. The P.T
Teachers Mr.Venkatesh and Mr. Pratap brought him down,
informed the police. The students had gathered and the
other students in the school compound was in state of
shock, agitated, the situation was about to go out of
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control, hence the body was removed, taken to police
station, thereafter to the Government Hospital, Coimbatore.
Inquest was conducted, a knife found near the washbasin
seized. The bucket, nylon rope, chapels were also seized.
The diary of Harish seized in which he has written the name
of his classmate of his previous school, the writing found
confirms the pensive mood of Harish, added to it he was not
keeping good health for some time, all the factors
cumulatively could have been reason for the extreme step of
Harish. The petitioner being the father of Harish, who lost
his loving, bright student, with future dreams got shattered,
out of emotional outburst, unable to come to terms, had
such apprehension. From the perusal of the case diary, it is
seen that the apprehension of the petitioner is misplaced.
The statements and materials collected are in conformity to
the procedures. There is no contra materials to interfere
with the investigation.
12. In view of the same, this Writ Petition is
dismissed. However, it is open for the petitioner to produce
any materials to the Investigation Officer, if available, to
put forth and substantiate his contention. In such case, the
investigating officer to receive and to consider the same.
However, there shall be no order as to costs.
Aggrieved by the dismissal of the writ petition, father of the deceased
filed the instant writ appeal.
4. Heard the learned counsel for the appellant and the learned
Government Advocate appearing for the respondents 2 to 6 and perused
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the materials available on record in the form of typed set of papers.
Notice is not ordered to the first respondent, in view of the judgment we
propose to pass, after hearing the learned counsel for the appellant on
merits.
5. The primordial objection of the learned Government Counsel is
that the writ appeal is not maintainable against an order passed by the
learned single Judge in a Writ Petition with respect to, exclusively, a
criminal proceeding. It is apposite to note that the First Bench of this
Court in D.Kumar V. Raichand Daga, (2020) 6 MLJ 245, following
some earlier judgments, held as follows:
"8. On perusal of the Writ Petition, it is evident that the first
Respondent herein requested for a writ of mandamus in order to direct
the police authorities to conduct an enquiry in terms of the order dated
6.03.2020 of the Judicial Magistrate-I, Chengalpet in C.M.P. No. 2322
of 2020. In other words, it is in respect of a pending complaint to the
police. As against the order therein, this appeal is presented under
Clause 15 of the Letters Patent, which reads as under:
....
9. The text of Clause 15 indicates that an appeal is not
maintainable under Clause 15 in respect of the categories of cases
specified in parenthesis, which includes judgments pronounced in the
exercise of criminal jurisdiction. Therefore, the test to decide whether
the present appeal is maintainable would be to ask the question : was
it an order passed in the exercise of civil or criminal jurisdiction? A
related question would be whether the form of proceeding, namely, the
filing of the proceeding as a writ petition has a material bearing on the
answer. The difference between civil and criminal jurisdiction and the
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maintainability of an appeal under Clause 10 of the Letters Patent of
Lahore, which is in pari materia with Clause 15 of the Letters Patent of
this Court, was considered and decided in Ram Kishan Fauji v. State of
Haryana, (2017) 5 SCC 533, wherein the Supreme Court held as under
in paragraphs 29-31 :
10. In Ram Kishan Fauji, the specific question as to the
maintainability of a Letters Patent appeal against an order in a writ
petition was also considered by drawing reference to Full Bench
judgments of various High Courts and it was held as follows in
paragraphs 53-54:
"53. The Full Bench of the High Court of Delhi in C.S.
Agarwal v. State 2011 SCC OnLine Del 3136 was dealing with a
situation wherein a writ petition was filed before the High Court
under Article 226 of the Constitution of India read with Section 482
CrPC seeking for appropriate writ for quashing of the FIR. As the
writ petition was dismissed [C.S. Agarwal v. State, 2010 SCC
OnLine Del 3914] by the learned Single Judge, an intra-court appeal
was preferred. A preliminary objection was taken by the respondents
as regards the maintainability of the LPA contending that the
judgment of the learned Single Judge was passed in exercise of
criminal jurisdiction and the letters patent appeal against such an
order is barred by Clause 10 and Clause 18 of the Letters Patent
constituting the High Court of Judicature at Lahore, which is
applicable to the Judicature of High Court of Delhi. The Full Bench
analysed Clause 10 of the Letters Patent and took note of what has
been prohibited for entertaining any intra-court appeal. The Full
Bench, analysing various decisions, opined thus :
“19. … proceedings under Article 226 of the Constitution
would be treated as original civil proceedings only when it
concerns civil rights. A fortiori, if it concerns a criminal matter,
then such proceedings would be original criminal proceedings.
Letters Patent would lie when the Single Judge decides the writ
petition in proceedings concerning civil rights. On the other
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hand, if these proceedings are concerned with rights in criminal
law domain, then it can be said that the Single Judge was
exercising his “criminal jurisdiction” while dealing with such a
petition filed under Article 226 of the Constitution.”
54. After so stating, the Full Bench referred to the
Constitution Bench decision in CIT v. Ishwarlal Bhagwandas, 11 of
37 (1966) 1 SCR 190 and distinguished the Full Bench decision of
the Andhra High Court in Gangaram Kandaram v. Sunder Chikha
Amin, 2000 SCC OnLine AP 119 and noted the decision of the
Division Bench of the Gujarat High Court in Sanjeev Rajendrabhai
Bhatt v. State of Gujarat, (2000) 1 GLR 206] and came to hold as
follows : C.S. Agarwal v. State, 2011 SCC OnLine Del 3136
“32. The test, thus, is whether criminal proceedings are
pending or not and the petition under Article 226 of the
Constitution is preferred concerning those criminal proceedings
which could result in conviction and order of sentence.
33. When viewed from this angle, it is clear that if the
FIR is not quashed, it may lead to filing of challan by the
investigating agency, framing of charge and can result in
conviction of order of sentence. Writ of this nature filed under
Article 226 of the Constitution seeking quashing of such an FIR
would therefore be “criminal proceedings” and while dealing
with such proceedings, the High Court exercises its “criminal
jurisdiction.”
11. Thus, in Ram Kishan Fauji, the Supreme Court held that the
material consideration is the nature of the right, which is said to be
infringed, and the relief requested in the proceeding and not whether it
is instituted by way of a writ petition or a criminal original petition. A
Division Bench of the Patna High Court, in Dipak Bajaj v. Union of
India, 2018 SCC OnLine Pat 2141, considered whether a Letters Patent
Appeal would be maintainable in respect of a compounding proceeding
and whether such proceeding partook the character of a civil
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proceeding. Upon such consideration, the Patna High Court concluded,
in paragraphs 16 and 20, that it was a criminal proceeding and that
the Letters Patent Appeal was not maintainable. The Division Bench of
this Court considered the question of maintainability of a Letters Patent
Appeal under Clause 15 in C.M.P. No. 2614 of 2020 in W.A.SR. NO.
140650 of 2019, Judgment dated 18.03.2020. After surveying a
plethora of judgments, this Court held that the appeal, in that case,
was maintainable only with regard to the grant of compensation to the
writ petitioner on the ground that the order, in that respect, had civil
consequences and the proceeding could not be characterized as an
exclusive criminal proceeding. By contrast, in this case, the Writ
Petition was exclusively a criminal proceeding because it undoubtedly
relates to a police complaint filed by the first Respondent herein and
the enquiry relating thereto. The judgments that were cited by the
learned counsel do not advance the cause of the Appellant as is evident
from the brief discussion thereof supra. Thus, we conclude that the
appeal is not maintainable against the order passed in W.P.8431 of
2020.
6. Admittedly, the Writ Petition was also exclusively a criminal
proceeding, as it relates to a police complaint filed by the appellant and
the enquiry relating thereto, and applying the aforesaid judgment of a
co-ordinate Bench, wherein, similar earlier judgments were also relied
upon, we are of the view that the instant appeal filed against the order
passed in the writ petition pertains to a criminal proceeding is not
maintainable.
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7. The learned counsel for the appellant argued the appeal on
merits contending that the Sub Inspector of Police did not conduct the
investigation in the manner, it has to be conducted in accordance with
the Code of Criminal Procedure and hence, this Court has got power
under Article 226 of the Constitution to transfer the investigation to the
first respondent.
8. Though as has been held above, the instant writ appeal is not
maintainable, even on merits, we are of the view that the appellant has
not made out any valid ground to interfere with the impugned order of
the learned Single Judge declining the transfer of investigation. A
perusal of the affidavit, status report and the order of the learned single
Judge would go to show that based on the complaint given by the
defacto complainant/the appellant, a case was registered in Crime
No.354 of 2019, under Section 174 Cr.P.C., (Suspicious death), on
19.12.2019 at 22.00 hours by the Sub-Inspector of Police, Karamadai
Police Station. The Sub-Inspector of Police visited the scene of
occurrence and examined the appellant/writ petitioner and the
roommates of the deceased - Harish. It is seen that they have
categorically stated that they were heard from the deceased stating that
when he was studying in X Standard in "Sri Suga Bramma Maharishi
Matriculation School, Sulur, Coimbatore", he developed a love affair
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with one girl, who studied along with him in the said school and that
against his wish, he was shifted to Vidhya Vikas, Karamadai. It was also
stated by them that the deceased was in a depressed mood and hence
his concentration and performance in curriculum dropped. The
Investigating Officer also conducted inquest between 7.00 pm. and
9.00 pm., in the presence of panchayatars and recorded the upward
ligature mark found on the body of the deceased. The postmortem on
the body was also conducted, in which, neck injury observed and
superficial linear incised wound 2 in numbers 4 x 0.5 x 0.25 cm over
front and left neck 1 cm below ligature mark, incomplete transversely
oblique ligature prima abrasion 34 x 1 cm noted on upper most part of
front part of neck were recorded.
9. The apprehension of the appellant/petitioner is that before ever
he could reach the scene of occurrence, namely the school hostel, the
body of his son was removed, kept in a ambulance in the police station
and a cut injury was found near the neck and blood was found around
the place. Further, at about 9.00 p.m., when he visited the hostel room,
he found bloodstains near the bathroom, the same was recorded in his
mobile phones, in the presence of Tahsildhar and no investigation was
conducted in this regard, hence, the appellant/petitioner has got serious
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doubt for the cause of the death of his son and the manner in which the
Investigating Officer conducted the investigation.
10. We are of the view that the transfer of an investigation to CBI
cannot be done as a matter of routine, throwing aspersions on the state
police, that too without any basis. Of-course, the appellant is entitled to
place the material facts, which come to his knowledge for the effective
investigation, but at the same time, he cannot dictate terms to the
investigating officer in the manner in which, the investigation has to go
on. Even if the appellant has some grievance in the manner, the
investigation is being held by the police, that itself is not a ground to
transfer the investigation, that too, to the CBI. The appellant has
effective remedies under the Code of Criminal Procedure even before
the jurisdictional criminal Court raising objection to the final report or
seek for reinvestigation, etc., and if there is any failure on the part of
the criminal court, he can approach the Constitutional Court.
11. At this juncture, it is apt to refer to the judgment of the
Hon'ble Supreme Court in Arnab Ranjan Goswami v. Union of India,
(2020) 14 SCC 12, wherein, the prayer of transfer of investigation was
discussed relying on the earlier judgments in the following manner :
"42. The transfer of an investigation to CBI is not a matter of
routine. The precedents of this Court emphasise that this is an
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“extraordinary power” to be used “sparingly” and “in exceptional
circumstances”. Speaking for a Constitution Bench in State of W.B. v.
Committee for Protection of Democratic Rights, (2010) 3 SCC 571 D.K.
Jain, J. observed:
“70. … despite wide powers conferred by Articles 32 and 226
of the Constitution, while passing any order, the courts must bear in
mind certain self-imposed limitations on the exercise of these
constitutional powers. The very plenitude of the power under the
said articles requires great caution in its exercise. Insofar as the
question of issuing a direction to CBI to conduct investigation in a
case is concerned, although no inflexible guidelines can be laid down
to decide whether or not such power should be exercised but time
and again it has been reiterated that such an order is not to be
passed as a matter of routine or merely because a party has levelled
some allegations against the local police. This extraordinary power
must be exercised sparingly, cautiously and in exceptional situations
where it becomes necessary to provide credibility and instil
confidence in investigations or where the incident may have national
and international ramifications or where such an order may be
necessary for doing complete justice and enforcing the fundamental
rights. Otherwise CBI would be flooded with a large number of cases
and with limited resources, may find it difficult to properly
investigate even serious cases and in the process lose its credibility
and purpose with unsatisfactory investigations.”
43. This principle has been reiterated in K.V. Rajendran v.
CBCID, (2013) 12 SCC 480 Dr B.S. Chauhan, J. speaking for a three-
Judge Bench of this Court held:
“13. … This Court has time and again dealt with the issue
under what circumstances the investigation can be transferred from
the State investigating agency to any other independent
investigating agency like CBI. It has been held that the power of
transferring such investigation must be in rare and exceptional
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cases where the court finds it necessary in order to do justice
between the parties and to instil confidence in the public mind, or
where investigation by the State police lacks credibility and it is
necessary for having “a fair, honest and complete investigation”,
and particularly, when it is imperative to retain public confidence in
the impartial working of the State agencies.”
46. The principle of law that emerges from the precedents of
this Court is that the power to transfer an investigation must be used
“sparingly” and only “in exceptional circumstances”. ....
47. ..... The line of interrogation either of the petitioner or of the
CFO cannot be controlled or dictated by the persons under
investigation/interrogation. In P. Chidambaram v. Directorate of
Enforcement, (2019) 9 SCC 24, R. Banumathi, J. speaking for a two-
Judge Bench of this Court held that:
“66. … there is a well-defined and demarcated function in the
field of investigation and its subsequent adjudication. It is not the
function of the court to monitor the investigation process so long as
the investigation does not violate any provision of law. It must be
left to the discretion of the investigating agency to decide the course
of investigation. If the court is to interfere in each and every stage
of the investigation and the interrogation of the accused, it would
affect the normal course of investigation. It must be left to the
investigating agency to proceed in its own manner in interrogation of
the accused, nature of questions put to him and the manner of
interrogation of the accused.”
This Court held that so long as the investigation does not violate any
provision of law, the investigating agency is vested with the discretion
in directing the course of investigation, which includes determining the
nature of the questions and the manner of interrogation. In adopting
this view, this Court relied upon its earlier decisions in State of Bihar v.
P.P. Sharma [State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222
and Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52, in
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which it was held that the investigating agency is entitled to decide “the
venue, the timings and the questions and the manner of putting such
questions” during the course of the investigation."
12. If the principles stated above by the Hon'ble Supreme Court
are applied to the instant case, we do not find any error or infirmity in
the order of the learned single Judge, declining to transfer the
investigation to CBI. We hope that the investigating agency address all
the issues raised by the appellant in accordance with law, as the dream
of the son of the appellant, so also the appellant is nibbed in the bud
and it is on own volition or on violation has to be unearthed. If the
investigating agency fails to do so, it is open to the appellant to take
out appropriate application before the competent criminal Court, and
the Court will deal with the matter in accordance with law without
influenced by the observations made by the Writ Court.
13. For the foregoing reasons, the writ appeal is dismissed
confirming the order of the learned single Judge. However, there is no
order as to costs.
(P.S.N., J.) (K.R., J.)
21.09.2021
Index : Yes / No
Internet: Yes
Asr/gg
To
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1. The Superintendent of Police
Central Bureau of Investigation
EVK Sampath Salai, Sastri Bhavan
College Road, Chennai - 600 006
2. The Principal Secretary,
Home Department,
Government to Tamil Nadu,
Fort St. George
Chennai - 600 009
3. The Director General of Police
Mylapore, Chennai - 600 009
4. The Commissioner of Police,
Coimbatore.
5. The Inspector of Police,
Karamadai Police Station,
Karamadai, Coimbatore.
6. The Sub Inspector of Police,
Karamadai Police Station,
Karamadai, Coimbatore.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
W.A.No.2351 of 2021
21.09.2021
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