Madras High Court
P.Muthukrishnan vs The Director General Of Police on 8 September, 2022
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)
1/12
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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
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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.
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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
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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.”
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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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W.P.No.7300 of 2021
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
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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
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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
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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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