Madras High Court
Vinothini vs The State Rep. By Its on 6 December, 2023
Author: G.Ilangovan
Bench: G.Ilangovan
WP.(MD)No.27211 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06/12/2023
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
WP(MD)No.27211 of 2023
Vinothini : Petitioner
Vs.
1.The State rep. by its
The Superintendent of Police,
Theni District.
Theni.
2.The State rep. by its,
Inspector of Police,
Kumuli Police Station,
Theni District.
3.Thirumurugan,
Forest Officer,
Cudaloor Forest,
Lower Camp,
Theni District.
4.Pitchai,
Forest Officer,
Cudaloor Forest,
Lower Camp,
Theni District.
5.Muralidharan,
Forest Officer,
Cudaloor Forest,
Lower Camp,
Theni District.
6.George @ Pennikutti,
Kappuvamadai Beat,
Conservator of Forest,
Cudaloor Forest,
Lower Camp,
Theni District.
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WP.(MD)No.27211 of 2023
7.Prabhu,
Amaravathi Beat,
Conservator of Forest,
Cudaloor Forest,
Lower Camp,
Theni District.
8.Suman,
Anti-Poaching Guard,
Cudallor Forest,
Lower Camp,
Theni District.
9.Eswaran,
Anti-Poaching Guard,
Cudaloor Forest,
Lower Camp,
Theni District.
10.Karthick,
Anti-Poaching Guard,
Cudaloor Forest,
Lower Camp,
Theni District.
11.Santhanakumar,
Anti-Poaching Guard,
Cudaloor Forest,
Lower Camp,
Theni District. : Respondents
PRAYER:-Writ Petition has been filed under Article
226 of the Constitution of India, to issue a writ of
Mandamus directing the 2nd respondent police herein to
take necessary action against the respondents 3 to 11
based on the petitioner's complaint, dated 30/10/2023 and
pass any other appropriate relief.
For Petitioner : Mr.D.Selvam
for Mr.M.Maharaja
For R1 and R2 : Mr.Veerakathiravan
Additional Advocate General
for Mr.M.Sakthi Kumar
Government Advocate
(Criminal Side)
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WP.(MD)No.27211 of 2023
O R D E R
The writ petition has been filed seeking for
direction to the 2nd respondent police herein to take
necessary action against the respondents 3 to 11, based
on the petitioner's complaint, dated 30/10/2023.
2.The case of the petitioner is that she is residing
with her father Eshwaran(deceased), aged about 51 years,
who is a farmer, and he was taking care of former Ex-MLA
Chandrashekar's farm land for about five years, which is
situated in her village. Knowing the same, some of the
Forest Officers namely R3 to R11 sought help from her
father (deceased) for planting trees in the forest area.
Further, the respondents 3 to 11, while in charge of
their duty, used assistance of the petitioners
father(deceased), for getting food and accommodation from
her village. And day after day, they were in close
bonding with each other. While such being so, one day,
all the respondents 3 to 11 have consumed alcohol and
spoken in foul language to her father(deceased). And her
father was completely helpless and aggrieved by their
words, her father requested them to stop talking in foul
language and said not to seek his help thereafter.
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3.From the above incident, the petitioners father
stopped talking with the forest officers (R3 to 11), but
Thirumurugan and others continually started to trouble
the father of the petitioner and demanded to fulfil their
daily needs. But he denied it and did not co-operate with
the officials. Further more, day after day, all the above
mentioned forest officials R3 to R11, got agitated and
conspired against the petitioners father and give life
threat to him.
4.Based on this previous enmity, on 28.10.2023 at
about 9:45 PM, while deceased Eshwaran was watering at OR
garden, the forest officer, namely Thirumurugan along
with Pichchai, Muralidharan, George @ Ponnikutty, Prabhu,
Suman, Eshwaran, Karthik, Santhanakumar forcefully
dragged Eshwaran to reserved forest area and shot him to
death. So, the petitioner made a written complaint before
the respondent police, but neither enquiry was conducted
nor FIR was registered till date.
5.The petitioner further submits that FIR in crime
number 89 of 2023 dated 29.10.2023 was registered against
her deceased father under sections 294(b), 353, 307 of
IPC, u/s 25(1)(a) of Arms act, and section 176(1A)(i) of
Cr.P.C. On reading the said FIR, it came to know that a
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baseless allegation as against her father is stated in
the said FIR. The contents of that FIR is that on secret
information received by forest officer as some unknown
persons were indulged in hunting some wild animals in
forest area, R3-Thirumurugan, along with other Forest
officers organized a special team to prevent the unknown
persons from hunting the wild animals. On reaching the
occurrence place, R3-Thirumurugan and R6-George @
Pennikutti found electric wire which was running through
the grass. On seeing the same, R3-Thirumurugan travelled
to the starting point of the electric wire and caught
hold/arrested the petitioner's father who was present at
that place. On enquiry the officers came to know about
the petitioner's father and asked him to identify the
other persons. On a quarrel between the respondents
(Forest Officers) and the petitioner's father (deceased),
the forest officer, R3-Thirumurugan pulled out his
official gun and shot the petitioners father on his chest
and it was found that he was spot dead. And thereafter
the above said FIR was registered against the
petitioner's father.
6.The petitioner submits that the facts mentioned in
the above said FIR is purely an after thought. Such
murder or fake encounter was committed by R3-Thirumurugan
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only due to personal vengeance and motive. Written
complaint on 29.10.2023 presented before the first and
second respondent by the petitioner and her relatives to
take appropriate action against the accused persons, but
it was refused by the respondent police. And her mother
was harassed to withdraw the said allegation against the
accused officers (R3 to R11). And also that the
respondent failed to conduct post-mortem of her deceased
father, it is only after strong protest, the postmortem
was conducted on 30.10.2023.
7.She further submits that once the accused is
caught or arrested will fall within the definition of
custody. Therefore, it is the duty of the officer who has
arrested the accused person to produce him before the
authority of law. If the said officer has failed to do so
and indulged himself in committing an encounter then the
burden is always on the officer to explain why and what
made him to fire at a person.
8.Heard both sides.
9.It is killing the father of the petitioner by the
Forest Officials claiming right of private defence.
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10.It is not denied by the respondents herein as
well as the prosecution that Eswaran was done to death by
the Forest Officials (R3 to R11) by using gun. But the
FIR was registered on the basis of the narration of facts
alleged to have been told to the de-facto complainant by
one Thirumurugan, who was working as Divisional Forest
Officer in that Range. Thirumuguan ought to have lodged
the complaint directly. But he chose to narrate the
events to the de-facto complainant namely Muralidharan,
who is the Forest Officer. The reason for the Forest
Officer, to lodge the complaint on the basis of the
narration of facts by the person directly involved is not
known. This is the first lapse on the side of the Forest
Officers as well as the Investigating Officer or
registering officer of FIR.
11.Reading of the narration of FIR, as mentioned
above, R3-Thirumurugan and others are claiming right of
private defence. It is also admitted in the complaint
itself that the deceased was secured by the Forest
Officials and the incident occurred when the deceased was
taken to a nearby area for further collection of facts.
So, naturally FIR ought to have been registered for the
offence under section 302 IPC. But registering the FIR
against the deceased for the offences under sections
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294(b), 353, 307 IPC and section 25(1)(a) of Arms Act and
176(1)(i) of Cr.P.C. per se illegal and in violation of
the guidelines issued by the Hon'ble Supreme Court in the
case of People's Union for Civil Liberties and another
Vs. State of Maharastra and others (Criminal Appeal 1255
of 1999, dated 23th September 2014). This is the
contention on the side of the petitioner.
12.Per contra, the learned Additional Advocate
General appearing for the respondents 1 and 2 would
submit that the investigation is properly undertaken in
an unbiased manner and they are not going to spare any
one involved in the occurrence. They are very cautious
enough to submit that till the conclusion of the inquiry
by the Judicial Magistrate under section 176(1-A) Cr.P.C,
no concrete finding can be arrived by the Investigating
Officer.
13.Apart from that, he would submit that ballistic
report is also awaited to verify whether the gun shot was
made from the gun provided to the Forest Officers. So
according to him, this is a too premature stage to make
any conclusion in this regard.
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14.Per contra, in reply to the above said argument,
it is submitted by the learned counsel appearing for the
petitioner that it is a clear case of murder committed by
the Forest Officials, in the course of investigation and
during the course of the custody of the deceased. So, as
stated above, the very registration of the FIR is faulty.
15.In the light of the above said rival submission,
this court called for the entire statement recorded by
the Judicial Magistrate, Uthamapalayam, during the course
of inquiry under section 176 (1-A) Cr.P.C. CD file is
also produced on the side of the prosecution.
16.Before going to the rival arguments, it is the
duty of the Court to record an observation. Perusal of
the CD file indicates that the investigation is
undertaken in an unbiased manner. Even though the
registration of the original FIR is faulty, but the
question, which arises for consideration is whether it is
too premature stage to come to the conclusion or finding
to say that it is a case of murder.
17.No doubt that pre-matured cannot be made. But at
the same time, the process of investigation must be set
aright, it is also the duty of this court in the light of
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the judgment of the Hon'ble Supreme Court in the case of
People's Union for Civil Liberties and another Vs. State
of Maharastra and others (Criminal Appeal 1255 of 1999,
dated 23th September 2014).
18.The guideline issued by the Hon'ble Supreme Court
is extracted hereunder:-
“31.In light of the above discussion and
having regard to the directions issued by the
Bombay High Court, guidelines issued by NHRC,
suggestions of the appellant– PUCL, amicus
curiae and the affidavits filed by the Union
of India, State Governments and the Union
Territories, we think it appropriate to issue
the following requirements to be followed in
the matters of investigating police
encounters in the cases of death as the
standard procedure for thorough, effective
and independent investigation:
(1)Whenever the police is in receipt of
any intelligence or tip-off regarding
criminal movements or activities pertaining
to the commission of grave criminal offence,
it shall be reduced into writing in some form
(preferably into case diary) or in some
electronic form.
Such recording need not reveal details
of the suspect or the location to which the
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party is headed. If such intelligence or tip-
off is received by a higher authority, the
same may be noted in some form without
revealing details of the suspect or the
location.
(2)If pursuant to the tip-off or receipt
of any intelligence, as above, encounter
takes place and firearm is used by the police
party and as a result of that, death occurs,
an FIR to that effect shall be registered and
the same shall be forwarded to the court
under Section 157 of the Code without any
delay. While forwarding the report under
Section 157 of the Code, the procedure
prescribed under Section 158 of the Code
shall be followed.
(3)An independent investigation into the
incident/encounter shall be conducted by the
CID or police team of another police station
under the supervision of a senior officer (at
least a level above the head of the police
party engaged in the encounter). The team
conducting inquiry/investigation shall, at a
minimum, seek:
(a)To identify the victim; colour
photographs of the victim should be taken;
(b)To recover and preserve evidentiary
material, including blood-stained earth,
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hair, fibers and threads, etc., related to
the death;
(c)To identify scene witnesses with
complete names, addresses and telephone
numbers and obtain their statements
(including the statements of police personnel
involved) concerning the death;
(d)To determine the cause, manner,
location (including preparation of rough
sketch of topography of the scene and, if
possible, photo/video of the scene and any
physical evidence) and time of death as well
as any pattern or practice that may have
brought about the death;
(e)It must be ensured that intact
fingerprints of deceased are sent for
chemical analysis. Any other fingerprints
should be located, developed, lifted and sent
for chemical analysis;
(f)Post-mortem must be conducted by two
doctors in the District Hospital, one of
them, as far as possible, should be In-
charge/Head of the District Hospital. Post-
mortem shall be video-graphed and preserved;
(g)Any evidence of weapons, such as
guns, projectiles, bullets and cartridge
cases, should be taken and preserved.
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Wherever applicable, tests for gunshot
residue and trace metal detection should be
performed.
(h)The cause of death should be found
out, whether it was natural death, accidental
death, suicide or homicide.
(4)A Magisterial inquiry under Section
176 of the Code must invariably be held in
all cases of death which occur in the course
of police firing and a report thereof must be
sent to Judicial Magistrate having
jurisdiction under Section 190 of the Code.
(5)The involvement of NHRC is not
necessary unless there is serious doubt about
independent and impartial investigation.
However, the information of the incident
without any delay must be sent to NHRC or the
State Human Rights Commission, as the case
may be.
(6)The injured criminal/victim should be
provided medical aid and his/her statement
recorded by the Magistrate or Medical Officer
with certificate of fitness.
(7)It should be ensured that there is no
delay in sending FIR, diary entries,
panchnamas, sketch, etc., to the concerned
Court.
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(8)After full investigation into the
incident, the report should be sent to the
competent court under section 173 of the
Code. The trial, pursuant to the charge sheet
submitted by the Investigating Officer, must
be concluded expeditiously.
(9)In the event of death, the next of
kin of the alleged criminal/victim must be
informed at the earliest.
(10)Six monthly statements of all cases
where deaths have occurred in police firing
must be sent to NHRC by DGPs. It must be
ensured that the six monthly statements reach
to NHRC by 15 th day of January and July,
respectively. The statements may be sent in
the following format along with post mortem,
inquest and, wherever available, the inquiry
reports:
(i) Date and place of occurrence.
(ii) Police Station, District.
(iii) Circumstances leading to deaths:
(a) Self defence in encounter.
(b) In the course of
dispersal of unlawful assembly.
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(c) In the course of affecting
arrest.
(iv) Brief facts of the incident.
(v) Criminal Case No.
(vi) Investigating Agency.
(vii) Findings of the Magisterial
Inquiry/Inquiry by Senior Officers:
(a)disclosing, in particular,
names and designation of police officials,
if found responsible for the death; and
(b)whether use of force was justified
and action taken was lawful.
(11)If on the conclusion of
investigation the materials/evidence having
come on record show that death had occurred
by use of firearm amounting to offence under
the IPC, disciplinary action against such
officer must be promptly initiated and he be
placed under suspension.
(12)As regards compensation to be
granted to the dependants of the victim who
suffered death in a police encounter, the
scheme provided under Section 357-A of the
Code must be applied.
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(13)The police officer(s) concerned must
surrender his/her weapons for forensic and
ballistic analysis, including any other
material, as required by the investigating
team, subject to the rights under Article 20
of the Constitution.
(14)An intimation about the incident
must also be sent to the police officer’s
family and should the family need services of
a lawyer/counselling, same must be offered.
(15)No out-of-turn promotion or instant
gallantry rewards shall be bestowed on the
concerned officers soon after the occurrence.
It must be ensured at all costs that such
rewards are given/recommended only when the
gallantry of the concerned officers is
established beyond doubt.
(16)If the family of the victim finds
that the above procedure has not been
followed or there exists a pattern of abuse
or lack of independent investigation or
impartiality by any of the functionaries as
above mentioned, it may make a complaint to
the Sessions Judge having territorial
jurisdiction over the place of incident. Upon
such complaint being made, the concerned
Sessions Judge shall look into the merits of
the complainant and address the grievances
raised therein. Such complaint being made,
the concerned Sessions Judge shall look into
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the merits of the complaint and address the
grievances raised therein.
32.The above guidelines will also be
applicable to grievous injury cases in police
encounter, as far as possible.”
19.No doubt that prompt action was taken not only by
the Investigating Officer, but also by the Judicial
Magistrate in conducting inquiry. But the contention on
the part of the prosecution is that no parallel inquiry
can be made. It is not acceptable for the simple reason
that the scope of inquiry under section 176(1-A) Cr.P.C
is totally different from the investigation undertaken by
the police under section 157 Cr.P.C. The inquiry by the
Judicial Magistrate under section 176(1-A) Cr.P.C is only
supplementary and aiding to the Investigation and it is
not a substitute. So, the contention on the part of the
State cannot be accepted.
20.For better appreciation, we can extract section
176(1A) Cr.P.C.
“(1-A)Where,-
(a)any person dies or disappears,
or
(b)rape is alleged to have been
committed on any woman,
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while such person or woman is in the
custody of the police or in any other
custody authorised by the Magistrate or
the court, under this Code, in
additional to the inquiry or
investigation held by the police, an
inquiry shall be held by the Judicial
Magistrate or the Metropolitan
Magistrate, as the case may be, within
whose local jurisdiction the offence has
been committed.”
21.So the phrase used in section 'in addition to the
inquiry or investigation held by the police' makes the
position very clear. In case of the custody death, as
mentioned above, the inquiry by the Judicial Magistrate
is only supplementary and not a substitute. So the
contention of the State that no parallel investigation
can be taken by the Investigating Officer before
conclusion of the inquiry by the Judicial Magistrate is
completely out of place and cannot be accepted. So, the
investigation must be taken to its logical conclusion in
a proper manner.
22.The next contention on the part of the State is
that since already FIR has been registered, second FIR on
the basis of the statement of either of the petitioner or
on the basis of the statement of the brother of the
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deceased namely Sekar, who stated to have accompanied the
deceased just before the occurrence, cannot also be
accepted.
23.Coming back to the contention on the part of the
State that 2nd FIR is not at all maintainable, as stated
above, guidelines issued by the Hon'ble Supreme Court in
People's Union for Civil Liberties's case in para 2 is
not complied. Necessarily the 2nd respondent has to comply
the above said direction and register the FIR to that
effect, independent of the complaint given by the Forest
Officials. Failure on the part of the 2nd respondent in
registering separate FIR is faulty.
24.Going further, it may also useful to refer the
judgment of the Hon'ble Supreme Court in M/s.Andhra
Pradesh Police Officers Association rep. by its General
Secretary Vs. A.P. Civil Liberties Committee (APCLC) rep.
by its President and others (Civil Appeal No.5646 of
2019, dated 18th July 2019), which throws much light upon
the controversy. The appeal was preferred by the Andhra
Pradesh Police Officers Association over the judgment of
the Andhra Pradesh High Court comprising five judges,
series of directions were issued by the Hon'ble Full
Bench. That was put to challenge. Let me extract the
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complete judgment:-
“A five-Judge Bench of the Andhra
Pradesh High Court while considering the
procedure to be followed in investigating
police encounters had thought it appropriate
to issue the following directions:-
“(A)On Issue No.1: That where a police
officer causes death of a person,
acting or purporting to act in
discharge of official duties or in
self-defense as the case may be;
whether an alleged perpetrator is CA
5646/2019 named or not) shall be
recorded and registered as FIR,
enumerating the relevant provisions of
Law (u/Sec.154(1) Cr.P.C.) and shall be
investigated (u/Sec.156/157 Cr.P.C.)
(B) On issue No.2: That the existence
of circumstances bringing a case within
any of the Exceptions in the Indian
Penal Code including the exercise of
the right of private defense (a General
Exception in Chapter IV IPC), cannot be
conclusively determined during
investigation.
The opinion recorded by the
Investigating Officer in the final
report forwarded to the Magistrate
(u/Sec.173 Cr.P.C.) is only an opinion.
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Such opinion shall be considered by the
Magistrate in the context of the record
of investigation together with the
material and evidence collected during
the course of investigation. The
Magistrate (notwithstanding an opinion
of the Investigating officer, that no
cognizable offence appears to have been
committed; that one or more or all of
the accused are not culpable; or that
the investigation discloses that the
death of civilian(s) in a police
encounter is not culpable in view of
legitimate exercise by the police of
the right of private defense), shall
critically examine the entirety of the
evidence collected during investigation
to ascertain whether the opinion of the
Investigating Officer is borne out by
the record of investigation. The
Magistrate has the discretion to
disregard the opinion and take CA
5646/2019 cognizance of the offence
u/Sec.190 Cr.P.C.
(C)On Issue No.3: That a magisterial
enquiry (inquest) (u/Sec. 174 to 176
Cr.P.C.) is neither a substitute nor an
alternative to the obligation to record
the information as FIR and to conduct
investigation into the facts and
circumstances of the case and if
necessary to take measures for the
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discovery and arrest of the offender(s)
(u/Sec.154(1), 156 and 157 Cr.P.C.) and
(D) On issue No.4: In view of the
conclusions on issues Nos.1 to 3 and in
view of our declaration [that the
information conveyed to the officer in
charge of a Police Station (u/Sec.
154(1) Cr.P.C.) or a complaint made to
the Magistrate (u/Chpt.XV Sec.
200 Cr.P.C.), need not mention the name
of the Police Officer(s) who the
complainant believes is the perpetrator
of the offence complained of], it is
not necessary to pronounce on whether
the State, the Police Establishment or
a Police Officer has immunity from the
obligation to disclose the identity (of
a police officer who had committed an
act causing the death of a person), to
a person aggrieved by such death to
effectively seek justice. Whether the
investigating officer is required to
disclose the names of the police
officers who are involved in an
operation resulting in civilian
casuality when a request for such
information is lodged by an individual,
is an issue not CA 5646/2019 within the
spectrum of the issues falling for our
determination herein. This aspect is
left open. The obligation to disclose
to the Investigating Officer the
identity of the police officer(s) so
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involved, is however absolute and there
is no immunity whatsoever from this
obligation. Withholding of any
information or material that impedes
effective or expeditious investigation
violates several provisions of the
Indian Penal Code and the Criminal
Procedure Code (pointed out in our
analyses on this issue).” Aggrieved,
three sets of appeals have been filed
before us, wherein very broadly it is
the first direction i.e. direction (A)
that has been seriously disputed.
We have heard learned counsels for the
parties and we have been taken through
the contentions advanced before the
High Court and the reasoning of the
High Court which led to the issuance of
directions mentioned above.
A subsequent decision of this Court in
People’s Union for Civil Liberties and
Another vs. State of Maharashtra and
Others (2014) 10 SCC 635, has been laid
before us. We have perused the same.
The said decision also deals with the
procedure to be followed while
investigating the cases of police
encounters resulting in deaths of
civilians. CA 5646/2019 After an
exhaustive consideration of all the
relevant aspects of the matter, this
Court by its judgment in People’s Union
for Civil Liberties (para 31) laid down
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a detailed and exhaustive procedure to
be followed in such cases. We find that
not only the direction (A) on which
contentions have been advanced before
us, but even the other directions i.e.
(B), (C) and (D) to be fully covered by
what has been laid down by this Court
in People’s Union for Civil Liberties.
The directions of this Court in
People’s Union for Civil Liberties have
been ordered to be treated as law
under Article 141 of the Constitution.
Therefore, it is the judgment of this
Court in People’s Union for Civil
Liberties that will hold the field in
the matter of investigating police
encounters. We order accordingly and
dispose of the appeals in the aforesaid
terms.”
25.By answering the above said issue, the Hon'ble
Supreme Court thought it fit to follow the guidelines
issued in People's Union for Civil Liberties and another
Vs. State of Maharashtra and Others (2014)10 SCC 635 as
noted above. The main challenge put before the Hon'ble
Supreme Court is the directions issued to the
Investigating Officer to register FIR under section 302
IPC against the police officials involved in the
encounter killing. That was answered as noted above.
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26.Here, interpreting the above said judgment, it is
usually contended by the Police Officers that what is
contemplated is only registration of the FIR. No
indication is made by the Hon'ble Supreme Court to the
effect that straightaway FIR must be registered against
the police officers or officials involved in the
encounter matter under section 302 IPC, what is actually
argued by the State.
27.Per contra, as usual the victims used to contend
that registration of the FIR under section 302 IPC is
mandatory against the police officials involved in the
encounter killing. Now, it has been resolved by the
Hon'ble Supreme Court in the light of the above said
decision.
28.Now even if we take that the registration of FIR
against the deceased is faulty, but as mentioned above,
perusal of the CD file does indicate the commission of
the cognizable offence by the Forest Officials. Prima
facie materials are collected. There is no bar for the
Investigating Officer to file proper alternation report
mentioning the proper penal provisions also. What are the
penal provisions attracted, now is a matter for
consideration exclusively within the power of the
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Investigation Officer. It may not be proper on the part
of this court to make any indication.
29.So, there shall be a direction to the 2nd
respondent herein to follow the guidelines issued by the
Hon'ble Supreme Court in People's Union for Civil
Liberties's case, strictly in accordance with law. Let
the investigation be undertaken by the 2nd respondent in
the light of the above said guidelines issued by the
Hon'ble Supreme Court under the direct supervision of the
1st respondent, considering the seriousness and gravity of
the allegations.
30.With the above said direction, this writ petition
stands disposed of. No costs.
06/12/2023
Index:Yes/No
Internet:Yes/No
er
https://www.mhc.tn.gov.in/judis
To,
1.The Superintendent of Police,
Theni District.
Theni.
2.The Inspector of Police,
Kumuli Police Station,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
06/12/2023
https://www.mhc.tn.gov.in/judis
