IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.57580 OF 2018 AND WRIT PETITION NOS.1037-1040 OF 2019 BETWEEN:
1. Sri.Girish, S/o Thimmaiah, Aged about 34 years, R/o Mallanakuppe Village, Hathgur Hobli, Maddur Taluk, Mandya District-571 429.
2. Sri.Thimmiah, S/o late Gangaiah, Aged about 55 years, R/o Mallanakuppe Village, Hathgur Hobli, Maddur Taluk, Mandya District-571 429.
3. Smt.Thayamma @ Chikkolamma, W/o.Thimmaiah, Aged about 50 years, R/o Mallanakuppe Village, Hathgur Hobli, Maddur Taluk, Mandya District-571 429.
4. Smt.Yashoda, S/o Chandraiah, Aged about 36 years, R/o No.9, 13th Cross, Vidyapeeta Road, Kotte Kengeri, Bangalore-560 060.
5. Sri.Chandraiah, S/o Boraiah, Aged about 43 years, R/o.No.9, 13th Cross, Vidyapeeta Road, Kotte Kengeri, Bangalore-560 060.
(By Sri.Tejas.N., Advocate) AND:
1. State of Karnataka Represented by its Secretary, Department of Home, Vidhanasoudha, Bangalore-560 060.
2. State of Karnataka by Kengeri Police Station, Bangalore-560 060.
3. Sri.M.Mallikarjun, Police Sub-Inspector, Kengeri Police Station, Bangalore-560 060 4. Superintendent of Police, Bangalore Rural District, Cunningham Road, Bangalore-560 001.
5. Central Bureau of Investigation, Ganganagar, Bangalore-560 578.
(By Sri.Sandesh J.Chouta, AAG A/w Sri.Rachaiah, HCGP for R1 to R4) ….Petitioners …Respondents These Writ petitions are filed under Articles 226 and 227 of Constitution of India, praying to direct the R-5 for further investigation in S.C.No.145/2018 pending on the file of Hon’ble XLV Additional City Civil and Sessions Judge at Bangalore.
These petitions coming on for Preliminary Hearing, this day, the Court made the following:
O R D E R Petitioners are seeking for writ of mandamus by directing fifth respondent–Central Bureau of Investigation (for short ‘CBI’) to further investigate in S.C.No.145/2018 (Crime No.381/2017) registered by Kengeri Police Station for the offences punishable under Section 498A and 306 of IPC against Sri. Shivaramu, S/o. Raje Gowda, son-in-law of second and third petitioner.
2. On 26.09.2017 first petitioner lodged a complaint with second respondent alleging that his sister Smt. Lakshmi was given in marriage to one Sri. Shivaramu and at the time of their marriage dowry was given by way of cash and jewellery. It is also alleged that out of said wedlock two daughters were born and initially husband is said to have taken care of his wife Smt.Lakshmi with proper care except for minor clashes. It is further alleged that when she conceived for the second time accused had got examined the deceased to ascertain as to whether it was a male child and after coming to know that it was a female child he had got her aborted and subsequently, she again conceived and on finding that she is going to give birth to a female child, said pregnancy was also sought to be terminated, for which deceased opposed and she had informed this fact to her sister Smt. Yashoda and including Chandra, who are said to have given some wisdom to Shivaramu and subsequently, in 2013 Smt.Lakshmi is said to have delivered a female child and as such, he is said to have not visited the deceased.
3. It is also alleged that father-in-law had extended financial help to Shivaramu to overcome his business loss and for the said purpose they had pledged gold jewellery and got established a factory and yet he was not happy on account of his wife having not given birth to a male child and as such, he started illtreating her physically and mentally. It is further alleged that on 25.09.2017 at about 9.30 p.m. complainant received a call from his elder sister Smt. Yashoda informing that Lakshmi had telephoned to her and subsequently her husband Shivaramu had called her alleging that she was only delivering female children and as such, had assaulted her and instructed to leave the matrimonial home so that he would be able to marry for the second time and on account of such ill-treatment given to her she hanged herself and her husband was responsible for the same. Hence, he sought for suitable action being taken against Shivaramu.
4. On the basis of said complaint jurisdictional police as already noticed hereinabove have registered Crime No.381/2017 for the offences punishable under Section 498A and 306 of IPC. On completion of investigation charge sheet came to be filed for the said offences. Hence, petitioners who are the relatives namely, brother, father, mother, sister and brother-in- law are before this Court seeking for a direction to fifth respondent–CBI to make further investigation.
5. I have heard the arguments of Sri.Tejas, learned counsel appearing for petitioners and Sri.Sandesh Chouta, learned Additional Advocate General appearing for the respondent-State.
6. It is the contention of Sri. Tejas, learned counsel appearing for petitioner that even 161 statement of petitioners has not been recorded and there are suspicious circumstances surrounding death of Smt. Lakshmi. He would submit that after 15 days of the incident first petitioner lodged a complaint with the Commissioner of police i.e., 10.10.2017 – Annexure-D suspecting murder of Smt. Lakshmi by her husband- Shivaramu and yet no action has been taken though in the said complaint chain of events leading to her death and suspicious circumstances surrounding the same had been explained. He would draw the attention of the Court to FIR registered in Crime No.381/2017 on 26.09.2017, which discloses that it was registered at 9.00 a.m. In fact, records would disclose that fifth petitioner came to the spot on the said date i.e., on 26.09.2017 at 10.30. a.m. and this fact has been completely ignored by the investigating officer. He would elaborate his submission by contending that investigation officer has investigated the matter in collusion with accused persons and have depicted as though petitioners have given statement during the course of investigation, though no such statement was recorded and this itself indicate the manner in which unfair investigation had been conducted by the investigating authority.
7. He would also submit that even in the post mortem report placed along with charge sheet same would disclose that there were injuries on the body like abrasions over the neck region including 2 contusions present over the back side of right knee, which are suspicious circumstances surrounding the death of Smt.Lakshmi. He would also contend the hyoid bone and laryngeal cartilages were intact, which would indicate that it was not a case of hanging but case of strangulation. He would submit that investigating officer has not given any requisition to preserve viscera and other medico legal articles and this would suggest the investigating officer had diverted the investigation to suggest as though Smt. Lakshmi had herself committed suicide by hanging though prima facie it would suggest it is a homicidal suicide. He would further submit that tongue of the deceased as per the photographs would indicate was not protruding and this itself suggest that it is not a case of hanging but strangulation.
8. Per contra, Sri. Sandesh Chouta, learned Additional Advocate General would seek for dismissal of the petition contending that first petitioner had approached the Coordinate Bench of this Court seeking similar prayer namely, for further investigation and after taking note of the fact that petitioner has not challenged the charge sheet, Coordinate Bench was not inclined to entertain the petition and has already dismissed the petition and as such, petitioners are not entitled to seek the relief of investigation by CBI. He would also submit that Court being Coordinate Court would not sit in judgment over the decision rendered by another Coordinate Bench. Hence, he prays for dismissal of the petition.
9. He would also submit that under Section 216 of Cr.P.C. charge can be altered by the Court below at any stage if the material on records were to disclose for such alteration and can also call upon the investigating officer to further investigate by filing supplementary charge sheet and at this stage, petitioners have not made out any case for handing over further investigation to CBI. He would also submit that under Section 311 of Cr.P.C. jurisdictional Court has got power to summon any person, material witness or examine any person, in attendance though not summoned as a witness, or recall, or re-examine any person already examined, if such evidence appears to be essential for rendering just decision of the case and such power in the instant case can be exercised by the jurisdictional Court at the time of trial. He would also submit that charge sheet came to be filed on 02.11.2017 and till date same has not been challenged and there are no extraordinary circumstances prevailing for this Court to exercise inherent power to hand over the investigation to CBI and even otherwise under Section 319 of Cr.P.C. if the learned trial Judge were to arrive at a conclusion from the evidence available are collected during the course of any enquiry that any person not being an accused has committed an offence such other person can also be tried together with the accused, which can proceed against such person by arraying him as an accused. He would submit that entrustment of investigation to a third party agency other than the regular investigating officer/agency has to be very sparingly used and not for mere asking. In support of his submission he has relied upon the following judgment:
(i) (2017) 4 SCC 177: AMRUTHBHAI SHAMBHUBHAI PATEL vs. SUMANBHAI KANTIBHAI PATEL AND OTHERS 10. Having heard the learned Advocates appearing for parties and on perusal of records it would disclose that on receipt of complaint lodged by the first petitioner on 26.09.2017, FIR in Crime No.381/2017 came to be registered. Investigating officer has stated on oath that when he was in station at 9.00 a.m. first petitioner came to the police station and lodged the complaint and on the strength of allegation made in the complaint, FIR came to be registered for the offences punishable under Sections 498A and 306 of IPC. He has also stated that he has visited the spot along with 2 witnesses i.e., first petitioner and one Mr. Sujay and had conducted spot mahazar where deceased was found to have hanged herself to the ceiling fan by using a saree and he also states that measurement from ceiling to floor is 10 feet and claims that mahazar was conducted between 9.30 a.m. to 10.30 a.m. It is also stated that he has collected the statements of witnesses namely, Sri. Manju, Sri.Raghu, Sri.Girish at Rajarajeshwari Hospital between 11.00 a.m. to 1.00 p.m. He further states that he has recorded statement of father and mother of the deceased. However, both of them have filed affidavits before this Court contending they have not tendered any statement before the investigating officer and they also go to the extent of saying they have never visited Bangalore.
11. As against the statement made by petitioner Nos. 2 and 3 on oath, the investigating officer has also stated on oath as already noticed hereinabove to the effect that while he was in the police station i.e. Kengeri Police Station, at about 9 am, on 26.09.2017, first petitioner lodged complaint stating that his sister who was married to Shivaram of Bidara Kotte village had committed suicide on 25.09.2017 at 9.30 pm and as such complaint lodged by first petitioner on 26.09.2017 came to be registered by him at 9.00 am in Crime No.381/2017 for the offence punishable under Sections 498A and 306 of IPC. He further deposes that on 26.09.2017, he visited the seen of occurrence along with two witnesses namely, Sri.Girish and Sujay and conducted spot mahazar by recording that, deceased was found hanging to ceiling fan by using a saree in the room and the height of ceiling is ten feet. He further states that spot mahazar was conducted between 9.30 to 10.30 am on the said day i.e. on 26.09.2017 along with women police, panch witnesses. Inquest mahazar came to be drawn between 11.00 am to 1.00 pm by recording the statements of deceased father, mother, sister and daughter along with two other witnesses namely, Ramalingegowda and Gajendra. He further states that subsequently he handed over the dead body of the deceased to first petitioner-complainant and obtained acknowledgment from him. He further states that on same day they found accused near Venkateshwara Theater, Vidya Peeta Road, Kengeri at about 4.45 pm and he was apprehended and produced in police station at about 5.00 pm and was arrested and taken to custody. He also states that on 27.09.2017 he recorded the statement of Sri.Chandraiah, Sri.Umesh, Smt.Lakshmamma and Smt.Parvathi. After completion of recording witnesses statement, along with medical examination, remand application came to be filed stating that accused is required for further investigation by police till 11.12.2017 which came to be rejected and accused was remanded to judicial custody. He further states that during the investigation post mortem report was collected whereunder it has been mentioned the cause of death as “Asphyxia as a result of Hanging”. In the light of said opinion given by the Doctor, the investigating officer said to have sought for further opinion regarding cause of death of the deceased and on 17.10.2017, investigating officer received further opinion stating that death was caused due to ligature mark over neck region, due to other injuries death was not possible. Doctor has also opined that it was not a case of deceased having been murdered later on hanged. He would also rely upon the opinion of the Doctor that facture of Hyioid bone and laryngeal cartilages are being intact by itself would not be a ground to suspect the deceased had been murdered by strangulation and then hanged. On these lines investigating officer has placed on record the manner, mode and method in which investigation has been conducted.
12. In this background when the prayer of the petitioners for directing further investigation is examined, it requires to be observed that for upholding the majesty of law or rule of law it is to be ensured that there is appropriate and fair investigation and same is conducted by the investigating authorities to ensure that guilty are punished in accordance with law. Notwithstanding their status and authority which they may possess, power of transferring such investigation may be exercised in rare and exceptional cases where this Court finds it would very much necessary in order to do justice between parties and also to instill confidence in the minds of public or where the investigation by State Police lacks credibility and thereby, it would become necessary for having a fair, honest and complete investigation, and particularly, when its imperative to retain public confidence in the impartial working of the State and its machineries.
13. In this background when the statutory scheme pertaining to investigation is noticed, it would emerge therefrom, that Section 173 of Cr.P.C empowers the police officers conducting the investigation to file report on completion of investigation with the Magistrate, who in turn would be empowered to take cognizance of the offence. Sub Section (8) of Section 173 empowers the officer-in-charge to conduct further investigation even after filing of the report under Section 173(2) of Cr.P.C., in the event investigating officer obtains further evidence orally or documentary. Thus, the power of police officer under Section 173(8) is unbridle unrestricted. It is needless to state that jurisdictional magistrate has no power to interfere in the matter of investigation further and it would be appropriate on the part of the investigating officer to inform the jurisdictional magistrate and forward to the Magistrate a further report or reports referring such evidence collected during the course of investigation. For this proposition, law laid down by the Hon’ble Apex Court in the case of Rama Chaudhary V/s. State of Bhiar reported in (2009) 6 SCC 346 can be looked up.
14. Whereas Section 173(2) of the Cr.P.C empowers the Magistrate to order or direct further investigation by the investigating officer and calling upon the police to submit further or supplementary report. This aspect has been examined by the Hon’ble Apex Court in the case of Bhagwant Singh V/s. Commissioner of Police reported in (1985) 2 SCC 537 which has been referred to in subsequent judgment in Vinay Tyagi V/s Irshad Ali reported in (2013) 5 SCC 762 and held to the following effect “38. However, having giving our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct ‘further investigation’ and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed.”
15. It is also noticed by the Hon’ble Apex Court that power of the Magistrate to direct for re- investigation has held in paragraph-43 and 51 in Vinay Tyagi case referred to supra to the following effect:
“43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct ‘further investigation’, ‘fresh’ or ‘de novo’ and even ‘reinvestigation’. ‘Fresh’, ‘de novo’ and ‘reinvestigation’ are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.
51. …Whether the Magistrate should direct ‘further investigation’ or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct ‘further investigation’ or ‘reinvestigation’, as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending upon the facts of given case. It will be the specific order of the court that would determine the nature of investigation.”
16. There is no dispute with regard to the proposition of constitutional courts directing further investigation or investigation by some other agency. The sole purpose is to ensure that there is fair investigation resulting in a fair trial. A fair trial would be difficult unless there is fair investigation. Thus, the foundation of fair trial would be fair investigation. Keeping these aspects in mind and also the power available to the Magistrate to direct further investigation even after final report is submitted under Section 173(8) and the reinvestigation or investigation by another agency has to be ordered sparingly and only in circumstances which would be obtained in the facts and circumstances of the case may warrant and such further investigation can be ordered to made only on the request made by the investigating authority on the detection of further fresh facts which may have bearing on the case and necessitating further exploration thereof in the interest of complete and fair and trial, Hon’ble Apex Court in the case of Amrutbhai Shambhubhai Patel V/s. Sumanbhai Kanthibhai Patel and Others reporting in (2017) 4 SCC 177 has held as under:
“38. Additionally, this Court also dwelt upon the three facets of investigation in succession i.e. (i) initial investigation (ii) further investigation and (iii) fresh or de novo or reinvestigation. Whereas initial investigation was alluded to be one conducted in furtherance of registration of an FIR leading to a final report under Section 173(2) of the Code, further investigation was a phenomenon where the investigating officer would obtain further oral or documentary evidence after the final report had already been submitted, so much so that the report on the basis of the subsequent disclosures/discoveries by way of such evidence would be in consolidation and in continuation of the previous investigation and the report yielded thereby. “Fresh investigation” “reinvestigation” “de novo investigation”, however is an exercise, which it was held, could neither be undertaken by the investigating agency suo motu nor could be ordered by the Magistrate and that it was essentially within the domain of the higher judiciary to direct the same and that too under limited compelling circumstances warranting such probe to ensure a just and fair investigation and trial. Adverting to Section 173 of the Code again, this Court recalled its observations in State of Punjab v. CBI that not only the police had the power to conduct further investigation in terms of Section 173(8) of the Code, even the Trial Court could direct further investigation in contradistinction to fresh investigation even where the report had been filed.”
17. As noticed herein above, petitioner Nos. 2 and 3 are claiming that they are made to give statement under Section 161 of Cr.P.C or before the jurisdictional investigating officer whereas, the investigating officer on oath has stated it is a statement made by petitioner Nos. 1 and 2 before him. Thus, it is oath against oath and at this stage it cannot be said that such statement of witnesses having been recorded by the investigating officer either under force or threat. It would be in the domain of the learned trial Judge to examine these aspects and if so desirous may direct further investigation. Thus, it would be in the complete domain of the learned jurisdictional Magistrate to take a call on this aspect. In fact, in the instant case, the first petitioner himself while lodging the complaint at the first instance i.e., on 26.09.2017 has clearly stated that his sister had committed suicide by hanging. Further, there are certain controversies surrounding death of Smt.Lakshmi. The doctor who has conducted Atopsy as well as further opinion of the expert doctors would also indicate that the cause of death was hanging, as against the claim of the petitioner that it was case of murder by strangulation and later on being hanged.
18. Dr.K.S.Narayana Reddy, the author of Medical Jurisprudence and Toxicology, in chapter 24 at Table 24(1) has stated that “in the case of hanging the facture of hyoid bone may occur and in case of strangulation fracture is uncommon”. In the instant case, post Morterm report would disclose there is no fracture of hyoid bone. In that view of the matter, this Court is of considered view that at this stage, it would not be apt and appropriate to direct further investigation as sought for by the petitioners. Section 173(8) of Cr.P.C. would clearly disclose that nothing in the said section would be deemed to preclude ordering further investigation in respect of offence after report under sub-section (2) has been forwarded to the Magistrate, in the event of officer incharge of the police station obtains further evidence, oral or documentary, he is required to forward the same to the Magistrate, such further report, whereunder upon the learned Magistrate got order for further investigation. In other words, power available under Section 173(8) to the learned Magistrate can be exercised at any stage of the proceedings.
19. Thus, reserving liberty to trial Court to exercise the power if the situation so warrants by keeping in mind the authoritative pronouncement of the Hon’ble Apex Court in the matter of Amrutbhai Shambhubhai Patel V/s. Sumanbhai Kanthibhai Patel and Others reporting in (2017) 4 SCC 177, these petitions stand disposed of.
SD/- JUDGE DR/SB