BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 31/08/2009 CORAM THE HONOURABLE Mr.JUSTICE T.S.SIVAGNANAM Writ Petition No.10127 of 2008 and M.P.(MD)No.1 of 2008 M.Karthikeyan ... Petitioner Vs 1.The Commissioner, Social Welfare Department, Ezhilagam, Chennai. 2.The Director General of Police, CBCID Chennai. 3.The Superintendent of Police Tanjore District, Tanjore. 4.The Inspector of Police, Tanjore Town Police Station, Tanjore. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Mandamus, directing the second respondent to withdraw the case in Crime No.747/2008 from the fourth respondent police and to hand over the same to the second respondent or to some other independent investigation agency. !For Petitioner ... Mr.B.Pugalendhi ^For Respondents ... Mr.D.Gandhiraj, Government Advocate. :ORDER
By consent, the writ petition is taken up for final disposal.
2.The petitioner has filed the above writ petition for a direction to
direct the second respondent to withdraw the case in Crime No.747/2008 from the
fourth respondent police and hand over the same to the second respondent or to
some other investigation agency.
3.The facts leading to the filing of the above writ petition as could be
culled out from the affidavit filed in support of the writ petition are stated
hereunder:
The father of the petitioner one Munusamy was working as an Assistant in
the Juvenile Home at Thanjavur. On 08.09.2008 he was assaulted by the Juveniles
in the Home and admitted in the Government Hospital, Thanjavur at about 5 p.m
and thereafter, he died on the same day. A compliant was lodged by the
Superintendent of the Juvenile Home before the fourth respondent police on the
same day around 6.00 p.m. stating that the Juveniles Karlmarx, Venkatesan,
Rajesh, Singaravelu, Dhandayudhapani and one Selvam attacked the
petitioner’s father and escaped from the Home. A case was registered in Crime
No.747/2008 against six Juveniles for the offences punishable under Sections
147, 148, 302 379 and 224 IPC. It is the allegation of the petitioner that his
father was in a disturbed state of mind for one month prior to his death and he
has informed the petitioner and his mother about several illegal activities
which have taken place in the Home. It is alleged by the petitioner that one
Kamaraj, working as an assistant in the home has indulged in homo sexual
activities with the Juveniles and based on a complaint an enquiry was conducted.
There was similar allegation against another staff by name Sitibabu and it is
stated that the petitioner’s father lodged a complaint against the said Sitibabu
on 02.02.2003 and an enquiry was conducted against him. The further allegation
is that the employees of the Juvenile Home namely Kamaraj, Sitibabu, the
Superintendent of the Home one Rathinam and washer man by name Ganapathy all of
them together used the Juveniles in the home to kill the petitioner’s father. It
is further alleged that after the incident, the petitioner went to the Home to
take his father’s belongings and before which the diary and other documents
which were said to be lying in the table of the petitioner’s father was taken by
somebody. The petitioner further states that he got some documents relating to
the complaint and enquiry against the said Kamaraj and Sitibabu which were kept
in his table drawer. The further allegation is that a duplicate key of the
petitioner’s father room was with the Superintendent and he could have taken the
petitioner’s father’s dairy. The petitioner in paragraph 5 of the affidavit had
set out certain reasons for suspicion which are extracted as hereunder:
5.(a)There are 50 staff working in the Juvenile School and at the time of
occurrence 40 of them were on work. My father was attacked and found injured
within the Juvenile School compound and he was said to be conscious and said to
have stated the names of the students who alleged to have attacked him. When he
was in a state to speak something defiantly he would have raised hue and cry and
it is strange none of the staffs had noticed the same.
b)My father was found injured around 4.30 p.m. in a serious condition and
he was alive and alleged to have stated the names of the accused who said to
have attacked him. There are number of private hospitals in and around the
Juvenile School and he was not taken to any of those private hospitals for the
first aid and was taken to the Government Hospital which is 6 km away from the
Juvenile School.
c)Though my father was found in a serious condition, he was taken to the
Government hospital by the washer man Ganapathy and a student Palanivel. Neither
the Superintendent nor any other higher officials of the home accompanied my
father to the hospital.
d)My father was working as an Assistant for the Agricultural Sector in the
Juvenile Home. But he was admitted in the hospital as a Coolie and it is
recorded in the accident register of the Government hospital.
e)At the time of occurrence all the 40 employees of the Juvenile Home are
said to be in the meeting whileso, it is strange how my father Muniasmay a
higher official in the home was not called for the meeting.
f)There are guidelines that the inmates shall not allotted with any work.
While so, how my father Muniasamy was permitted to take the six students with
the permission of the Superintendent.
g)My father said to have taken the boys for gardening work and as per the
rules the inmates of the School should be locked in the cell at 4.00 pm. While
so there is no necessity for holding the boys beyond 4.00 p.m. against the rules
for the purpose of gardening.
h)The occurrence is said to have taken place around 4.30 p.m. The deceased
would have taken his meal around 2.00 p.m. There is no undigested particles in
the deceased stomach and if the occurrence was taken place at 4.00 pm. or 5.00
p.m. Then there would have been undigested particles in his stomach.
i)The officer Sitibabu was absconding for nearly 20 days after the
occurrence and the said Sitibabu had indulged in an illegal activity to escape a
student from the Juvenile Home prior to 15 days to the incident.
j)My father was not taken to the hospital by the Superintendent and other
officers. Even after his death the Superintendent and other staffs did not visit
the hospital to pay homage to my father
k)I mentioned all this doubts and handed over all the relevant documents
to the fourth respondent on 15.09.2008 but the fourth respondent has not
conducted any investigation on the doubts raised by me. The fourth respondent
has not taken note of the illegal activities and homo-sexual activities
continuing in the Juvenile home. I made a representation to the respondents and
to the other higher official through registered post on 10.10.2008. Even then
the investigation is not conducted in a proper manner”.
On these grounds, the petitioner sought for transfer of investigation.
4.In the counter affidavit filed by the fourth respondent the allegations
made by the petitioner were denied and it was stated that a complaint was lodged
by the Superintendent of the Home on 08.09.2008 at about 6 p.m. soon after
admitting the petitioner’s father in the hospital, based on such complaint the
case was registered. It is submitted that the petitioner’s father was found
lying within the premises of the Home with bleeding injuries and when the
injured was enquired he disclosed that he was assaulted by the inmates of the
home and that the above mentioned six inmates whose names were given by the
petitioner’s father who have attacked the petitioner’s father with a spade and
took away Rs.60/- from his pocket and they escaped by jumping over the wall.
That the occurrence is to have taken place on 08.09.2008 at about 4.30 p.m and
there is no delay in preferring the complaint or taking him to the hospital. The
allegations made regarding other staff working in the home were denied as
baseless. However, no specific answer has been given to the allegations made
against the employees who were named by the petitioner in Paragraph 4 of the
affidavit filed in support of the writ petition, except for a general denial.
5.In the counter affidavit it is further stated that the petitioner never
informed the Investigating Officer that he is going to collect his father
belongings from his office room and he did not seek any help of the police
authority, the investigation was in progress. Regarding the allegations made in
paragraph 5 of the affidavit which have been referred to above, the respondent
in reply would submit the following reasons:
“a)The averments in para (a) are not correctly stated the injured Munisamy
was found lying in a deserted room with in the school compound. It is situated
at the Northern end of the school campus and there is no necessity for any one
to go near the place. It is situated behind a plantain thope.
b)The investigation revealed that in the interest of giving best
treatment and the injured being a Government servant he was taken to Thanjavur
Medical College Hospital in which latest life saving equipments are available.
It is wrong to state that the Government Hospital is 6 k.m. away from Juvenile
school. Moreover this being a Medico Legal case they thought fit to take him to
Government Hospital. Since the private hospitals do not attend Medico Legal
cases other allegations in this para are denied.
c)The averments in this para are incorrect. The washerman Ganapathy is
working in the school for more than 20 years. He is the person who found the
deceased with bleeding injuries in the deserted room first in point of time. He
immediately reported the matter to the Superintendent and the Superintendent
made arrangements to save the life of the injured. The school used to close by 5
p.m. and almost everybody was in a hurry to go home. The occurrence was detected
at or about 4.30 pm.
d)The allegation in this para are denied. Though in the A.R.copy the
doctor by oversight written as coolie and later he corrected the same as
Agricultural Assistant and put his signature also which is evident on perusal of
A.R. Copy.
e)There was no meeting convened on 08.09.2008. But the inmates are locked
in the cell by 4.00 p.m. Since the 6 inmates along with deceased were missing.
The washer man went to call them to return to the cell. But at the Northern End
deserted room he heard a murmuring voice and found the deceased with injuries
and he also found blood stains from the place where the boys were engaged in
gardening work to the deserted room. There was a long wooden log with the help
of which the students jumped over the wall and escaped from the school.
f)The Superintendent did not state about any guide line as stated by the
petitioner. During investigation it came to light that the Superintendent can
exercise his discretionary power according to circumstances taking into account
the safety of the inmates of the school. As such, the averments are not correct
and are denied.
g)It is true that the inmates of the school should be locked in the cell
at 4.00 p.m.. But on that day that is on 08.09.2008 the six boys along with the
deceased Agricultural Assistant Munisamy did not return from the place of their
gardening work at 4.00 p.m. Hence, the washer man went to call them but he found
the blood stains and the injured alone in the deserted room at the Northern End
of the school. Then he reported the same to the Superintendent.
h)Surmises and conjectures cannot take the place of proof whether the
deceased Munisamy took meals or Tiffin or remained with empty stomach is not
spoken by any of the witnesses examined. The entire occurrence was narrated by
the injured the deceased himself. Hence, the petitioner cannot presume things as
such the averments in this para are denied.
i)The averments in this para are denied. The officer sitibabu was
available for interrogation. No complaint was received by the then Investigating
Officer regarding any illegal activity of the officer sitibabu.
j)I am not concerned with the averments made in this paragraph as such I
have no comments on this statement of the petitioner.
k)The petitioner was examined on 09.09.2008.His mother was also examined
on 09.09.2008. But they did not state anything during their interrogation. The
investigation is over in this case and the charge sheet has also been produced
before the concerned Court”.
6.Based on above such averment, the fourth respondent prayed for dismissal
of the writ petition.
7.Pursuant to the orders of this Court dated 14.03.2009, a status report
was filed by the fourth respondent Police. In the said report, after narrating
about the incident which took place on 08.09.2008 and the complaint lodged by
the Superintendent, the fourth respondent submitted that the case was taken up
for investigation and the Investigating Officer rushed to the spot along with
the police party, visited the scene of occurrence, prepared Observation Mahazar
and Rough Sketch and also examined the witnesses and recorded their statements.
It is further submitted that on 09.09.2008 at about 15.00 hours out of the six
inmates, the accused Singaravel and Thandayuthapani who are alleged to have
committed the offence were arrested at the Thanjavur New Bus stand. On
interrogation, Singaravel gave voluntary confession and after recording his
statement, on the same day both of them were produced before the Judicial
Magistrate No.3, Thanjavur and were kept in the Juvenile Home, Chennai. On
13.09.2008 at about 11.00 hours, the other inmates, Venkatesan @ Venkatesh and
Rajesh were arrested at Old Bus Stand and had also given confession which was
recorded and they were produced before the Judicial Magistrate No.3, Thanjavur
and thereafter, kept in the Juvenile Home, Chennai. On 18.09.2008, the accused
Karl Marx surrendered before the Chief Judicial Magistrate, Kumbakonam and kept
in Juvenile Home, Chennai on the same day. The other inmate Selvam is still
absconding and the case has been charged on 26.11.2008 before the Court of
Juvenile Justice Board, Thanjavur and the same is yet to be taken on file.
8.In the typed set of papers filed along with the writ petition, the
petitioner has filed a copy of a report of the Enquiry Officer who conducted an
enquiry into the charges framed against the Sitibabu, who is an employee of the
Juvenile Home, and by relying upon this, the learned counsel for the petitioner
would submit that the allegations raised by him in the affidavit are
substantiated. Another document which is found in the typed set of papers is
an unsigned, undated, hand written note wherein certain allegations have been
made stating that the said employees of the home have been abusing the Juveniles
in the home. Learned counsel would further submit that pointing out all these
factors, he had submitted a representation to the Director General of Police on
10.10.2008 and since no action was taken to transfer the investigation, the
present writ petition came to be filed.
9.Heard Mr.B.Pugalendhi, leanred counsel for the petitioner and
Mr.D.Gandhiraj, learned Government Advocate for the respondents and perused the
materials available on record.
10.The learned counsel for the petitioner after narrating in detail about
the facts and circumstances of the case, submitted that the petitioner has
serious doubt on the Superintendent and other officers and particularly the said
Kamaraj and Sitibabu, employed in the home and that he has set out his
apprehension by specifically pointing out the instances in paragraph 5(a) to (k)
of the affidavit. Further, the learned counsel would submit that in spite of the
petitioner pointing out all his apprehensions to the fourth respondent on
15.09.2008 with relevant documents, the fourth respondent has not conducted any
investigation on the doubts raised by the petitioner. Further, the fourth
respondent has not taken note of the illegal activities and homosexual
activities continuing the Juvenile Home. The representation submitted by the
petitioner on 10.10.2008 by registered post has not been considered by the
respondents and the other higher officials. Therefore, the learned counsel
submits that the petitioner has approached this Court for change of
investigating agency. The learned counsel placed reliance on the judgement of
the Hon’ble Supreme Court in Divine Retreat Centre Vs.State of Kerala reported
in AIR 2008 SC 1614, and by relying on the observations in paragraphs 35 and 36,
would submit that this Court has sufficient power to transfer investigation
under Article 226 of the Constitution at the instance of an aggrieved person
when the investigation is not proper, especially on the facts of the present
case. The learned counsel also relied on the decision of a Division Bench of
this Court reported in 2007(1) CTC 273 (S.Radha Mony Vs. The Home Secretary,
Government of Tamil Nadu) and would contend that to meet the ends of justice
investigation should be transferred to the CBCID. The learned Government
Advocate on the other hand while reiterating the averments made in the counter
affidavit, would submit that the petitioner has not pointed out any deviation in
the investigation, no specific lapses have been pointed out on the part of the
investigating agency and the petitioner has not stated that the accused have
been falsely implicated. It is further submitted that open minded investigation
started from the statement of the deceased which is the basis of the FIR
registered in the case. The learned Government Advocate relied on the decision
of the Hon’ble Supreme Court in Secretary, Minor Irrigation & Rural Engineering
Services, U.P. and others Vs. Sahngoo Ram Arya and another reported in 2002 (5)
SCC 521 and stated that transfer cannot be done as a matter of routine merely
because a party makes some such allegations and prayed for dismissal of the writ
petition.
11.The issue which has arisen for consideration in the present writ
petition is that whether in the facts and circumstances of the present case
transfer of investigation could be ordered as sought for by the petitioner.
12.Before proceeding to answer this question I propose to analyse the law
on the subject.
13.The Hon’ble Supreme Court in a decision reported in 1992 (1) SCC 397
(Gudalure M.J.Cherian and others Vs. Union of India and others) was dealing with
a petition under Article 32 of the Constitution of India, which was filed as a
PIL, regarding the rape two nuns at Gajraula in Uttar Pradesh wherein the
petitioners contend that the investigation of the case should be entrusted to
the Central Bureau of Investigation. After discussing about the factual
averments in the said case, the Hon’ble Supreme Court held that the
investigation having been completed by the Police and charge sheet submitted to
the Court, it is not for the Supreme Court, ordinarily, to reopen the
investigation specially by entrusting the same to a specialised agency like CBI.
The Supreme Court further observed that they were conscious, that of late the
demand for CBI investigation even in police cases is on the increase.
Nevertheless in a given situation, to do justice between the parties and to
instil confidence in the public mind, it may become necessary to ask the CBI to
investigate a crime as it only shows the efficiency and the independence of the
agency. Therefore, in the light of the averments made and keeping in view the
facts and circumstances of the said case, the Hon’ble Supreme Court has held
that ends of justice would be met if the CBI is directed to hold further
investigation in respect of the offences committed.
14.The Hon’ble Supreme Court in 2004 (7) SCC 768 (Gangadhar Janardan
Mhatre Vs. State of Maharashtra and others) was dealing with the legality of the
order passed by a Division Bench of the Bombay High Court dismissing a criminal
writ petition filed seeking for a direction to transfer of investigation from
State CID to any other impartial investigating agency. While considering the
question of maintainability of the writ petition for such relief, the Hon’ble
Supreme Court observed thus:
“13.When the information is laid with the police, but no action in that
behalf is taken, the complainant is given power under Section 190 read with
Section 200 of the Code to lay the complaint before the Magistrate having
jurisdiction to take cognizance of the offence and the Magistrate is required to
enquire into the complaint as provided in Chapter XV of the Code. In case the
Magistrate after recording evidence finds a prima facie case, instead of issuing
process to the accused, he is empowered to direct the police concerned to
investigate into offence under Chapter XII of the Code and to submit a report.
If he finds that the complaint does not disclose any offence to take further
action, he is empowered to dismiss the complaint under Section 203 of the Code.
In case he finds that the complaint/evidence recorded prima facie discloses an
offence, he is empowered to take cognizance of the offence and would issue
process to the accused. These aspects have been highlighted by this Court in All
India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India
4. It was specifically observed that a writ petition in such cases is not to be
entertained.
14.The inevitable conclusion is that the High Court’s order does not
suffer from any infirmity. The writ application was not the proper remedy, and
without availing the remedy available under the Code, the appellant could not
have approached the High Court by filing a writ application”.
15.In 2002 (5) SCC 521 (Secretary Minor Irrigation & Rural Engineering
Services, U.P. and others Vs. Sahngoo Ram Arya and another), which was relied on
by the learned Government Advocate, the Hon’ble Supreme Court decided on the
question as to when the High Court cannot direct enquiry by CBI by exercising
its power under Article 226 has held as follows:
“5. While none can dispute the power of the High Court under Article 226
to direct an inquiry by CBI, the said power can be exercised only in cases where
there is sufficient material to come to a prima facie conclusion that there is a
need for such inquiry. It is not sufficient to have such material in the
pleadings. On the contrary, there is a need for the High Court on consideration
of such pleadings to come to the conclusion that the material before it is
sufficient to direct such an inquiry by CBI. This is a requirement which is
clearly deducible from the judgment of this Court in the case of Common Cause1.
This Court in the said judgment at paragraph 174 of the Report has held thus:
(SCC p. 750, para 174)
“174. The other direction, namely, the direction to CBI to investigate ‘any
other offence’ is wholly erroneous and cannot be sustained. Obviously, direction
for investigation can be given only if an offence is, prima facie, found to have
been committed or a person’s involvement is prima facie established, but a
direction to CBI to investigate whether any person has committed an offence or
not cannot be legally given. Such a direction would be contrary to the concept
and philosophy of ‘life’ and ‘liberty’ guaranteed to a person under Article 21
of the Constitution. This direction is in complete negation of various decisions
of this Court in which the concept of ‘life’ has been explained in a manner
which has infused ‘life’ into the letters of Article 21.”
6.It is seen from the above decision of this Court that the right to life
under Article 21 includes the right of a person to live without being hounded by
the police or CBI to find out whether he has committed any offence or is living
as a law-abiding citizen. Therefore, it is clear that a decision to direct an
inquiry by CBI against a person can only be done if the High Court after
considering the material on record comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by CBI or any other
similar agency, and the same cannot be done as a matter of routine or merely
because a party makes some such allegations. In the instant case, we see that
the High Court without coming to a definite conclusion that there is a prima
facie case established to direct an inquiry has proceeded on the basis of “ifs”
and “buts” and thought it appropriate that the inquiry should be made by CBI.
With respect, we think that this is not what is required by the law as laid down
by this Court in the case of Common Cause1″.
16.In Sasi Thomas Vs. State and others reported in 2006(12) SCC 421, the
Hon’ble Supreme Court while considering the scope of interference with criminal,
trials held as follows:
“26.The High Court or this Court in exercise of the said power is entitled
to reach injustice wherever it is found. But, it is not a case where cognizance
had not been taken. It is not even a case where a direction under sub-section
(8) of Section 173 of the Code of Criminal Procedure can be issued at this
stage. It is also not a case, in our opinion, to interfere with the trial of the
case.
33.Such a direction, thus, can be issued where there had been complete
failure of justice and in a case where the investigating and prosecuting
agencies were found to have not performed their role in the manner they were
expected to do”.
17.In Sakiri Vasu v. State of U.P.,(2007) 4 Crimes 338 SC, the Hon’ble
Supreme Court while discussing the scope of interference in criminal matters
under Article 226 of the Constitution of India and when High Court can direct
enquiry by CBI has held as follows:
“33.In Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram
Arya15 (SCC vide para 6) this Court observed that although the High Court has
power to order a CBI inquiry, that power should only be exercised if the High
Court after considering the material on record comes to a conclusion that such
material discloses prima facie a case calling for investigation by CBI or by any
other similar agency. A CBI inquiry cannot be ordered as a matter of routine or
merely because the party makes some allegation.
34.In the present case, we are of the opinion that the material on record
does not disclose a prima facie case calling for an investigation by CBI. The
mere allegation of the appellant that his son was murdered because he had
discovered some corruption cannot, in our opinion, justify a CBI inquiry,
particularly when inquiries were held by the army authorities as well as by GRP
at Mathura, which revealed that it was a case of suicide”.
18.In Divine Retreat Centre Vs.State of Kerala reported in AIR 2008 SC
1614, relied on by the learned counsel for the petitioner, the Hon’ble Supreme
Court dealt with the scope, content and ambit of the inherent power conferred on
the High Court under Section 482 of Cr.P.C., 1974. While dealing with the said
question, the Hon’ble Supreme Court observed as follows:
“33.The sum and substance of the above deliberation and analysis of the
law cited leads us to an irresistible conclusion that the investigation of an
offence is the field exclusively reserved for the police officers whose powers
in that field are unfettered so long as the power to investigate into the
cognizable offences is legitimately exercised in strict compliance with the
provisions under Chapter XII of the Code. However, we may hasten to add that
unfettered discretion does not mean any unaccountable or unlimited discretion
and act according to one’s own choice. The power to investigate must be
exercised strictly on the condition of which that power is granted by the Code
itself.
34.In our view, the High Court in exercise of its inherent jurisdiction
cannot change the investigating officer in the midstream and appoint any agency
of its own choice to investigate into a crime on whatsoever basis and more
particularly on the basis of complaints or anonymous petitions addressed to a
named Judge. Such communications cannot be converted into suo motu proceedings
for setting the law in motion. Neither are the accused nor the complainant or
informant entitled to choose their own investigating agency to investigate a
crime in which they may be interested.
35.It is altogether a different matter that the High Court in exercise of
its power under Article 226 of the Constitution of India can always issue
appropriate directions at the instance of an aggrieved person if the High Court
is convinced that the power of investigation has been exercised by an
investigating officer mala fide. That power is to be exercised in the rarest of
the rare case where a clear case of abuse of power and non-compliance with the
provisions falling under Chapter XII of the Code is clearly made out requiring
the interference of the High Court. But even in such cases, the High Court
cannot direct the police as to how the investigation is to be conducted but can
always insist for the observance of process as provided for in the Code.
36….
37….
38.One of the documents enclosed to the anonymous petition is a magazine
by name Divine Voice published by the appellant. In one of the volumes published
in June 2005 the names of senior IAS and IPS officers were mentioned as the
members of the Advisory Board; one such named officer is stated to have decided
some matter in favour of the appellant. The High Court in Writ Petition (C) No.
22543 of 2005 made some observations to the effect that the said officer was
really associated with the appellant Centre and the order passed by that officer
in favour of the appellant is a nullity. Thereafter the name of that officer was
deleted from the names of persons of the Advisory Board. Based on such vague and
indefinite allegations the High Court gave the following directions without even
issuing notice to the appellant:
(i) The Government shall issue notification under Section 17 of the
Prevention of Corruption Act conferring power to the special investigation team
constituted by the Court to investigate the offences under the Prevention of
Corruption Act;
(ii) The special investigation team shall also inquire into the
allegations of foreign exchange violation;
(iii) The special investigation team shall also inquire into the
allegations of unnatural deaths stated in the petition.
40.On a careful perusal of the order passed by the learned Judge, we find
that the learned Judge initiated suo motu proceedings without even examining as
to whether the contents of the anonymous letter and material sent along with it
disclosed any prima facie case for ordering an investigation. The question is:
can investigation be ordered by the High Court in exercise of its inherent
jurisdiction under Section 482 of the Code based on such vague and indefinite
allegations made in unsigned petition without even arriving at any prima facie
conclusion that the contents thereof reveal commission of any cognizable
offence? Whether such directions could have been issued by the High Court even
in exercise of its jurisdiction under Article 226 of the Constitution of India?
43.It is evident from Sections 154, 156 and 157 of the Code that even a
police officer can act on the basis of information received or otherwise and
proceed to investigate provided he has reason to suspect the commission of a
cognizable offence which he is empowered to investigate under Section 156 Cr.PC.
If the essential requirements of the penal provisions are not prima facie
disclosed by a first information report and the police officer has no reason to
suspect the commission of a cognizable offence, no investigation can be
undertaken by him based on the information received or otherwise. Can the High
Court set the law in motion against the named and unnamed individuals based on
the information received by it without recording the reasons that the
information received by it prima facie disclosed the commission of a cognizable
offence? Setting criminal law in motion is fraught with serious consequences,
which cannot lightly be undertaken by the High Court even in exercise of its
jurisdiction under Article 226 of the Constitution of India. In our view, the
High Court in exercise of its whatsoever jurisdiction cannot direct
investigation by constituting a special investigation team on the strength of
anonymous petitions. The High Courts cannot be converted into station houses.
19.A Division Bench of this Court in Alliraj Gounder Vs.The Inspector of
Police, Udumalpet Town Police Station, Udumalpet, Coimbatore District and
another reported in 2005 (3) CTC 673 also dealt with a writ petition seeking for
transfer of investigation wherein the Division Bench of this Court after relying
upon the decision of the Hon’ble Supreme Court in C.B.I. Vs. Rajesh Gandhi
reported in 1997 Crl.L.J. 63, held as follows:
“4.Moreover if the writ petitioner is not satisfied with the investigation
being done by the police, he has a remedy to approach the Magistrate concerned
under Section 156(3), Cr.P.C vide H.S.Bains Vs. State, AIR 1980 SC 1883, and if
the said Magistrate is satisfied about the allegations of the petitioner, he can
direct the police agency which he deems to be appropriate to do the proper
investigation into the complaint of the petitioner, and he can also monitor the
police investigation.
5.Sub-section (3) of Section 156, in other words, provides a check by the
Magistrates on the duties to be performed by the police 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 for the police to do it properly or do it again, and/or issue
such other directions to the police as he deems appropriate for securing a
proper investigation into the complaint.
6.Thus, the petitioner has an efficacious alternative remedy under Section
156(3), which he should avail of by approaching the Magistrate. Writ petitions
of this nature should not be entertained by this Court in view of the existence
of the appropriate efficacious alternative remedy under the Criminal Procedure
Code itself, otherwise this Court will be flooded with such writ petitions”.
20.In Asit Bhattacharjee Vs. Hanuman Prasad Ojha and others reported in
2007(5) SCC 786, the Hon’ble Supreme Court, the Supreme Court has dealt with the
scope of the interference in criminal matters under Article 226 of the
Constitution of India as follows:
“33.Stricto sensu, therefore, the High Court should not have issued such a
direction. Assuming, however, that the High Court could mould the relief, in our
opinion, it was not a case where on the face of the allegations made in the
complaint petition, the same could be said to be mala fide. A major part of the
cause of action might have arisen in the State of U.P., but the same by itself
would not mean that the Calcutta Court had no jurisdiction whatsoever”.
21.Thus, based on the above referred judgments, the following could be
culled out:
“i)That the power under Article 226 of the Constitution of India can
always be invoked to issue appropriate directions at the instance of an
aggrieved person if the High Court is convinced that the power of investigation
has been exercised by an Investigating Officer mala fide.
ii)That power of the High Court is to be exercised in rarest of rare cases
where a clear case of abuse of power and non compliance with the provisions
falling under Chapter XII of the Code is clearly made out requiring the
interference of the High Court. But even in such cases, the High court cannot
direct as to how the investigation has to be conducted but can always insist
for observation of process as provided under the Code.
iii)None can dispute the power of the High Court under Article 226 of the
Constitution to direct inquiry by CBI, the said power can be exercised only in
cases where there is sufficient material to come to a conclusion that there is
need for such inquiry. It is not sufficient to have such materials in the
pleadings.
iv)Setting the criminal liability and fraught with serious consequences
which cannot lightly be taken by the High Court even in exercise of its
jurisdiction under Article 226 of the Constitution.
v)The High Court in exercise of its whatsoever jurisdiction cannot direct
investigation by constituting a Special Investigation Team on the strength of
vague allegations”.
22.Based on the above legal principles, if we examine the case on hand, it
is to be noted that the principal ground on which the petitioner has sought for
transfer of investigation is based on the allegations regarding the conduct of
few employees of the Juvenile Home who are said to have misused the children in
the home and that there is some record to show the disciplinary action was taken
against one of the employees of the home. That apart, the petitioner has
endeavoured to state that there is a suspicion in the manner and cause of death
of his father and by relying upon the working pattern of the home, the
petitioner would state that the case as presented in the compliant before the
police is not true. Based on the above averments and those which have been
extracted above, the petitioner states that the fourth respondent has not
conducted any investigation on the doubts raised by the petitioner and that the
fourth respondent has not taken note of the illegal activities said to have been
continuing in the Juvenile Home.
23.As noted above, the Hon’ble Supreme Court has added a word of caution
that the power of transfer of investigation could be exercised only in the
rarest of rare cases and such power should not be exercised to stifle a
legitimate prosecution and the High Court should refrain from giving a prima
facie decision in a case where the entire facts are incomplete and evidence has
not been collected and produced before the Court. The Hon’ble Supreme Court has
further held that based on vague and indefinite allegations, the High court
ought not to have issued directions for transfer of investigation or for
ordering investigation by any other special investigating body.
24.If the allegations made by the petitioner, if found to be correct, is
wholly unpalatable; the Hon’ble Supreme Court has held that it is not sufficient
to have materials in the pleadings, the requirement being on consideration of
such pleadings, the Court should come to the conclusion that there are
sufficient materials for ordering transfer of investigation. As rightly pointed
out by the learned Government Advocate, the petitioner has not pointed out any
specific lapse on the part of the investigating agencies and that it has not
been stated that the accused have been falsely implicated. The allegation being
that the fourth respondent has not taken note of the various doubts raised by
the petitioner relating to certain happenings in the Juvenile home, and
therefore, the investigation is not proper. If these allegations are put to
scrutiny on the tests laid down by the Hon’ble Supreme Court, in the decision
referred supra, these are not sufficient material for the court to come to a
conclusion that there is need for transfer of the investigation agency. As held
by the Hon’ble Supreme Court in the case of Divine Retreat Centre Vs.State of
Kerala referred supra, that the investigation of an offence is the field
exclusively reserved for the police officers whose powers in that field are
unfettered so long as the power to investigate into the cognizable offences is
legitimately exercised in strict compliance with the provisions under Chapter
XII of the Code. However, unfettered discretion does not mean any unaccountable
or unlimited discretion and act according to one’s own choice. The High Court in
exercise of its inherent jurisdiction cannot change the Investigating Officer in
the mid-stream and appoint any agency of its own choice to investigate into a
crime on whatsoever basis and more particularly on the basis of complaints or
anonymous petitions. Further, it is to be noted that in the instant case the
matter has been placed before the Juvenile Justice Act, 2000. Therefore,
considering the facts and circumstances of the case and applying the law laid
down by the Hon’ble Supreme Court, it is to be held that the doubts raised by
the petitioner in his representation and the affidavit are not sufficient to
make out a case for transfer of investigation to any other agency. Therefore,
the prayer sought for by the petitioner cannot be granted and the writ petition
is liable to be dismissed.
25.Rabindranath Tagore said:
“Every time a child is born
It brings with it the hope
That God is not yet
Disappointed with man”.
26.The Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as ‘the Juvenile Justice Act’) was enacted as an Act to
consolidate and amend the law relating to juveniles in conflict with law and
children in need of care and protection, by providing for proper care,
protection and treatment by catering to their development needs, and by adopting
a child-friendly approach in the adjudication and disposition of matters in the
best interest of children and for their ultimate rehabilitation and for matters
connected therewith or incidental thereto.
27.The erstwhile Madras Presidency presently the State of Tamil Nadu
during the pre-independence days, was a forerunner to promulgate their codified
laws on children namely, Madras Children Act, 1920, this law was intended to
dissociate the children community from the hardships of the laws applicable to
their adult counterparts. Some correctional measures, rehabilitation programme,
vocational training for the children coming in conflict with the law were
highlighted. The Union Government passed the Children Act during 1960 to cater
to the needs of the Union Territories which later became the model enactment on
children in India. On 20th November 1959, the General Assembly of the United
Nations met in a plenary session with representatives of 78 countries and
adopted the Declaration of the Rights of the Child unanimously. India was a
party to such declaration. India as being a party to such declaration, during
August 1974, evolved a national policy for welfare of children. On the 106th
birthday of Mahatma Gandhi, on 2nd October 1975, the Integrated Child
Development Services (ICDS), a child welfare scheme was born. The 6th
U.N.Congress on Prevention of Crime and Treatment of Juvenile Offenders was held
at Venezuela and rules were framed which could be treated as model for treatment
of the juvenile offenders. The 7th United Congress on Prevention of Crime and
Treatment of Juvenile Offenders was held during September 1985, at Milan,
Italy, the Social Council to the 7th Congress presented the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice known as
Beijing Rules and were approved on 06.09.1985. The General Assembly adopted
such Rules on 29.11.1985 as General Assembly Resolution and it was resolved that
all the participant countries would adapt those Rules in their juvenile justice
system through their respective national legal coverage and administrative
follow up. On 29.11.1985, the Secretary General of the United Nations requested
the Member States to undertake research and to develop a data base for
implementing effective administration on juvenile justice. The Hon’ble Supreme
Court in Sheela Barse Vs. Union of India (1986) 3 SCC 596 ordered that the
justice delivery system suitable for juvenile offenders should be enforced on
all States and such enforcement was to be reported back to the Supreme Court.
During 1986, India as a participant State to the U.N. resolutions, as noted
above, also addressed itself the duties and obligations enshrined in Articles
39(e) and 39(f) of the Constitution of India as well as the Beijing Rules.
Accordingly, the new enactment namely, Juvenile Justice Act, 1986 came to be
“born” and received the assent of the President on 01.12.1986. The United Nation
on 30.09.1980 urged the Presidents and Prime Ministers from all over the world
to decide about the protection of juvenile deprived of their liberty. With this
back ground, the Official Bill No.149 of 2000 was introduced in the 13th Lok
Sabha in its 5th Session on 22.11.2000 and after appropriate discussions from
15th to 18th December, the Lok Sabha adopted the same. The RajyaSabha also in
its 191st Session during 19th and 20th December 2000 passed the same and the
President of India assented on 30.12.2000 and the Juvenile Justice (Care and
Protection of Children) Act, 2000 (56 of 2000) came into existence repealing the
Act, 1986 (1953 of 1986).
Thus, this special enactment which seeks to achieve the duties and obligations
enshrined under Articles 39(e) and 39(f) of the Constitution of India has
necessitated this Court to embark upon this exercise.
28.The following provisions of the Act would be relevant:
(e)”Children’s Home” means an institution established by a State Government or
by a voluntary organisation and certified by that Government under Section 34;
(h)”fit institution’ means a governmental or a registered non governmental
organisation or a voluntary organisation prepared to own the responsibility of a
child and such organisation is found fit by the State Government on the
recommendation of the competent authority.
(k)”juvenile’ or ‘child’ means a person who has not completed eighteenth year of
age
(l)”juvenile in conflict with law’ means a juvenile who is alleged to have
committed an offence and has not completed eighteenth year of age as on the date
of commission of such offence
(o)”observation home’ means a home established by a State Government or by a
voluntary organisation and certified by that State Government under Section 8 as
an observation home for the juvenile in conflict with law;
(Q)”place of safety” means any place or institution (not being a police lock-up
or jail), the person in charge of which is willing temporarily to receive and
take care of the juvenile and which, in the opinion of the competent authority,
may be a place of safety for the juvenile;
(v)”special home’ means an institution established by a State Government or by a
voluntary organisation and certified by that Government under Section 9″;
29.Section 8 of the Juvenile Justice Act deals with observation homes.
Section 8(4) speaks of classification of the juvenile for the purpose of care
and protection by dividing them into three groups consisting of children under
the age group of seven to twelve years, twelve to sixteen years and sixteen to
eighteen years.
30.Section 34 of the Juvenile Justice Act deals with Children’s Homes and
the State Government may establish and maintain either by itself or in
association with the voluntary organisations, children’s homes, in every
district or group or districts, as the case may be, for the reception of child
in need of care and protection during the pendency of any inquiry and
subsequently for their care, treatment, education, training, development and
rehabilitation. Sub Section 2 of Section 34 deals with the power of State of
Government to frame Rules for the management of such homes including the
standards and nature of services to be provided thereunder. The amended sub
Section 3 of Section 34 mandates that all institutions, whether the State
Government run or those run by voluntary organisations for children in need of
care and protection shall, within a period of six months from the date of
commencement of the Juvenile Justice (Care and Protection of Children) Amendment
Act, 2006, be registered under this Act in such manner as may be prescribed.
Section 37 deals with Shelter homes for juveniles or children which shall
function as drop-in-centres for the children in the need of urgent support.
(Emphasis supplied)
31.In terms of Section 62, the Central or a State Government may
constitute a Central or a State advisory board to advise the Government on
matter relating to the establishment and maintenance of the homes, mobilisation
of resources, provision of facilities for education, training and rehabilitation
of child in need of care and protection and juvenile in conflict with law and
co-ordination among the various official and non official agencies agencies.
Such Advisory Board in terms of sub Section 2 of Section 62 include eminent
social workers, representatives of voluntary organisation in the field of child
welfare, corporate sector, academicians, medical professional etc. (Emphasis
supplied)
32.Section 62-A came to be inserted under the amending Act which
contemplates Constitution of Child Protection Unit responsible for the
implementation of the Act and under such provision, every State Government shall
constitute a Child Protection Unit for the State and such units for every
district consisting of such officers and other employees as may be appointed by
the Government to take up matters relating to children in need of care and
protection and juveniles in conflict with law with a view to ensure the
implementation of this Act including the establishment and maintenance of homes,
notification of competent authorities in relation to these children and their
rehabilitation and co-ordination with various official and non-official
agencies. (Emphasis supplied)
33.Thus, the above statutory provisions provide sufficient safeguard for
juveniles who are in conflict with law and the facilities to be provided to them
and as to how, they have to be maintained and monitored. It has to be borne in
mind that this special statute has used expression “home” under the statute
while defining the place where the Juvenile have to be placed. Therefore, while
enacting the statute, it was kept in mind that these children who require
special care and protection and the juveniles who are in conflict with law
should be placed in a safe and healthy atmosphere with the intention to reform
these children and to make them normal citizens.
34.Rule-22 of the Tamil Nadu Juvenile Justice (Care and Protection of
Children) Rules, 2001 deals with Establishment of Observation Home which is
essentially to classify the boys and girls who are admitted to the home based on
their age. Rule 23 deals with the objective of the home which reads as
hereunder:
“23.Objective of the Home:- (1)The study and observation of a child made
during his stay in the Home forms the basis for planning the best interest of
the child. During his stay in Home, the child shall be oriented on the Rights.
(2)The Home shall make necessary arrangements for the child to be heard
and enquired by professionally trained Social Worker or Probation Officer or
Case Worker or Psychologists or Counsellor to assess the personality of the
child.
(3)The Home shall arrange for receiving non-formal education and
functional literacy during the stay and facilitate the child to become literate.
(4)The Home shall help the child to build his self confidence and self
esteem to understand his potentialities and limitations.
(5)The Home shall provide proper health care and health education”.
(Emphasis supplied)
35.Similarly, the Special homes and Objective of Special home are dealt
with under Rules 33 and 34. A perusal of these provisions show that these homes
formed the basis for planning the best interest of the child during his or her
stay in the home and the homes are required to make arrangements for the child
to be heard and enquired by professionally trained Social Worker or Probation
Officer or Case Worker or Psychologists or Counsellor to assess the personality
of the child. They should be given non formal education and functional literacy
during the stay to facilitate the child to become literate. The home shall help
the child to build his self confidence and self esteem to understand
potentialities and limitations and shall provide proper health care and health
education.
36.It is disheartening to note about that the allegations which have been
stated in the affidavit filed along with the above writ petition more
particularly, the enquiry report submitted by an Enquiry Officer against one of
the employees of the Juvenile Home at Thanjavur, namely one Sitibabu. It is true
that this Court is not called upon to decide upon the veracity of such enquiry
report or as to whether the said employee was guilty of the charge. But at the
same time, it is prima facie established that a charge came to be framed
against the employee Sitibabu making allegations against him that he had
sexually exploited the children at the Juvenile home at Thanjavur and there is
no record placed to know about the ultimate result of such departmental action.
Be that as it may, considering the provisions of the Act and the Rules framed
thereunder and above all, the object behind the statute, I deem it appropriate
that this is a fit case where an enquiry should be ordered into the functioning
of the Juvenile Home at Thanjavur.
37.As stated above, the statute provides for sufficient safeguards and
onerous duties and responsibilities have been placed upon the persons
functioning under the Act. Therefore, I direct the Secretary to the Government,
Social Welfare & Nutritious Meal Programme Department to constitute a committee
consisting of three members and conduct a detailed enquiry into the facilities
available in the Juvenile home, at Thanjavur, the health condition of the
children in the home and whether there are any instances of exploitation or
abuse of children at the home and whether there have been any earlier incidents
of exploitation or abuse and if so, what action was taken and all other matters
which are incidental to such enquiry and submit a report to the State Advisory
Board within a period of six months from the date of receipt of a copy of this
order. The Secretary to the Government, Social Welfare & Nutritious Meal
Programme Department, is requested to ensure that while constituting the
committee one member shall be a nominee of the State Government, the second
member shall be an eminent social worker having special interest in matters of
juvenile care and protection and the third member shall be a person who is
either running or in charge of a voluntary organisation in the field of child
welfare.
Registry is directed to communicate this order to the Secretary to the
Government, Social Welfare & Nutritious Meal Programme Department.
No costs. Consequently, M.P.(MD)No.1 of 2008 is closed.
sms
To
1.The Commissioner,
Social Welfare Department,
Ezhilagam,
Chennai.
2.The Director General of Police,
CBCID
Chennai.
3.The Superintendent of Police
Tanjore District,
Tanjore.
4.The Inspector of Police,
Tanjore Town Police Station,
Tanjore.