BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/08/2007 CORAM: THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.(MD)No.3888 of 2007 S.Sethu Raja ... Petitioner Vs. 1.The Chief Secretary Government of Tamil Nadu, St. George Fort, Chennai-600 009. 2.The Home Secretary, Government of Tamil Nadu, St. George Fort, Chennai-600 009. 3.The High Commissioner, Malaysian Embassy, T.T.K.Road, Mandhaveli, Chennai. 4.The Superintendent of Police, Sivaganga District. 5.The Superintendent of Police, Ramanathapuram District. 6.The Inspector of Police, Ilayankudi Taluk Police Station, Ilayankudi, Sivaganga District. 7.The Inspector of Police, Paramakudi Police Station, Paramakudi, Ramnad District. 8.N.Sulaiman Rowther, 9.Mohammed Isbaq 10.Mohasin 11.M.Sheik Sabir 12.The Superintendent of Police, Special Police Establishment, Central Bureau Investigation/ Anti Corruption Bureau/Chennai, Rajaji Bhavan, Besent Nagar, Chennai-600 020. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Mandamus directing the respondents 1 to 7 herein or 12th respondent to investigate and find out the culprits on the death of the petitioner's son namely S.Suseendran in Thokka, Malaysia and consequently direct the respondents to take steps to bring the dead body from Malaysia to Tamil Nadu and hand over the dead body to the petitioner. !For Petitioner ... Mr.M.Thikvijayapandian ^For RR 1 and 2 ... Mr.D.Sasikumar, G.A. For RR 3 ... Mr.R.Rajagopal For RR 4 to 7 ... Mr.P.Rajendran, G.A. (Criminal Side) For RR 12 ... Mr.S.Jayakumar for CBI :ORDER
The petitioner is an agricultural Collie. He has four sons and a daughter.
One of his sons went to Malaysia on a tourist visa in March 2004.
2.The petitioner claims that his son was originally appointed by the 8th
respondent in his Biscuit Factory and that the petitioner’s son fell in love
with the 8th respondent’s daughter. According to the petitioner, the respondents
8 to 11 murdered his son in Malaysia in January 2007 and that the body is kept
in the mortuary in Malaysia. On the above said premise, the petitioner claims to
have sent telegrams to the President of India, the Prime Minister, the Ministry
for External Affairs, the Chief Minister and the High Commission of Malaysia,
seeking action against the culprits and also to make arrangements to bring the
body of his son from Malaysia. Finding no response to the telegrams, the
petitioner has come up with the present writ petition seeking the issue of a
writ of mandamus directing the respondents 1 to 7 or the 12th respondent to
investigate into the death of his son and also to take steps to bring the dead
body from Malaysia for the purpose of performing the obsequies.
3.Heard Mr.M.Thikvijayapandian, learned counsel for the petitioner,
Mr.D.Sasikumar, learned Government Advocate appearing for the respondents 1 and
2 and Mr.P.Rajendran, learned Government Advocate (Crl.Side) appearing for the
respondents 4 to 7.
4.The Inspector of Police, Paramakudi Town who is the 7th respondent in
the writ petition has filed a report. According to the said report, the
Inspector made enquiries with one M.Shiek Sabir who is the 11th respondent in
the writ petition and came to know from him that the petitioner’s son allegedly
committed suicide and that the Malaysian Police is investigating into the same
in Bukit Puchong (Balai) Police Station No.Report Crime No.BKT PUCHONG/001045/07
dated 28.01.2007.
5.The learned Government Advocate also filed a report from the Village
Administrative Officer to the effect that the respondents 8, 9 and 10 are not
residing in India but residing in Malaysia.
6.The learned Government Advocate also produced the copy of a letter
written by the Deputy Secretary to Government of Tamil Nadu, Home Department,
Chennai-9 addressed to the Second Secretary, High Commission of India,
Kualalumpur in his Letter No.71834/CITZ.II/2007-1, dated 27.07.2007 by which he
has requested the High Commission to get a copy of the Postmortem Report
relating to the son of the petitioner who died in Malaysia.
7.Mr.R.Rajagopal, learned counsel representing the Consulate General of
Malaysia in India filed a letter dated 26.06.2007 addressed to him. In the said
letter, the Consulate General of Malaysia has advised the petitioner to take
recourse to any of the two alternatives namely, either to make a report to the
Police Department in Malaysia or to seek an assistance through the High
Commission of India at Kualalumpur for making a Police report and undertaking a
further investigation. The Consulate General of Malaysia has also stated that
they will not be in a position to render any assistance by themselves and that
they also enjoy an immunity from any Court proceedings.
8.All the above facts on which there is no dispute, confirm one thing
namely, that the petitioner’s son died in Malaysia. The petitioner claims that
his son was murdered at the instance of respondents 8 to 11 since his son was in
love with the daughter of the 8th respondent. But the 11th respondent has given
a statement to the 7th respondent that it was a case of suicide. However, the
petitioner who is a poor agricultural Collie, could not either get the body of
his son sent to India or could get a thorough investigation done into the case.
Therefore, he has filed the present writ petition.
9.Admittedly the death of the petitioner’s son occurred in Malaysia. If
the allegations of the petitioner are true, an offence punishable under the
Indian Penal Code has been committed, in Malaysia, by respondents 8 to 10, who
are Indian citizens. The applicability of the Indian Penal Code to offences
committed beyond India by an Indian citizen, is dealt with under Sections 3 and
4 of the Indian Penal Code. Section 3 as well as Section 4, which contains an
illustration, that forms part of the statute itself, read as follows:
“3.Punishment of offences committed beyond, but which by law may be tried
within India.- Any person liable, by any Indian Law, to be tried for an offence
committed beyond India shall be dealt with according to the provisions of this
Code for any act committed beyond India in the same manner as if such act had
been committed within India.
4.Extension of Code to extra territorial offences.- The provisions of this
Code apply also to any offence committed by –
(1)any citizen of India in any place without and beyond India;
(2)any person on any ship or aircraft registered in India wherever it may
be,
Explanation.-In this section the word “offence” includes every act
committed outside India which, if committed in India, would be punishable under
this Code.
ILLUSTRATION
‘A’ who is a citizen of India, commits a murder in Uganda. He can be tried
and convicted of murder in any place in India in which he may be found.”
10.Section 188 of the Code of Criminal Procedure also enables the
investigating Agencies and the Courts to deal with a person who has committed an
offence outside India, if he is a citizen of India or if he is on a ship or air
craft registered in India though not a citizen of India. Section 188 of the
Cr.P.C. reads as follows:
“188.Offence committed outside India.- When an offence is committed outside
India-
(a)by a citizen of India whether on the high seas or elsewhere; or
(b)by a person, not being such citizen, on any ship or aircraft registered
in India;
he may be dealt with in respect of such offence as if it had been committed at
any place within India at which he may be found;
Provided that, notwithstanding anything in any of the preceding sections
of this Chapter, no such offence shall be inquired into or tried in India except
with the previous sanction of the Central Government.”
11.Explaining the purport of Section 4, I.P.C. read with Section 188,
Cr.P.C., a Constitution Bench of the Supreme Court held in Central Bank of India
Limited Vs. Ram Narain (AIR 1955 SC 36) as follows:
“The language of S. 4 I.P.C. and S.188, Cr.P.C., plainly means that if at the
time of the commission of the offence, the person committing it is a citizen of
India, then even if the offence is committed outside India he is subject to the
juridiction of the courts in India. The rule enunciated in the sections is based
on the principle that qua citizens the juridiction of courts is not lost by
reason of the venue of the offence. If, however, at the time of the commission
of the offence the accused person is not a citizen of India, then the provisions
of these sections have no application whatsoever.”
12.A similar issue as has arisen in the present case, arose before the
Kerala High Court in Remia and Another Vs. Sub Inspector of Police, Tanur (1993
Crl.L.J. 1098). Regarding the death of one Sulaiman, a complaint was filed
before the Sub-Inspector of Police, Tanur (Malappuram District), Kerala, by his
mother, widow and brother alleging that he was murdered at Sharjah, UAE by one
Ali. The Sub-Inspector of Police refused to register the complaint on the ground
that the alleged offence was committed out side India. Therefore, the defacto
complainants filed an O.P. on the file of the Kerala High Court. Allowing the
said O.P. and holding that the Sub-Inspector of Police was obliged to register
the F.I.R. and investigate into the offence, Justice K.T.THOMAS, as he then was,
held as follows:
“4.Even when Indian Penal Code was codified, its authors took special care
to incorporate two prefatory provisions in a guarded manner. They are Ss.3 and 4
of the Penal Code. S.3 of the I.P.C. reads thus: ……..
Section 4 reads thus:
………
5.Section 3 of the Penal Code helps the authorities in India to proceed by
treating the offence as one committed within India. No doubt it is by a fiction
that such an assumption is made. But such a fiction was found necessary for
practical purposes. S.3 of the Penal Code was found insufficient for police
authorities to investigate into the offence. It was in the aforesaid context
that S.188 has been incorporated in the Procedure Code. That section reads thus:
……….
No doubt, S.188 concerns as to how to deal with a person who has committed an
offence outside India. Since the proviso casts an obligation to obtain previous
sanction of the Central Government to inquire into and try such person, the
section has a message that for the pre-inquiry stage no such sanction is needed.
If during pre-inquiry stage any offender can be dealt with (without such
sanction) what could be the contours of that stage? I have no doubt that the
pre-inquiry stage substantially relates to investigation of the crime. If there
is any stage in which an offender can be dealt with before commencement of
inquiry, it must be the investigation stage.
6.During such investigation stage, if the person (known or reasonably
suspected to be the offender having committed the offence outside India) is not
available in India, extradition proceedings may have to be resorted to (vide
State of W.B. V. Jugal Kishore, AIR 1969 Supreme Court 1171: 1969 Cri LJ 1559).
Supreme Court observed that “extradition is the surrender by one State to
another of a person desired to be dealt with for crimes of which he has been
accused or convicted and which are justiciable in courts of the other State.”
Such extradition proceedings are contemplated to get down the person concerned
to this country to be dealt with thereafter.”
13.Therefore, it is clear from the provisions of Section 4, I.P.C. and
Section 188, Cr.P.C. that the 7th respondent is duty bound to register the
complaint of the petitioner and make an investigation. For the purpose of
completing the investigation, if the 7th respondent is required to get necessary
details from the Malaysian Police at Bukit Puchong, Subang Jaya in No.BKT
PUCHONG/001045/07 dated 28.01.2007, the 7th respondent has a duty to get such
details including the Postmortem Report as well as all other details. It is seen
from the report submitted by the 7th respondent before this Court on 21.06.2007
that no such steps have been taken by him in accordance with the provisions of
Section 4 I.P.C. and Section 188 Cr.P.C. Under such circumstances, I am of the
considered view that the 7th respondent should be directed to register the First
Information Report and investigate into the same, by taking such steps as are
necessary, including that of contacting the High Commission of India in
Kualalumpur and the Police in Bukit Puchong, Subang Jaya, Malaysia and eliciting
such information as is essential for completing the investigation.
14.Coming to the other relief sought for by the petitioner, it is seen
that the petitioner’s son admittedly died in January 2007 and a period of nearly
7 months have elapsed. The petitioner did not even see the dead body of his son
and it is stated to be lying in a mortuary in Malaysia. If the petitioner is
financially sound, he could have gone to Malaysia and brought the body to India
for performing the funeral rites. But he is an agricultural Coolie having four
sons and a daughter including the dead person. Therefore, as a welfare State,
the Government in my considered view, has a duty to arrange for the dead body of
the petitioner’s son to be brought to India.
15.The United Nations General Assembly adopted a convention known as
“International Convention on the Protection of the Rights of All Migrant Workers
and the Members of their Families, 1990” by resolution No.45/158 dated
18.12.1990. The said convention elaborates the human rights standards to which
migrant workers are entitled. It appears that the said convention entered into
force on 01.07.2003 after its ratification by the 20th Country. India does not
appear to have ratified the convention. Yet, in my view, it would be useful to
make a reference to Article 71 of the said convention, which reads as follows:
“1.States Parties shall facilitate, whenever necessary, the repatriation to the
State of origin of the bodies of deceased migrant workers or members of their
families.
2.As regards compensation matters relating to the death of a migrant worker or a
member of his or her family, States Parties shall, as appropriate, provide
assistance to the persons concerned with a view to the prompt settlement of such
matters. Settlement of these matters shall be carried out on the basis of
applicable national law in accordance with the provisions of the present
Convention and any relevant bilateral or multilateral agreements.”
16.The petitioner’s son was a migrant worker in Malaysia and therefore, if
Malaysia had ratified the above convention, even the State of Malaysia would
have become obligated to repatriate the body of the petitioner’s son to India.
But this Court cannot compel the State of Malaysia to perform its obligation
under aforesaid convention.
17.Though India does not appear to have ratified the said convention,
Article 51 of the Constitution mandates that The State shall endeavour to foster
respect for international law and treaty obligations in the dealings of
organised people with one another. It is now well settled that in the absence of
a contrary legislation, Municipal Courts in India would respect rules of
international law. It is equally well settled that the provisions of
international conventions which elucidate and effectuate the fundamental rights
can be relied upon by the Courts in India as their facets and can be enforced as
such.
18.The fundamental right to life and personal liberty guaranteed under
Article 21 of the Constitution has been given an expanded meaning by Judicial
pronouncements. The right to life has been held to include the right to live
with human dignity. By our tradition and culture, the same human dignity (if not
more), with which a living human being is expected to be treated, should also be
extended to a person who is dead. The right to accord a decent burial or
cremation to the dead body of a person, should be taken to be part of the right
to such human dignity. As a matter of fact, the Supreme Court held in Ram Sharan
Autyanuprasi Vs. Union of India (AIR 1989 Supreme Court 549) that the right to
life enshrined in Article 21 of the Constitution would include all that gives
meaning to a mans life namely, his tradition, culture, heritage and protection
of that heritage in its full measure. The relevant portion of the judgment of
the Supreme Court in para 13 of the said judgment reads as follows:
“13……..It is true that life in its expanded horizons today includes all that
give meaning to a man’s life including his tradition, culture and heritage and
protection of that heritage in its full measure would certainly come within the
encompass of an expanded concept of Art.21 of the Constitution.”
19.That the right to human dignity is not restricted to a living human
being but available even after death, appears to have been recognised by the
Apex Court, first in a public interest litigation filed by an Advocate in 1995.
An Advocate by name Pandit Parmanand Katara filed a writ petition under Article
32 of the Constitution in public interest challenging the method of execution of
death sentence by hanging under the Punjab Jail Manual as inhuman and violative
of Article 21 of the Constitution. He also assailed para 873 of the Jail Manual
which required the body of a condemned convict to remain suspended for a period
of half an hour, (after hanging) as offending the right to dignity. Though the
Supreme Court rejected the challenge to the method of execution of death
sentence by hanging, the contention of the petitioner in the said case regarding
para 873 of the Jail Manual was upheld. While doing so, the Supreme Court held
in the said case namely, Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC
248), as follows:
“We agree with the petitioner that right to dignity and fair treatment under
Article 21 of the Constitution of India is not only available to a living man
but also to his body after his death.”
20.There can be no dispute about the fact that the yearning of a father to
perform the obsequies for his son who died in a alien land, is as a result of
the traditional belief that the soul of a person would rest in peace only after
the mortal remains are buried or burnt. A question arose in Ashray Adhikar
Abhiyan Vs. Union of India (AIR 2002 SC 554) about the right of a deceased
homeless person for a decent burial. A voluntary service organisation by name
Ashray Adhikar Abhiyan sent a letter addressed to the Hon’ble the Chief Justice
of India complaining that homeless persons are not given a decent burial, when
they died. The letter was treated as a writ petition under Article 32 of the
Constitution and ultimately, it was disposed of on the basis of the affidavits
sworn to by the Deputy Municipal Health Officer of the Municipal Corporation of
Delhi and the Deputy Commissioner of Police (Headquarters), Delhi, elaborating
the various steps taken by the Police and the local body for providing a decent
burial to a homeless dead person, according to the religious faith to which he
belonged. Though the said writ petition was closed on the basis of the
affidavits of the official respondents, the Supreme Court affixed a seal of
approval on the right of a homeless deceased to have a decent burial as per
their religious belief and the corresponding obligation of the State towards
such people. Therefore, in my considered view the State has an obligation under
such circumstances, especially in view of the indigent circumstances in which
the petitioner is placed, to arrange for bringing the body of the petitioner’s
son to India from Malaysia.
21.It may be recalled that when a person by name Prof.Ulaganathan,
employed in one of the American Universities, was killed in a shoot out in the
University Campus, the State of Tamil Nadu arranged at their cost, to send
atleast 3 of his family members, to U.S.A. for attending his funeral. Such
gestures are not merely humanitarian in nature, but also arise out of the
State’s obligation as elaborated above.
22.Therefore, this Writ Petition is disposed of with the following
directions:
(a) The respondents 1 and 2 are directed to make arrangements through the
High Commission of India at Kualalumpur to bring the dead body of the
petitioner’s son S.Suseendran who died on 28.01.2007 at Malaysia, to India and
hand over the dead body to the petitioner, within a period of three weeks from
the date of receipt of a copy of this order.
(b) The 7th respondent is directed to register the First Information
Report and investigate into the same in accordance Section 4 I.P.C. and Section
188 Cr.P.C. for the purpose of carrying out an effective investigation, the 7th
respondent shall seek such assistance and such information from the Police in
Malaysia at Bukit Puchong, Subang Jaya, as well as from the High Commission of
India at Kualalumpur. The 7th respondent shall complete the investigation within
a period of three months and file a final report. No costs.
To
1.The Chief Secretary
Government of Tamil Nadu,
St. George Fort,
Chennai-600 009.
2.The Home Secretary,
Government of Tamil Nadu,
St. George Fort, Chennai-600 009.
3.The High Commissioner,
Malaysian Embassy,
T.T.K.Road, Mandhaveli,
Chennai.
4.The Superintendent of Police,
Sivaganga District.
5.The Superintendent of Police,
Ramanathapuram District.
6.The Inspector of Police,
Ilayankudi Taluk Police Station,
Ilayankudi, Sivaganga District.
7.The Inspector of Police,
Paramakudi Police Station,
Paramakudi, Ramnad District.
8.The Superintendent of Police,
Special Police Establishment,
Central Bureau Investigation/
Anti Corruption Bureau/Chennai,
Rajaji Bhavan, Besent Nagar,
Chennai-600 020.
