{"id":217366,"date":"2007-08-28T00:00:00","date_gmt":"2007-08-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-sethu-raja-vs-the-chief-secretary-on-28-august-2007"},"modified":"2017-04-23T01:57:42","modified_gmt":"2017-04-22T20:27:42","slug":"s-sethu-raja-vs-the-chief-secretary-on-28-august-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-sethu-raja-vs-the-chief-secretary-on-28-august-2007","title":{"rendered":"S.Sethu Raja vs The Chief Secretary on 28 August, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Sethu Raja vs The Chief Secretary on 28 August, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 28\/08\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN\n\n\nW.P.(MD)No.3888 of 2007\n\n\nS.Sethu Raja\t\t\t...\t\tPetitioner\n\n\nVs.\n\n\n1.The Chief Secretary\n  Government of Tamil Nadu,\n  St. George Fort,\n  Chennai-600 009.\n\n2.The Home Secretary,\n  Government of Tamil Nadu,\n  St. George Fort,\n  Chennai-600 009.\n\n3.The High Commissioner,\n  Malaysian Embassy,\n  T.T.K.Road, Mandhaveli,\n  Chennai.\n\n4.The Superintendent of Police,\n  Sivaganga District.\n\n5.The Superintendent of Police,\n  Ramanathapuram District.\n\n6.The Inspector of Police,\n  Ilayankudi Taluk Police Station,\n  Ilayankudi,\n  Sivaganga District.\n\n7.The Inspector of Police,\n  Paramakudi Police Station,\n  Paramakudi, Ramnad District.\n\n8.N.Sulaiman Rowther,\n\n9.Mohammed Isbaq\n\n10.Mohasin\n\n11.M.Sheik Sabir\n\n12.The Superintendent of Police,\n   Special Police Establishment,\n   Central Bureau Investigation\/\n   Anti Corruption Bureau\/Chennai,\n   Rajaji Bhavan, Besent Nagar,\n   Chennai-600 020.\t \t\t...\tRespondents\n\n\nPRAYER\n\n\nWrit Petition filed under Article 226 of the Constitution of India,\npraying for the issuance of a Writ of Mandamus directing the respondents 1 to 7\nherein or 12th respondent to investigate and find out the culprits on the death\nof the petitioner's son namely S.Suseendran in Thokka, Malaysia and consequently\ndirect the respondents to take steps to bring the dead body from Malaysia to\nTamil Nadu and hand over the dead body to the petitioner.\n\n\n!For Petitioner \t...\tMr.M.Thikvijayapandian\n\n\n^For RR 1 and 2\t\t...\tMr.D.Sasikumar, G.A.\n\n\nFor RR 3\t\t...\tMr.R.Rajagopal\n\n\nFor RR 4 to 7\t\t...\tMr.P.Rajendran, G.A.\n\t\t\t\t(Criminal Side)\n\nFor RR 12\t\t...\tMr.S.Jayakumar for CBI\n\n\n:ORDER\t\n<\/pre>\n
\tThe petitioner is an agricultural Collie. He has four sons and a daughter.
\nOne of his sons went to Malaysia on a tourist visa in March 2004.\n<\/p>\n
\t2.The petitioner claims that his son was originally appointed by the 8th
\nrespondent in his Biscuit Factory and that the petitioner’s son fell in love
\nwith the 8th respondent’s daughter. According to the petitioner, the respondents
\n8 to 11 murdered his son in Malaysia in January 2007 and that the body is kept
\nin the mortuary in Malaysia. On the above said premise, the petitioner claims to
\nhave sent telegrams to the President of India, the Prime Minister, the Ministry
\nfor External Affairs, the Chief Minister and the High Commission of Malaysia,
\nseeking action against the culprits and also to make arrangements to bring the
\nbody of his son from Malaysia. Finding no response to the telegrams, the
\npetitioner has come up with the present writ petition seeking the issue of a
\nwrit of mandamus directing the respondents 1 to 7 or the 12th respondent to
\ninvestigate into the death of his son and also to take steps to bring the dead
\nbody from Malaysia for the purpose of performing the obsequies.\n<\/p>\n
\t3.Heard Mr.M.Thikvijayapandian, learned counsel for the petitioner,
\nMr.D.Sasikumar, learned Government Advocate appearing for the respondents 1 and
\n2 and Mr.P.Rajendran, learned Government Advocate (Crl.Side) appearing for the
\nrespondents 4 to 7.\n<\/p>\n
\t4.The Inspector of Police, Paramakudi Town who is the 7th respondent in
\nthe writ petition has filed a report. According to the said report, the
\nInspector made enquiries with one M.Shiek Sabir who is the 11th respondent in
\nthe writ petition and came to know from him that the petitioner’s son allegedly
\ncommitted suicide and that the Malaysian Police is investigating into the same
\nin Bukit Puchong (Balai) Police Station No.Report Crime No.BKT PUCHONG\/001045\/07
\ndated 28.01.2007.\n<\/p>\n
\t5.The learned Government Advocate also filed a report from the Village
\nAdministrative Officer to the effect that the respondents 8, 9 and 10 are not
\nresiding in India but residing in Malaysia.\n<\/p>\n
\t6.The learned Government Advocate also produced the copy of a letter
\nwritten by the Deputy Secretary to Government of Tamil Nadu, Home Department,
\nChennai-9 addressed to the Second Secretary, High Commission of India,
\nKualalumpur in his Letter No.71834\/CITZ.II\/2007-1, dated 27.07.2007 by which he
\nhas requested the High Commission to get a copy of the Postmortem Report
\nrelating to the son of the petitioner who died in Malaysia.\n<\/p>\n
\t7.Mr.R.Rajagopal, learned counsel representing the Consulate General of
\nMalaysia in India filed a letter dated 26.06.2007 addressed to him. In the said
\nletter, the Consulate General of Malaysia has advised the petitioner to take
\nrecourse to any of the two alternatives namely, either to make a report to the
\nPolice Department in Malaysia or to seek an assistance through the High
\nCommission of India at Kualalumpur for making a Police report and undertaking a
\nfurther investigation. The Consulate General of Malaysia has also stated that
\nthey will not be in a position to render any assistance by themselves and that
\nthey also enjoy an immunity from any Court proceedings.\n<\/p>\n
\t8.All the above facts on which there is no dispute, confirm one thing
\nnamely, that the petitioner’s son died in Malaysia. The petitioner claims that
\nhis son was murdered at the instance of respondents 8 to 11 since his son was in
\nlove with the daughter of the 8th respondent. But the 11th respondent has given
\na statement to the 7th respondent that it was a case of suicide. However, the
\npetitioner who is a poor agricultural Collie, could not either get the body of
\nhis son sent to India or could get a thorough investigation done into the case.
\nTherefore, he has filed the present writ petition.\n<\/p>\n
\t9.Admittedly the death of the petitioner’s son occurred in Malaysia. If
\nthe allegations of the petitioner are true, an offence punishable under the
\nIndian Penal Code has been committed, in Malaysia, by respondents 8 to 10, who
\nare Indian citizens. The applicability of the Indian Penal Code to offences
\ncommitted beyond India by an Indian citizen, is dealt with under Sections 3 and
\n4 of the Indian Penal Code. Section 3 as well as Section 4, which contains an
\nillustration, that forms part of the statute itself, read as follows:
\n\t“3.Punishment of offences committed beyond, but which by law may be tried
\nwithin India.- Any person liable, by any Indian Law, to be tried for an offence
\ncommitted beyond India shall be dealt with according to the provisions of this
\nCode for any act committed beyond India in the same manner as if such act had
\nbeen committed within India.\n<\/p>\n
\t4.Extension of Code to extra territorial offences.- The provisions of this
\nCode apply also to any offence committed by –\n<\/p>\n
\t(1)any citizen of India in any place without and beyond India;
\n\t(2)any person on any ship or aircraft registered in India wherever it may
\nbe,<\/p>\n
\tExplanation.-In this section the word “offence” includes every act
\ncommitted outside India which, if committed in India, would be punishable under
\nthis Code.\n<\/p>\n
ILLUSTRATION
\n\t‘A’ who is a citizen of India, commits a murder in Uganda. He can be tried
\nand convicted of murder in any place in India in which he may be found.”\n<\/p>\n
\t10.Section 188 of the Code of Criminal Procedure also enables the
\ninvestigating Agencies and the Courts to deal with a person who has committed an
\noffence outside India, if he is a citizen of India or if he is on a ship or air
\ncraft registered in India though not a citizen of India. Section 188 of the
\nCr.P.C. reads as follows:\n<\/p>\n
“188.Offence committed outside India.- When an offence is committed outside
\nIndia-\n<\/p>\n
\t(a)by a citizen of India whether on the high seas or elsewhere; or\n<\/p>\n
\t(b)by a person, not being such citizen, on any ship or aircraft registered
\nin India;\n<\/p>\n
he may be dealt with in respect of such offence as if it had been committed at
\nany place within India at which he may be found;\n<\/p>\n
\tProvided that, notwithstanding anything in any of the preceding sections
\nof this Chapter, no such offence shall be inquired into or tried in India except
\nwith the previous sanction of the Central Government.”\n<\/p>\n
\t11.Explaining the purport of Section 4, I.P.C. read with  Section 188,
\nCr.P.C., a Constitution Bench of the Supreme Court held in Central Bank of India
\nLimited Vs. Ram Narain (AIR 1955 SC 36) as follows:\n<\/p>\n
“The language of S. 4 I.P.C. and S.188, Cr.P.C., plainly means that if at the
\ntime of the commission of the offence, the person committing it is a citizen of
\nIndia, then even if the offence is committed outside India he is subject to the
\njuridiction of the courts in India. The rule enunciated in the sections is based
\non the principle that qua citizens the juridiction of courts is not lost by
\nreason of the venue of the offence. If, however, at the time of the commission
\nof the offence the accused person is not a citizen of India, then the provisions
\nof these sections have no application whatsoever.”\n<\/p>\n
\t12.A similar issue as has arisen in the present case, arose before the
\nKerala High Court in Remia and Another Vs. Sub Inspector of Police, Tanur (1993
\nCrl.L.J. 1098). Regarding the death of one Sulaiman, a complaint was filed
\nbefore the Sub-Inspector of Police, Tanur (Malappuram District), Kerala, by his
\nmother, widow and brother alleging that he was murdered at Sharjah, UAE by one
\nAli. The Sub-Inspector of Police refused to register the complaint on the ground
\nthat the alleged offence was committed out side India. Therefore, the defacto
\ncomplainants filed an O.P. on the file of the Kerala High Court. Allowing the
\nsaid O.P. and holding that the Sub-Inspector of Police was obliged to register
\nthe F.I.R. and investigate into the offence, Justice K.T.THOMAS, as he then was,
\nheld as follows:\n<\/p>\n
\t“4.Even when Indian Penal Code was codified, its authors took special care
\nto incorporate two prefatory provisions in a guarded manner. They are Ss.3 and 4
\nof the Penal Code. S.3 of the I.P.C. reads thus: ……..
\nSection 4 reads thus:\n<\/p>\n
………\n<\/p>\n
\t5.Section 3 of the Penal Code helps the authorities in India to proceed by
\ntreating the offence as one committed within India. No doubt it is by a fiction
\nthat such an assumption is made. But such a fiction was found necessary for
\npractical purposes. S.3 of the Penal Code was found insufficient for police
\nauthorities to investigate into the offence. It was in the aforesaid context
\nthat S.188 has been incorporated in the Procedure Code. That section reads thus:
\n……….\n<\/p>\n
No doubt, S.188 concerns as to how to deal with a person who has committed an
\noffence outside India. Since the proviso casts an obligation to obtain previous
\nsanction of the Central Government to inquire into and try such person, the
\nsection has a message that for the pre-inquiry stage no such sanction is needed.
\nIf during pre-inquiry stage any offender can be dealt with (without such
\nsanction) what could be the contours of that stage? I have no doubt that the
\npre-inquiry stage substantially relates to investigation of the crime. If there
\nis any stage in which an offender can be dealt with before commencement of
\ninquiry, it must be the investigation stage.\n<\/p>\n
\t6.During such investigation stage, if the person (known or reasonably
\nsuspected to be the offender having committed the offence outside India) is not
\navailable in India, extradition proceedings may have to be resorted to (vide
\nState of W.B. V. Jugal Kishore, AIR<\/a> 1969 Supreme Court 1171: 1969 Cri LJ 1559).
\nSupreme Court observed that “extradition is the surrender by one State to
\nanother of a person desired to be dealt with for crimes of which he has been
\naccused or convicted and which are justiciable in courts of the other State.”
\nSuch extradition proceedings are contemplated to get down the person concerned
\nto this country to be dealt with thereafter.”\n<\/p>\n
\t13.Therefore, it is clear from the provisions of Section 4, I.P.C. and
\nSection 188, Cr.P.C. that the 7th respondent is duty bound to register the
\ncomplaint of the petitioner and make an investigation. For the purpose of
\ncompleting the investigation, if the 7th respondent is required to get necessary
\ndetails from the Malaysian Police at Bukit Puchong, Subang Jaya in No.BKT
\nPUCHONG\/001045\/07 dated 28.01.2007, the 7th respondent has a duty to get such
\ndetails including the Postmortem Report as well as all other details. It is seen
\nfrom the report submitted by the 7th respondent before this Court on 21.06.2007
\nthat no such steps have been taken by him in accordance with the provisions of
\nSection 4 I.P.C. and Section 188 Cr.P.C. Under such circumstances, I am of the
\nconsidered view that the 7th respondent should be directed to register the First
\nInformation Report and investigate into the same, by taking such steps as are
\nnecessary, including that of contacting the High Commission of India in
\nKualalumpur and the Police in Bukit Puchong, Subang Jaya, Malaysia and eliciting
\nsuch information as is essential for completing the investigation.\n<\/p>\n
\t14.Coming to the other relief sought for by the petitioner, it is seen
\nthat the petitioner’s son admittedly died in January 2007 and a period of nearly
\n7 months have elapsed. The petitioner did not even see the dead body of his son
\nand it is stated to be lying in a mortuary in Malaysia. If the petitioner is
\nfinancially sound, he could have gone to Malaysia and brought the body to India
\nfor performing the funeral rites. But he is an agricultural Coolie having four
\nsons and a daughter including the dead person. Therefore, as a welfare State,
\nthe Government in my considered view, has a duty to arrange for the dead body of
\nthe petitioner’s son to be brought to India.\n<\/p>\n
\t15.The United Nations General Assembly adopted a convention known as
\n“International Convention on the Protection of the Rights of All Migrant Workers
\nand the Members of their Families, 1990” by resolution No.45\/158 dated
\n18.12.1990. The said convention elaborates the human rights standards to which
\nmigrant workers are entitled. It appears that the said convention entered into
\nforce on 01.07.2003 after its ratification by the 20th Country. India does not
\nappear to have ratified the convention. Yet, in my view, it would be useful to
\nmake a reference to Article 71 of the said convention, which reads as follows:
\n“1.States Parties shall facilitate, whenever necessary, the repatriation to the
\nState of origin of the bodies of deceased migrant workers or members of their
\nfamilies.\n<\/p>\n
2.As regards compensation matters relating to the death of a migrant worker or a
\nmember of his or her family, States Parties shall, as appropriate, provide
\nassistance to the persons concerned with a view to the prompt settlement of such
\nmatters. Settlement of these matters shall be carried out on the basis of
\napplicable national law in accordance with the provisions of the present
\nConvention and any relevant bilateral or multilateral agreements.”\n<\/p>\n
\t16.The petitioner’s son was a migrant worker in Malaysia and therefore, if
\nMalaysia had ratified the above convention, even the State of Malaysia would
\nhave become obligated to repatriate the body of the petitioner’s son to India.
\nBut this Court cannot compel the State of Malaysia to perform its obligation
\nunder aforesaid convention.\n<\/p>\n
\t17.Though India does not appear to have ratified the said convention,
\nArticle 51 of the Constitution mandates that The State shall endeavour to foster
\nrespect for international law and treaty obligations in the dealings of
\norganised people with one another. It is now well settled that in the absence of
\na contrary legislation, Municipal Courts in India would respect rules of
\ninternational law. It is equally well settled that the provisions of
\ninternational conventions which elucidate and effectuate the fundamental rights
\ncan be relied upon by the Courts in India as their facets and can be enforced as
\nsuch.\n<\/p>\n
\t18.The fundamental right to life and personal liberty guaranteed under
\nArticle 21 of the Constitution has been given an expanded meaning by Judicial
\npronouncements. The right to life has been held to include the right to live
\nwith human dignity. By our tradition and culture, the same human dignity (if not
\nmore), with which a living human being is expected to be treated, should also be
\nextended to a person who is dead. The right to accord a decent burial or
\ncremation to the dead body of a person, should be taken to be part of the right
\nto such human dignity. As a matter of fact, the Supreme Court held in Ram Sharan
\nAutyanuprasi Vs. Union of India (AIR 1989 Supreme Court 549) that the right to
\nlife enshrined in Article 21 of the Constitution would include all that gives
\nmeaning to a mans life namely, his tradition, culture, heritage and protection
\nof that heritage in its full measure. The relevant portion of the judgment of
\nthe Supreme Court in para 13 of the said judgment reads as follows:
\n“13……..It is true that life in its expanded horizons today includes all that
\ngive meaning to a man’s life including his tradition, culture and heritage and
\nprotection of that heritage in its full measure would certainly come within the
\nencompass of an expanded concept of Art.21 of the Constitution.”\n<\/p>\n
\t19.That the right to human dignity is not restricted to a living human
\nbeing but available even after death, appears to have been recognised by the
\nApex Court, first in a public interest litigation filed by an Advocate in 1995.
\nAn Advocate by name Pandit Parmanand Katara filed a writ petition under Article
\n32 of the Constitution in public interest challenging the method of execution of
\ndeath sentence by hanging under the Punjab Jail Manual as inhuman and violative
\nof Article 21 of the Constitution. He also assailed para 873 of the Jail Manual
\nwhich required the body of a condemned convict to remain suspended for a period
\nof half an hour, (after hanging) as offending the right to dignity. Though the
\nSupreme Court rejected the challenge to the method of execution of death
\nsentence by hanging, the contention of the petitioner in the said case regarding
\npara 873 of the Jail Manual was upheld. While doing so, the Supreme Court held
\nin the said case namely, Pt.Parmanand Katara Vs. Union of India (1995 (3) SCC\n<\/p>\n
248), as follows:\n<\/p>\n
“We agree with the petitioner that right to dignity and fair treatment under
\nArticle 21 of the Constitution of India is not only available to a living man
\nbut also to his body after his death.”\n<\/p>\n
\t20.There can be no dispute about the fact that the yearning of a father to
\nperform the obsequies for his son who died in a alien land, is as a result of
\nthe traditional belief that the soul of a person would rest in peace only after
\nthe mortal remains are buried or burnt. A question arose in Ashray Adhikar
\nAbhiyan Vs. Union of India (AIR 2002    SC 554) about the right of a deceased
\nhomeless person for a decent burial. A voluntary service organisation by name
\nAshray Adhikar Abhiyan sent a letter addressed to the Hon’ble the Chief Justice
\nof India complaining that homeless persons are not given a decent burial, when
\nthey died. The letter was treated as a writ petition under Article 32 of the
\nConstitution and ultimately, it was disposed of on the basis of the affidavits
\nsworn to by the Deputy Municipal Health Officer of the Municipal Corporation of
\nDelhi and the Deputy Commissioner of Police (Headquarters), Delhi, elaborating
\nthe various steps taken by the Police and the local body for providing a decent
\nburial to a homeless dead person, according to the religious faith to which he
\nbelonged. Though the said writ petition was closed on the basis of the
\naffidavits of the official respondents, the Supreme Court affixed a seal of
\napproval on the right of a homeless deceased to have a decent burial as per
\ntheir religious belief and the corresponding  obligation of the State towards
\nsuch people. Therefore, in my considered view the State has an obligation under
\nsuch circumstances, especially in view of the indigent circumstances in which
\nthe petitioner is placed, to arrange for bringing the body of the petitioner’s
\nson to India from Malaysia.\n<\/p>\n
\t21.It may be recalled that when a person by name Prof.Ulaganathan,
\nemployed in one of the American Universities, was killed in a shoot out in the
\nUniversity Campus, the State of Tamil Nadu arranged at their cost, to send
\natleast 3 of his family members, to U.S.A. for attending his funeral. Such
\ngestures are not merely humanitarian in nature, but also arise out of the
\nState’s obligation as elaborated above.\n<\/p>\n
\t22.Therefore, this Writ Petition is disposed of with the following
\ndirections:\n<\/p>\n
\t(a) The respondents 1 and 2 are directed to make arrangements through the
\nHigh Commission of India at Kualalumpur to bring the dead body of the
\npetitioner’s son S.Suseendran who died on 28.01.2007 at Malaysia, to India and
\nhand over the dead body to the petitioner, within a period of three weeks from
\nthe date of receipt of a copy of this order.\n<\/p>\n
\t(b) The 7th respondent is directed to register the First Information
\nReport and investigate into the same in accordance Section 4 I.P.C. and Section
\n188 Cr.P.C. for the purpose of carrying out an effective investigation, the 7th
\nrespondent shall seek such assistance and such information from the Police in
\nMalaysia at Bukit Puchong, Subang Jaya, as well as from the High Commission of
\nIndia at Kualalumpur. The 7th respondent shall complete the investigation within
\na period of three months and file a final report. No costs.\n<\/p>\n
To<\/p>\n
1.The Chief Secretary
\n  Government of Tamil Nadu,
\n  St. George Fort,
\n  Chennai-600 009.\n<\/p>\n
2.The Home Secretary,
\n  Government of Tamil Nadu,
\n  St. George Fort, Chennai-600 009.\n<\/p>\n
3.The High Commissioner,
\n  Malaysian Embassy,
\n  T.T.K.Road, Mandhaveli,
\n  Chennai.\n<\/p>\n
4.The Superintendent of Police,
\n  Sivaganga District.\n<\/p>\n
5.The Superintendent of Police,
\n  Ramanathapuram District.\n<\/p>\n
6.The Inspector of Police,
\n  Ilayankudi Taluk Police Station,
\n  Ilayankudi, Sivaganga District.\n<\/p>\n
7.The Inspector of Police,
\n  Paramakudi Police Station,
\n  Paramakudi, Ramnad District.\n<\/p>\n
8.The Superintendent of Police,
\n   Special Police Establishment,
\n   Central Bureau Investigation\/
\n   Anti Corruption Bureau\/Chennai,
\n   Rajaji Bhavan, Besent Nagar,
\n   Chennai-600 020.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Sethu Raja vs The Chief Secretary on 28 August, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-217366","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Sethu Raja vs The Chief Secretary on 28 August, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-sethu-raja-vs-the-chief-secretary-on-28-august-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Sethu Raja vs The Chief Secretary on 28 August, 2007 - 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