TMI Blog2006 (11) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... brother. She died on 24.01.1998. She was stated to have died of heart failure. Respondent No. 5 gave a certificate to that effect. The appellant made complaints to various authorities whereupon the body was exhumed on 22.04.1998. Thereupon only a post mortem was conducted. A final opinion was given on 18.06.1998 stating that she died of Organo Phosphorous Insecticide poisoning. No injuries on her person could have been found as mentioned in the report. The appellant contended that the dead body had injuries. One Shri Durairaj, Inspector of Police who investigated into the matter issued a final form stating that the deceased could have committed suicide. 3. A writ petition came to be filed by the appellant herein praying that further investigation in terms of Sub-section (8) of Section 173 of the Code of Criminal Procedure should be directed to be carried out by the Central Bureau of Investigation (CBI). By an order dated 14.07.2000, further investigation was directed to be done by CB-CID. They submitted another final report on 19.11.2002 charging Respondent No. 4 for commission of offence of abetment of suicide under Section 306 and Respondent No. 5 for commission of offence un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for burial at 2 pm on 25.1.1998. iii. No post mortem was conducted on the dead body. iv. Respondent No. 5 informed the petitioner that the cause of death of the deceased was heart attack and Respondent No. 5 had tried her best to revive the body. v. The deceased was said to be seriously sick from 6.30 p.m. on 24.1.1998, but she was taken to the hospital only at about 12.30 night. The body was carried to the hospital at the back of the jeep accompanied by the Respondent No. 4, one Father Mathew Edakkara, another brother of the Respondent No. 4 and one Shri Mathukutty and Shri Mani. Thereafter the information was conveyed by Respondent No. 4 about death after about 3 am on 25.1.1998. vi. The Respondent No. 4 was alleged to have been found happy after the death of his wife and he was found drinking happily in front of the room of the deceased, without letting anybody go in. vii. The children of the deceased had made a complaint to the Judicial Magistrate that their 'Daddy' was in the habit of beating their mother (the deceased). viii. On or about 16.3.1998 an application being made on behalf of the two children of the deceased, the Judicial Magistrate, Guda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the State, on the other hand, would contend that this Court should not exercise its discretionary jurisdiction to direct further investigation at this stage in the matter as the same would amount to a re-investigation. Mr. K.V. Vishwanathan, learned Counsel appearing on behalf of Respondent No. 4, would submit that if sufficient evidences are brought on record, the Trial Judge could alter the charge in exercise of its jurisdiction under Section 216 of the Code of Criminal Procedure. Mr. Dayan Krishnan, learned Counsel appearing on behalf of Respondent No. 5, submitted that the question of directing a further investigation as against Respondent No. 5 does not arise as he has been charged only under Section 201 of the Indian Penal Code. Before us, a counter-affidavit has been filed on behalf of the CBI. In its counter-affidavit the CBI has supported the impugned judgment. Mr. A. Sharan, learned Additional Solicitor General, however, would contend that the same may be treated to be withdrawn and in the event, this Court forms an opinion that a case has been made out for further investigation, the CBI would take up the same. The learned Additional Solicitor General urged that unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Solicitor General appearing on behalf of the CBI was not satisfied therewith and as indicated hereinbefore sought to withdraw the same. The investigating officer and particularly CB-CID should have made a thorough investigation. If the allegations made by the appellant are correct, the same depicts a sordid state of affairs. The job of the investigating officer is to make investigation in right direction. The investigation must be inconsonance with the ingredients of the offence. It cannot be haphazard or unmethodical. 10. We may notice that in MC v. Bulgaria 15 BHRC 627 where the investigation was carried out in a case of rape of minor by two boys as to find out as to whether she was subjected to sexual intercourse upon applying a force in contradistinction with her consent . The European Court of Human Rights referring to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 opined that the general approach should be: (a) the existence of a positive obligation to punish rape and to investigate in rape cases. (b) the modern conception of the elements of rape and its impact on the substance of member states' positive ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l culprits and the police is asking the sisters to accept the four arrested persons as culprits. In the face of these averments and keeping in view the facts and circumstances of this case, we are of the view that ends of justice would be met if we direct the CBI to hold further investigation in respect of the offences committed between the night of July 12 and 13, 1990 as per the FIR lodged at Police Station, Gajraula. Yet recently, in Ramesh Kumari v. State (NCT of Delhi) and Ors . 2006CriLJ1622 this Court directed the CBI to register a case and investigate the complaint filed by the appellant therein in September, 1997. [See also Shashikant v. C.B.I. and Ors. 2007CriLJ995 12. The powers of this Court both under Articles 32 and 142 of the Constitution of India are plenary in nature. 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. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermore notice that this Court in Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. 2004CriLJ2050 opined: 18. According to the appellant Zahira there was no fair trial and the entire effort during trial and at all relevant times before also was to see that the accused persons got acquitted. When the investigating agency helps the accused, the witnesses are threatened to depose falsely and the prosecutor acts in a manner as if he was defending the accused, and the court was acting merely as an onlooker and when there is no fair trial at all, justice becomes the victim. 54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or leth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the investigating agency. Therefore, there can be no monitoring after the charge-sheet is filed. 17. The decisions referred to hereinbefore clearly show that the Trial Court even is not powerless. It, if a case is made out, can exercise its discretionary jurisdiction under Section 311 of the Code of Criminal Procedure as also Section 391 thereof. In the event of open marshalling of the evidence, it comes to the opinion that a case has been made out for alteration of charge, it indisputably can do so in exercise of its power under Section 311 of the Code of Criminal Procedure. In a given case again it can consider the question from the viewpoint of the appellant herein as regards the existence of circumstances which point out to the guilt of the Respondent No. 4. 18. We are also of the opinion that it is a fit case where the appellant should be permitted to engage a lawyer on his behalf who would assist the public prosecutor. We place on record that the learned Counsel for the State assured us that the same shall not be objected to. We hope and trust that in the event the State is of the opinion that the prosecution should be conducted by a public prosecutor of repute and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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