P MURUGAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THE above writ petition has been filed for a writ of mandamus, directing the fourth respondent to conduct an investigation into the death of Virupalingam on 16. 3. 1992 at the hands of Kullanchavadi Police, Cuddaloretown , south Arcot District, the 1st respondent to take appropriate action against the officials found guilty and the first respondent to pay compensation of Rs. 5 lakhs to the legal heirs of the deceased Virupalingam.

(2.) THE petitioner, who is said to be the brother of the deceased Virup alingam , has stated in the affidavit filed in support of the writ petition, that the deceased was a graduate and had been the President of the Vazhuthalampattu Agricultural Co-operative Bank that he was a bachelor and eldest member of the family, that he was a social worker fighting for the cause of downtrodden and oppressed, that he was convicted to life by the Sessions Court at Cuddalore and C. A. No. 774 of 1986 is pending before this court against such conviction, that he was on bail granted by this Court, that he was keeping good health and no bad habits to his credit and that due to his activities on the political front and Co-operative movement in the area he used to often go to the Police Station, which was not liked by the Sub-Inspector Sankaran. It is also stated that on 15. 3. 1992 one Ramalingam the brother-in-law of the deponent was taken to the Police Station at mid night along with others, that the deponent and his brother went to the Police Station, that when the deceased went into the station he was abused by the Sub-Inspector and Inspector, Vadalu r , that when the deceased insisted for the release of the father he was chased out by the Police, that there was an attempt to hit the deponent and he heard a shot being fired and his brother falling down, that the petitioner saw his brother being dragged and that the Police themselves created pandemonium in the station and took pictures of the same to create no impression of anti-socials attacking and damaging the Police Station, that the deceased brother of the petitioner was moved in a van to the Hospital and at the hospital he was declared dead and they were asked to take the body by the Police, that though they refused they have forced the two ladies to take the body and when the body was brought extensive injuries including bullet and buoyne t marks were noticed and there was no visible sign of proper post-mortem, and that they contacted two Advocates from Madras who came on 17. 3. 1992 and also had a look of the body and on their instructions, they came to understand the need for doing second post-mortem to establish the true facts. It is also claimed that the subsequent statements published in the press create a strong suspicion and doubt about the manner of post-mortem and that they cannot expect a fair and impartial investigation from the Police, and consequently this Court should direct an enquiry by an impartial agency so that justice would not become a causality stating that it may not be possible for them to get their grievances redressed in the hands of the respondents. Hence, the above writ petition with the reliefs referred as above.

(3.) I have ordered notice to the State Public Prosecutor to hear his views before issuing any directions and Mr. B. Sriramulu , learned Public Prosecutor appeared and made submissions as hereunder: It is the stand of the learned Public Prosecutor that in this case, there had been an inquest by the Sub-Collector of the Division, an I. A. S. Officer, as contemplated under S. O. No. 144 of the Police Standing Orders, and he has conducted on the spot enquiry with open public participation and that it is thereafter the body was sent for post mortem and the body has been handed over to the family of the deceased after such post mortem, that regular investigation in accordance with law is under progress and that this Court, may not be pleased to interfere in the matter at this stage. Reliance was placed upon the decision of S. Janarthanam , J. dated 11. 3. 1992 in Crl. O. P.-No. 9952 of 1991 to contend that it is the prerogative of the police, in exercise of their statutory powers to investigate and the Courts come only at the subsequent stage of adjudication with powers visualised and conferred under Sec. 173 of the Crl. P.C. Reliance was also placed on the decision reported in State of Bihar v J. A. C. Saldann a A. I. R 1980 S. C. 326, and the observations in pa ra s 25,26 and 28 in the following terms: '25. There is a clear-cut and well demarcated sphere of activity in the field of crime detecatio n and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive whic h is, charged with a duty to keep vigilance over law; and order situation is obliged to prevent crime and if an offence is alleged to have been continued it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having seen committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court to take cognisanc e of the offence under Sec. 190 of the Code its duty comes to an end. On a Cognizance of the offence being taken by the Court, the Police function of investigation comes to an end subject to the provision contained in Sec. 1738), there commences the adjudicatory to determine whether an offence has been commitie d and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad, (1944)71 I. A. 203 at p. 213, where the privy Council observed as under: [extract omitted] 26. This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into cognizable offence is ordinarily not to be interfered with the judiciary. 28. Is there any thing more required to write the final epitaph and say amen by the learned Additional Chief Judicial Magistrate after the finding is recorded by the High Court, more especially finding of fact that railway organisation has profited rather than lost by the unusual procedure" It is a clear case of usurpation of jurisdiction vested in the learned Additional Chief Judicial Magistrate to take or not to take cognisance of a case on the material placed before him. The high Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion that High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. "