TANAJIRAO MARTINRAO KADAMBANDE Vs. H.J. CHINOY

JUDGEMENT

(1.) BY this writ petition filed under Article 226 of the Constitution the petitioner (Tanajirao Martinrao Kadambande) is challenging the validity and/or legality of the order dated September 9, 1968, passed by respondent No. 1 (the Coroner of Bombay) whereby respondent No. 1 has permitted respondent No. 3 (Smt. Padma II. Koregaonkar) to cross -examine witnesses that may be produced either on behalf of the police or on behalf of the petitioner during the Inquest that is being held by him in the matter of death of one Mrs. Roma Kadambande.

(2.) THE facts giving rise to this petition may be briefly stated: The petitioner who happens to be the Deputy Inspector General of Police, Maharashtra State, has been residing in a flat at Ferohin, Worli, Bombay -18. In the early hours at about 5.45 A.M. on March 6, 1968, the petitioner's wife Roma Kadambande was found lying dead in the above flat under circumstances creating a suspicion that she may not have come by natural death. The petitioner sent for Dr. Telang, Administrative Medical Officer attached to the Police Maternity Home as well as Dr. Majumdar, Police Surgeon of Bombay; the former arrived at about 6.00 A.M. and the latter sometime thereafter. The postmortem examination of the dead body of the deceased Roma was conducted by the Police Surgeon but he deferred his pronouncement upon the cause of death until he received the result of the chemical analysis of the blood and viscera of the deceased. The chemical analysis revealed that the blood contained Ethyl Alcohol and derivatives of barbituric acid and that the viscera contained a massive dose of barbituric acid. The police surgeon thereafter opined that the death was the result of acute barbiturate poisoning. A panchanama of the petitioner's flat was made and a large number of witnesses were interrogated by the police and their statements recorded. It appears that respondent No. 3, the mother of the deceased, told the police during the course of her statement that she suspected foul play in the matter of her daughter's death and that she desired the police to make a thorough investigation in the matter. She also made a similar allegation in writing to the Coroner of Bombay (respondent No. 1).

(3.) ON behalf of the petitioner Mr. Cooper raised a two -fold contention before me. In the first place he contended that the Inquest proceedings held by the Coroner of Bombay under the Coroners Act, 1871, were proceedings to which the Indian Evidence Act applied, inasmuch as, the Coroner was a 'Court' and the proceedings before him were 'judicial proceedings' as required under Section 1 of the said Act and since under Section 137 of the Evidence Act the right of cross -examination had been confined to only 'adverse party' respondent No. 3 had no right to cross -examine any of the witnesses that may be produced by the police or the State of Maharashtra at the Inquest, because respondent No. 3 could not be regarded as any party -much less an 'adverse party' -in such proceedings. According to Mr. Cooper, it is respondent No. 3 who had first suggested that the death of her daughter Roma was homicidal and had further insinuated that the petitioner had a hand in it and as such the petitioner who is in the position of a 'suspect' at the said Inquest could be the only 'adverse party' and when evidence would be tendered by the police through any witness such witness could be examined -in -chief by counsel for the State and may at the most be allowed to be further examined -in -chief by counsel for respondent No. 3, but unless a case was made out under Section 154 of the Evidence Act, respondent No. 3 not being an 'adverse party' could not be allowed to cross -examine such witness. Secondly, he contended that even if the Evidence Act were not to apply to the proceedings before the Coroner of Bombay it would be in consonance with the principles of natural justice to allow only such persons who had some sort of legal interest in the matter to participate in the proceedings by leading evidence or by cross -examining the witnesses and, according to him, simply because a person was a relative or a close friend of the deceased who may have had deep attachment to the deceased or may have sentimental interest in the death of the deceased could not be allowed to participate in the proceedings or cross -examine the witnesses and in the present case respondent No. 3 who undoubtedly is a close relative of the deceased and as such would be sentimentally interested in the death of her daughter should not be allowed to participate in the proceedings as a party or cross -examine the witnesses, inasmuch as, she could not be said to have any legal interest in the matter. He, therefore, urged that the impugned order passed by respondent No. 1 permitting respondent No. 3 to cross -examine the witnesses that may be tendered by the police or the State of Maharashtra was liable to be set aside. On the other hand, learned Counsel for respondents Nos. 2 and 3 contended that the Coroner of Bombay could not be regarded as a 'Court' for the purpose of Section 1 of the Evidence Act and in any event the Inquest proceedings before him were not 'judicial proceedings' and as such the Evidence Act was inapplicable to such proceedings. In the alternative, it was contended that even if the provisions of the Evidence Act were generally held applicable to such proceedings, Section 137 and the restriction on the right to cross -examine witnesses contained therein was not applicable, inasmuch as the Inquest undertaken by the Coroner of Bombay being in essence a fact finding inquiry into the cause of death -and even when it was of an accusatory character it being purely a preliminary investigation -there were no contending parties before the Coroner and as such no question of confining the right of cross -examination to any adverse party could arise. In other words, according to learned Counsel for the respondents, the State or the police were not a party to such proceedings nor was even the 'suspect' any party to such proceedings and therefore no one being a party -much less an 'adverse party' to such proceedings -the question of applying the provisions of Section 137 of the Evidence Act did not arise. Mr. Khambata for respondent No. 3 pointed out that an Inquest into the cause of an unnatural death was nothing but a public inquiry held by the Coroner with the help of a jury and one of the objects of holding such public inquiry was to satisfy the public conscience that such unnatural death was not hushed up and having regard to the provisions of the Coroners Act, especially Sections 8, 9, 16 and 17 he contended that any person, irrespective of whether he was a friend or relative of the deceased or a stranger to the deceased, who was acquainted with and could throw light on the circumstances attending such death and about whose bona fides the Coroner was satisfied, could be regarded as a person properly and sufficiently interested in the death of the deceased and the Coroner had the discretion to allow such person to participate in the proceedings or to cross -examine the witnesses and it was unnecessary that such person should be shown to have legal interest in the death of the deceased and Mr. Khambata further urged that respondent No. 1 had having regard to all the facts and circumstances of the case properly exercised his discretion and permitted respondent No. 3 to cross -examine the witnesses that were to be examined by the State of Maharashtra or police and his order could not be and should not be interfered with. Mr. Khambata further urged that if necessary, in the instant case, respondent No. 3 could be said to have sufficient legal interest in the cause of death of the deceased inasmuch as she was one of the heirs mentioned in the Fatal Accidents Act who could institute proceedings for recovery of damages arising out of any wrongful act on the part of the petitioner if one was established and as such respondent No. 3 had been rightly permitted to take part in the proceedings and cross -examine the witnesses. It was thus contended that the impugned order was proper and should not be set aside.