Sasi Thomas Vs. State & Ors  Insc 852 (24 November 2006)
Sinha & Markandey Katju
out of S.L.P. (Crl.) No. 1540 of 2006) S.B. Sinha, J.
(deceased) was married with Jose Paul Respondent No. 4 herein. After their
marriage, they went to USA. Jose Paul was a Vice-President in
a reputed bank in USA. The deceased was a nurse. They
obtained naturalized citizenship in USA.
Allegedly, the couple was not leaving a happy married life. Respondent No. 4
developed intimacy with one divorcee, viz., Lissy P.C. The deceased thereafter
came back to India with her children on five years
visa. She purchased a house in the year 1994. In 1996, Respondent No. 4 also
came back to India. Appellant is her younger 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.
Durairaj, Inspector of Police who investigated into the matter issued a final
form stating that the deceased could have committed suicide.
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 under Section
201 of the Indian Penal Code.
of the offence was taken. The trial has already commenced and it is stated that
47 witnesses have been examined. The appellant filed an application before the
High Court of Madras purported to be under Section 482 of the Code of Criminal
Procedure inter alia praying for further investigation in the aforementioned
case by the CBI. A learned Judge of the said Court dismissed the said
learned counsel appearing for the petitioner would submit that some poisonous
substance was found in the intestine of the deceased as per the post mortem
examination. He would further contend that there are materials already
collected by the investigating agency, which makes out an offence under Section
302 of I.P.C. The first respondent had conducted the investigation and laid
charge sheet for offences under Sections 306 and 201 of I.P.C. Now, the case is
ripe for trial after the charges have been framed by the learned Assistant
Sessions Judge, Ooty. The charge can be altered at any time under Section 216
of Cr.P.C., by the trial court, if it comes to the conclusion that a different
offence is attracted.
the facts and circumstances of the case, this Court finds that further
investigation at this distance of time is not necessitated..." The
appellant is, thus, before us.
V.J. Francis, learned counsel appearing on behalf of the appellant, would
submit that the High Court was not correct to take the said view without taking
into consideration two important developments in the case, viz. a case from
heart attack was made out at an initial stage, whereafter a case of abetment of
suicide was made out, which would go to show as to how the investigation has
been carried out both by the general police or by the CB-CID in the State of
learned counsel would contend that there are various circumstances which would
clearly point out that Respondent No. 4 murdered the deceased, some of which
are as under:
death of Smt. Achamma was alleged to be sudden as per the version given by the
servant of respondent no. 4 to the petitioner. This proved to be false later
The petitioner had asked the respondent no. 4 to keep the dead body of his
sister till the arrival of all her relatives. This request was turned down by
respondent no. 4 and the dead body was ready for burial at 2 pm on 25.1.1998.
No post mortem was conducted on the dead body.
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
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.
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.
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).
On or about 16.3.1998 an application being made on behalf of the two children
of the deceased, the Judicial Magistrate, Gudalur, had passed an order that the
children be kept in the Hostel run by Mr. Herman. Despite the said specific
order, Respondent No. 4 had taken away the children. No orders were obtained by
Respondent No. 4 for their custody by him.
The final report given by the Police Surgeon and Professor of Forensic Medicine
of Coimbatore, Medical College, had reported that the deceased had died of Organo
Prosperous Insecticide Poisoning.
the basis of the said report dated 18-06- 1998 the police had converted the
whole incident from heart attack to one of suicide by the deceased herself by
consuming poison. This was neither the case of Respondent No. 4 nor Respondent
No. 5/Doctor, who had attended on her when the body was taken to the Pushpagiri Medical Hospital, where Respondent No. 5 was there.
the incident of consuming poison by the deceased as based on the report
submitted by the post mortem doctor on 18.6.1998 there was no reason as to why
such a report was not submitted by the police till 2002.
One of the persons who accompanied the body (of the person who had committed
suicide or had heart attack) is one Father Mathew Edakkara, Principal of
Morning Star School. It is on record that the said priest was given a Maruti
car by Respondent No. 4, as he had helped the family, and also to buy property.
Driver Shri Mani who had taken the deceased to Hospital, stated that he had
brought the poison, and kept in the store room.
The Respondent No. 4 had suddenly gone to the United States to settle the Insurance Claim and get the benefits.
attention has been drawn to the counter-affidavit filed by Respondent No. 1
herein which is to the following effect:
That there is no evidence to prove that it was a case of murder. The petitioner
has listed out fourteen points in paragraph No. 5 to create suspicion against
Jose Paul in respect of the death of Achamma. Certainly they are material
circumstances to prove that Jose Paul was behind the death of his wife Achamma.
These facts would support the case of the prosecution that Jose Paul committed
cruelty as a result of which his wife achamma could have committed suicide. But
these fourteen points are not sufficient to prove a theory that Jose Paul
murdered his wife Achamma, as suspected by the petitioner." Mr. R. Sundaravaradan,
learned senior counsel appearing on behalf 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.
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.
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.
us, a counter-affidavit has been filed on behalf of the CBI. In its
counter-affidavit the CBI has supported the impugned judgment.
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.
learned Additional Solicitor General urged that unfortunately it is possible
that adequate materials had not been collected during investigation and in the
event it is found that the investigating officers have failed to perform their
statutory duties, this Court may issue appropriate direction in exercise of its
jurisdiction under Article 142 of the Constitution of India.
and fair investigation on the part of the investigating officer is the backbone
of rule of law. A proper and effective investigation into a serious offence and
particularly in a case where there is no direct evidence assumes great
significance as collection of adequate materials to prove the circumstantial
evidence becomes essential. Unfortunately, the appellant has not been treated
fairly. When a death has occurred in a suspicious circumstance and in
particular when an attempt had been made to bury the dead body hurriedly and
upon obtaining apparently an incorrect medical certificate, it was expected
that upon exhumation of the body, the investigating authorities of the State
shall carry out their statutory duties fairly. The appellant alleges that no
fair investigation has been conducted.
clearly a matter of great concern that the authorities did not become alive to
the situation. Although the dead body was buried on the premise that she died
of heart attach, a final report was submitted stating that she might have
committed a suicide. We do not know on what material, such an opinion was
arrived at by the investigating officer. It is only because of the persistent
efforts on the part of the appellant to move the High Court, a further
investigation was directed to be made by CB-CID. Another final report was
submitted that Respondent Nos. 4 and 5 have committed the offence under
Sections 302 and 201 respectively.
doing so, it is not known, whether fourteen circumstances enumerated by the
appellant herein had been duly taken note of and investigation in this behalf
had been carried out. Although the CBI in its counter-affidavit has supported
the impugned judgment of the High Court but as noticed hereinbefore, it without
looking into the documents opined that although the said circumstances are relevant
but they themselves had not proved commission of offence of murder of the
deceased by Respondent No. 4 herein. We regret to state that it was not
expected of the CBI to file such an affidavit. Even the learned Additional
Solicitor General appearing on behalf of the CBI was not satisfied therewith
and as indicated hereinbefore sought to withdraw the same.
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.
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.
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
existence of a positive obligation to punish rape and to investigate in rape
modern conception of the elements of rape and its impact on the substance of
member states' positive obligation to provide adequate protection.
regards application of the court's approach, it opined:
Furthermore, it appears that the prosecutors did not exclude the possibility
that the applicant might have not consented, but adopted the view that in any
event, in the absence of proof of resistance, it could not be concluded that
the perpetrators had understood that the applicant had not consented (see the
text of the prosecutors' decisions in paras 64 and 65, above). The prosecutors
forwent the possibility of proving the perpetrators' mens rea by assessing all
the surrounding circumstances, such as evidence that they had deliberately
misled the applicant in order to take her to a deserted area, thus creating an
environment of coercion, and also by judging the credibility of the versions of
the facts proposed by the three men and witnesses called by them (see paras 21,
63 and 66-68, above).
As regards the government's argument that the national legal system provided
for the possibility of a civil action for damages against the perpetrators, the
court notes that this assertion has not been substantiated. In any event, as
stated above, effective protection against rape and sexual abuse requires
measures of a criminal law nature (see paras 124 and 148-153, above).
The court thus finds that in the present case there has been a violation of the
respondent state's positive obligations under both arts 3 and 8 of the
convention. It also holds that no separate issue arises under art 13 of the
convention." It was further found that there has been a violation of
Articles 14 and 41 of the Convention and on that ground granted damage of 8000
euros to the prosecutrix besides costs and expenses.
in a given case, this Court can direct an investigation by the CBI. [See Paramjit
Kaur (Mrs.) v. State of Punjab and Others (1996) 7 SCC 20] In Gudalure
M.J. Cherian and Others v. Union of India and Others [(1992) 1 SCC 397], this
It is obvious from the affidavit of the Senior Superintendent, Police that the
nuns who are victims of the tragedy are not coming forward to identify the
culprits in an identification parade to be held by the Magistrate. The
petitioners on the other hand, have alleged that the four persons who have been
set up as accused by the police are not the real 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 Others [(2006) 2 SCC
677] this Court directed the CBI to register a case and investigate the
complaint filed by the appellant therein in September, 1997.
also Shashikant v. C.B.I. & Others 2006(11) SCALE 272] The powers of this
Court both under Articles 32 and 142 of the Constitution of India are plenary
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.
has been placed by Mr. Sundaravaradan on Amar Chand Agarwala v. Shanti Bose and
another [AIR 1973 SC 799] wherein for quashing the charges at a preliminary
stage, the High Court was found to have relied on oral and documentary
evidences adduced on behalf of the complainant in presence of accused. The said
decision, although in our opinion, cannot be said to have any direct
application in the instant case but signifies the justifiability or otherwise
of exercise of the jurisdiction of this Court at this stage.
furthermore notice that a Division Bench of this Court in Rajesh and Others v. Ramdeo
and Others [(2001) 10 SCC 759] refused to direct a fresh and further
the investigation agency has already filed the charge-sheet on the basis of
which the accused persons are being proceeded against, if any further materials
are available, the Court may alter the charge framed. In the circumstances, we
have no hesitation to come to the conclusion that the High Court has
overstepped its jurisdiction in issuing the impugned direction calling upon
further investigation into the matter, which in our considered opinion, would
be an abuse of the process of the court" This decision albeit is not
supported by any reason. It has not taken into consideration the binding
precedents as was urged by the learned Additional Solicitor General. But, as at
present advised, we do not intend to take a contrary view.
may, however, note that in Hasanbhai Valibhai Qureshi v. State of Gujarat and Others [(2004) 5 SCC 347], a
Division Bench of this Court stated the law, thus:
Therefore, if during trial the trial court on a consideration of broad
probabilities of the case based upon total effect of the evidence and documents
produced is satisfied that any addition or alteration of the charge is
necessary, it is free to do so, and there can be no legal bar to appropriately
act as the exigencies of the case warrant or necessitate.
Coming to the question whether a further investigation is warranted, the hands
of the investigating agency or the court should not be tied down on the ground
that further investigation may delay the trial, as the ultimate object is to
arrive at the truth." As such an option is maintainable, we have no doubt
that the learned Judge if any occasion arises, may take recourse thereto.
furthermore notice that this Court in Zahira Habibulla H. Sheikh and Another v.
State of Gujarat and Others [(2004) 4 SCC 158]
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.
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 lethargic action of courts and
erode in stages the faith inbuilt in the judicial system ultimately destroying
the very justice-delivery system of the country itself. Doing justice is the
paramount consideration and that duty cannot be abdicated or diluted and
diverted by manipulative red herrings.
The courts, at the expense of repetition we may state, exist for doing justice
to the persons who are affected. The trial/first appellate courts cannot get
swayed by abstract technicalities and close their eyes to factors which need to
be positively probed and noticed. The court is not merely to act as a tape
recorder recording evidence, overlooking the object of trial i.e. to get at the
truth. It cannot be oblivious to the active role to be played for which there
is not only ample scope, but sufficient powers conferred under the Code. It has
a greater duty and responsibility i.e. to render justice, in a case where the
role of the prosecuting agency itself is put in issue and is said to be hand in
glove with the accused, parading a mock fight and making a mockery of the
criminal justice administration itself." Such a direction, thus, can be
issued where there had been complete failure of justice and in a case where the
investigating and prosecuting agencies were found to have not performed their
role in the manner it was expected to do.
question has again been considered by this Court in Rajiv Ranjan Singh 'Lalan'
(VIII) and Another v. Union of India and Others [(2006) 6 SCC 613] wherein
referring to Union of India v. Sushil Kumar Modi [(1998) 8 SCC 661, this Court
is thus clear from the above judgment that once a charge-sheet is filed in the
competent court after completion of the investigation, the process of
monitoring by this Court for the purpose of making CBI and other investigative
agencies concerned perform their function of investigating into the offences
concerned comes to an end and thereafter, it is only the court in which the
charge- sheet is filed which is to deal with all matters relating to the trial
of the accused including matters falling within the scope of Section 173(8).
respectfully agree with the above view expressed by this Court. In our view,
monitoring of the pending trial is subversion of criminal law as it stands to
mean that the court behind the back of the accused is entering into a dialogue
with the investigating agency. Therefore, there can be no monitoring after the
charge-sheet is filed." 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.
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 having sufficient experience, it would not
hesitate to appoint one.
would also direct the learned Trial Judge if any occasion arises therefor, to
exercise his power under Section 311 of the Code of Criminal Procedure upon
considering the facts and circumstances of this case.
reiterate that although it is not beyond the jurisdiction of this Court to
direct further investigation by the CBI as contradistinguished from
reinvestigation at this stage, but we decline to do so keeping in view the fact
that 47 witnesses including the appellant himself have already been examined
and recourse thereto can be taken if during trial a case therefor is found to
be have been made out.
appeal is disposed of with the aforementioned directions.