2006 Supreme(SC) 1173

2007(2) Supreme 192
SUPREME COURT OF INDIA
(From Madras High Court)
S.B. Sinha and Markandey Katju, JJ.
Sasi Thomas—Appellant
versus
State & Ors.—Respondents
Criminal Appeal No. 1211 of 2006
(Arising out of SLP (Crl.) No. 1540 of 2006)
Decided on 24-11-2006
Counsel for the Parties :
For the Appellant : V.J. Francis, A. Radhakrishnan, Anupam Mishra and Ms. Ritu Bhardwaj, Advocates.
For the Respondents : A. Sharan, A.S.G., V.G. Pragasam, S. Vallinayagam, Dayan Krishnan, Gautam Naryan, Nikhil Nayyar, K.V. Viswanathan, B. Raghunath, R. Nedumaran, Tufail A. Khan and P. Parmeswaran, Advocates.

Headnote:Criminal Procedure Code, 1973—Sections 173(8), 311 and 482—Respondents No. 4 and 5 were charge-sheeted for offences u/s 306 and 201 IPC respectively—Deceased was got married to respondent No. 4 and she died on 24.1.1998—She was stated to have died of heart failure and respondent No. 5 had given a certificate to that effect—Appellant, brother of deceased, made complaints and body was exhumed on 22.4.1998 and post mortem was conducted—Report revealed that victim had died of Organo Phosphorous Insecticide poisioning—Further investigation was directed to be done by CB-CID and then respondents 4 and 5 were charge-sheeted for offence u/s 306 and 201 IPC—Cognizance was taken and trial commenced—47 witnesses were examined—Appellant moved petition u/s 482 Cr.P.C. in High Court praying for further investigation by CBI—High Court dismissed petition—Appeal—Circumstances enumerated by appellant, whether were considered by investigating agency or not—If allegations made by appellant were correct, same depicted a sordid state of affairs—But it was not a case where direction u/s 173(8) Cr.P.C. could not issued at this stage—Trial Court even would be competent to exercise its power u/s 311 Cr.P.C.—Fit case where appellant should be permitted to engage a lawyer on his behalf to assist Public Prosecutor.

       Held : Proper 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. It is 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. While 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.(Paras 16 and 17)

       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.(Paras 18 and 19)

       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.(Paras 25 and 26)

       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. 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.(Paras 35 and 36)

       We 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. We may 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.(Paras 37 and 38)