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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU, J.
P. Pugalenthi - Petitioner
Versus
State represented by the Director General of Police, Myalpore, Chennai 600 004 - Respondents
Crl.OP No.24041 of 2013 and M.P.No.1 of 2013
Decided on : 22.12.2014
Criminal procedure code - Section 176 - Public Trust – Circumstances evidence – First Information Report - In this regard a case in Crime was registered on file of Police station Salem City under Section 174 – Since it was a death while in custody F.I.R. was forwarded to Executive Magistrate/Revenue Divisional Officer, Salem - A team of doctors who conducted post-mortem on the body of the deceased have opined that deceased would have died due to atherosclerotic heart disease - Based on same Revenue Divisional Officer, Salem submitted a report by his proceedings in wherein he has concluded that death of the deceased was due to natural cause namely heart disease – But he had recommended for departmental action against the Superintendent of Central Prison Salem for dereliction of duty - Said report was in turn submitted by District Collector under Letter Government. Having considered same Government issued Public Department accepting report of Revenue Divisional Officer - Thus no further investigation was done in to the matter – Held, At any rate in this case as court have already concluded, the inquiry held by the Revenue Divisional Officer is wholly without jurisdiction. In these circumstances only course now available for Court is to issue a direction to police to investigate matter - As has been held by Supreme Court in Peoples Union for Civil Liberties and another v. State of Maharashtra and others Scale 119 such investigation should be done by a police officer who is above the rank of officer in whose custody deceased had died - In this case deceased died while he was in custody of Superintendent, Central Prison Salem - When this was pointed out learned Advocate General submitted that investigation may be entrusted to one Assistant Commissioner of Police, C.C.B., Salem City - Said statement is recorded - In addition as mandated by Sub-Section of Section 176 jurisdictional Judicial Magistrate shall also hold inquiry in the light of the guidelines issued by this Court - In view of the same, I hold that report submitted by the Revenue Divisional Officer, Salem and the consequential order passed by Government are without jurisdiction and hence same are liable to be set aside and case should be entrusted to Assistant Commissioner, C.C.B., Salem City to investigate the same and to submit an appropriate final report to Court - While doing investigation shall have regard to the guidelines issued by this Court - As per the said law, in instant case inquiry should have been conducted by the Judicial Magistrate but, that was not done. But, strangely, in this case, the Revenue Divisional Officer who had no authority or power to hold inquiry has conducted inquiry assuming to himself power under Section 176(1) Of course court have already noticed, prior to 23.06.2006, he had such power to inquire, but not thereafter – Therefore inquiry held by the Revenue Divisional Officer, in this case, is wholly without jurisdiction - Apart from that surprisingly, there was no investigation at all done by the police in this case, probably, under the mistaken impression that the inquiry held by the Revenue Divisional Officer was a bar for police to hold investigation. Of course, under Section 176 an inquiry by an Executive Magistrate is either instead of or in addition to the investigation - Petition is allowed
The petitioner is an Advocate practicing before this Court and he is also the Director of an Association known as Prisoners Rights Forum, Chennai, which is registered as a 'Public Trust' under Registration No.4319/2008. According to him, in the month of May 2013, he came across a report dated 09.06.2007 prepared by one Mr. V.Karupannan, the then Deputy Jailor, Central Prison, Salem regarding the death of one Mr. Sukumar, S/o Mariappan, a member of AIADMK party, inside the Central Prison, Salem on 09.06.2007. Further, according to him, in the said report, Mr. V.Karuppannan, had alleged that the said Mr. Sukumar, remand prisoner No.73688 who was lodged in 9th Block of Central Prison, Salem, early in the morning, on 09.06.2007, developed chest pain. Mr. V.Karuppannan received intimation regarding the same at about 4.15 am. Then, he made arrangements for an Ambulance for the purpose of rushing Mr. Sukumar to the Government Mohan Kumaramangalam Hospital, Salem for treatment. In the report, he has further stated that when Mr. Sukumar was being taken to the Ambulance by the prison wardens, they were prevented by the other prisoners from discharging their duty. He has also mentioned the names of seven political persons who were also lodged in the same prison who prevented the officials from shifting Mr. Sukumar to the hospital. Thus, according to the petitioner, the prison authorities were virtually prevented from shifting Mr. Sukumar to the hospital. However, the jail authorities managed to take him to the Ambulance which was kept ready for shifting him to the hospital. But, on the way to hospital, in the Ambulance, Mr. Sukumar died.
2. In this regard, a case in Crime No.259/2007 was registered on the file of the Asthampatti Police station, Salem City under Section 174 Cr.P.C. Since, it was a death while in custody, the F.I.R. was forwarded to the Executive Magistrate/Revenue Divisional Officer, Salem. A team of doctors, who conducted post-mortem on the body of the deceased, have opined that the deceased would have died due to atherosclerotic (ATHEROSCLEROTIC) heart disease.
3. Based on the same, the Revenue Divisional Officer, Salem submitted a report by his proceedings in Ci.Pa.39/2007 A2 dated 20.11.2007, wherein he has concluded that the death of the deceased was due to natural cause, namely, heart disease. But, he had recommended for departmental action against the Superintendent of Central Prison, Salem, for dereliction of duty. The said report was, in turn, submitted by the District Collector under Letter No.Na.Ka.33284/2007 (C3) dated 23.02.2008 to the Government. Having considered the same, the Government issued G.O.Ms.No.507 Public (Law and order) Department dated 10.06.2010, accepting the report of the Revenue Divisional Officer. Thus, no further investigation was done in to the matter. In those circumstances, the petitioner has now come up with this petition seeking a direction to the respondents to register a case and to investigate the same.
4. I have heard Mr. M.Radhakrishnan, learned counsel for the petitioner; Mr. A.L.Somaiyaji, learned Advocate General appearing for the respondents and assisted by Mr. S.Shanmuga Velayutham, learned Public Prosecutor and Mr. M.Maharaja, Additional Public Prosecutor. I have also perused the records carefully.
5. Indisputably, in this case, Mr. Sukumar died while he was in the custody of the Jail Authority on a judicial remand order passed by the Jurisdictional Magistrate. The alleged occurrence was on 09.06.2007. Thus, this occurrence is governed by Section 176 of the Code of Criminal Procedure. Sub-Section (1) of Section 176 Cr.P.C., was amended by Amendment Act 25 of 2005 which came into force with effect from 23.06.2006. Prior to the said amendment, under Sub-Section (1) of Section 176 Cr.P.C., when any person dies while in the custody of the police, the Executive Magistrate concerned may hold inquiry into the cause of death. This inquiry by Executive Magistrate is either inste
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