P. Sathasivam, J.
1. Home Department of Government of Tamil Nadu and their officers, aggrieved by the order of the learned Single Judge dated 4-2-20 05 in so far as it relates to Clause (ii) of para 12, and partly allowing in portion of the order dated 7-2-2005 in so far as para 6 of the Modification Order, made in Writ Petition No. 3009/2005, have filed Writ Appeal No. 479 of 2005.
2. Muthulakshmi, wife of Munusamy Veerappan, Puthuchampally, Mettur Dam-2, Salem District, has filed Writ Petition No. 3009/2 005 praying for issuance of a Writ of Mandamus, directing 6th respondent-Joint Director, Central Bureau of Investigation, Haddows Road, Chennai-6 to depute a competent officer to take up the investigation of Crime No. 1221 of 2004 dated 19-10-2004 from the file of 5th respondent-Station House Officer, Kolathur Police Station, Dharmapuri District and investigate the same under the supervision of 6th respondent i.e., C.B.I as per law against the third respondent-Additional Director General of Police, Special Task Force, Sathiyamangalam, Erode District.
3. Inasmuch as the Writ Appeal filed by the Government is against an interim direction pending disposal of the main writ petition and in view of the fact that both the Writ Appeal and the Writ Petition are taken up together for disposed, let us consider the case of the writ petitioner, namely, Muthulakshmi. According to her, the Special Task Force allegedly killed her husband deceased Munusamy Veerappan (hereinafter referred to as 'Veerappan') along with his three accomplices in an encounter at Padi in Dharmapuri District. The Tamil Nadu Police had tortured her husband in the year 1985. Therefore, he escaped from their custody into the forest. Though the citizens of Karnataka and Tamil Nadu and Kerala heaved a sigh of relief at the elimination of her husband, Veerappan, the sequence of events that lead to shoot out and the death of her husband, has caused suspicion in the minds of well informed persons and enlightened citizens. The Chief of the Special Task Force of Karnataka Mr. Jyothi Prakash Mirji has stated that whether Veerappan committed suicide would be probed, and thus there is an element of suspicion in the death of Veerappan and his accomplices at the hand of Special Task Force of Tamil Nadu. Though four persons, including her husband were killed in an alleged encounter on 18-10-2004, a case was filed in Crime No. 1221/2004 under Section 154 of Code of Criminal Procedure for offences under Sections 307, 323 I.P.C., read with Sections 25 and 27 of Indian Arms Act and 4 (b) of Explosive Substance Act against her husband and three others, the fifth respondent has not deliberately registered F.I.R. under Section 302 I.P.C. against the third respondent herein, subsequently who are all involved in the murder of her husband and 3 others.
4. It is further stated that though the suspicion over the death of her husband is not yet cleared, there are so many contradictions in the statements of Mr. Vijayakumar, I.P.S., Chief of Special Task Force, Tamil Nadu, who claimed that her husband was killed in an encounter and in the statement of Mr. Jothi Prakash Mirji, Chief of Special Task Force, Karnataka, who claimed that Veerappan might have committed suicide, the State Governments of Karnataka and Tamil Nadu have played up the incident and attempted to take credit for the gunning down of the brigand and hastily announced rewards and largesse for the Special Task Force personnel. The Tamil Nadu Government has given lagesse to the tune of Rs. 22.5 Crores which include Rs. 3 Lakhs each cash award, a housing plot and accelerated promotion for all the 752 Special Task Force (S.T.F in short) personnel.
5. It is her further claim that the Government of Tamil Nadu are showing undue haste to honour the S.T.F personnel in Tamil Nadu only to create a record and register it in history for the posterity to glorify the Tamil Nadu Police. There is an apprehension in the minds of general public that her husband might have committed suicide when cornered by the S.T.F., personnel. The S.T.F., personnel have miserably failed to nab her husband alive, instead they ventured to kill him or allowed him to commit suicide. The Chief of S.T.F., has killed several persons in the name of encounters. Hundreds of victims who lost their lives and materials of excesses committed by the S. T.F.. personnel, including rape and murder were unfortunately forgotten by the Government of Tamil Nadu and Karnataka. The respondents have shown total indifference to the rights of the victims of crime S.T. F., personnel and such an indifference will erode faith of the society in general and the victims of crime in particular in the country's democracy.
6. According to her, post-mortem of her husband's body was done in Government General Hospital, Dharmapuri on 19-10-2004. Though the post-mortem doctors have mentioned so many injuries on the dead body, they deliberately omitted some major and controversial injuries on the dead body of her husband namely, injury on his right hand fingers. The post-mortem report did not disclose about the injuries on his legs below the hip. The post-mortem has not been done properly. The post-mortem report is vague and it has been done by incompetent medical officers. Her husband's murder has created so many suspicions.
7. It is further stated that the fact finding team, which was comprised eight Human Rights Organisations, has gone to the occurrence place, enquired and collected materials from the general public. The team has issued a report and also given press release on 18-01-2005 stating that her husband and three others were given anaesthetic through buttermilk by her relatives, which showed that the third respondent has captured her husband and 3 others after they become unconscious because of the given anaesthetic. The Chief of S.T.F. has also agreed to conduct re-post-mortem. One Mr. Haribabu, who is an Advocate and also Convenor of the Fact Finding Team, has made a representation dated 15-11-2004 to the fourth respondent for re-postmortem of the dead body of her husband. No action has been taken so far.
8. On behalf of Government of Tamil Nadu, first respondent, the Additional Secretary to the Government, Home Department, has filed a counter affidavit wherein it is stated that petitioner's husband Veerappan, Son of Koose Munusamy of Gopinatham village in Karnataka State of Tamil origin was a hard core criminal. During the period 1978-2001, he had killed 2000 male elephants and stolen 40,000 kgs of tusks (worth Rs. 12 crores), denuded the forests of sandalwood in a large scale and murdered 124 persons belonging to Police, Forests, Civilians of Tamil Nadu and Karnataka. Further, he abducted 45 persons. When he abducted Dr. Rajkumar, Karnataka Cine fame actor, the lives and properties of the entire Tamil Community in Karnataka were under constant threat besides his activities brought shame to the State as well as to the country and disgrace to the humanity.
9. In order to prevent Veerappan and his gang from committing atrocities and to nab them, the operation Vanamalai was launched in 1990, jointly by the Governments of Karnataka and Tamil Nadu. Government of Tamil Nadu formed a Special Task Force (STF) on 01-05-19 93 with 200 selective policemen from different wings of the police department under the then Additional Director General of Police. Subsequently, regular Special Task Force was formed with strength of 239 police personnel. In the year 1999, a post of Inspector General of Police, Special Task Force was created. After release of the abducted Kannada Cine actor Dr. Rajkumar on 15-11-2000, since the forest brigand Veerappan was eluding the Special Task Force personnel, the Government sanctioned an additional post of Deputy Inspector General of Police and two Superintendents of Police for Special Task Force on 22-11-2 000 for intensive combing operations and to nab the forest brigand alive. In addition to this, personnel of Tamil Nadu Special Police Battalion, Local Police, Commando Police personnel and forest personnel had also been pressed into service and thereby the total number of personnel involved in the operation was increased to 826 in December, 2 000.
10. After revamping and activating the S.T.F during June, 2001, developments activities have been initiated to make the Special Task Force people-friendly and to isolate the Forest Brigand Veerappan from the local people. Due to manipulation of Veerappan a land mine exploded in the forest area, wherein Veerappan and his gang were hiding resulting in the death of 5 Police Constables and two forest watchers. The Government of Tamil Nadu sanctioned a financial incentive of Rs. 50,000/- to those who give useful information leading to the arrest of Veerappan and his gang. In G.O.Ms. No. 615, Home dated 02-07-2001 orders were issued enhancing the reward amount from Rs. 20 lakhs to Rs. 25 lakhs to those who capture/giving clues leading to the capture of the forest brigand Veerappan and his brother Arjunan. The Government also sanctioned a reward of Rs. 15 lakhs to those who give vital clue to nab Sethukuli Govindan and the Government sanctioned the reward amount of Rs. 10 lakhs to those who give vital clue to nab other members (for each) of the dreaded Veerappan gang. While the police party attempted to capture Veerappan and his associates, they opened fire towards the police party and in the encounter they were killed. Therefore, the brave personnel of the Special Task Force deserve honour and reward and the Government have considered the services of the personnel of Special Task Force from the rank of the Additional Director General of Police, Special Task Force to police constables, cooks and orderlies, who have risked their lives and sacrificed their safety and the comfort of their homes, spending years away from their families, leading dangerous lives in the thick Sathyamangalam forest, braving hardship and sickness, courting danger and death every day. Hence, it was decided to award each man and Officer of the Special Task Force. Further, recognizing the bravery is the duty of the Government, and in doing so, the Government sanctioned the cash awards and other benefits and thereby to motivate the police force.
11. The report of Justice A.J. Sadashiva panel constituted by the National Human Rights Commission to enquire into alleged excesses committed by the Joint Special Task Force was submitted to the National Human Rights Commission on 02-12-2003. The National Human Rights Commission sought for remarks of the State Governments.
12. Regarding the post-mortem and the doctors who conducted, it is stated that a team of competent doctors conducted a thorough post-mortem examination on the dead bodies of the deceased Veerappan and three others and the entire post-mortem was video graphed. Further, the photos of the deceased persons were taken from different angles showing all the injuries and the said video/tape and the photos with negatives were handed over to the Revenue Divisional Officer by the Investigation officer in Dharmapuri Police Station Crime No. 1221 /2004. All the three doctors who conducted post-mortem are well experienced and competent in conducting post-mortem examination of dead bodies involved in medico-legal cases and in particular experienced in conducting post-mortem of dead bodies whose death were caused by Fire Arms/Explosives.
13. In the proceedings No. ROC.58187/04/C1 dated 19-10-20 04, the Collector has ordered an enquiry under Section 150(3) of Police Standing Order into the death of Veerappan and his close associates. Accordingly, the Sub-Divisional Magistrate and Revenue Divisional Officer, Dharmapuri have issued notices to the general public intimating the date of magisterial enquiry, as 01-11-2004 and 02-11-2004. As per the directions of this Court, the Revenue Divisional Officer completed the enquiry and submitted the report to the Government through District Collector on 31-03-2005. The report discloses, that during the enquiry 196 witnesses have been examined. Experts reports from Biology, Serology, Ballistic, Viscera, Physical, explosive, etc., have been obtained and considered by Revenue Divisional Officer. Considering all the statements obtained from the witnesses and reports, the Revenue Divisional Officer has concluded that it is an intelligence operation which was evolved and in such an operation, the Special Task Force personnel was left with no other option except to open fire in self defence and in their attempt to apprehend or arrest the said dreaded criminals Veerappan and three others. In the encounter Veerappan, Chandregowda, Sethumani and Sethukuli Govindan were killed. The Revenue Divisional Officer has concluded that the action of the Special Task Force personnel is justified and the Government have issued orders accepting the findings of the Revenue Divisional Officer. The petitioner has no locus standi to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. The prayer for investigation by C.B.I is not maintainable. Further, concurrence of the State Government is necessary for entrusting a case for investigation by the C.B.I.
14. The third respondent namely, K. Vijaykumar, I.P.S., Additional Director General of Police, Special Task Force, Sathyamangalam has filed a counter affidavit highlighting the entire steps taken by them for apprehending Veerappan and his gang and the ultimate operation that had taken place on 18-10-2004. Regarding shoot out, it is stated that Veerappan and his associate criminals who were threatening two State Governments for the past 20 years, while the police party attempted to capture them, Veerappan and his associates fired towards the police party and in the encounter, they met their end and so the brave personnel of the S.T.F deserve honour and reward and there is nothing wrong in recognizing their courage by awarding the rewards. While denying the encounter as a fake encounter, different police officials had to open fire due to unavoidable circumstances, which warranted firing for self defence. Various other encounters referred to in the affidavit, it is stated that the said encounters were conducted by different police officers and as a conscientious officer, he has discharged his duty with devotion and in good faith. Further, as per the orders of the Government, the entire incident was enquired by the Revenue Divisional Officer. In fact, the petitioner also participated in the said enquiry. There cannot be a second or successive First Information Report in regard to the same incident/occurrence. Admittedly, in this case already a case in Dharmapuri Police Station Crime No. 1221/2004 was registered and because of the death, the matter is being enquired by the Sub-Divisional Executive Magistrate and there cannot be a parallel investigation and the Station House Officer can continue investigation only after enquiry by the Revenue Divisional Officer is over. After enquiry by the Revenue Divisional Officer, the investigation officer in Crime No. 1221/2004 can investigate the case and submit a final report to the court concerned. The prayer for investigation by the Central Bureau of Investigation is not maintainable and the writ petition is liable to be dismissed.
15. Fifth respondent-Inspector of Police, Station House Officer, Kolathur Police Station, Mettur Taluk, Salem District has filed a counter affidavit wherein he denied the allegation that he has not deliberately registered F.I.R. under Section 302 I.P.C., against the third respondent and that there is no necessity to register such an F.I.R. as already a case has been registered regarding the same occurrence in Dharmapuri Town Police Station Crime No. 1221/2004. He is not in any way connected with the case file of Dharmapuri Town Police Station Crime No. 1221/2004. However, he has taken the petition on the file of Kolathur Police Station C.S.R. No. 383/2004 on 13-11-20 04 and as per the rules and procedure, the said petition was transferred to the investigation officer Thiru P. Krishnaraj, Deputy Superintendent of Police, Dharmapuri District for further action. The said investigation officer has forwarded the said petition to the Revenue Divisional Officer, Dharmapuri to take it on file as per 160 (3) Cr.P.C.
16. In the light of the above pleadings, we heard Mr. R. Sankarasubbu, learned Counsel for the writ petitioner and Mr. A.L. Somayaji, learned Additional Advocate General for the State.
17. After taking us through the relevant materials, Mr. R. Sankarasubbu, learned Counsel appearing for the writ petitioner, has raised the following contentions:
i) The complaint of the petitioner dated 08-11-2004 has not been registered so far and no action taken till this date; ii) The Government have no right to kill any one much less Veerappan even for self defence and direction of the Government in this regard in G.O.Ms. No. 1652 Home dated 9-11-1993 cannot be sustained.
iii) Three days prior to the alleged incident on 18-10-2004, Veerappan and his associates were captured and tortured by the S.T. F. personnel;
iv) The petitioner has a reliable information that her husband Veerappan was administered anaesthetic material, due to which he was killed;
v) The investigation by the Human Rights activities lead to a different conclusion regarding cause of her husband's death; hence enquiry by Central Bureau of Investigation is a must;
vi) The various instructions of the Human Rights Commission have not been followed, but violated.
18. Mr. A.L. Somayaji, learned Additional Advocate General, met all the contentions. According to him, the details furnished in the counter affidavit of the first and third respondents are answers to all the contentions. He further pointed out that the petitioner is not consistent with her version regarding cause of death of her husband. Even the complaint is an after thought. He further contended that the so-called Human Rights Organisations have no sanctity and their alleged reports have no value. In view of the enquiry by the Revenue Divisional Officer and his report that has been accepted by the Government, no further enquiry by agency like Central Bureau of Investigation is warranted. According to him, the petitioner having appeared in the enquiry before the Revenue Divisional Officer and considering the fact that the Government have accepted the report of the Revenue Divisional Officer, there was no case for further enquiry by other agency like Central Bureau of Investigation.
19. We have perused the materials placed by the petitioner, various details furnished in the counter affidavit of the respondents and rival contentions of the counsel for petitioner as well as respondents.
20. It is the case of the State that Veerappan, deceased in this case was a notorious criminal and during the period 1978-2001 , he had murdered 124 persons and abducted 45 persons belonging to Police, Forest Deppartments and civilians of States of Tamil Nadu and Karnataka. He had also killed 2000 male elephants and stolen 40,000 kgs. Of tusks (worth Rs. 12 crores), denuded the forests of Sandal Wood in a large scale. As his activities brought shame to the State and gave constant threat to the lives and properties of the people of both Tamil Nadu and Karnataka, and in order to prevent Veerappan and his gang from killing human beings and animals and committing atrocities and to nab them, the Tamil Nadu Government formed a team called ' Special Task Force' in the year 1993, comprising police and forest personnel. The series of attempts to nab them ended in vain. It is stated that while police party attempted to capture Veerappan and his associates, they opened fire towards the police party and in the encounter on 18-10-2004, he and his gang of three persons were killed by the S.T.F. personnel, headed by Mr. Vijaykumar, I.P.S., Chief of S.T.F. Muthulakshmi, wife of the deceased Veerappan has come forward with this Writ Petition raising suspicion over the killing of her husband, the way in which the post-mortem was conducted on the dead body of her deceased husband, the haste action of the Government in granting huge incentives, rewards to the personnel involving in the operation and non-registering her complaint by the police. She has apprehended that her husband was tortured by the S.T.F. personnel and might have committed suicide, and that the S.T.F. personnel instead of nabbing him alive, killed him or allowed to commit suicide. She further stated that during post-mortem, several injuries found on her husband's dead body have not been traced out and brought to light by the Postmortem doctors. The request of her and other Human Rights activists for re-post-mortem of the body of Veerappan has not been considered. According to her, there are human rights violations. Therefore, she prays for entrusting the investigation of this case with the Central Bureau of Investigation. We are very well conscious of the fact that though Veerappan and his associates are dreaded criminals, still their liberty to life cannot be taken away without following proper procedure. Keeping it in our mind, we will see whether the reasons and contentions raised by the said Muthulakshmi fulfil the requirements of the Law warranting for ordering investigation of Crime No. 1221/2004 pending on the file of Station House Officer, Kolathur Police Station to the Central Bureau of Investigation in the following order.
21. Before considering the contentions in seriatim, it is useful to refer the relief sought for in the main writ petition. Though we have already stated in the earlier part of this judgment, for the sake of repetition, the only relief prayed in the writ petition by the writ petitioner, wife of Veerappan, is to entrust the investigation in Crime No. 1221/2004 of Station House Officer, Kolathur Police Station, which is pending, on the sixth respondent-Central Bureau of Investigation (hereinafter referred to as 'C.B.I.'). Now we have to see whether the petitioner has made out a case in order to hand over the investigation to C.B.I.
22. The first contention of Mr. R. Sakarasubbu is that though a complaint was made by the petitioner as early as 08-11-2004 against Chief of S.T.F and their officers, the same has not been registered and no action taken. According to him, when a cognizable offence is made out, it is proper on the part of the Station House Officer to register it in accordance with the Code of Criminal Procedure and deal with the same. With reference to the said contention, the fifth respondent-Station House Officer, Kolathur Police Station has filed a counter affidavit dated 30-03-2005 that on receipt of the petition on the file of Kolathur Police Station in C.S.R. No. 383/2004 on 13-1 1-2004 as per the rules and procedure the same was transferred to the investigation officer Thiru P. Krishnaraj, Deputy Superintendent of Police, Dharmapuri District for further action. It is further stated that the said investigation officer has forwarded the said petition to the Revenue Divisional Officer, Dharmapuri to take it on file as per Section 160(3) Cr.P.C. The Revenue Divisional Officer, Dharmapuri is the enquiry officer nominated by the District Collector, Dharmapuri to conduct enquiry under Order 150 (3) of Police Standing Order. Apart from this, M. Ramasamy, Inspector of Police, Dharmapuri Town Police Station, who has not been impleaded as a party in the said writ petition, has filed an affidavit to explain the facts in respect of the complaint dated 8-11-2004. In para 3 of his affidavit, he has specifically stated that no such petition alleged to have been sent by Thirumathi Muthulakshmi was received either by post or in person by him; hence the question of registering F.I.R for taking action against the S.T.F. personnel by him did not arise. This specific averment of the Inspector of Police, Dharmapuri Town Police Station has not been denied by the petitioner by filing counter or reply. In view of the information of 5th respondent and of the fact that her complaint has been forwarded to the Revenue Divisional Officer, who conducted enquiry relating to the death of Veerappan and his associates before whom the petitioner also deposed, the grievance expressed by the petitioner as to the fate of her alleged complaint dated 8-11-2004 is liable to be rejected.
23. Since the rest of the contentions/allegations are inter-connected, they are being considered in the following paragraphs. Mr. R. Sankarasubbu, learned Counsel for petitioner, drew our attention to G.O.Ms. No. 1652 Home (Police VIII) Department dated 9-11-1993, and submitted that the Government have no right to kill any one, including Veerappan. Para 4 of the G.O., reads thus:
Based on the decision mentioned in para 3 above the Government, in modification of orders issued in G.O.Ms. No. 2042, Home, dated 10-9 -90 sanction a award of Rs. 20/- lakhs (Rupees Twenty lakhs only) to those who capture or give clue leading to the capture or kill the forest brigand Veerappan and his brother Arjunan, as the share of this Government.
Giving emphasis to the said direction, he vehemently contended that the Government was not justified in permitting any one to kill Veerappan. On a careful scrutiny of the entire Government Order, we find that the intention of the Government, as reflected in para 4, is not in the manner, as interpreted by the learned Counsel for the petitioner. As rightly pointed out by the learned Additional Advocate General, consequent on the death of five Police Constables and two Forest Watchers due to explosion of a land mine reported to have been manipulated by Veerappan in the forest area, an urgent High Level Meeting was convened on 11-04-1993, in which the Chief Ministers of both Tamil Nadu and Karnataka participated. As the incident of killing seven officials was so magnitude, it was decided to give a reward of Rs. 40 lakhs (share of Tamil Nadu Rs. 20 lakhs plus share of Karnataka Rs. 20 lakhs = Total Rs. 40 lakhs) to those who capture the notorious forest brigand Veerappan and his brother Arjunan. When we read para 4 keeping in mind the intention of the Government, it leads to a conclusion that the share of the State Government, namely, Rs. 20 lakhs will be paid to those who capture or give clue leading to the capture or kill the forest brigand Veerappan and his brother Arjunan. In other words, the emphasis is that those who capture or give clue leading to the capture or kill the forest brigand Veerappan and his brother Arjunan. The clue referred to in para 4 indicates not only for capturing, but also for killing them. In the light of the details furnished by the State Government with regard to his activities for the last 20 years, killing of several persons, including personnel of Police and Forest Departments of both States of Tamil Nadu and Karnataka, abducting of several persons, pouching of animals such as Elephants, stealing of tusks, denuding the forests of sandalwood etc., the reward announced by the Government cannot be found fault with. The reward was granted by the Government within their power and jurisdiction meant for bravery. Therefore, we find no substance in the argument of the learned Counsel for the petitioner.
24. The next point to be considered is the allegation regarding suspicion over the death of Veerappan. As rightly pointed out by Mr. A.L. Somayaji, learned Additional Advocate General, the petitioner herself is not consistent in her stand. In her affidavit filed in support of the present writ petition, when she said in one place that her husband might have committed suicide, she expressed in another place that he was administered anaesthetic through butter milk by her relatives. Like-wise, in another paragraph it is stated by her that Mr. Jyothi Prakash Mirji, Chief of Special Task Force of Karnataka had stated that whether Veerappan committed suicide would be probed. In the affidavit she also raised doubt about the capability and capacity of the three Doctors who conducted post-mortem on the body of Veerappan and his associates. According to her, they are unqualified Doctors.
25. Coming to the statement said to have been made by Chief of S.T.F., Karnataka, first of all, he is not a party in this writ petition to convey his stand. Even other-wise, in the light of the stand taken by the State Government and the Additional Director General of Police, namely, Chief of Special Task Force in their separate counter affidavit, we are of the view that the said allegation has not been substantiated.
26. Coming to the allegations made against post-mortem Doctors, according to her, all the three are unqualified and the injuries mentioned in their report are not tallying with the injuries found on the body of Veerappan. In the counter affidavit filed by the Secretary, Home Department, after denying the allegations made by the petitioner, it is specifically stated that post-mortem had been done by the competent medical officers. It is further stated that Dr. R. Vallinayagam, M.D., is a Professor of Forensic Medicine attached with Mohan Kumaramangalam Medical College Hospital, Salem and he has put in 20 years of service and conducted post-mortem examination of 15,000 dead bodies. The other Doctor namely P.D. Subramanian has put in 32 years of service as Civil Assistant Surgeon and in the course of his duty he has conducted post-mortem examination of about 5,000 dead bodies. The other Doctor namely Dr. V. Prabakaran has put in 32 years of Civil Assistant Surgeon and in the course of his duty, he has conducted post-mortem examination of about 6,000 dead bodies. It is further stated that all of them are experienced and competent in conducting post-mortem examination of dead bodies involved in medico-legal cases and in particular experienced in conducting post-mortem of dead bodies whose death were caused by Fire Arms/Explosives. The other information in the counter affidavit shows that the post-mortem started at 7.30 A.M. on 19-10-2004. Rigor Mortis could have developed 6 hours prior to the commencement of the post-mortem. Regarding the claim that exact nature of lacerated wound was not mentioned, it is stated that the same was mentioned in the post-mortem certificate as injury No. 1 . Further, injured place was dissected and preserved in formalin solution and sent for Ballistic Analysis to the Forensic Sciences Laboratory, Chennai. Further, it is stated that bullet entry wound will take any size and shape according to the velocity and size of the bullet subject to existence of any intervening foreign body in between before piercing the body. There is cavity within skull, which is called cranial cavity in which brain is situated. This is mentioned as cavity by the Doctor. The bullet appears to have entered through left side of the forehead (entry wound injury No,.1 mentioned in postmortem certificate) and exit wound present on the right side of the lower part of the occipital region mentioned in the post-mortem certificate as injury No. 2. Regarding the alleged injury, his further explanation was that there is bony defect 4 x 4.5 c.m. present in the frontal bone with radiating fissures on right side of the bony defect to a length of 8 c.m and the left side of the bony defect to a length of 5 c.m. He further explained that due to high velocity of the missile ( bullets) entering into the left side cranial cavity, the left side of the orbit was found to be collapsed. This is mentioned as injury No. 1 in the post-mortem certificate. Due to this, eye has been drawn inwards. Except the cataract mentioned in the post mortem certificate, the eye ball was in good condition. The eye ball was completely examined and there is no need to send ophthalmic surgeon for opinion and was not preserved. It is also stated that the entire post-mortem was video graphed. The details furnished in the counter affidavit of the first respondent show that all the 3 post-mortem Doctors are well experienced and conducted post-mortem of several dead bodies. Further, as informed, the entire post-mortem was video graphed. We have also verified the injuries in the post-mortem certificates issued by the three Doctors and we are satisfied that there is no basis for the allegations of the petitioner.
27. Regarding the claim that her husband might have committed suicide after the capture by the S.T.F and further allegation that he was administered anaesthetic substance through butter milk by her relative are all only hear-say and not substantiated. As rightly pointed out, first of all, the petitioner herself is not sure of her complaint and even otherwise there is no basis for her inconsistent stand regarding cause of death of her husband.
28. Though it is stated that some fact finding authorities/mission after enquiry reported that Veerappan and 3 others were given anaesthetic through butter milk by their relatives, first of all, as pointed out in the counter affidavit of respondents 1 and 3, there is no sanctity or statutory or legal status to enquire into the action taken by the police. In other words, there is no legal sanctity for the said fact finding team's report and its press release on 18-1 1-2005 cannot be a ground to challenge the action taken by the police. In the counter affidavit filed by the third respondent it is specifically stated that the self-styled Human Rights Organisations, whose competence is disputed under the guise of Fact Finding Team go to the villages and lure the innocent villagers and get some statements against the S.T.F with some ulterior motive. As rightly pointed out, if they are really interested and if they are aware of any facts, nothing prevented them by appearing before the Revenue Divisional Officer during the enquiry and giving statements. Respondents 1 and 3 have specifically denied the statement of the Fact Finding Team that the petitioner's husband and his 3 associates were given anaesthetic through butter milk and third respondent has captured her husband and his 3 associates after they became unconscious because of the anaesthetic. In the counter affidavit the third respondent has specifically denied that all such averments are hearsay, false and baseless and do not deserve any consideration. Except the allegation in the affidavit of the petitioner, inasmuch as the so-called organisations are not approved either by the Human Rights Commission or authorised by the State Government, their statements in the light of the specific denial by respondents 1 and 3 cannot be taken as authentic. Further, the better course for the so-called organisations is to highlight the same before the Revenue Divisional Officer, who was appointed to go into the death of Veerappan and his associates. Hence, we hold that all the contrary averments in the affidavit of the petitioner are liable to be rejected.
29. Though we are satisfied with the facts and materials placed that there is no substance in the allegation made by the petitioner, Mr. R. Sankarasubbu, learned Counsel for the petitioner, relied on several decisions which we will refer hereunder. The first decision relied on by him is in the case of SAWINDER SINGH GROVER, RE [1994 SCC 1464] which related to custodial death. It further reveals the Attorney General appeared for the Government conceded for investigation by C.B.I. The other decision in Inder Singh v. State of Punjab 1994 SCC 1653 related to abduction of 7 persons in the age group of 85 to 14 by senior police officer. The Honourable Supreme Court after finding that the State police acting leisurely and in irresponsible manner, ordered C.B. I enquiry. The other decision in Kashmeri Devi v. Delhi Administration 1988 Supreme Court Cases (Cri) 864 pertained to death in police custody for which C.B.I enquiry was ordered. The fourth decision is in K.G. Kannabiran v. Chief Secretary, Government of A.P. : 1997(4)ALT541 . In that case one Thiru T. Madhusudan Raj Yadav, Secretary of an Organisation, was shot dead by police as a Naxalite in an alleged encounter. The Supreme Court after finding that the said organisation is not a banned one and in the light of the peculiar factual position, directed the C.B.I. to conduct enquiry. The fifth decision is in Nilabati Behera v. State of Orissa 1993 SCC 527 which also relates to custodial death wherein the Supreme Court directed the State Government to pay compensation. There is no order for enquiry by C.B.I. The sixth decision is in the case of Raghbir Singh v. State of Haryana 1980 SCC 526 which also relates to custodial death. The Hon'ble Supreme Court deprecated the death of a person taken for interrogation. Here again, no order was passed for enquiry by the C.B.I. The seventh decision relied on by him is in L. Vijay Kumar v. Public Prosecutor A.P. : 1978CriLJ1527 in and by which since the criminal case relating to the incident was pending, the Supreme Court deprecated the cash award ordered by the Government. Here again, there is no order for C.B.I enquiry and the facts in that case is not applicable to the case on hand and the same are distinguishable. The eighth case referred to by him is in Shakila Abidul Gafar Khan v. Vasant Raghunath Dhoble 2003 SCC 1918 which relates to inflicting injuries in custody. Here again, no order for C.B.I enquiry. The ninth decision is in the case of Niranjan Singh v. Prabhakar Rajaram Kharota 1980 SCC 508 which also relates to torture and injuries in custody. Here again, no order for C.B.I enquiry. The tenth decision relied on by him is in Rameshchandra Nandlal Parikh v. State of Gujarat 2006 1 Sup 195 wherein Their Lordships have held that second complaint is not in respect of the same incident of malfeasance and misfeasance and that it cannot be quashed. The said decision is not applicable to the present case. The eleventh decision relied on by the petitioner is in Khedat Mazdoor Chetna Sangath v. State of M.P. 1994 SCC 1643 which relates to protest by tribals against construction of Sardar Sarovar Dam on the river of Narmada, for which the Supreme Court ordered C.B.I enquiry. The said decision is also not applicable to the case on hand. In the case of R.S. Sodhi v. State of U.P 1994 Supreme Court Cases (Cri) 248 ten persons were killed in an encounter by Punjab Militants and local police. In order to clear doubts in the minds of police, the Supreme Court ordered C.B.I enquiry. Considering the factual details furnished and the report of the Revenue Divisional Officer relating to the said incident, we are of the view that the said decision is also not applicable to the case on hand. The next decision is in the case of D.K. Basu v. State of W.B., reported in 1997 Supreme Court Cases (Cri) 92 which also relates to custodial death, wherein the Supreme Court has directed payment of compensation. The last decision relied on by the petitioner is in the case of Upkar Singh v. Ved Prakash, reported in 2005 Supreme Court Cases (Cri) 211 wherein the Supreme Court has held that counter- complaint is permissible and not prohibited under Code of Criminal Procedure. We will discuss the applicability of the said decisions in the later part of our order. As rightly pointed out by the learned Additional Advocate General, all the decisions relied on by Mr. R. Sankarasubbu relate to custodial death, torture/causing injuries in custody etc., and awarding compensation for the victims. Considering the attitude and stand taken by the Government, the Supreme Court ordered C.B.I enquiry in those cases.
30. Learned Additional Advocate General has brought to our notice the order passed by the Honourable First Bench of this Court dated 11-02-2006 in Writ Petition No. 41405 of 2005 filed by the very same petitioner namely, Mrs. Muthulakshmi praying to issue a writ of mandamus directing the respondents (Government of Tamil Nadu and Government of Karnataka) to prosecute the offenders under the Indian Penal Code and to pay compensation of a sum of Rs. 10,00,000/- to all the victims separately who are all affected by the Joint Special Task Force (JSTF). Their Lordships, after recording the fact that report of Justice A.J. Sadashiva was under consideration before the National Human Rights Commission, and that the remedy of the petitioner is to move the National Human Rights Commission for appropriate reliefs, disposed of the said writ petition with a liberty to the petitioner to approach the Commission for appropriate relief. In this regard, it is relevant to point out that National Human Rights Commission appointed a panel headed by Justice A.J. Sadashiva to enquire into alleged excess committed by the JSTF. In para 10 of the counter affidavit of the first respondent it is stated that the said panel submitted its report to the National Human Rights Commission on 2-12-2003, and that the National Human Rights Commission sought for remarks of the State Government. According to the learned Additional Advocate General, the State Government have submitted their comments to the National Human Rights Commission.
31. In T.T. Antony v. State of Kerala, reported in : 2001CriLJ3329 , the Honourable Supreme Court has held that there could be no second First Information Report (F.I.R) and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. Their Lordships have further held that only information about commission of a cognizable offence which was first entered in station house diary by officer in charge of the police station could be regarded as F.I.R under Section 154 Cr.P.C. and that all such subsequent information will be covered by Section 162. It was further held that officer in charge of the police station has to investigate not merely the cognizable offence reported in the F.I.R but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173. It was also held that after conclusion of investigation pursuant to filing of the F.I.R and submission of report under Section 173(2), the officer in charge of the police station comes across any further information pertaining to the same incident, he can make further investigation, normally with the leave of the court and forward the further evidence, if any collected, with further report or reports under Section 173(8). It is true that the above decision in T.T. Antony's case has been taken into consideration by the Honourable Supreme Court in the subsequent decision in Upkar Singh's case [2005 S.C.C. 211] cited supra. It makes it clear that filing a counter complaint is permissible. The latest position as seen from the Upkar Singh's case is that prohibition noticed in T.T. Antony's case (cited supra) does not apply to counter complaint to the accused in the first complaint or on his behalf alleging a different version of the said incident. In view of the legal position as enunciated in Upkar Singh's case, the complaint/ representation dated 8-11-2004 though is maintainable, as rightly pointed out, since the entire incident was probed by the Sub Divisional Magistrate-Revenue Divisional Officer, the same was forwarded to the Deputy Superintendent of Police-investigation officer, Dharmapuri Town who in turn placed the same before the Revenue Divisional Officer and the Revenue Divisional Officer in his report in para 59 has accepted the receipt of the same reference in C.S.R. 383/2004 from the Deputy Superintendent of Police, Dharmapuri for his enquiry. He also observed that all the connected papers in the C.S.R.383/2004 were received and filed in his enquiry and the same was enclosed as an annexure. In such a circumstance, we are of the view that the grievance of the petitioner had been gone into by the Revenue Divisional Officer and his enquiry report covers the complaint of the petitioner dated 8-11-2004.
32. Learned Additional Advocate General heavily relied on the observation and conclusion made by the Division Bench of Bombay High Court in Vandana Vikas Waghmare v. State of Maharashtra, reported in . It relates to an encounter between group of underworld criminals and the police. The Division Bench after finding that within the precinet of the Metropolis of Mumbai, the encounters between the underworld dons and the police take place and in which either of the parties, is being killed, and on going through the factual details furnished by both parties, have concluded that ' we are fully satisfied that the activities of the police in dealing with the three dreaded gangsters are within the legal ambit and that they have not done anything beyond, for, Section 100 of the Indian Penal Code and Section 46 of the Code of Criminal Procedure and Section 139 of the Bombay Police Manual, Vol. VIII provides proper guidance to the police party. The Division Bench has also held:
(para 33)33. While accepting the case of the police, we find that there is no reason to discard what has stated by the three police officers on oath and the police officers resisted the case of the petitioners, particularly when the deceased were involved in number of serious crimes. There is no basis for ordering the enquiry by any other agency, and if so, it is bound to demoralise the police force and dissuade them from doing their lawful duty. Therefore, in our view, it would be against the public interest to order the judicial enquiry or other enquiries as asked for unless there is good reason to hold prima facie that the case of encounter made out was false.
33. Learned Additional Advocate General heavily relied on the following conclusion/direction of the Hon'ble Supreme Court in Abdul Kareen v. State of Karnataka : (2000)8SCC710 :
31. What causes us the gravest disquiet is that when, not so very long back, as the record shows, his gang had been considerably reduced, Veerappan was not pursued and apprehended and now, as the statements in the affidavit filed on behalf of the State of Tamil Nadu show, Veerappan is operating in the forest that has been his hideout for 10 years or more along with secessionist Tamil elements. It seems to us certain that Veerappan will continue with his life of crime and very likely that those crimes will have anti-national objectives.
In the concurrent judgement, Sabharwal, J., (as His Lordship then was) has held: (para 44 and 45)
44. Besides the eight questions noticed in the main judgment, the question and aspect of association of Veerappan with those having secessionist aspirations were also not considered. Further, though it may have been considered as to what happened on 1st August, immediately after the abduction of Rajkumar, but what does not seem to have been considered is that those were spontaneous outbursts and the authorities may have been taken unaware but what would be the ground realities when the law-enforcing agencies have sufficient time to prepare for any apprehended contingency.
45. The application and order under Section 321 is a result of panic reaction by overzealous persons without proper understanding of the problem and consideration of the relevant materials though they may not have any personal motive. It does not appear that anybody considered that if democratically-elected governments give an impression to the citizens of this country of being lawbreakers, would it not breed contempt for law; would it not invite citizens to become a law onto themselves. It may lead to anarchy. The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who according to the Government are out to terrorise the police force and to overawe the elected Governments. It does not appear that any one considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralysing and discrediting the democratic authority had to be taken into consideration. It is the executive function to decide in the public interest to withdraw from prosecution as claimed, but it is also for the Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw TADA charges. It is evident from material now placed on record before this Court that Veerappan was acting in consultation with secessionist organisations/groups which had the object of liberation of Tamil from India. There is no serious challenge to this aspect. None of the aforesaid aspects were considered by the Government or the Public Prosecutors before having recourse to Section 321 Cr.P.C.
The above observation was made by the Hon'ble Supreme Court in the case filed by Abdul Kareem, father of a police Sub Inspector who was allegedly killed by Veerappan and his men, opposed the Special Public Prosecutor's application under Section 321 Cr.P.C. seeking consent of the Designated Court to withdraw the TADA charges levelled against some of the associates who are in judicial custody and withdrawal of detention order and the Government also revoking the order of detention of those detained under N.S.A and to facilitate their release. The observation/conclusion in the above paragraphs also speak about Veerappan and his associates.
34. In Secretary v. Sahngoo Ram Arya, reported in : 2002CriLJ2942 , the Honourable Supreme Court has pointed out that when High Court can direct inquiry by CBI while exercising power under Article 226 of the Constitution. Para 5 and 6 are relevant:
5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause : [1999]3SCR1279 . This Court in the said judgment at paragraph 174 of the Report has held thus: (SCC p.75 0, para 174)
174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima faicie, found to have been committed or a person' s involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'LIFE' and 'LIBERTY' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'LIFE' has been explained in a manner which has infused 'LIFE' into the letters of Article 21.6. It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of 'ifs' and 'buts' and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common cause : [1999]3SCR1279 .
The above decision of the Supreme Court makes it clear that unless materials placed before this Court disclosed a prima facie case calling for an investigation by the C.B.I or any other similar agency, the same cannot be done as a matter of routine or merely on the basis of some allegations made by party.
35. It is also relevant to note that in Alliraj Gounder v. The Inspector of Police, reported in : 2005(3)CTC673 , First Bench of this Court after referring to a decision in C.B.I. v. Rajesh Gandhi 1997 Crl.L.J. 63, has stated that an accused cannot have a say as to who should investigate the offence he is charged with. In the said decision, the Supreme Court has observed that the decision to investigate or decision on agency which should investigate does not attract the principles of natural justice. In the light of the decision of the Supreme Court, the Division Bench has concluded that 'in our opinion the same principle applies to complainants also, and they cannot ordinarily have a say as to which agency should investigate an alleged criminal offence.
36. In the case on hand, we have already referred to the factual details furnished in the form of counter affidavit by respondents 1 and 3. Even the complaint/representation of the petitioner dated 8-11-2004 in view of constitution of an enquiry by the Government, the same had been forwarded to enquiring authority, namely, Revenue Divisional Officer. Further, we have already found that the allegations that Veerappan and his associates were captured three days prior to the incident and tortured and he was administered anaesthetic material due to which he and his associates killed have not been substantiated. On the other hand, the materials furnished by the respondent show that there is no basis for the same including the doubts raised against the competency of the post-mortem doctors regarding the cause of death. Further, from all the relevant materials, including the post-mortem report video gram taken at the time of postmortem, photos with negatives to the Revenue Divisional Officer by the investigation officer in Dharmapuri Police Station Crime No. 1221/2004, we are satisfied that no sufficient material was put-forth to come to a prima facie conclusion that there is need for enquiry by C.B.I.
37. It is also relevant to refer that the incident occurred on 18-10-2004, and that on the next day i.e., on 19-10-2004 the District Collector in ROC No. 58187/04/C1, has ordered an enquiry under Section 150(3) of Police Standing Order into the death of Veerappan and his associates. In the counter affidavit filed by the Government, it is stated that based on the said proceedings, the Sub Divisional Magistrate and Revenue Divisional Officer, Dharmapuri have issued notices to the general public intimating the date of magisterial enquiry, as 1-11-2004 and 2-11-2004. It is also brought to our notice that after notice to all the persons concerned, the Revenue Divisional Officer completed the enquiry and submitted his report to the Government through the District Collector on 31-03-2005. The report discloses that during enquiry 196 witnesses have been examined. The petitioner, wife of the deceased Veerappan also appeared and gave statement in the enquiry. Expert reports from Biology, Serology, Ballistic, Viscera, Physical, explosive, etc., have been obtained and considered by Revenue Divisional Officer. Considering all the statements obtained from the witnesses and reports, the Revenue Divisional Officer has concluded that it is an intelligence operation which was evolved and in such an operation, the Special Task Force personnel was left with no other option except to open fire in self defence and in their attempt to apprehend or arrest the said dreaded criminals Veerappan and three others. The report further shows that in the encounter Veerappan, Chandregowda, Sethumani and Sethukuli Govindan were killed. The Revenue Divisional Officer concluded that the action of the S.T.F. personnel is justified and the Government have accepted the findings of the Revenue Divisional Officer and issued orders.
38. In the light of the above discussion, we are satisfied that the materials do not disclose a prima facie case calling for an investigation by the C.B.I., accordingly, the writ petition filed by Muthulakshmi is liable to be dismissed.
39. In the initial order dated 4-2-2005, learned Single Judge has directed the Inspector of Police to whom the complaint of the petitioner dated 8-11-2004 has been given to take the complaint on file and register the same forthwith without any delay, however, on mentioning, by subsequent order dated 7-2-2005, directed the Inspector of Police to take it on file after the completion of the enquiry by the Revenue Divisional Officer, Dharmapuri, which shall be completed within a period of one month. Aggrieved by the said order, Home Department of the Government of Tamil Nadu and others filed Writ Appeal No. 479 of 2005. Though counter-complaint is permissible and not prohibited under Cr.P.C., as enunciated in Upkar Singh's case 2005 SCC 211, inasmuch as the same had been forwarded to the enquiry officer i.e., Sub Divisional Magistrate and Revenue Divisional Officer and the same is part of enquiry record/proceedings and taking note of the fact that the complainant/ writ petitioner herself made a statement and enquired by the enquiry officer, we are of the view that the direction of the learned Judge dated 7-2-2005 is not warranted and in any event cannot be sustained.
40. Though the petitioner has prayed for several directions in the form of writ miscellaneous petitions pending disposal of the main writ petition, in the light of our conclusion holding that the petitioner has not made out a case for enquiry by C.B.I., those petitions are liable to be dismissed.
41. In the result, Writ Appeal No. 479 of 2005 is allowed. Writ Petition No. 3009 of 2005 is dismissed; and connected W.P. M.Ps., are also dismissed. No costs.