G Nageshwar Rao Vs Director General of Police Andhra Pradesh and ors - Citation 429226 - Court Judgment

Judgment:
ORDER

1. The petitioner, the father of his deceased second son - G. Satish, a ninth class student of Sri Krishnaveni Residential School, Poranki, Vijayawada, and who was found to be dead on 24-2-1997 within the premises of the Residential School, has a serious grievance that it is a case of murder, where the concerned police people who are investigating the matter and the authorities of the residential school are projecting it as a case of suicide by hanging. Therefore, he is seeking a direction from this Court to the respondents 1 to 6 who are (1) The Director General of Police, Andhra Pradesh, Hyderabad, (2) The Commissioner of Police, Vijayawada, (3) The Dy. Commissioner of Police, Vijayawada, (4) The Assistant Commissioner of Police, Vijayawada, (5) Circle Inspector of Police, Gannavaram, Krishna district and (6) Sub-Inspector of Police, Penamaluru Police Station, Krishna district to register the F.I.R. under section 302 read with S. 34 I.P.C., 120A and 120B, I.P.C. and for a direction to investigate the offence of murder of his deceased son either by the Deputy Commissioner of Police, C.C.S., Hyderabad - 7th respondent or by the Superintendent of Police, C.I.D., Hyderabad - 8th respondent by specifically inquiring into the mysterious and suspicious circumstances surrounding the murder of his deceased son by respondents 10, 13.

2. Learned advocate for the petitioner has pointed out, both from the affidavit of the petitioner and also the counter-affidavits filed by the police officials, the status report and also the case diary of respondent No. 5, the Circle Inspector of Police, that already an opinion has been consistently taken that it is a case of suicide instead of investigating into the matter of the alleged offence of murder and further on taking sides with the alleged culprits in regard to the cause of death of his son Satish. He has also pointed out that the petitioner had sent a complaint to several authorities including respondents 1 to 6 clearly alleging that it was not a case of suicide but it is a case of murder and there was an attempt to subvert the whole course to favour the culprits in the matter, failing in their duty to act according to the rule of law.

3. The learned Assistant Government Pleader for Home, Mr. Naresh Kumar has pointed out that, at the moment, respondent No. 5 is proceeding with the matter under section 174 of Code of Criminal Procedure having regard to the suspicious circumstances under which the deceased is said to have died and with the materials available since inception and, therefore, there was no reason for registering any case for the offence under section 302 I.P.C. against anybody including respondents 10 to 13 and, at any rate, in the nature of the counter-affidavit filed by respondent No. 5, the learned Asst. Government Pleader submits, they are sincere in discharging their duties as they are proceeding according to law only and submit reports as is expected, particularly under section 174 Cr.P.C. and if any case is made out for an offence, as alleged, the police will take up the matter under Section 173 Cr.P.C. for investigation.

4. The whole matter proceeded this way leading to this Writ Petition; Deceased Satish is the second son of the petitioner. He was studying in ninth class in Sri Krishnaveni Residential School Poranki, Vijayawada under the management of respondents 10 and 11, of which, respondent No. 12 is the Care Taker and respondent No. 13 is the Class Representative of ninth class, as against whom, the writ petition was dismissed on 11-4-1997. He was admitted to the school for eighth class in the year 1995. He was studying in the hostel of the said residential school. Allegedly, the wife of the petitioner received a telephone call at 6.00 p.m. on 24-2-1997 from a person by name Kothapalli Narasimha Rao alias Bose, a resident of Khammam, enquiring about the details of his sons and the family background. At about 8.00 p.m. on 24-2-1997 another telephonic message was received his wife from the management of the school to the effect that his son was in a serious condition. In his anxiety he had contacted over phone to ensure the situation. But the same condition was repeated asking them to come to the place immediately. Allegedly, he, his wife and some friends rushed to the School at Poranki, Vijayawada and when enquired into the matter from the authorities of the school, namely, Care Taker, Director and Vice-Principal, he was taken to the Dormitory where they saw the dead body of Satish lying on the floor. A plastic tape ('nawaru') was found around the neck of the deceased along with a towel tied around the neck. It appears that respondents 10 and 11 and other people who were there started explaining to him that it was a case of suicide by hanging with plastic tape (nawaru) from the ceiling of the roof wherein a hook was there. Allegedly, some police people were also present there, with whom, he pleaded that it was impossible for his son to reach such a height to commit suicide by hanging. It is alleged that he was able to make out some conduct on the part of the authorities of the school and the police in a manner as to suppress the truth and he was not given many details leading to the cause of death of his son. He was not satisfied with the version of the management of the school and the local police present there in regard to the cause of the death of his son. It is also alleged that he suspected the manner in which the dead body was carried for the purpose of post-mortem examination and the manner in which there was commotion of people in the hospital concerned with the school and the cause of the death of the deceased. He was also able to make out some highly influential people had the access to respondents 10 and 11 in addition to people in the hospital. He was also able to make out that certain things had occurred on the previous night of 24-2-1997 and the Care Taker was missing subsequent thereto and ultimately in spite of his best efforts the school authorities did not reveal any details or information about the place and time of availability of respondent No. 12 and he was not allowed by the respondents 9 and 10 to speak to the people or the students concerned with the residential school and the classmates of the deceased. He has also pointed out that certain persons concerned with the school management were conspicuously absent after certain time making themselves not available to reveal the truth. Ultimately, he found that the whole affair had happened in mysterious manner and suspicious circumstances including the press report by the police in Eenadu dated 25-2-1997 and 26-2-1997 mentioning the cause of death of the deceased as suicide even before the investigation had been conducted by the police people. He also contacted Mr. Bose who gave some information over phone about the condition of the deceased, but he was not helpful. Therefore, he was compelled to believe that his son had not committed suicide and it was not a natural death and actually respondents 10 to 13 were involved in the matter of death of his son and he apprehend that respondents 4 to 6 are in active collusion and connivance with respondents 10 to 13 to depict the murder of his son as suicide by hanging with a nylon tape (nawaru). He also apprehend that ultimately the truth may be suppressed and the police may help the culprits in escaping and, therefore, he had to send a complaint by post to various authorities including respondents 1 to 5 to take up the matter for investigation into the alleged murder of his son and to enquire into the real cause of death of his son, without avail, and, therefore, he had to file the present Writ Petition.

5. In the counter-affidavit, the status report and the case diary, the respondent No. 5 has consistently, vociferously and unequivocally declared that it is a case of suicide by hanging and not by murder and his enquiry into the matter including opinion of the doctor who conducted post-mortem examination and the confidential enquiry made by him revealed that it is only a case of suicide and not by murder. He has also pointed out that it is unnecessary to further investigate into the allegations of murder as stated by the petitioner. On going through such materials, this Court feels that respondent No. 5 has already come to the conclusion about the cause of death of the deceased as only due to suicide but not due to murder or for any other reason. Admittedly, no report is filed by respondent No. 5 under Section 174 Cr.P.C. However, respondent No. 5 has undertaken to proceed with the investigation and submit the report to the authority.

6. This Court is afraid, whether respondent No. 5 has noticed the implications of Sections 173 and 174 of Code of Criminal Procedure and whether he is really acting in accordance with the legal expectations required of such an authority, particularly as a Police Officer and Station House Officer.

7. Both for his benefit and for the benefit of the persons who are to deal with a case of present type, the implications of these provisions may be required to be recorded.

8. We are dealing with a case of either suicide or unnatural death or murder, as per the information, allegation or impression. Chapter XII Code of Criminal Procedure, 1973 (in short Cr.P.C.) deals with the information to the police and their powers to investigate. The concerned police people, perhaps respondents 1 to 5 came to know that Satish had died under suspicious circumstances. Possibly, the school authorities or anybody concerned with the school might have informed it to the police. As already pointed out, an impression was given to the police that it was a case of suicide or unnatural death, as there were some materials, according to them, that the deceased had committed suicide by hanging to the roof of dormitory or the place where he was studying in the residential school. Therefore, initially, the case was covered by Section 174, Cr.P.C. which has a title that 'Police to enquire and report on suicide, etc.' Although, the title pre-supposes the expression 'suicide' it has got the implication of both by human being due to suicide, killed by another (homicide) or by an animal or by machinery or by an accident or due to circumstances raising a reasonable suspicion that some other person has committed an offence. Therefore, whenever such information is received by the concerned police or the authorities (including the Executive Magistrate etc.) it becomes a cause for enquiry (not investigation) as the whole provision uses the word 'enquiry' only. When such an information is received by a police officer etc. intimation should be given to the nearest Executive Magistrate empowered to hold inquests, who, either by himself or with the special order of the District or Sub-divisional Magistrate, shall proceed to the spot with two or three respectable inhabitants of the neighbourhood and shall make an investigation into such cause of death and draw up a report of the apparent cause of death by giving certain details etc. etc. (called as 'inquest report'). That is the implication of sub-section (1) of Section 174, Cr.P.C. Sub-section (2) contemplates preparation of the report and to be signed by the police officer and other persons and the officers who are concerned with the enquiry or investigation. According to sub-section (3)(iv) and (3)(v) if there is any doubt regarding the cause of death or where the police officer for any other reason considers it expedient so to do, the dead body will by subjected to post-mortem examination. Sections 175 and 176 Cr.P.C. deal with the procedure to hold such enquiry including the powers of the Magistrate to hold an enquiry into the cause of death, where the death occurs in police custody etc. Such a report has to be forwarded to the District Magistrate or Sub-divisional Magistrate, as the case may be, under sub-section (2) of Section 174, Cr.P.C. In substance, the concerned police officer has an obligation under the provisions to hold an enquiry into the cause of death, in such circumstances, and to submit a report to the District Magistrate or Executive Magistrate, as the case may be, as a part of his duty and that is mandatory. The true purport of such investigation or enquiry or report is well known as it is summary in nature, incomplete in nature and an initial impression in nature to prima facie know that the cause of death is for a particular reason and not due to murder, if that is also one of the causes of death which is implied in the proviso. If no offence is made out muchless no cognizable offence is made out, there may not be any reason to register the case under section 154, Cr.P.C. or otherwise a case has to be registered for any offence or alleged offence against a known person or unknown person to take up further investigation in accordance with the provisions of the Chapter, to file a report under sub-section (2) of Section 173, Cr.P.C., when the concerned Court will take cognizance of the case and proceed with the matter in accordance with law. In Gulab's case, (1927) 28 Cri. LJ 26, it was pointed out by the Supreme Court that the proceedings under Section 174, Cr.P.C. should be kept more distinct from the proceedings taken on the complaint. Our own High Court in Mettu Pentayya's case, : AIR1960AP545 , made it clear that the investigation under Section 174, Cr.P.C. is limited in scope and is confined to the ascertainment of the apparent cause of death and should not be equated with investigation into cognizable offences under sections 160 and 161, I.P.C. The law is so settled that any statement of witness recorded for the purpose of Section 174, Cr.P.C. has no legal status either under section 161 or 162, Cr.P.C. for the purpose of utility either during any enquiry or trial. In fact, verbatim report of the statements of the witnesses is not encouraged. Even the post-mortem report prepared in the context of such an enquiry can be used only to refresh the memory of the witness when giving evidence, but actually, it is not admissible in evidence. (See page 609 of M. B. Mitra on Code of Criminal Procedure, eighteenth edition, Vol. I). Although in a different context, dealing with a motor vehicle offence, the Supreme Court in Shakila v. Nausher, : AIR1975SC1324 , cautioned that all witnesses need not be examined in an inquest because inquest under section 174, Cr.P.C. is concerned with establishing the cause of death and only such evidence necessary to establish it, need be brought out and no other evidence.

9. The scope of Section 173, Cr.P.C. and the investigation after registering the case under Section 154, Cr.P.C. leading to the submission of the report as required under section 173, Cr.P.C. need not be emphasised. To make it brief, the Investigating Officer is entitled to submit the report under sub-section (2) of Section 173, Cr.P.C. to the concerned Magistrate in three categories, namely, (1) 'A' report where the offence is cognizable, (2) 'B' report where it is not established, and (3) 'C' report if it is false. At this stage, it is the mandatory duty on the part of the concerned Magistrate or the Court to issue notice to the complainant or the concerned person as to why such a report should not be accepted and at that time, it is open to such a person either to accept the report or challenge it by filing a protest application or by an oral application undertaking to produce such evidence in support of his or her allegations made in respect of an offence as against a particular individual or in general. Thereafter, it is the duty of the Court either to accept or reject such a report having reference to the implications of Section 203, Cr.P.C., since when once a protest application is filed or an independent complaint is filed, it takes the character of a private complaint under Section 200, Cr.P.C., regarding which, procedure is contemplated under Sections 200 - 203, Cr.P.C. to proceed further in the matter by the Court or the Magistrate, as the case may be.

10. Now, judging the case on hand, this Court is of the considered opinion that respondent No. 5 or any police officer concerned with the case appears to be not only ignorant of such legal implications but also failed to act in regard to the same. Respondent No. 5 has already recorded a finding that it is a case of suicide particularly when the petitioner has been consistently and vociferously alleging that it is a case of murder or it is a case of suspicion and not a case of suicide. Surprisingly, neither the counter-affidavit nor the status report or the case diary failed to mention the names of the witnesses examined, gist of their statements, any material seized etc., to form such an impression. As rightly alleged by the petitioner, the police have even gone to the press reporting that it is a case of suicide. This Court should caution them for such a diversion or subversion of the course of justice as it has the effect of contempt of justice, if not contempt of Court. It may not be forgotten that it is ultimately for the Court or a Judicial Authority to accept or reject such a report of the police officer about the cause of death. It must also be noted that the case diary is not a document to record a pre-judged finding by a police officer. A report is distinct from a case diary which has to be opened when once a case is registered under Section 154, Cr.P.C., whereas the report under section 174, Cr.P.C. is the view of the Investigating Officer or the enquiry officer, as the case may be, in regard to the cause of death to be sent to the District Magistrate or Executive Magistrate. To emphasise, it must be mentioned that finality has not occurred in this case as respondent No. 5 or any police officer is yet to submit a report to such effect. Therefore, none of the expressions made in the case diary can be vested with any legal basis to act or accept and it should be taken that such expressions are totally expunged leaving only that part of the facts as to what investigation the police officer did.

11. There is already a finding by respondent No. 5 in the case diary, in the counter-affidavit and the status report to the effect that it is not a case of murder. Although not admonished, respondent No. 5 should be warned of the consequences of such expressions in law, as he has taken upon himself the job of deciding the ultimate question which is not permitted in law. The manner in which such a counter-affidavit, status report and the case diary are prepared by respondent No. 5 discloses that not only he has formed an opinion in the matter as to the cause of death of deceased-Satish but also he is taking sides with certain persons who may be involved in the case of death, ultimately to be found, showing an inclination, for any reason which is known well to respondent No. 5 and which this Court is not able to say at this stage. Such expressions are also to be avoided by such police officers in future.

12. The learned advocate for respondents 10 to 13 very sincerely pleaded that from the material so far collected or brought to the notice of the police officer, it is evident that respondents 10 to 13 are not involved in the alleged offence. That is not the matter this Court is going to examine in this case. Ultimately, it may be the expression or the suspicion of the petitioner that the cause of death must be due to respondents 10 to 13. The emotional feeling of a parent in such a situation is understandable. He can only deduce the circumstances to strengthen his feeling, but the reason for it is within the realm of the police officer to pursue. There is no consolation for a parent who loses his child in suspicious circumstances except to show that the authorities have done their duty fully and in accordance with law. The question is not whether the allegations of the petitioner are true or not. But, the question is whether his allegations are properly investigated or not and with the type of police officer like respondent No. 5 herein, this Court is not satisfied that he has done such job satisfactorily and in accordance with law.

13. Whether rightly or wrongly, the petitioner has suspected the involvement of respondents 10 to 13 or somebody concerned with the residential school in regard to the cause of death of the deceased. However, he has made it emphatic both in the petition and also in the complaint sent to the police authorities that such persons are responsible for the cause of death of his son. Therefore, it was incumbent on the part of concerned police people to register a case under Section 154, Cr.P.C. for any offence if made out or for no offence tentatively, and investigate into the cause of death. This Court feels that this is a fit case to keep such an F.I.R. pending till the final report either under section 174, Cr.P.C. or under Section 173, Cr.P.C. was submitted when the concerned Magistrate could have proceeded with the matter in accordance with the procedure stated above. One more thing is emphatic in the conduct of respondent No. 5. Because of the delay and the adamant attitude on the part of respondent No. 5, possibly, the best evidence available at the relevant time has either been destroyed or distorted or lost by now, particularly if a student or a teacher is involved or a student is a witness, even the whereabouts may not be known and, in all such cases, the activities of evil forces to destroy the evidence is foreseeable and possibly that might have happened in the case having regard to the manner in which respondent No. 5 is conducting himself in the matter. Therefore, this Court not only expresses displeasure over such conduct but as well feel happy that if there is any such material, the concerned officer will do his best to investigate and find out the truth by collecting the evidence in accordance with law.

14. The learned advocate for the petitioner suggested that, in the circumstances of the case, it is not safe to continue the investigation with respondent No. 5 as he has already formed the opinion in regard to the cause of death of the deceased. There is all the force in such a contention. Not only his reticence has negated the available material to arrive at the truth but also his opinion has gone beyond the scope of view of a police officer in submitting report. Therefore, it is proper that the investigation should be entrusted to some other police officer or police agency so that the real truth as to the cause of death of the deceased may be find out.

15. In the result, the Writ Petition is allowed, however, subject to the following directions :-

The investigation or enquiry into the matter regarding the cause of death of Satish, son of the petitioner herein, shall be removed from respondent No. 5 and shall be taken over by the D.G.P. Crime Branch, Hyderabad. The head of such agency shall entrust the investigation to any police officer other than respondent No. 5, who shall enquire or investigate into the matter and act in accordance with law in the light of the observations made above. It is made very clear that none of the expressions made in this Judgment is against any individual in regard to the allegations as to the cause of death of the deceased-Satish which shall be independently investigated or enquired into for the law to take its own course. The concerned authority shall take up the matter within three days from the date of receipt of a copy of this order and shall expeditiously dispose it of in accordance with law.

16. Petition allowed.

Subject	Criminal
Court	Andhra Pradesh High Court
Decided On	Jun-30-1997
Case Number	Writ Petition No. 5026 of 1997
Judge	B.K. Somasekhara, J.
Reported in	1997(2)ALD(Cri)252; 1998(1)ALT(Cri)15; 1998CriLJ46
Acts	Code of Criminal Procedure (CrPC) , 1973 - Sections 156 and 174; Indian Penal Code (IPC), 1860 - Sections 34, 174 and 302
Appellant	G. Nageshwar Rao
Respondent	Director General of Police, Andhra Pradesh and ors.
Appellant Advocate	S. Agasthya Sharma, Adv.
Respondent Advocate	Government Pleader for Home and ;Y. Visweswara Rao, Adv.

G. Nageshwar Rao Vs. Director General of Police, Andhra Pradesh and ors. - Court Judgment