(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C. to change the investigating agency from the hands of the 1st respondent to some other competent agency in respect of the crime No.100 of 2010.)

1. The petitioner approaches this Court with a prayer to change the investigating agency from the hands of the 1st respondent to some other competent agency in respect of the crime No.100 of 2010.

2. The learned counsel appearing for the petitioner would submit that the deceased Minalkodi, who died in suspicious circumstances by way of hanging, is the husband of the petitioner and immediately, the accused persons taken the body of the deceased without informing the police and cremated the same, even though the petitioner made an objection and hence, the petitioner has lodged a complaint which has been registered a case in crime No.100 of 2010 for the offence under Section 176 of I.P.C. instead of filing the offence under Section 302 of I.P.C.

3. The learned counsel appearing for the petitioner would further submit that there was a civil dispute arose in between the deceased and accused persons viz., Vellathurai, Perumal, Periyakaruppan, Murugan and Jayaraj in respect of ownership of the land and for that the deceased gave a complaint to the Sub Inspector of Police, Thirumangalam Taluk Police Station and a case in crime No.59 of 2010 has been registered against them for the offence under Sections 147, 148, 323, 294(b), 506(ii) and 354 of I.P.C. and hence, the persons in the above named have strangulated the husband of the petitioner and later he died and after committing the murder, they put the deceased in a tree in order to show that the deceased had committed suicide by hanging and after get down the deceased from the tree, the persons burnt the body immediately by using the Rubber Tyre. Since the case is based on circumstantial evidence and even though the body has been cremated, there is hypothesis of genesis to prove that the deceased was murdered and hence, the petitioner approached this Court with the present petition to change the investigation from the hands of the 1st respondent to some other competent agency and he prayed for the allowing of the petition.

4. The learned Government Advocate (criminal side) would file the counter affidavit, wherein, the 1st respondent averred as follows:

5. A case has been registered against the accused parties in crime No.59 of 2010, but the same was closed as mistake of fact and R.C. notice is yet to be filed before the Court. During his investigation, it was revealed that the deceased had hanged himself in the tree and he has committed suicide. On 07.06.2010, he received the complaint and since the offence committed by the accused is non cognizable, he filed a permission petition before the learned Judicial Magistrate, Thirumangalam for registering a case under Section 176 of I.P.C and the learned Judicial Magistrate has also granted permission and accordingly, the 1st respondent has registered the case in crime No.100 of 2010 for the offence under Section 176 of I.P.C. on the basis of the complaint given by the petitioner and after completion of the investigation, filed a charge sheet before the learned Judicial Magistrate, Thirumangalam, which was taken on file in S.T.C.No.2190 of 2010. The petitioner without having any materials, filed the petition invoking the provision of Section 482 of Cr.P.C and he relied upon the various decisions and thus he prayed for the dismissal of the application.

6. Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate (criminal side) and perused the materials available on record.

7. The admitted facts are that the husband of the petitioner has died on suspicious circumstances and without informing the same to the police, the accused persons in S.T.C.No.2191 of 2010 had cremated the body of the deceased. Even though the petitioner has given a complaint, the investigation agency have registered the complaint in crime No.100 of 2010 for the offence only under Section 176 of I.P.C., since the accused persons cremated the body of the deceased without informing them, after getting permission from the learned Judicial Magistrate for prosecuting against the accused persons under Section 176 of I.P.C. and filed the charge sheet on 10.06.2010, which was taken on file in S.T.C.No.2191 of 2010 on the same day.

8. This court perused the original documents which were called for from the learned Judicial Magistrate. A perusal of the entire material records, would reveal that on 07.06.2010, the petitioner has given a complaint, wherein, she has stated that due to the previous enmity, her husband was murdered, but the accused persons screened the evidence and hanged the body in the tree and they cremated the body immediately as if the deceased was committed suicide. The complaint of the petitioner was received by the respondent police at 2330 hours on 07.06.2010 and they gave an acknowledgment receipt to that effect. Even though the petitioner stated that there was a suspicion about his husbands death, the investigation agency has not taken any steps. But, they have obtained the L.T.I of the petitioner and got signature of her son-in-laws and then registered the case in crime No.100 of 2010 for the offence under Section 176 of I.P.C and the first information has been received by the Court on 10.06.2010 at 1.00 p.m. Under such circumstances, since the death is on suspicious circumstances it is the duty of the investigating agency to investigate the matter on the basis of the complaint and 161(3) Cr.P.C. statements given by the petitioner and the witnesses. The petitioner in her complaint, has given a reason that there is enmity between the proposed accused persons and the deceased in respect of the land.

9. In such circumstances, it is the duty of the investigating agency to probe the matter on the basis of the information received from the petitioner, but without doing so and they registered a case for the offence under Section 176 of I.P.C and hence, the duty of the Court is to see whether the petitioner is entitled for transfer of the investigation. At this juncture, it is appropriate to consider the decision in Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary Vs. State of Punjab and others reported in AIR 1994 Supreme Court 1023, wherein, the Apex Court has held as follows:

In the instant case, it was alleged that a practicing lawyer, his wife and child were abducted and murdered. The lawyers fraternity were not satisfied with the police investigation and demanded judicial enquiry. The investigating having been completed by the police and charge sheet submitted to the court, it is not for Supreme Court, ordinarily to re-open the investigation. Nevertheless, in the facts and circumstances of the instant case, to do complete justice in the matter and to instil confidence in the public mind it is necessary to have fresh investigation in this case through a specialised agency like the Central Bureau of Investigation (CBI), CBI was directed to take up the investigation of the case.

10. In Kishan Lal Vs. Dharmendra Bafna and another reported in (2009) 7 SCC 685 [LQ/SC/2009/1501] , the Apex Court has held as follows:

The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new of further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice. The question, however, is as to whether in a case of this nature a direction for further investigation would be necessary.

11. In Paramjit Kaur (Mrs) Vs. State of Punjab and others reported in (1996) 7 SCC 20 [LQ/SC/1995/1138] , the Apex Court has held as follows:

Mr.M.L.Sarin, learned Advocate General, Punjab has very fairly stated that keeping in view the serious allegations levelled by the petitioner against the officers/officials of the Punjab Police, it would be in the interest of justice that the investigation in this matter be handed over to an independent authority. Even otherwise, in order to instil confidence in the public mind and to do justice to the petitioner and his family it would be proper to withdraw the investigation from Punjab Police in this case. We, therefore, direct the Director, Central Bureau of Investigation to appoint an investigation team headed by a responsible officer to hold investigation in the kidnapping and whereabouts of Khalra. We further direct the Director General of Police, Punjab, all Punjab Police Officers concerned, Home Secretary and Chief Secretary Punjab to render all assistance and help to the CBI in the investigation.

12. In Zahira Habibilla H. Sheikh and another Vs. State of Gujarat and others reported in (2004) 4 Supreme Court Cases 158, [LQ/SC/2004/509] wherein, the Apex Court has held as follows:

If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the relatives or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law.

13. In Babubhai Jamnadas Patel Vs. State of Gujarat and others reported in (2009)9 SCC 610 [LQ/SC/1997/254] , wherein, this Court has held as follows:

The Various decisions cited by Mr.Dave endorse the view that when required not only could the High Court or this Court direct the investigating agencies to conduct the investigation in a fair and unbiased manner, but that in exercise of its powers under Article 142 of the Constitution, the Supreme Court could also issue directions for enforcement of fundamental rights and to ensure that complete justice was done to the parties.

14. Considering the above said citations, a fair and proper investigation is necessary to ensure the complete justice for both parties. Hence, I am of the opinion that to meet the ends of justice and to instil confidence in the public mind it is necessary to have fresh investigation in this case and the investigation shall be conducted by any one of the Inspector of Police and the investigation should be monitored by the Superintendent of Police, Madurai District and filed final report in accordance with law.

15. In fine, this criminal original petition is disposed with the following directions:

The 2nd respondent, the Superintendent of Police (Rural), Madurai District is directed to transfer the investigation in crime No.100 of 2010 on the file of the 1st respondent police to any other Inspector of Police to investigate the matter afresh in accordance with law and he is also directed to supervise the investigation conducted by the Inspector of Police in the matter and to file a final report in accordance with law.