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Merlin Shaly vs The Superintendent Of Police on 7 February, 2020

Crl.O.P(MD)No.1207/2020

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 07.02.2020

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Criminal Original Petition(MD) No.1207 of 2020

Merlin Shaly : Petitioner

vs.

1.The Superintendent of Police,
Kannyakumari District.

2.The Sub Inspector of Police,
All Woman Police Station,
Colochel,
Kanyakumari District.
(Crime No.13 of 2019) : Respondents

PRAYER: Criminal Original Petition filed under Section 482 of the
Code of Criminal Procedure to the investigation of Crime No.13 of
2019 from the file of second respondent and transfer the same to
some other unbiased police or agency or to conduct fair and proper
investigation.

For Petitioner : Mr.K.P.Narayanakumar
For Respondents : Mrs.S.Bharathi
Govt. Advocate (crl.side)

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Crl.O.P(MD)No.1207/2020

ORDER

This petition is filed to transfer the investigation in Crime No.13

of 2019 from the file of second respondent to the some other agency.

2.The learned counsel for the petitioner would submit that the

petitioner is the de-facto complainant in Crime No.13 of 2019 on the

file of the second respondent police. There are four accused in this

case. The first accused is the husband, the second accused is the

mother in law, the third accused is the sister in law and the fourth

accused is the husband of the third accused/sister in law. The

marriage between the petitioner and the first accused was solmnized

on 27.11.2004 and at the time of marriage on the demand of the

accused persons, Rs.20 lakh cash and a medical shop were given to

the first accused as dowry and subsequently, there was also torture

by the petitioner due to demand of dowry. He would further submit

that the fourth accused, who is the husband of the sister in law,

committed rape on the petitioner by sedating her and though in the

complaint, it had been specifically stated by the petitioner, the second

respondent police had registered a case only for the offences under

Section 498(A), 294(b), 506(i) IPC and Section 4 of Tamil Nadu Dowry

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Crl.O.P(MD)No.1207/2020

Prohibition Act. Due to the rape committed by the fourth accused, the

petitioner had become pregnant and a child was also born. Though

the case was registered on 04.04.2019 and the specific allegations

were made against the fourth accused, the investigation officer did not

take any steps to conduct DNA test to prove the same. He would

further submit that the fourth accused is also an accused in the case

registered by the Colachal police in Cr.No.109/2019 for offences

under Sections 366 A and 376 of IPC and he is also habitual offender.

Since the investigation has not been done in a proper manner, the

petition has been filed seeking for transfer. He would submit that

only after the filing of the transfer petition, the second respondent has

now altered the F.I.R and added Section 376 IPC against the fourth

accused. He would further submit that no further investigation has

been done by the second respondent and even after alteration of FIR,

DNA test has not been taken by the second respondent to prove the

rape committed on the petitioner while she was under sedation.

Thereby, he would submit that the petitioner cannot expect fair

investigation at the hands of the second respondent.

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Crl.O.P(MD)No.1207/2020

3.The respondent has filed a status report. It has been stated

that the accused have obtained anticipatory bail on 26.07.2019 and

thereafter, the case has been altered adding Section 376 IPC.

Further, steps have been taken to cancel the anticipatory bail

4.The learned Government Advocate (criminal side) would

submit that the respondent police has filed status report. She would

further submit that after filing of the transfer petition, FIR has been

altered and Section 376 IPC has also been added.

5.Having gone through the facts, this Court is of the opinion

that the investigation has not been done in a proper manner. Though

specific allegations were made in the complaint that the petitioner was

raped under Sedation, the case was registered only for the offence

under Section 498A, 294(b), 506(i) IPC and Section 4 of the TNDP Act

and not under Section 376 IPC. It is a case where custodial

interrogation was very much essential, the accused were allowed to

get anticipatory bail. Even thereafter, no steps have been taken by the

respondent police to take blood samples from the victim, the child

born and the accused, who committed rape to confirm the allegation

of the petitioner. Further, in the status report, nowhere it has been

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Crl.O.P(MD)No.1207/2020

stated that steps are being taken to cancel the anticipatory bail

granted to the accused for the purpose of taking blood samples for

conducting DNA test. Though it has been stated that the accused did

not appear for enquiry,only after filing of the transfer application,

major offence of 376 IPC has been added in the FIR. This Court is of

the opinion that the investigation done is in shabby manner so as to

help the accused. This Court is of the firm opinion that if the present

officer is allowed to continue with the investigation, the petitioner may

not get justice.

6.In view of the same, the first respondent is directed to transfer

the investigation in Crime No.13/2019 now pending on the file of the

second respondent to the Inspector of Police, All Woman Police

Station, Nagercoil within a period of one week from the date of receipt

of a copy of this order. The Inspector of Police, All Woman Police

Station, Nagercoil will complete the investigation in Crime No.19 of

2019 within a period of four months and file final at the earliest.

This Criminal Original Petition is disposed of accordingly.

Index : Yes/No 07.02.2020
Internet : Yes/No
skn

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Crl.O.P(MD)No.1207/2020

To

1.The Superintendent of Police,
Kannyakumari District.

2.The Sub Inspector of Police,
All Woman Police Station,
Colochel,
Kanyakumari District.

2.The Inspector of Police,
All Woman Police Station,
Nagercoil.

4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

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Crl.O.P(MD)No.1207/2020

A.D.JAGADISH CHANDIRA, J.

skn

Crl.O.P.(MD) No.1207 of 2020

07.02.2020

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