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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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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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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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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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
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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.
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Crl.O.P.(MD) No.1207 of 2020
07.02.2020
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