BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON :  28.01.2022

DELIVERED ON : 31.01.2022

CORAM :

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

Crl OP(MD)No.1344 of 2022

Muruganantham … Petitioner Vs.

1.The Director General of Police,

Police Head Quarters,    No.1, Radhakrishnan Salai,    Mylapore, Chennai – 600 004.

2.The Deputy Inspector General of Police,    Trichy Zone, Trichy.

3.The Superintendent of Police,    Thanjavur District, Thanjavur.

4.The Inspector of Police,

Thirukattupalli Police Station,

Thanjavur District.  (Crime No.40 of 2022)

5.The Immaculate Heart of Mary Society    constituted by “The Roman Catholic    Congregation of the Order of Immaculate

Heart of Mary, Pondicherry”

Rep.by its Provincial Rev.Dr.Sr.Rosari D/o.Palraj … Respondents

(5^th respondent impleaded vide court

order dated 28.01.2022 in Crl.MP(MD)No.1250 of 2022)

Prayer: Criminal Original Petition filed under Section 482 of Cr.PC, to transfer the investigation of Crime No.40 of 2022 from the file of the fourth respondent to CBCID or any other independent investigating agency under the supervision of the first respondent and complete the investigation and file final report within a stipulated period as may be fixed by this Court.

For Petitioner	:  Mr.M.Karthikeya Venkatachalapathy
For Respondents	:   Mr.T.Senthil Kumar,
1 to 4	Additional Public Prosecutor
For Intervenor	:   Dr.Fr.Xavier Arulraj,     Senior Counsel,     for Ms.Amala Irudhaya Mary. & Mr.Menitto

ORDER

This case concerns posthumous justice-rendering justice to a child who set the criminal law in motion and who is now no more.

Events  leading to the filing  of this petition : –

2.“L” was a student studying in 12^th standard in Sacred Heart

Higher Secondary School, Michealpatti. She was also residing in St.Micheals Boarding, the hostel run by the school.  She had been under the care of the institution since her 8^th Standard. While so, on

09.01.2022, in the evening hours, when she was in the hostel, she consumed pesticide and began to vomit shortly thereafter. Finding her unwell, the hostel cook took her to a local nurse who administered injection and gave some tablets.  “L” was still continually vomiting.  The hostel authorities informed the petitioner who is her father about “L”’s condition.  Immediately, the petitioner came to the hostel and took the child home.  “L” did not disclose either to the hostel authorities or to her parents that she had consumed pesticide.  “L” was given treatment for stomach pain. As her condition worsened, she was taken to a local hospital and thereafter admitted in Thanjavur Medical College Hospital, Thanjavur on 15.01.2022 at around 5.00 p.m.  Dr.Soundarya found out

the actual cause after examining her scan report.

3.Intimation was sent to Thirukattupalli police station from Government Hospital. On 16.01.2022 at around 09.30 a.m., a trainee S.I recorded the statement of the child.  Crime No.40 of 2022 was registered for the offences under Sections 305 and 511 of I.P.C. and Sections 75 and 82(1) of the Juvenile Justice (Care and Protection of

Children) Act 2015. On the same day, from 04.25 p.m to 04.50 p.m, the Judicial Magistrate No.I, Thanjavur recorded her statement after obtaining medical opinion from the duty doctor about her fitness. On 19.01.2022 at around 15.30 hours, the child passed away. Thereafter, alteration report was filed and investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru. On the next day, a video of the child alleging that the correspondent of the school spoke to her   parents about conversion to Christianity was circulated in the social media. The petitioner also submitted a complaint by enclosing the said video to the Superintendent of Police, Thanjavur District. Since the identity of the victim was not suppressed in the video, Tanjore Police registered a criminal case in that regard.  The Superintendent of Police  held a press conference stating that the preliminary investigation

conducted by the police ruled out the conversion angle.  In this

background, the father of the child filed this petition under Section 482 of Cr.P.C. seeking transfer of investigation.

Initial directions issued by the Court  : –

4.Mention was made in the afternoon of 21.01.2022 for emergent listing.  Based on the submissions made by the petitioner’s counsel, I directed that forensic autopsy shall be done. Later, the office of the Additional Public Prosecutor, Madurai Bench informed the Registry that autopsy had already been done and they wanted clarification if I had directed second postmortem to be conducted. Registry brought this to the notice of the Hon’ble Administrative Judge who permitted holding of a special sitting on 22.01.2022.  After ascertaining the views of  the petitioner through video conferencing, I clarified that there was no need for a second autopsy.  The petitioner also agreed to receive the body of the child. I directed recording of the statements of the petitioner and

his wife under Section 164 of Cr.P.C.

5.The matter was again listed on 24.01.2022. By then, the

recorded statements of the parents had been received in a sealed cover. After going through their contents, I directed the Court Officer to hand over the same to the investigation officer.  I asked the petitioner as  to who recorded the  video.  The petitioner replied that at his instance one Muthuvel recorded the video. I wanted  to know from the investigation officer if she suspected the authenticity of the video.  The investigation officer fairly stated that the voice was very much that of the child. However, for investigation purposes, she needed the original mobile phone and sim card with which the video was recorded. I thereupon directed that Thiru.Muthuvel should appear before the Investigation Officer on 25.01.2022 and hand over the original mobile phone.  Few other directions were issued for submission of forensic reports.  The case was ordered to be called on 28.01.2022.

Contentions of the petitioner  : –

6.When the matter was taken up on 28.01.2022, Shri.Karthikeya Venkatachalapathy, the learned counsel appearing for the petitioner submitted that as a result of certain subsequent developments, the petitioner has completely lost faith in the State police.  He prayed for transfer of investigation to the Central Bureau of Investigation. The learned counsel pointed  out that a high ranking Minister had given a public interview absolving the school authorities of the charge of conversion. The Education Department had conducted a departmental enquiry and gave clean chit to the school administration.  He also passionately argued that the State police have selectively leaked

information so as to build a counter narrative.  He filed additional typed set of papers and also relied on a catena of case laws.

Objections raised by the Additional Public Prosecutor : –

7.The learned Additional Public Prosecutor appearing for the State submitted that no case for transfer of investigation has been made out. According to him, the investigation is proceeding on the right lines.

Immediately after receiving intimation from Thanjavur Medical College Hospital, the police had promptly gone to the victim and recorded her statement. The First Information Report was registered without any delay. The investigation was taken up by Shri.Govindarajan, Sub Inspector of Police, Thirukattupalli police station.   He recovered the bottle of pesticide and the student handbook 2018-19 in which the child had allegedly written that she was waiting for death. The recovered articles have been sent for forensic analysis. The dying declaration of the child was also recorded by the Judicial Magistrate on the same day. On 17.01.2022, as many as nine witnesses were examined. The hostel warden against whom the child had made allegations was arrested on 18.01.2022 and remanded to judicial custody.  Following the demise of the child on 19.01.2022, alteration report was filed. Investigation was taken over by the Inspector of Police, All Women Police Station, Thiruvaiyaru.

8.At this stage, a video of the child apparently implicating the Correspondent of the school was circulated in the social media. The learned Additional Public Prosecutor commented that this was a mischievous act on the part of some vested interests.  Instead of handing over the privately taken video to the police, an edited version was circulated.  This generated controversy.  The petitioner under the influence of certain communal organisations did not cooperate for inquest and postmortem. Since in a case of this nature, postmortem had to be conducted without delay, it was accordingly conducted by forensic doctors. The entire postmortem was also duly video-graphed. Even thereafter, the petitioner was not willing to receive the body.

Since certain communal organisations had taken over the stage, the District Superintendent of Police thought it fit to hold a press conference to dispel the misgivings.  According to him, a careful reading of the entire transcript would show that the Superintendent of Police had categorically stated that they are conducting the investigation from all angles.  He emphasized that the directions given by this Court have been scrupulously complied with. Though this Court had given a direction that the forensic reports should be obtained by 27.01.2022, the forensic labs have sought two more weeks to give their reports. Once the reports are received, further steps will be taken. In the

meanwhile, the examination of witnesses is going on.

9.The learned Additional Public Prosecutor seriously faulted the conduct of the petitioner and Mr.Muthuvel who had recorded the video for not cooperating with the investigation. It would be unfair to prejudge the issue at this point of time. The petitioner and a few communal organisations have made an allegation that the school

management attempted to covert the child to Christianity and since  the move was rebuffed, the child was harassed by the hostel warden in a variety of ways as a result of which the child took the extreme step. This allegation has been contested by the school management.  The investigation cannot be expected to proceed only on a single track.  The investigator has to act with an open mind. Many of the classmates have been examined and all of them have stated in unison that there was no pressure or even suggestion to them to convert to Christianity. The local residents have also spoken on the same lines. In fact, quite a few students have stated that the mother of the child died some eight years ago and that her father remarried and that the child had been harassed by the step mother. Only to escape from the torture meted out by the step mother, the child had joined the school as a hosteller. She was not willing to go home even during holidays. The Superintendent of Police has nominated a directly recruited DSP Ms.Brindha to investigate the matter. According to him, the investigation is being impartially conducted and that it is irresponsible to question the same.  He commented on the cryptic nature of the petition which contained hardly three paragraphs. He called upon this Court to ignore the comments made across the bar and in the air.  He also  relied on the following case laws:-  AIR 1945 PC 18 ( King Emperor V.  Khwaja Nazir Ahmad), AIR 1968 SC 117 (Abhinandan Jha & Ors.  V. Dinesh Mishra and Ors), AIR 1970 SC 786 (S.N.Sharma  V. Bipen Kumar Tiwari & Ors.), 1980

CriLJ 98 (State of Bihar & Anr. V. J.A.C.Saldanna & Ors.), 1992 CRI.L.J.

527 (State of Haryana and others V. Ch.Bhajan Lal and others), 1994

CriLJ 1981 (Joginder Kumar V. State of U.P. & Ors.), 1995 AIR SCW 2212 (Director, CBI & Ors.  v.  Niyamavedi rep. By its member K.Nandini, Advocate & Ors), AIR 2002 SC 1856 (P.Ramachandra Rao V. State of Karnataka), 2003 CriLJ 3117 (Union of India  V. Prakash

P.Hinduja & Anr. (2003) 2 SCC 649 (M.C.Abraham and Anr.  V. State of Maharastra and Ors), AIR 2008 SC 1614 (Divine Retreat Centre V. State of Kerala & Ors), 2009 (10) SCC 488 (D.Venkatasubramaniam and Ors. V. M.K.Mohan Krishnamachari and Ors), (2019) 9 SCC 24

(P.Chidambaram  V. Directorate of Enforcement),  AIR 2020 SC 2386

(Arnab Ranjan Goswami V. Union of India),  AIR 2021 SC 1918

(M/s.Neeharika Infrastructure Pvt. Ltd.  V. State of Maharashtra).

10.His core submission is that this Court will not be justified in interfering at the investigation stage and that it is not for this Court to micro-manage the investigation or issue directions that the investigation should proceed only on particular lines. The province of investigation has been exclusively reserved for the executive. He called upon this Court not to violate the sacred principle of separation of powers or indulge in judicial overreach. He called upon this Court to throw out this petition as devoid of merits.

The stand of the intervenor :

11.The school in question is being run by the Roman Catholic Congregation of the Order of Immaculate Heart of Mary, Pondicherry.  It has filed Crl.M.P.(MD)No.1250 of 2022 to implead in the present proceedings. Though the implead petitioner is neither the defacto complainant nor the accused, still in the interest of justice, I heard Dr.Fr.Xavier Arulraj, the learned Senior Counsel appearing for the Congregation. They had filed two affidavits, one in support of the petition to implead and another through e-mail.  The e-mail affidavit has been styled as confidential.   This sounds ironic.  Its contents are reverberating in the social media. The learned Senior counsel submitted that the Congregation was founded way back in the year 1844. They are running a number of schools and charitable institutions. The Sacred Heart Primary school was established in the year 1859. It was upgraded as a middle school in the year 1923. It became a high school in the year 1983. It became higher secondary school in the year 1998. It is receiving aid from the Government for classes up to 10^th Standard. Out of the 786 students studying in the school, 504 are Hindus. Even in the hostel, 42 out of 52 students are Hindus. The learned Senior counsel vehemently denied the allegation that there was any attempt to convert the child to Christianity.  According to him, certain groups are trying to

besmirch the fair reputation of the school.

12.The learned Senior counsel launched a frontal attack on the petitioner and his wife.  According to him, the petitioner is an alcoholic. The mother of the child had died some eight years ago and the

petitioner had remarried. The step mother has been treating the child in a very cruel manner.  Some two years ago, the child helpline had

received complaints and the officials had also conducted enquiry in this regard.  The child had shared her feelings on the domestic situation with her friends and class mates.  That apart, the child was suffering from a dermatological issue.  She was also being treated for the same. According to him, the domestic situation of the child must have been so depressing that she was pushed to committing suicide.  According to the learned Senior counsel, the so called dying declaration was engineered by the step mother.  The child had been tutored to falsely implicate Sister Saghayamary who had been taking care of the child as her own  daughter.  She was also paying her school and hostel fees. He also alleged that Thiru.Muthuvel who had recorded the video is a hate monger and that criminal case has been registered in the past for fomenting communal trouble.  The learned Senior counsel added that the school management is extending its fullest cooperation and that they have intervened only to set the record straight.

Consideration of the rival contentions  :-

13.The petitioner is none other than the father of the deceased child. In the petition, the original prayer was that the investigation

should be entrusted to CBCID or some other agency under the

supervision of the Director General of Police, Tamil Nadu. That shows that the petitioner though having lost faith in the District Police, had confidence in the State Police.  But in the final hearing, the original prayer was given up and the request was for transfer of investigation to CBI.

Legal principles governing transfer of investigation as laid

down by the Hon’ble Supreme Court:

14.In R.P.Kapur  V. The State of Punjab (AIR 1960 SC 866), it was observed that it is of utmost importance that the investigation into criminal offences must always be free from any objectionable features or infirmities which may legitimately lead to the grievance that the work of investigation is carried on unfairly or with any ulterior motive.  Though the said decision referred only to accused, in subsequent decisions, it has been noted that a victim of crime is equally entitled to a fair investigation (vide Nirmal Singh Kahlon V. State of Punjab and Others (2009) 1 SCC 441).    Not only fair

trial but also fair investigation is now a part of constitutional rights guaranteed under Articles 20 and 21. Therefore, the investigation must be fair, transparent and judicious, as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner.  The investigation officer’s impartial conduct must dispel any suspicion as to its genuineness. He must bring out the real unvarnished truth (vide Babubhai V. State of

Gujarat (2010) 12 SCC 254). In            K.V.Rajendran V.

Superintendent of Police, CBCID (2013) 12 SCC 480, it was held

that the transfer of investigation can be ordered a) where it is necessary to do justice and instil confidence in the investigation, b) where it is necessary for having a fair, honest and complete investigation, c)where investigation by the state police lacks credibility, d) where high state officials and authorities are involved and are likely to influence investigation and e) where investigation is tainted/biased.  In Pooja Pal  V.  Union of India (2016) 3 SCC 135, it was held that the justice should not only be done but also appear to have been done.

This principle will apply to   investigation also.  If the agency appears to

be not able to discharge its functions fairly, then the Court can

intervene to effect transfer of investigation.

Applying the legal principles to the factual matrix :

15.There is no dispute regarding the time line of events.  The child had consumed pesticide on 09.01.2022. Her statement was

recorded by the police on 16.01.2022 at 09.30 a.m.  In the evening on the same day, the Judicial Magistrate had also recorded her dying declaration. In the police statement as well as in the statement before the judicial magistrate, the child had directly and in unambiguous terms accused that the hostel warden had burdened her by assigning her nonacademic chores and unable to bear the same, she consumed the pesticide.  That is why, the hostel warden Sister Saghayamary was arrested and remanded to judicial custody on 18.01.2022. The child died at about 15.30 hours on 19.01.2022. On 20.01.2022, the private video implicating the Correspondent was circulated in the social media. The petitioner had preferred a fresh petition before the Superintendent of Police, Thanjavur and had enclosed the said video.

16.Instead of filing an alteration report based on the complaint of the petitioner, Crime No.77 of 2022 was registered on the file of Thanjavur Medical College Hospital police station for the offences under

Sections 153, 504, 505(1)(b), 505(2) IPC r/w. 67 of the Information Technology Act r/w. 74(1) of the Juvenile Justice (Care and Protection of Children) Act, 2015.  Ms.Ravali Priya, I.P.S., Superintendent of Police, Thanjavur District chose to hold press conference also. The Superintendent of Police probably forgot the virtues of silence. To a question from a news reporter, she asserted that in the preliminary enquiry, the conversion angle was not made out. Such a statement was unwarranted because by then the private video was already in

circulation and the parents of the child have given a complaint alleging that there was an attempt to convert the child to Christianity.  By stating that the conversion angle stood ruled out, the Superintendent of Police had brushed aside the petitioner’s complaint made in writing and backed by the video of the child. Therefore, the petitioner was justified in entertaining an impression that if the investigation continued by the District Police, it will be biased.  But he had faith in the State DGP when he filed this petition.

17.I fail to understand as to why the Thanjavur Superintendent of

Police reacted as if she had come in contact with a live electric wire. After all an allegation has been made that there was an attempt to convert.  The school in question is run by a Congregation.  The Holy Bible says “Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you. (Matthew 28: 19-20).  In Mark 16 : 14-18, Jesus says “Go into all the world and preach the gospel to every creature. Whoever believes and is baptized will be saved, but whoever does not believe will be condemned”.  This is called in Christian theological terms as the Great Commission.  In the literary review published in the Hindu Magazine issue dated 30.01.2022, Sudipta Datta talks about Maria Aurora Couto’s “Goa : A Daughter’s Story”.  Couto establishes the links which the Goan society developed in response to conversion, christianisation and colonisation.  She explains how in spite of being divided along religious lines by Portuguese colonial policies, Goan society retained communal harmony, thanks to a strong sense of community.

18.Nawazuddin Siddiqui starrer “Serious Men” is about the life of Ayyan Mani, a Tamil Dalit settled in Mumbai.  In the movie, one comes across the following dialogue between Ayyan Mani and the Principal of a Christian School :

Ayyan Mani	My son’s IQ is 169. He is far too advanced for your syllabus. He is on a different level.
Principal	Yes, Mr.Mani. Jesus has given Adhi a great mind.  Praise the Lord.
Ayyan Mani’s wife	He is Goddess Meenakshi’s blessing. I even trekked barefoot to Lord Ganesha’s temple when I was pregnant.
Principal	Do you believe in Christ, Mr Mani ?
Ayyan Mani	I love Christ.
Principal	Christ loves you too Mr.Mani. But if you and Adhi could accept him formally, as per the school’s policy for financially backward Christians, Adhi could get a special scholarship. In fact, I can promote him directly to the IX standard. Obviously, there is no compulsion. We never compel.  You can check with your friend Mr.Satish, Sayali’s father, how much benefit Sayali has got ever since his family accepted Christ.  If you don’t mind me being so bold, I must tell you I really feel for the people of your community, Mr.Mani.
…..	….
Principal	We will give you free books, and we will add on free transport!.

19.The legendry K.Balachander’s “Kalyana Agathigal” is a story about Ammulu, a devout Hindu girl who falls in love with Robert. Robert’s parents are ready to accept Ammulu as their daughter-in-law if she is ready to accept Christ and becomes Emily. When Ammulu refuses to convert, an outraged Robert reminded her that his family never demanded dowry but merely wants her to accept their religion. “Instead of money, you are asking me to give up my religion. Isn’t this

a form of dowry too?” she retorts.  When Robert issued her an

ultimatum, Ammulu in a stirring dialogue proclaimed her loyalty to the

religion of her birth and walked out of the relationship.

20.One may wonder if in a judgment of a constitutional court, there should be references to popular culture.  I will not stop with a rhetorical  Why Not ?.   Reviewing Irwin Allan Sealy’s “ASOCA : A Sutra”, in the latest issue of Frontline, Shonaleeka Kaul, a professional historian confesses that her foray into research in early India owes its inspiration to watching a TV Serial on Chanakya telecast on Doordarshan in the 1990s. It is beyond dispute that Art reflects life.  While  movies,

particularly, Tamil movies are notorious for melodrama and

exaggeration, they do contain a kernel of truth.

21.When some state legislatures passed laws for banning forcible conversions, they were challenged before the Hon’ble Supreme Court in

Rev. Stainislaus  V.  State of Madhya Pradesh and Ors. (1977) 1

SCC  677. In paragraph No.16, the Hon’ble Supreme Court had noted that the learned counsel for the appellant argued that the right to propagate one’s religion as enshrined in Article 25 of the Constitution means the right to convert a person to one’s own religion. Of course, the Hon’ble Supreme Court rejected the said submission by holding that the expression “propagate” used in Article 25(1) would not encompass the right to convert and there is no fundamental right to convert another person to one’s own religion. The case was argued by Shri.Frank Anthony who was also a member of Constituent Assembly. If one reads the views expressed by some of the Christian members of the Constituent Assembly, one would note that some of them had even

batted for the  right to convert even minor children.

22.More than anything else, the place where the school is

situated is known as Michealpatti. Obviously it could not have been the original name. There is an interesting discussion as to how the various

areas in Chennai acquired their respective names in V.Sriram’s “Chennai”.  Someone can undertake a similar exercise for Michealpatti also.  Therefore, there is nothing inherently improbable in the allegation that there was an attempt at conversion. It could be true or false.  The matter called for investigation and not outright rejection.  But the District Superintendent instead directing the jurisdictional police to conduct investigation chose to proclaim that the preliminary

investigation has ruled out the conversion angle.  If she had before her only three materials, namely, First Information Report, police video and the  dying declaration, she would have been justified in stating that till then, the religious angle had not come out.  But the truth of the matter is that she had before her two more materials, namely, the private video and the parents’ petition. Instead of ordering the investigation officer to take the additional materials to account, the S.P directed the local police to register an FIR against the person who had taken the video. The Superintendent of Police is right in her contention that circulation of the video without suppressing the identity of the child victim clearly contravened Section 74 of the Juvenile Justice (Care and Protection of Children), Act 2015.  If the First Information Report had been confined only to Section 74, one can understand.  But then, the First Information Report came to be registered for I.P.C. Offences such as 153, 504, 505(1)(b) and 505(2) of I.P.C also. Inclusion of the said offences indicates that the Superintendent of Police wanted to silence any discussion regarding the conversion angle. Her conduct during the press conference  synchronises with the registration of Crime No.77 of 2022.   The person who shot the video  did not commit any offence as such. It was only the subsequent sharing on the social media without suppressing the identity of the child victim which attracts the offence under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015. But in this case, the shooting was done at the

instance of the petitioner, the father of the child. The authenticity of the video has now been admitted.  With her experience, the SP obviously knew that the video was authentic. The video footage circulated in the social media was truncated.  The earlier and the later portions had been omitted. But that will not make the video any less authentic.  The S.P virtually threatened the person who shot the video. Instead, she should

have goaded the investigation to take the religious angle into account.

23.As already noted, when the petitioner moved this Court, his faith in the State Police was intact.  But in the final hearing, the petitioner’s counsel demanded CBI investigation. The learned Additional Public Prosecutor would mock at the petitioner for having filed a bald and cryptic petition.  Should I throw out the petition on that ground?.

No. I have a duty not to. The Hon’ble Supreme Court in Mithilesh Kumar Singh  V. State of Rajasthan (2015) 9 SCC 795 held that though transfer of investigation from the State police to CBI can be allowed only in rare and exceptional circumstances when fair

investigation by the State police does not inspire confidence on account of any external influence or otherwise, there can be no cast iron parameters and whether an exceptional situation has arisen may be

determined by the court by taking an overview of the  fact situation of a particular case.  The Hon’ble Supreme Court was also concerned with the death of a young girl student.  The allegations made by the

petitioner therein were not conclusive.  But the Apex Court felt that the

circumstances need to be suitably looked into by an independent investigating agency like CBI lest an incomplete, indifferent or

ineffective investigation leads to failure of justice.  The Court did not blame the educational authorities or the local police but were unable to reject the apprehension of the petitioner and his prayer for transfer of investigation.   In the case on hand, the pleadings might be defective but the counsel for the petitioner made effective submissions. Therefore, it is always open to this Court to mould the relief based on

the exigencies of the situation.

24.This petition was filed on 21.01.2022. The case was taken up for final hearing on 28.01.2022. The Hindu news paper issue dated 24.01.2022 carried an interview with Shri.Anbil Mahesh Poyyamozhi, Hon’ble School Education Minister.  The following extract will speak for

itself : –

“Did the School Education Department order any inquiry into the death of a schoolgirl in Thanjavur?

The Chief Educational Officer immediately conducted an inquiry. We also collected information from the Collector and the police. The police have recorded the girl’s statement [when she was in hospital] and told us that it would be submitted in court. They have made it clear that pressure to convert was not the cause. I would appeal not to divert the issue. Though it is alleged the warden caused the girl mental agony, it is the warden who had paid her fees. Other issues will be known during the trial. We took action [the arrest of the warden] because the girl was agonised and forced to take the extreme step. We understand the pain of her parents and the sentiments of members of the public.

The BJP, citing a video clip of the girl, is claiming there was an attempt to convert the girl to

Christianity…

It was wrong. They should not have recorded the girl’s statement. They had questioned her in a provocative manner and she had not given any clear-cut answer. But a life has been lost, and whoever is responsible for it will be punished. ”

The learned counsel appearing for the petitioner submitted that apart from the Hon’ble Education Minister, two other high ranking Ministers have also expressed opinions on the same lines. The Education Department has also come out with a statement exonerating the school

management of the charge of conversion.

25.The learned counsel appearing for the petitioner submitted

that the petitioner lost faith in the State police also for the reason that they have deliberately leaked the materials which were in their exclusive

possession. The Hon’ble First Bench of the Madras High Court in Murugasamy vs. State (2017) 2 LW. (Crl.) 345  had held that the dying declaration recorded by the Judicial Magistrate should be kept confidential. In this case, the dying declaration was recorded on 16.01.2022 by the Judicial Magistrate No.I, Thanjavur, copy of which was made available to the investigation officer.  However, Sun News telecasted the handwritten dying declaration on 21.01.2022.  The petitioner’s counsel vehemently alleged that the police have leaked the contents of the dying declaration along with the copy so as to build a counter narrative.  In the dying declaration given before the magistrate, the girl had not stated anything about conversion.  It as confined only

to the harassment caused by the hostel warden. Therefore, the

contents of the dying declaration given before the magistrate was made use of by the school management to debunk the conversion allegation. According to the petitioner’s counsel, the police have willingly aided that and it was rank illegality.

26.Following the direction given by this Court, Mr.Muthuvel handed over the original mobile phone along with Sim Card to the investigation officer on 25.01.2022.  Thereafter, the I.T wing of the ruling party released portions of the private video that appear to exonerate the school authorities. This again raises considerable doubts about the credibility and impartiality of the investigation made by the State police. The original narrative is that the girl committed suicide unable to bear the treatment meted out to her by Sister Saghayamary, the hostel warden. The private video as well as the statements of the parents indicate that there was an attempt at conversion to Christianity. The complaint of the father is that since the girl did not convert to Christianity, she was harassed by the hostel warden. Whether there is truth in the allegation is a matter for investigation and eventually for the Court to decide. But a counter narrative is being built as if the father and the step mother of the child are responsible for the suicide. In the

social media, an allegation has been made that the CHILDLINE

received complaints some two years ago that the child in question was being cruelly treated by the step mother. Such deliberate leaks dent the credibility of the investigation. The statement of the child was recorded by the local police. They also video recorded her statement. Later, the

Judicial Magistrate also recorded her dying declaration. In neither of the statements, the child had made any allegation regarding her step mother. Her only target of attack was Sister Saghayamary, the Hostel Warden.

27.The attempt of the police appears to be to derail the

investigation.  One should not lose sight of the fact that the petitioner is

not the defacto complainant. The deceased child herself was the defacto complainant. The information given by her to the police can also be taken as dying declaration.  In this case, there are three dying declarations, one given to the police, one given to the Judicial Magistrate and one privately recorded by Mr.Muthuvel.   It is well settled that there can be more than one dying declaration.  The basic legal maxim is that the person who is going to meet the Maker shortly will not utter a lie. Even a conviction can be based solely on a dying

declaration.  But the court will have to carefully scrutinize the veracity of

its contents because the person is no longer available for crossexamination.  In this case, there is no contradiction between the police video and the private video.  The private video contains extra material. It is relevant to bear in mind that though the child consumed pesticide on 09.01.2022, she did not reveal the same either to the hostel authorities or to the parents or even to the doctors.  Only when the scan report revealed the truth, she spoke on that.  Therefore, no adverse inference can be taken because the child did not disclose everything in the first instance.  The two videos must be taken together and a final call can be taken only after a thorough investigation or perhaps a thorough trial.  It is too early in the day for the police or the politicians to jump to conclusions.  But they have done so.  That is why, the petitioner is apprehensive that if the investigation continues to remain in the hands of the State police, he will not get justice.  His

apprehension is justified.

28.In the private video, to a specific question, the child had exonerated the Headmistress. Her allegation was directed only against the hostel warden. She also mentioned that the school Correspondent wanted her to convert. When asked about the “Fathers” (Ordained male priests), the child replies in the negative.  If the step mother had tutored the child, the private video would not have contained such contents. Since the authenticity of the private video is not in doubt, there is no basis for attacking the father and the step mother of the child. The learned counsel appearing for the petitioner submitted that since the mother of the child had died and since the father had remarried, the maternal grandparents would obviously be upset. The police have sent summons to the maternal grandparents for getting statements adverse to the step mother. I find  merit in the petitioner’s counsel’s contention that the police, instead of finding out the truth of

the allegations made by the deceased victim, have been trying to

bolster the counter narrative.

29.Let us take the case of sexual harassment at work places. The victim employee who rebuffs the sexual advances of her superior will find  that  she is burdened with extra and difficult work. The work ambience will be made unbearable.  The offender will not be  sexually harassing the victim everyday.  This is the standard modus operandi. The petitioner’s counsel wants me to draw a similar analogy.  The correspondent wanted the child to convert to Christianity. The offer was

made to the parents.  The parents rejected the proposal. As a consequence, through the warden, hostel life was made unbearable and suffocating for the child.  I am not in a position to reject the hypothesis

propounded by the learned counsel for the petitioner.

30.It is submitted that in the un-edited private video, the child is

seen alleging that she was not allowed to go home even during

holidays. She was made to do all kinds of works. She was asked to look after the accounts. She was made to do cleaning work. The petitioner’s father would allege that she was made to clean toilets. “L” secured 489 / 500 in 10^th standard. She was the school topper.  Her father is not economically sound. He is a poor agriculturist. The girl dreamed to secure high marks in 12^th standard. Since she was burdened with other works, she was unable to concentrate on the studies.  She became apprehensive that she will not secure good marks. The board exams were a short while away.   She became depressed and took her own

life. That the child committed suicide is not in doubt. Even the parents did not allege that the death was homicidal.  What led the child to commit suicide has to be investigated.  Before the investigation officer, the dying declaration of the child is available. Their authenticity is undoubted. Without doing so, District Superintendent of Police wanted to completely suppress the conversion angle altogether. They wanted to fasten the entire blame initially on Sister Saghayamary. But now the

parents are in the dock.

31.This Court has a duty to render posthumous justice to the child. The foregoing circumstances cumulatively taken will definitely create an impression that the investigation is not proceeding on the right lines.  Since a high ranking Hon’ble Minister himself has taken a stand,  investigation cannot continue with the State Police.   I therefore direct the Director, Central Bureau of Investigation, New Delhi to assign an officer to take over investigation from the State Police.   The criminal original petition is allowed on these terms.  Registry to mark a copy of this order to the learned Assistant Solicitor General, Madras High CourtMadurai Bench for making onward transmission to the Director, CBI. CBI will undertake an independent investigation and shall not take into account any of the observations made in this order.  Since contentions were advanced on either side, this Court had to deal with them. Nothing set out in this order shall be construed as opinion on the merits of the matter. They have been made only for the purpose of disposing

of this transfer petition.

32.Sister Saghayamary, the hostel warden was arrested on 18.01.2022.  Her continued incarceration may not serve any purpose. Her guilt or innocence will be decided later.   Though the investigation has been ordered to be transferred, the formal process may take time. I therefore direct that the jurisdictional court can dispose of the bail petition of Sister Saghayamary based on the available materials and formal notice to CBI is dispensed with.

33.Lord Vinayaka has been my favourite deity since childhood. Of course, there has been a steady addition to the pantheon. The latest is Lord Mahavira.  I offer flowers daily to them.  The Ganesha idol which I worship daily has been named as Fr.Pillaiyar.  Because it was gifted to me by the learned Senior Counsel who appeared for the Congregation. Dr.Fr.Xavier Arul Raj, the Senior Counsel and Br.Benitto, the counsel on record are genuine ambassadors of interfaith fraternity.  When the learned Senior Counsel asserted that he does not believe in conversion, I knew that he was speaking from his heart.  But the question is whether Sister Saghayamary and Sister Rachel Mary are made of the

same fibre.   I hope investigation by CBI will bring out the truth.

            31.01.2022

Index :Yes/No Internet : Yes/No skm

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

To:

1.The Director General of Police,

Police Head Quarters, No.1, Radhakrishnan Salai,    Mylapore, Chennai – 600 004.

2.The Deputy Inspector General of Police,  Trichy Zone, Trichy.

3.The Superintendent of Police, Thanjavur District, Thanjavur.

4.The Inspector of Police,  Thirukattupalli Police Station,   Thanjavur District.

5.The Director, Central Bureau of Investigation, New Delhi.

6.The Additional Public Prosecutor,

Madurai Bench of the Madras High Court, Madurai.

7.The Assistant Solicitor General of India,

Madurai Bench of the Madras High Court, Madurai.

8.The Principal District Judge, Trichirappalli.

G.R.SWAMINATHAN, J.

skm

Crl OP(MD)No.1344 of 2022

31.01.2022