IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 10.12.2022

THE HON’BLE Mr. JUSTICE G.CHANDRASEKHARAN

1. No.33520 of 2022and

W.M.P.No.32969 of 2022

Karthikeyan      … Petitioner

Vs.

1. The State of Tamil Nadu,

Rep. by the Principal Secretary to Government,     Home Department, St.George Fort,     Secretariat, Chennai – 600 009.

2.The Director General of Police,

Head of Police Force,

Mylapore, Chennai – 600 004.

3.The District Collector,    Ariyalur District, Ariyalur.

4. The Superintendent of Police, Ariyalur District, Ariyalur.

5.State Rep by,

Inspector of Police,

Vikkiramangalam Police Station,    Ariyalur District.

(Crime No.254/2022)

6. The Joint Director,

Central Bureau Investigation,

Thousand Lights,

Chennai.  …Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue an order, direction, or Writ more particularly, writ in the name of Writ of Mandamus, directing the 4^th and 5^th respondents police to conduct postmortem on my paternal uncle’s dead body by a team of experts in forensic medicine with a mandatory direction that atleast one doctor with forensic knowledge represent the petitioner’s side and one individual of their choice and to videograph the entire postmortem and the same shall be sealed and signed by the doctors and sent to the Court with a copy to the representatives of the victim and also to handover the body to the family members to conduct the last rites and consequently, direct the respondents 4 and 5 to transfer the investigation in Crime No.254 of 2022 on the file of the Inspector of Police, Vikkiramangalam Police Station, Ariyalur District to the Central Bureau of Investigation (CBI) herein or any other competent investigating agency for fair and proper investigation.

For Petitioner           :   Mr.K.Balu

Mr.M.R.Elavarasan

For Respondents       :   Mr.S.Santhosh

Government Advocate (Crl.Side)

ORDER

This Writ Petition has been filed  to issue a Writ of Mandamus, directing the 4^th and 5^th respondents police to conduct post mortem on my paternal uncle’s dead body by a team of experts in forensic medicine with a mandatory direction that atleast one doctor with forensic knowledge representing the petitioner’s side and one individual of their choice and to videograph the entire postmortem and the same shall be sealed and signed by the Doctors and sent to the Court with a copy to the representatives of the victim and also to handover the body to the family members to conduct the last rites and consequently, direct the respondents 4 and 5 to transfer the investigation in Crime No.254 of 2022, on the file of the Inspector of Police, Vikkiramangalam Police Station, Ariyalur District to the Central Bureau of Investigation (CBI) herein or any other competent investigating agency for fair and proper investigation.

2.The learned counsel for the petitioner submitted that on 25.11.2022, at about 2.30 p.m., the Inspector of Police, Velusamy of Vikkiramangalam Police Station along with Balakrishnan, Special Sub Inspector, Palanivel, Sub Inspector in uniform and five police constables of the same police station unlawfully trespassed into the house of the petitioner’s junior paternal uncle Sembulingam, without any prior notice, scolded him in filthy language and asked him to inform the whereabouts of one Arunkumar, else, he and his family members would be killed.  All the eight police personnel started attacking Sembulingam, his wife Sudha and their son Manikandan.  Inspector Velusamy instigated Palanivel and other police personnel to attack them with lathi and kicked Sembulingam with his legs.  Palanivel strangled the deceased Sembulingam and the other police constables indiscriminately attacked Sembulingam with lathi.  When Sudha and Manikandan intervened, they were also attacked with lathi.  Sudha’s blouse was torn.  On hearing the noise, the persons residing nearby assembled, then the police left the place by threatening the victims of assault and the general public.  Thereafter, the injured deceased Sembulingam, Sudha and Manikandan were taken to the Ariyalur Head quarters Hospital through 108 ambulance.  When they were taking treatment, SSI Anbalagan came to the hospital and asked for statement from the deceased Sembulingam.  The deceased Sembulingam narrated the incident that had happened.  However, SSI Anbalagan recorded the statement on his own and got the signature of the deceased Sembulingam forcefully. He also threated that if Sembulingam does not sign the statement, all would be sent to jail.  Due to the pressure exercised by the police officials, the duty Doctor discharged Sembulingam on 28.11.2022.  Thereafter, the deceased Sembulingam was taking treatment at Golden Hospital Ariyalur.  He had severe stomach pain, despite the treatment and therefore, he was admitted at

Maruthi  hospital Trichy.  When he was taking treatment as in-patient at Maruthi hospital, Trichy, he died on 08.12.2022.  It is further alleged that the cause of death of the deceased Sembulingam was due to the indiscriminate physical assault made by the police.

3.The learned counsel further submitted that though the statement was recorded on 25.11.2022 itself, the FIR was not registered immediately.  Only after the death of the deceased Sembulingam on 08.12.2022, FIR was registered in Crime No.254 of 2022, on the file of the Vikkiramangalam Police Station for the offence under Section 174 Cr.P.C.  The defacto complainant had specifically named the aforesaid police officers and constables, accusing them of physical assault on the deceased Sembulingam, his wife and son and that they are responsible for the death of the deceased Sembulingam.  However, the name of the aforesaid police officers and constables are not shown as accused in this case.  The petitioner has no confidence in the respondent police, for the reason that FIR was not properly registered and it is the apprehension of the petitioner that no proper investigation and no proper postmortem would be conducted, just to help the police officials.  Therefore, the petitioner has filed this petition for transfer of investigation to Central Bureau of Investigation (CBI) or any other competent investigating agency for fair and proper investigation.  As an interim relief, it is prayed that the respondents 4 and 5 may be directed to conduct postmortem of the deceased Sembulingam by a team of experts in  forensic medicine with a mandatory direction that atleast one Doctor with forensic knowledge representing the petitioner’s side and one individual of his choice and to videograph the entire postmortem.

4.In response, the learned Government Advocate (Crl. Side) appearing for the respondents submitted that there was a case registered in Crime No.242 of 2022, for the offences under Sections 147, 148, 294 (b) 506 (2)

IPC, and Sections 3(1) (r), 3 (1)(s), 3(2)(va) of the SC & ST (Prevention of

Atrocities) Amendment Act, 2015, on the file of the Vikkiramangalam Police Station.  He further submitted that he no instruction with regard to the alleged occurrence.  His serious objection is with regard to the prayer for the presence of one Doctor with forensic knowledge of the petitioner’s side and one individual of his choice.  The presence of Doctor of the choice of petitioner would create serious issues.  In support of his submissions, he referred the order of this Court in W.P.No.20444 of 2021 dated 22.09.2021, where, the petitioner was permitted to authorize a representative of his choice to be present during the post mortem and nothing more.  Similarly, he also referred to the order of this Court in W.P.No.18455 of 2022 dated 18.07.2022 in support of this case that, when a similar prayer was made for the presence of team of Doctors of choice of the petitioner, this Court refused to entertain that prayer and instead appointed, on its own, experts for conducting the post mortem.  He further submitted that when this order was taken in appeal before the Hon’ble Supreme Court in S.L.P.Crl.No.6609 of 2022, the Hon’ble Supreme Court did not accept the contentions of the petitioner therein and therefore, the SLP was withdrawn.

5.However, the learned counsel for the petitioner relied on the order passed by this Court in W.P.No.26676 of 2021 dated 11.12.2021 and submitted that this Court permitted the presence of the Doctor of choice of the petitioner therein.  Dr.Dekal, Head of the Forensic Department, Meenakshi Medical College, Kanchipuram District was permitted to be present during postmortem.

6.From the submissions of the learned counsel appearing for both parties, it appears that there is no strong objection from the side of the learned Government Advocate (Crl.Side) with regard to the presence of a

representative, but not a Doctor, during the course of postmortem.

7.Now this Court has two set of orders, one favouring the presence of the Doctor of the choice of the petitioner and other in not favouring such a claim.   The presence of a Private Doctor, in the considered view of this Court, would create unnecessary interference and issues during the course of postmortem.  Therefore, in order to avoid such a scenario and to give confidence to the petitioner for a fair post mortem, this Court is of the view that a team consisting of three Doctors, nominated by the Deans of the Government Medical College Hospitals at Trichy, Madurai and Thanjavur respectively, may be directed to conduct post mortem in the presence of a representative, who is not a Doctor of the petitioner and submit their post mortem report.  It is further directed that the entire post mortem shall have to be videographed and photographed and X-Rays to be taken all over the body. The Deans concerned are requested to immediately nominate the experts for conducting the post mortem and the post mortem shall be concluded before 12 noon tomorrow (11.12.2022).  Thereafter, the body shall be handed over to the family members of the deceased for performing the last rites and cremation as per their customary practice.  The relatives are directed to ensure that the last rites and cremation of the deceased is performed, immediately, peacefully, without giving any room for precipitating the issue. The respondent police are directed to provide necessary police bandobast during the last rites and cremation.

8.It is made clear that the team of Doctors shall follow the guidelines issued by this Court in the case of K.Villayi Vs. The State of Tamil Nadu represented by the Principal Secretary Department of Home, State Secretariat, Fort St. George, Chennai in W.P.(MD). No.15906 of 2021 dated 14.09.2021.  The report shall be submitted to the Jurisdictional Magistrate in a sealed cover immediately.

9.With regard to transfer of investigation, this case will be taken up next week.

10.12.2022

sli

Index:Yes/No

Internet:Yes/No

Speaking Order: Yes/No

Note: 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 State of Tamil Nadu,

Rep. by the Principal Secretary to Government,     Home Department, St.George Fort,     Secretariat, Chennai – 600 009.

2.The Director General of Police,

Head of Police Force,

Mylapore, Chennai – 600 004.

3.The District Collector,    Ariyalur District, Ariyalur.

4. The Superintendent of Police, Ariyalur District, Ariyalur.

5.State Rep by,

Inspector of Police,

Vikkiramangalam Police Station,    Ariyalur District.

(Crime No.254/2022)

6. The Joint Director,

Central Bureau Investigation,    Thousand Lights,    Chennai.

7. The Public Prosecutor, High Court of Madras.

8.The Dean,

Government Medical College Hospital, Trichy.

9.The Dean,

Government Medical College Hospital, Thanjavur.

10.The Dean,

Government Medical College Hospital, Madurai.

G.CHANDRASEKHARAN.J,

sli

W.P.No.33520 of 2022 and W.M.P.No.32969 of 2022

10.12.2022