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Synopsis

The Supreme Court has ordered for setting up a Special Investigation Team to investigate charges of rape made by an associate professor against a police officer.

A bench of Justices Surya Kant and K V Viswanathan directed the Puducherry administration to constitute a special investigation team (SIT) to be headed by a directly recruited woman IPS Officer to probe charges of rape and cheating against the officer, already married with another woman and pretended to have married with the petitioner her and made her to undergo abortion twice. 

The woman was aggrieved by the dilution of charges in the charge sheet filed under Sections 354A and 506 of the IPC. She filed an application under Section 173(8) of the CrPC for further investigation instead of protest petition.

"We fail to understand what prevented the Magistrate from treating that application purportedly filed under Section 173(8) of CrPC as a Protest Petition and then decide the same on merits. A technicality like the caption of the application/petition could not be an impediment to consider the substance thereof and then determine whether or not the matter required further investigation so as to find out the prima facie element of offences under Sections 376, 417 and 420 of the IPC. Such a permissible procedural recourse has been unfortunately overlooked by the High Court as well," the bench said.

The bench found that it was a fit case where the Judicial Magistrate ought to have invoked his power under Section 173(8) of CrPC and directed the Investigating Officer to further investigate such serious allegations. 

"The denial of further investigation has led to gross injustice to the appellant,” the bench said.

The court allowed the appeal filed by the complainant against the Madras High Court's order.

“Owing to the status of the accused, the State of Pondicherry is directed to constitute a Special Investigation Team to be headed by a directly recruited woman IPS Officer along with two officers in the rank of DYSP and Inspector of Police. If a woman IPS Officer is not available in the State cadre, then any one of the officers in the rank of DYSP or Inspector must necessarily be a woman. The further investigation shall be completed by SIT within three months," the bench ordered. 

The court noted that the accused is a police officer, so the allegation of undue influence or unintended favour towards him by the investigating officer cannot be brushed aside lightly.

The bench noted that the woman in her application had alleged that the man was already married and he was disqualified to perform the second marriage, and being a government officer, his second marriage during the subsistence of the first marriage would have been a misconduct under the conduct rules. The first charge sheet itself suggested that the appellant and the accused had been living together and were in physical relationship, it said.

If that is so, the investigating agency ought to have further probed as to whether they have been cohabitating pursuant to the so-called marriage performed in 2012, or it was merely a consensual live-in relationship, the bench said.

Similarly, the investigating officer does not appear to have taken any pains to visit the hospital/medical clinics to verify whether the appellant underwent abortion twice, the bench pointed out.

The bench also said it is not sure whether the statements of the persons living in the neighbourhood were recorded or not to find out whether the appellant and the accused had been living together, as husband and wife. 

“All these facts will have a material bearing on the determination by the trial court as to whether a prima facie case under Sections 376, 417 and 420 of IPC is made out or not,” the bench said.

The woman complainant said her first marriage was dissolved in May, 2006 and subsequently, a daughter was born in February, 2007. 

According to her, she met the accused police officer in 2012, he pretended to have married her. They started living together as husband and wife. During this time the appellant got pregnant twice, but was asked to abort the foetus in June, 2013 and May, 2014 respectively. Soon thereafter, the accused officer allegedly stopped meeting the appellant, thus, prompting her to lodge the FIR on August 4, 2014.