Madras High Court
Elephant G.Rajendran vs The State Of Tamil Nadu on 1 August, 2018
Author: R.Mahadevan
Bench: R.Mahadevan, P.D.Audikesavalu
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
22.11.2018 30.11.2018
CORAM
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.Nos.20392 of 2018 and 20963 of 2018
and W.M.P.Nos.23975, 23976, 24797, 24803, 24609,
26868 and 27441 of 2018
W.P.No.20392 of 2018:
Elephant G.Rajendran ... Petitioner
-vs-
1.The State of Tamil Nadu
rep.by the Additional Chief Secretary to Government,
Government of Tamil Nadu,
Secretariat, Chennai-600 009.
2.The Secretary to Government,
Home Department, Government of Tamil Nadu,
Secretariat, Chennai-600 009.
3.The Secretary to Government,
Hindu Religious & Charitable Endowments Department,
Government of Tamil Nadu,
Secretariat, Chennai-600 009.
4.The Commissioner,
Hindu Religious & Charitable Endowments Department,
Nungambakkam, Chennai-600 034.
5.The Director General of Police,
Mylapore, Chennai-4.
6.A.G.Pon Manickavel
http://www.judis.nic.in
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7.The Secretary to Government,
Government of India,
Department of Personnel and Training,
Ministry of Personnel, Public Grievances and Pension,
North Block, New Delhi-110 001.
8.The Secretary to Government,
Department of Home Affairs,
Government of India,
New Delhi-110 001.
9.The Director,
Central Bureau of Investigation,
Plot No.5-B, CGO Complex,
Lodhi Road, New Delhi-110 001.
10.The Joint Director and Head of Chennai Zone,
Central Bureau of Investigation,
3rd Floor, EVK Sampath Building,
College Road, Chennai-6.
11.Venu Srinivasan
12.The Additional Director of Police,
Economic Offences Wing,
Chennai-32. ... Respondents
W.P.No.20963 of 2018:
Traffic Dr.K.R.Ramaswamy ... Petitioner
-vs-
State represented by
1.The Chief Secretary,
Government of Tamil Nadu,
Secretariat, Fort St.George,
Rajaji Salai, Chennai-600 009.
2.The Secretary,
Home Department,
Secretariat, Fort St.George,
Rajaji Salai, Chennai-600 009.
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3.The Commissioner,
HR & CE Department,
Nungambakkam,
Uthamar Gandhi Salai,
Chennai-34. ... Respondents
Petitions filed under Article 226 of the Constitution of India, for
issuance of a Writ of Certiorari calling for the records relating to the
impugned order in G.O.Ms.No.885 of 2018 dated 01.08.2018 and
quash the same.
W.P.No.20392 of 2018:
For Petitioner :: Mr.Elephant G.Rajendran,
Party-in-Person
For Respondents :: Mr.Vijay Narayan, Advocate General
assisted by Mr.P.H.Arvind Pandian,AAG
and Mr.V.Jayaprakash Narayanan, GP
for R1 to R4
Mr.P.H.Arvind Pandian,
Addl.Advocate General
assisted by Mr.V.Jayaprakash Narayanan
Government Pleader for R5 & R12
Mr.A.G.Pon Manickavel,
Inspector General of Police
(Idol Wing), Party-in-Person for R6
Mr.G.Rajagopalan,
Addl.Solicitor General of India assisted
by Mr.V.Chandrasekar, Sr.Panel Counsel
for R7 and R8
Mr.K.Srinivasan for R9 and R10
Mr.B.Kumar, Sr.Counsel for
Mr.Rajarathinam for R11
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For petitioner in : Mr.V.Raghavachari
WMP.No.24797/2018
For petitioner in : Mr.N.G.R.Prasad
WMP No.27441/2018
For petitioner in : Mr.R.Venkataraman,
WMP No.24803/2018 Party-in-person
W.P.No.20963 of 2018:
For Petitioner :: Mr.G.K.Harihara Rajan
For Respondents :: Mr.Vijay Narayan,
Advocate General
assisted by Mr.T.N.Rajagopal,
Government Pleader
COMMON ORDER
R.MAHADEVAN, J.
“A concerted effort to preserve our heritage is a vital link to our cultural, educational, aesthetic, inspirational and economic legacies – all of the things that quite literally make us who we are”.
(Steve Berry) The above lines just flashed, while penning down this order. May be the subject in issue is nearer to these lines.
2.Both these writ petitions have been filed as 'pro bono publico' to quash the order passed by the Government of Tamil Nadu in G.O.Ms.No.885, Home (SC) Department, dated 01.08.2018, by which http://www.judis.nic.in 5 the investigation of the cases related to theft of idols and art facets of various temples now investigated by the High Court appointed Special Team headed by the sixth respondent in W.P.No.20392 of 2018 pursuant to the order passed by this Court dated 21.07.2017 in Crl.O.P.Nos.8690 and 12060 of 2017, have been ordered to be investigated by the Central Bureau of Investigation. The Background:-
3.Earlier, Crl.O.P.Nos.8690 and 12060 of 2017 were filed before this Court. Crl.OP.No.8690 of 2017 was filed to transfer the investigation pending on the file of the Joint Commissioner, HR & CE Department, Mayiladuthurai, Nagapattinam District to the Additional Director General of Police, E.O.W.-Idol Wing CID Police, Guindy, Chennai-32. Crl.OP.No.12060 of 2017 was filed to transfer the cases registered on 07.02.2017 by the Deputy Superintendent of Police one Mr.Ashok Natrajan in Crime No.1 of 2017 from the file of the Idol Theft Wing CID Chennai to the Crime Branch CID for further investigation by a police officer not below the rank of Superintendent of Police with a further direction to lay charge sheet within a stipulated time frame. It was alleged that several ancient idols, jewels, silver articles etc. of the temples in Thanjavur District, worth several crores of rupees have been stolen and smuggled by certain persons, in which some officials of the HR & CE Department have also been involved. Since this is a http://www.judis.nic.in 6 serious and sensitive issue, this Court passed a detailed order on 21.07.2017 in those Criminal Original Petitions, ordering to create a special camp at Tiruchirappalli headed by Mr.A.G.Pon Manickavel, IPS, Inspector General of Police with other members of Idol Wing, who have been associated with him for the completion of the trial of the pending as well as under-investigation cases in the State and to provide necessary assistance to him. Further, the cases pending on the file of various Courts in the State of Tamil Nadu prosecuted by the Idol Wing were directed to be transferred to the file of the learned Additional Chief Judicial Magistrate, Kumbakonam for effective and speedy disposal of the cases. This Court further ordered departmental proceedings to be issued against the erring officials, followed by a series of directions to set right the issue. It was also specifically ordered that the team as ordered by the Court headed by the said Mr.A.G.Pon Manickavel shall continue to follow up those cases in addition to their present and future assignments, wherever they are posted. Thereafter, the idol cases were handled by the team headed by Mr.A.G.Pon Manickavel. The relevant portion of the order discussing the history of temples, the role of the state and the current state of affairs are extracted below:
“9.The State of Tamil Nadu is blessed to have the most ancient temples in the country. The culture and the history of the State goes back to several centuries, when http://www.judis.nic.in 7 many countries that exist in the world and to which the smuggled Idols are sent, were not even born. When other countries were looking for precious metals, the people of this land were wearing them as ornaments.
10.History would reveal that this land was invaded by many to exploit the natural resources and to break the culture, which made them dominate the world in all the fields. Many temples and deities were destroyed and the precious wealths were robbed. Whenever and wherever possible, the main deities were shifted. One such example is the present Kabaleeshwarar Temple, Mylapore, which was shifted from the seashore premises.
11.In contemporary India, it is the fundamental right of every citizen of this Country to profess and practice any religion as guaranteed under Article 25 of the Constitution of India. Idols depict their own history and the civilization of the land. Idol worship has been a part of the culture of this land from time immemorial. It is a matter of belief.
The form of Gods as experienced by the blessed, saints and the rulers were sculpted. The historical Tamil Nadu with most ancient temples in the country has also been subjected to cultural attacks like other parts of the country. For the past several years, a new form of attack is carried out by smuggling the ancient Idols. Foreigners and dis-believers see the Idols as antiques worth only in value, in terms of money, but the people of this country see them in the semblance of god, culture and identity.
12.The HR & CE department is the custodian of most of the temples and the properties including the idols belonging to them. It is their primary duty to protect the http://www.judis.nic.in 8 temples and safeguard the valuable idols/antiques, which, this Court with great anguish, expresses that the department has failed to do. It is startling to find that the HR & CE department with all its income from major temples, has not been able to maintain historical temples and safeguard the Idols, which in market, have antique value based on their age. Some temples in the State have also been recognized by the UNESCO as heritage sites. Many temples constructed at least 1500 years ago or much before the temples recognized by UNESCO, are in ruins. Even the daily rituals are not performed. Some temples remain closed throughout the day with no one to even lighten the lamps. Neither the Archaeology Department nor the HR & CE Department has shown interest to identify and protect them. This has also come to the advantage of the miscreants, who have laid their hands on the Idols.
13.One more important point to be noted is that the department has not computerized the stock, provide adequate ICON Centres with surveillance to keep safe custody of the valuable idols in the Centre and in the temples. This has led to the advantage of the culprits, who have aided in smuggling the Idols out of the country. As the theft of Panchaloka idols worth crores kept on increasing, the Idol Wing, CID was created vide G.O.Ms.No.2098, Home (Police IV) Department, dated 07.10.1983. It is saddening to note that the Idols stolen from the State are smuggled out of the country. A wing, with a first of its kind, was created to investigate and recover the Idols, but, the steps taken by the HR & CE http://www.judis.nic.in 9 department to arrest the theft, are unsatisfactory. It is the duty of the State to protect the monuments including Idols and antiques of historical value.
14.Article 49 of the Constitution of India reads as under:
“Protection of monuments and places and objects of national importance -It shall be the obligation of the State to protect every monument or place or object of artistic or historic interests, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”
15.The Directive Principles of State Policy must be to protect the ancient Idols and thwart all attempts to damage and/or smuggle them. The smuggling of the Idols out of the country cannot take place if proper system is put into place to screen the objects. It also appears that the Idol wing is interacting with the respective departments of the Central Government only to recover the stolen Idols and antiques, but there seems to be no co-ordination between them to curb the crime. The Idols cannot be smuggled, unless there is a mis-declaration, which will warrant action by the DRI and Customs authorities against the Exporter, CHA, etc. This Court has not come across even a single case, where the persons involved in smuggling the Idols out of the country have been independently prosecuted under the Customs Act, 1962 and the Finance Act, 1994 as the act would be per se constitute an independent offence under these Acts. Therefore, this Court is suo-motto impleading the Secretary to the Revenue Department, North Block, New http://www.judis.nic.in 10 Delhi-110001 as 4th respondent in Crl.O.P.No. 12060/2017.”
4.In the very same judgment, the following directions were issued:
“19. ………Also, the officer has been supervising the cases and has efficiently traced and recovered several Idols worth several crores. It is not that the succeeding officer is less efficient, but considering that Mr.A.G.Ponn Manickavel and his team have extensively travelled throughout the country and are aware of the modus operandii of the culpritis. For the sake of continuity, speedy completion of the investigation and completion of the pending cases, this Court is of the view that Mr.A.G.Ponn Manickavel, Inspector General of Police and his team must continue despite the work assigned presently.
20.Under these circumstances, this Court disposes of these Criminal Original Petitions with the following directions:
(i)The Chief Secretary of the State of Tamil Nadu must issue appropriate orders within a week for the creation of a special camp at Tiruchirappalli headed by Mr.A.G.Ponn Manickavel, IPS, Inspector General of Police with other members of Idol wing, who associated him earlier for the completion of trial in the pending cases in the State and needless to say that necessary infrastructure, staff and transportation, vehicle, fuel etc. from time to time are to be provided. The said officer can http://www.judis.nic.in 11 place his representation immediately intimating required assistance and the team members required by him to the Chief Secretary and on such representation, the same shall be provided forthwith.
(ii)The cases pending on the file of various courts in the State of Tamil Nadu prosecuted by the Idol wing are hereby transferred to the file of the learned Additional Chief Judicial Magistrate, Kumbakonam for effective and speedy disposal of the cases, on day today basis.
(iii)The Inspector General of Police Mr.A.G.Ponn Manickavel, IPS and all the officers of the cases connected with Idol wing, CID are directed to continue to investigate and follow up all the cases under investigation, pending trial, till the disposal by the learned Additional Chief Judicial Magistrate, Kumbakonam.
(iv)The team as now ordered by this Court headed by the Inspector General of Police Mr.A.G.Ponn Manickavel, IPS, shall continue to follow up those cases in addition to their present and future assignments, wherever they are posted.
(v)The District Collector of Thanjavur must ensure that proper facilities for stay and transportation are provided to the Assistant Public Prosecutors during the trial at Kumbakonam.
(vi)The details of the cases, wherein, the Idols have been smuggled out of the country, must be sent to the impleaded respondent, so as to enable him to issue appropriate directions for initiation of cases under the Customs Act, 1962.
http://www.judis.nic.in 12
(vii)The impleaded 4th respondent in Crl.O.P.No. 12060/2017 is hereby directed to submit a report, as to whether the packages/parcels sent out of the country, can be screened to prevent smuggling of Idols /antiques and any other preventive measures that can be taken.
(viii)The Commissioner of HR & CE department must submit a report of number of temples under the HR & CE department and the list of archakars employed under them and assigned to each temple to the Inspector General of Police. If an archakar/Executive Officer is assigned to more than one temple to maintain the Idols, the report must specifically state so.
(ix)...
(x)If the role of the delinquent officials and others, are prima facie made out, necessary sanction must be obtained forthwith from the appropriate authority and they must be prosecuted.
(xi) to (xii)...
(xiii)The Idols kept in the tunnel at Annakarai and in the PWD Guest House must be moved to the nearest ICON Centre within two weeks, if not already moved.
(xiv)The competent respondent must submit a report to this Court with list of Idols per ICON Centre and about the requirement of the additional ICON Centres.
(xv)The stock of Idols maintained in the manual books in the State, must be computerised within a period of four weeks, if not already computerised.
(xvi)Similarly, a list of stock of Idols in the temples must be computerized and the same must be reported to this court.
http://www.judis.nic.in 13 (xvii)All temples in the State must have a strong room, where the Idols are kept and appropriate security arrangement including 24x7 video surveillance with alarm, must be made in consultation with the team appointed by this court.
(xviii)The existing ICON Centres must be put under 24x7 video surveillance with alarm, to avoid theft and to keep track of the Idols taken for daily poojas and festivals.
(xix)The Commissioner of Archaeological Department, Chennai must periodically depute a team of officials to verify the Idols at the ICON Centers and in temples to identify any replacement and theft.
(xx)The directions issued to all the respondents above must be complied in time and a compliance report must be filed before this Court.”
5.The above order was challenged before the Hon’ble Supreme Court in Special Leave to Appeal (Crl) Nos.6139-6140/2017 and the Hon’ble Apex Court refused to interfere with such appointment. In the meantime, Mr.A.G.Pon Manickavel, I.P.S, taking up his responsibility as the Officer in-charge of the ‘High Court Appointed Team' continued his investigation and was instrumental in recovering many idols. In the process, he had arrested many officers who had either aided in the theft or in concealing the theft. The arrested include not only the officers from his own Police Department but also high ranked officers from the HR & CE Department and politically influenced persons. This http://www.judis.nic.in 14 apparently led to the wrath of the Government in transferring a case relating to theft of gold in making the Moolavar idol of Palani Thandayudhapani on technicalities and posting him as the Inspector General of Police of the Railways. The actions came to be the point of discussion in Crl.O.P.(MD)Nos.6778 and 6779 of 2018, wherein the Madurai Bench of this Court directed that he should be permitted to continue as the Head of the Idol Wing-CID and after detailed discussions, G.R.Swaminathan, J. has in his order dated 26.04.2018, held as under:
“20.This Court before pronouncing the order it indicates that it will direct that the investigation shall be conducted only by the Idol Wing headed by Thiru A.G.Ponn Manickavel, IPS. The counsel for the accused raised their reservations. They pointed out that the case on hand is not one of idol theft and that therefore, it would not be competent for the Idol Wing to pursue the investigation. This Court had made it clear to the counsel for the petitioners that the accused will have absolutely no say as to how the investigation will be conducted or as to who will conduct the investigation. The fact that the counsel for the petitioners initially raised objections itself vindicates the decision of this Court to re-transfer the investigation to the hands of Thiru.A.G.Ponn Manickavel, IPS.
21.This Court can take judicial notice of certain developments. Till Thiru.A.G.Ponn Manickavel, IPS was made in charge of the Idol Wing no one even know the existence of such a branch. It is a heart rending fact that http://www.judis.nic.in 15 so many antique idols had been stolen or unlawfully removed from the temples of Tamil Nadu. A valuable part of our priceless heritage has been lost and carried away and they are in foreign galleries or private collections of foreigners. Thiru.Ponn Manickavel, IPS has been taking earnest steps in this regard to bring them back. His zeal for work is well known. He pursues any matter with extraordinary passion and commitment. That is why when the Hon'ble High Court of Madras passed an order on 21.07.2017 constituting Thiru.A.G.Ponn Manickavel, IPS., as the over-all supervisory officer notwithstanding the future assignments that may come his away. In other words, this Court had reposed its utmost faith and confidence in this officer. It does not mean that there are no other officers who are equal to him in capacity or integrity. But, Shri.Ponn Manickavel, IPS can be called as a specialist. When the Government challenged the order passed by the Principal Bench of this Court, the Hon'ble Supreme Court refused to interfere.
22.This Court is of the view that the job of the Idol Wing CID should not only to crack cases of idol theft but also ensure that theft of idols do not take place. Viewed from this perspective, this Court can hold that the case on hand does fall within the province of Idol Wing CID, Chennai. This is because it is stated that there was a conspiracy to remove the Moolavar idol itself. Normally, the transfer of investigation is made only when the investigation does not proceed on the right lines. If the complainant has lost confidence in the investigation, then, http://www.judis.nic.in 16 again, under certain circumstances, this Court directs transfer of investigation.
23.Taking judicial notice of the fact that Thiru.A.G. Ponn Manickavel, IPS is doing a remarkable job in tracking cases of idol theft, this Court exercising its inherent jurisdiction directs the transfer of investigation back to Idol Wing CID, Chennai from CBCID. In this case, transfer order was passed when the investigation was at a very nascent stage.
24.This Court is of the view that the case on hand must be investigated with vigour, efficiency and promptitude. It is not one more criminal case. It has a considerable bearing on the sentiments of the people of Tamil Nadu. There is a great public interest in the matter.
These circumstances have impelled this Court to exercise its inherent jurisdiction under Section 482 of Cr.PC. Hence, this Court directs that the investigation in Crime No.1 of 2018 registered on the file of Idol Wing – CID, Chennai shall continue to be investigated only by the very same agency, namely, Idol Wing CID, Chennai under the supervision of Thiru.A.G.Ponn Manickavel, the Inspector General of Police, Railways i/c Idol Wing CID, Chennai.
6.In these circumstances, the Government of Tamil Nadu has passed the Government Order impugned in the present writ petitions, transferring all the idol theft cases being investigated by the High Court appointed team to the Central Bureau of Investigation. http://www.judis.nic.in 17 The pleadings of the parties:-
7.Counter affidavit has been filed on behalf of the respondents 1, 2, 5 and 12, in which it is stated that the order of the Hon'ble Supreme Court affirming the order passed by this Court in the above Criminal Original Petitions was on the limited grounds of transfer of the cases handled by the said Officer. It is stated that the State Government is under an obligation to ensure fair investigation and it has only discharged its duty by transferring the investigation to CBI. It is also stated that it is incorrect to state that the State Government made an allegation that the said Officer is not disclosing the details of the investigation to the members of the political executive. It is further stated that a writ petition cannot be doubled up as a criminal complaint as well and even assuming that the said Officer has gathered enough materials to nab two powerful and influential persons, it is strange to witness the petitioners being aware of the details of the said investigation. The Officer had also failed to attend the review meetings of Additional Director General of Police, Economic Offences Wing, on some pretext informing inability to attend the meeting at the eleventh hour, which enabled the Additional Director General of Police to address the Director General of Police, Tamil Nadu on 11.06.2018 seeking advise on the course of action and responsibilities and functions of the Additional Director General of Police, Economic Offences Wing, in monitoring and reviewing the http://www.judis.nic.in 18 performance of the Inspector General of Police, Idol Wing. It is stated that there is no special reason or latent consideration and it is completely in pursuance of the reasoned exercise of executive powers on administrative matters which arose on the well considered and explained grounds of action. It is emphasized that there is a line of well recognized difference between statutory delegation of powers through subordinate legislation and judicial rule making, the former occupying the field in this consideration alone; the idol wing CID cannot effectively function as per the directions given by this Court in the Criminal Original Petitions, and the real investigative powers and authority is derived from the Government Order in G.O.Ms.No.2098, Home (Pol-IV) Department, dated 07.10.1983. Finally, it is stated in the counter that this Court cannot interfere in policy decisions and the policy discretion would accommodate wide ranging administrative actions on the implementation and the preferences therein, and that this Court cannot assume control over implementation and micro manage the entire process itself, since that would be without jurisdiction.
8.A counter affidavit has been filed on behalf of the eleventh respondent in W.P.No.20392 of 2018, in which it is stated that the eleventh respondent is not in any way connected with either the order of the Government or the challenge of the same by the petitioner. The http://www.judis.nic.in 19 party-in-person has impleaded the eleventh respondent as a respondent, with ulterior motives. It is also stated that the averments against the eleventh respondent in the form of innuendo is impermissible in a writ proceeding where the averments must also be supported by documentary proof. It is stated that the eleventh respondent has spent substantial sums of money towards renovation and kumbabishekam of Sri Ranganatha Swamy Temple, Srirangam and the said monies spent, are on his own. It is stated that the eleventh respondent is the Chairman of the company which controls Sundaram-Clayton and TVS Motor companies and only in his personal capacity and on behalf of a Trust controlled by his family, he had so far undertaken and successfully completed renovation and restoration of over 100 temples all over Tamil Nadu, Karnataka, Andhra Pradesh and Kerala between the years 1992 to 2017 and for the said purpose, he has spent substantial sums, proposing to spend much more in the coming years.
9.Reply affidavit has been filed by the petitioner in W.P.No.20392 of 2018, in which the letter of the CBI dated 19.09.2018 addressed to its counsel has been extracted. In the said communication, it is stated that 'when the matter comes up for hearing, it may be stated that considering the large number of idol theft cases pending in various stages and also the future idol theft http://www.judis.nic.in 20 cases likely to come up, and considering the severe shortage of manpower, CBI will extend its full cooperation and support in the matters of extradition of accused, issue of Red Corner Notices and coordinating with Interpol, etc., to the Special Investigation Team, which is already investigating the Idol Theft cases'. Thus, the stand of CBI is that they will only extend all possible help to the special team headed by Mr.A.G.Pon Manickavel, according to the counter affidavit. It is also stated by the petitioner that the action of the Government transferring the investigation to CBI even when the matter is pending before this Court, amounts to contempt of Court. It is also stated that as per the impugned Government order, the case relating to Palani Thandayudhapani Temple was also taken away from A.G.Pon Manickavel, which is in violation of the order dated 26.04.2018 passed in Crl.OP.(MD)Nos. 6778 and 6779 of 2018. Finally, it is stated that while passing the said Government Order, the Government have stated that they need the help of CBI to investigate the cases thereby accepting the fact that the State Government and the State Police are not in a position to handle the cases effectively.
10.Similarly, a rejoinder affidavit has been filed by the petitioner in W.P.No.20963 of 2018, in which it is stated that what could not be achieved from the Hon'ble Supreme Court against the order of this Court dated 21.07.2017 in Crl.OP.Nos.8690 and 12060 of 2017 has http://www.judis.nic.in 21 been achieved by simply passing the impugned Government order by the Government. For transferring all investigations against idol thefts, the phrase 'Policy Decision' is used and the said phrase has become a gospel word to escape from judicial scrutiny. It is further stated that in public mind, it is felt that investigation against higher officials and influential personalities who have involved in the crime, resulted in passing of the impugned order. In an identical case of idol theft referred to CBI, the CBI Court, Delhi, imposed a fine of Rs.10,000/- against the Director of CBI for lethargic investigation of the case by him for 37 years. Thus, it is stated that even the CBI has to be investigated with all seriousness by highly competent, professional and impartial agency.
The submissions of the parties:-
11.Mr.Elephant G.Rajendran, an advocate and a public interest activist who appeared as party-in-person in W.P.No.20392 of 2018 has submitted that the order passed by this Court in the above Criminal Original Petitions has been confirmed by the Hon'ble Supreme Court in SLP(Civil)Nos.6139 to 6140 of 2017 by order dated 01.09.2017. He submitted that there were many attempts to derail the investigation by the Special Team headed by the sixth respondent, but however, this Court was pleased to ensure that the Court-monitored investigation is carried on without any interference. It is his http://www.judis.nic.in 22 submission that the Government of Tamil Nadu wants to control the investigation of the cases to save the senior political persons, high ranking officials, police officials and highly connected and influential persons like the eleventh respondent. It is also submitted that the impugned order has been passed by the Government to avoid Contempt Proceedings in Crl.OP.No.12060 of 2017. The reason given in the impugned order for transfer of investigation is only a ruse; it is intended to remove the sixth respondent and to prevent him from discharging his duties and to ensure that senior ministers and others involved in the cases are protected. He also submitted that the Police Officer Mr.A.G.Pon Manickavel would be attaining superannuation on 30.11.2018 and the State would decide to withdraw the impugned Government Order after his retirement.
12.The learned counsel for the petitioner in W.P.No.20963 of 2018 has submitted that the sixth respondent in W.P.No.20392 of 2018 is a genuine IPS officer, who has unearthed several grave thefts and misappropriation of gold and cash, which have been welcomed by the general public and judiciary. The influential group, which did not like him to continue the investigation, has gone to the extent of approaching the Hon'ble Supreme Court against the order passed by this Court in the above Criminal Original Petitions directing investigation by the sixth respondent in http://www.judis.nic.in 23 W.P.No.20392 of 2018, but however, the Hon'ble Supreme Court upheld the order passed by this Court. In these circumstances, the Government had taken an ill-motivated tricky step to avoid investigation by the above said Police Officer, whose delegation of duty has been appreciated by the Hon'ble Supreme Court. The only repeated sentence found in the impugned order is that the Investigation Team requires pro-active involvement of various Central Government agencies. Of course, it is true that the cases require the assistance of various Central Government agencies, but without delegating the investigation to CBI or any agency, such investigations have ended in convictions. The learned counsel has referred to one such incident in which the accused therein, viz. Sankaralingam was arrested at Trivandrum Airport, while returning from Kuwait by an ordinary team of Tamil Nadu Police belonging to Thiruverambur Police Station. The learned counsel has submitted that the general public would lose their confidence over the investigation of idol theft cases, if the officer is transferred. He also submitted that he witnessed an interview in a television channel with the concerned Minister, who accused the Special Team stating that the investigating Police Officer should adopt a soft approach with the accused in order to recover the stolen idols and only then the idols could be traced. Stating so, the learned counsel submitted that how the Government can expect the said Mr.A.G.Pon Manickavel, Head of the Investigation Team, to be http://www.judis.nic.in 24 very open in his findings, when he is required to deal the issue independently, which is very sensitive in nature.
13.With the above submissions, it has been prayed to quash the impugned order passed by the Government of Tamil Nadu with appropriate directions.
14.Reiterating the submissions made in the counter affidavit filed on behalf of the respondents 1, 2, 5 and 12, Mr.Vijay Narayan, learned Advocate General and Mr.P.H.Arvind Pandian, Additional Advocate General assisted by Mr.V.Jayaprakash Narayanan, Government Pleader, have submitted that the State Government is under an obligation to ensure fair investigation and it has only discharged its duty by transferring the investigation to CBI. It is submitted that no attention was paid by the said Police Officer for more than a year in spite of reminders for sending clarifications/ comments on the note verbale of the Germany Foreign Office as requested by the Government and Ministry of Home Affairs regarding cases in which a foreign national was extradited and imprisoned for the past six years. The Police Officer had also failed to attend the review meetings of Additional Director General of Police, Economic Offences Wing, on some pretext informing inability to attend the meeting at the eleventh hour. They have also submitted that there is http://www.judis.nic.in 25 no special reason for transferring the case and it is completely in pursuance of the reasoned exercise of executive powers on administrative matters which arose on the well considered and explained grounds of action. Stating so, they prayed for dismissing this writ petition.
15.Mr.A.G.Pon Manickavel, the sixth respondent in W.P.No.20392 of 2018 has submitted that after the formation of the Idol Wing pursuant to the orders passed by this Court, in respect of the period between October 2017 and October 2018, 14 cases have been registered and 47 accused have been arrested; 19 idols have been recovered including 2 idols located at NGA, Canberra. He also submitted that the seizure and recovery in respect of stolen idols made by him, is 1125. Such a commendable achievement has been done by the Idol Team and the same should not be under-estimated by way of transferring the cases to CBI.
16.Mr.G.Rajagopalan, learned Additional Solicitor General of India appearing for the respondents 7 and 8 has submitted that the CBI or the Central Government has not been consulted with regard to feasibility of taking up the investigation before issuing the Government Order and that only after receipt of the specific response from the CBI regarding feasibility of taking over the investigation, the matter would http://www.judis.nic.in 26 be placed before the competent authority for a decision and a notification would be issued for investigation of the case by CBI. If the CBI is not agreeing for investigation, the request of the State would be rejected, according to the learned Additional Solicitor General.
17.Mr.K.Srinivasan, learned counsel for the ninth and tenth respondents, expressed the stand of the CBI that CBI for shortage of manpower and considering the number of cases, is not inclined to accept the investigation and that the CBI would extend its fullest assistance and co-operation in extradiction, Red Corner Notice, etc to the special team functioning now, thereby also vindicating the special team appointed by this court.
18.Mr.B.Kumar, learned senior counsel appearing for the eleventh respondent in W.P.No.20392 of 2018, reiterated the submissions made in the counter affidavit filed on behalf of the eleventh respondent and submitted that the eleventh respondent is in no way connected or responsible for the theft of idols and he spends substantial sums out of his pocket, for renovation and kumbabishekam of various temples in the State.
19. W.M.P.No.24797 of 2018 has been filed in W.P.No.20392 of 2018 by one K.Arut Selvan, Secretary of the Tamil Nadu Temple Executive Officers Federation, Chennai and one Kamaraj, to implead http://www.judis.nic.in 27 them as the respondents in the writ petition. Mr.V.Raghavachari, learned counsel appearing for the petitioners in this petition has submitted that the proposed parties are aggrieved by the indiscreet action exercised by the sixth respondent seeking to harass, threaten, intimidate and all other acts, which are not within the scope of any civilised investigation. He submitted that the first petitioner in this petition is the Executive Officer of Arulmigu Pasupatheeswarar Temple, Pandhanallur. The first petitioner felt that the idols should be secured and safely maintained and hence, he secured a safe room with a new door and locking system and installed a CCTV to monitor the valuables and an alarm to caution the public. While so, a complaint was lodged against him by one Venkataraman claiming that idols were missing. A petition in Crl.OP.No.8690 of 2017 was also filed seeking for transfer of investigation to any other competent body. He further submitted that the said Venkataraman had moved the Court on 24.04.2017 without even making the first petitioner as a party and certain allegations have been made behind his back and orders were sought to be secured.
20.W.M.P.No.27441 of 2018 has been filed by one R.Sudarshan, President of HR & CE Gazetted Officers Association, Office of the Commissioner, HR & CE Administration Department, Nungambakkam, Chennai, seeking to implead himself as a party respondent in http://www.judis.nic.in 28 W.P.No.20392 of 2018. Mr.N.G.R.Prasad, learned counsel for the petitioner in this miscellaneous petition, has submitted that after the Government Order in G.O.Ms.No.885 dated 01.08.2018 has been passed, the petitioner in the writ petition has opposed transfer of the cases to CBI and wants the matter to be dealt with by the sixth respondent in the writ petition. He further submitted that the investigating Police Officer, Mr.A.G.Pon Manickavel, instead of tracking down the culprits behind the theft of idols, is proceeding arbitrarily against the innocent officers of the HR & CE Department, who are also keen to protect the interest of the temples.
21.W.M.P.No.24803/2018 has been filed by one R.Venkataraman, to implead him as one of the party respondent in W.P.No.20392 of 2018. He appeared in person before this Court and submitted that the performance of the investigating Police Officer Mr.A.G.Pon Manickavel in nabbing the culprits is highly commendable and that G.O.Ms.No.885 dated 01.08.2018 has been passed by the Government only to derail the investigation being conducted by the said Police Officer. Apart from the prayer for impleading him as a party respondent in the writ petition, it has been prayed to grant stay of the Government Order in G.O.Ms.No.885.
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22.W.M.P.No.24797 of 2018 has been filed by two persons, seeking to implead them as the respondents in the writ petition, on the ground that they have been aggrieved by the indiscreet action exercised by the sixth respondent.
23.During the course of hearing, a copy of the letter issued by the Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, New Delhi, dated 24.09.2018 addressed to the Additional Solicitor General of India, has been produced, in which it is stated that the CBI is consulted regarding feasibility of taking up the investigation. It is further stated that after receipt of the specific response of the CBI regarding feasibility of taking over the investigation, the matter would be placed before the competent authority for a decision and a notification would be issued for investigation of the case by CBI, or otherwise, the request of the State would be regretted. A copy of the letter issued by the Government of Tamil Nadu in Letter No.HSC4/255-7/2018 Home (SC) Department dated 15.11.2018 to the Secretary to Government of India, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, New Delhi, has also been placed before us, wherein the State Government has enclosed the copies of First Information Reports and other related records, requesting to issue notification under Section 5 of the Delhi Special Police http://www.judis.nic.in 30 Establishment Act, 1946 and necessary further orders for taking over of the cases by the CBI.
24. When the writ petition in W.P.No.20392 of 2018 was taken up on 07.08.2018, considering the facts and circumstances of the case, this Court thought it fit to grant interim stay of the impugned order.
25.Heard the learned counsel appearing on either side and perused the materials available on record carefully and meticulously. The Analysis:-
26.The land of Tamil Nadu has its own, rich cultural heritage. It has more thousands of ancient temples of which most temples are under the control of the HR & CE Department. Some temples date back to more than 1000 years. Each temple is bestowed with not only gold ornaments but also with idols, which are symbolized as the deities. The history of idol worship has been in existence from time immemorial. It is believed that the idols are embodiment of the deities. The idols, because of continuous worship by precise following of agamas and chanting of mantras and sacred hymns also vibrate positive energy. There is an old saying that one must not habitate in a place where is there is no temple. This method of idol worship has http://www.judis.nic.in 31 been protected by our Constitution. The believers see their deity in the idols. The State of Tamil Nadu is blessed to have the most ancient temples in the country. The culture and the history of the State goes back to several centuries. This land was invaded by many to exploit the natural resources and to break the culture. Many temples and deities were destroyed and precious metals were robbed. The HR & CE Department is the custodian of most of the temples and the properties including the idols belonging to them. It is their primordial duty to protect the temples and safeguard the valuable idols / antiques, but with great anguish, this Court would only say that the Department has failed to do so. First of all, a proper inventory of the statues and idols available in all the temples in the State has to be maintained by computerising the same, so that any theft can be easily identified and tracked. In the cases on hand, it is seen that the erring officials have had a free hand in handling the idols.
27.Taking note of the entire situation and also the fact that many posts in the Idol Wing remained unfilled and no actions have been taken to nab the culprits and also for speedy completion of investigation, this Court passed the order dated 21.07.2017 in Crl.OP.Nos.8690 and 12060 of 2017 entrusting the investigation to Mr.A.G.Pon Manickavel, Inspector General of Police, to investigate into the idol theft cases. Many directions were issued to ensure proper http://www.judis.nic.in 32 coordination, provision of required personnel, provision of proper facilities and all other aspects needed to complete the pending idol theft cases. It was also ordered that the said Police Officer and his team shall continue to follow up those cases in addition to their present and future assignments, wherever they are posted. Directions have been issued to put the ICON Centres, where the idols are kept, under 24x7 video surveillance with alarm to avoid theft and to keep track of the idols taken for daily poojas and festivals.
28.The above order has been passed taking note of the alarming situation in the State as regards idol theft. This Court feels that those directions are very much necessary in order to nab the culprits and to set right the issue and this Court has no second opinion over the same.
29.But, subsequently, the Government of Tamil Nadu has issued the impugned Government Order in G.O.Ms.No.885 of 2018 dated 01.08.2018, transferring the idol theft cases to CBI. It is pertinent to mention here that in the order dated 21.07.2017 in Crl.O.P.Nos.8690 and 12060 of 2017, this Court had specifically directed that a Special Camp under the head of Mr.A.G.Pon Manickavel was to be constituted, though which the State did, but never complied with all the conditions. While so, the State cannot remove him from leading the “High Court http://www.judis.nic.in 33 Appointed Team” without the concurrence of this Court, that too after the dismissal of the SLP filed by the State.
30.While so, in view of the fair and impartial investigation, which has led him to startling revelations and recoveries forcing him to enquire about various famous personalities, he again faced the wrath of the State and also from his superior officers, who directly or indirectly had been trying to sneak into the investigation. The above facts were placed periodically before this Court by the officer himself and also by the learned Additional Advocate General, which have been placed on record. It was submitted on behalf of the State that the officer is not revealing his course of action to his superior officers and an application was also filed before this Court to that effect. However, when allegations were made that he was bound to submit reports of course of action taken, Mr.A.G.Pon Manickavel submitted before this Court that there has never been any insubordination and also furnished the copies of e-mails sent by him running to several hundred pages, informing about the action taken by him. He also submitted that the investigation report and other statements can be submitted only before the Court of law and only intimation can be given to the Additional Director General of Police. This Court finds force in his submission and accepts the same. As an officer appointed by this Court, he is liable to submit the report only to this Court. Needless to say that an investigating officer or his team is not expected to reveal http://www.judis.nic.in 34 their course of action to any one until the task is completed. If such a procedure is adopted, it would not only defeat the free, fair and impartial investigation but also defeats the very purpose of investigation in sensitive cases. Therefore the demand of the State and the superior officers to disclose the names of the suspects/alleged offenders in pending investigation cases is not only unwarranted but also untenable. Such a disclosure will not only cause impediments in the investigation but may also facilitate the offenders to flee. All these demands for disclosure have arose only after impartial arrests were made by Mr.A.G.Pon Manickavel, I.P.S. and his team.
31.The need has arose or in other words, the Additional Director General of Police of the Economic Offences Wing supposes jurisdiction over the idol wing as it was created in 1983 under the EOW Department. Much water has flown subsequently, wherein the constitution was upgraded to be headed by a Superintendent of Police and later by Inspection General of Police. However, after the orders of this Court on 21.07.2017, the control of the Additional Director General of Police of the Economic Offences Wing with unfettered power ceased to exist.
The Findings:-
32.Under the above circumstances, the Government has come up with the impugned Government order, whereby all the cases http://www.judis.nic.in 35 pending and future cases have been transferred to the Central Bureau of Investigation. The basis to take such a decision according to the Government is that the investigation leads to several States and at times to even foreign countries, which require the assistance of the Central Government, to ensure free and impartial trial and reposing the faith of this Court in the investigation. This contention according to us, is not only irrational but also arbitrary for the following reasons:
(a)The Idol Wing of the State has been in vogue since 1983. The officials of the Wing had travelled extensively through out India and to foreign countries without any difficulty and have secured the idols.
(b)The provisions of various enactments, to name a few, the Criminal Procedure Code, the Indian Penal Code, the Antiques and Art Treasures Act, 1972, the Customs Act and the Extradition Act, applicable through out India are exhaustive enough to cover any contingencies and facilitate any Investigation Agency of the State to conduct unfettered investigation through out the territory of India.
(c)The primary scene of occurrence of theft is within the State where the temples are located, thereby vesting the right to State agency to primarily investigate the offence.
(d)The Idol Wing of the State has so far secured 10 idols from foreign soil. Pertinent is the fact that the team headed by Mr.A.G.Pon Manickavel, I.P.S. has been instrumental in securing 8 of the said idols. Even recently, idols were recovered from America and http://www.judis.nic.in 36 Australia.
(e)This Court has already reposed its confidence and trust in Mr.A.G.Pon Manickavel and appointed him as the officer in charge of the ‘High Court Appointed Team’, which was affirmed by the Hon’ble Supreme Court by judgment made in SLP(Civil)Nos.6139 to 6140 of 2017 dated 01.09.2017. Pertinent to mention here that the confidence and trust has not diminished even at the atomic level.
(f)Neither the concurrence of this Court nor that of the CBI was obtained before the notification of the Government Order, which has not only resulted in transgression of the judicial order but also led to the refusal of the CBI to take up the case.
(g)The CBI has submitted a report stating that they are facing shortage of manpower and can only to guide and co-operate with the existing Special Investigating team, i.e., the team appointed by this Court and headed by Mr.A.G.Pon Manickavel, I.P.S. at all stages, if required.
(h)The entire process followed in the issuance of the Government order is illegal. The decision seems to have been taken by four officials and not by the Government, within a day, for reasons which would not require an investigation by the CBI or any central agency. Strangely and illegally, the genesis of the so-called policy decision has flown from the Office of the then Commissioner of HR & CE Department namely Mrs.Jaya, who seems to be unjustifiably http://www.judis.nic.in 37 unhappy because of the action taken by the team appointed by this Court and who was pulled up by this Court for non-cooperation.
(i) The entire exercise of taking the decision and issuing the impugned Government order has fallen into place within a single day.
On 31.07.2018, a letter was addressed by the Commissioner of the HR & CE Department. The language and tenor of the letter would reflect that she was unhappy with the fact that action was taken against some officials of her Department; that documents were sought from her Department. Alleging damage to the reputation of the Department and instilling fear that the investigation may not be fair and impartial, she wanted the Director General of Police to take some action. The pinnacle of her grievance was the arrest of the Additional Commissioner, namely, Mrs.Kavitha. The letter according to this Court is ill-founded and more as a result of an ego clash. Reading between the lines, the Commissioner did not want any action to be taken against the erred officials of her Department. On the same day, i.e on 31.07.2018, with the endorsement of the Director General of Police, the letter was forwarded to the Additional Director General of Police, EOW through Additional Director General of Police (L&O). Referring to the letter of the Commissioner and the endorsement of the Director General of Police and referring in the subject as team headed by the Tr.A.G.Pon Manickavel as Special Team appointed by this Court, a letter was addressed to the Director General of Police inter alia stating http://www.judis.nic.in 38 about the apprehensions of the HR & CE Department, reports in newspapers regarding the opinion of this Court, non-cooperation by the HR & CE Department and the Government to the investigation, involvement of central agencies in case the idols are traced to foreign countries and to win the confidence of this Court and public at large, he has recommended for the transfer of the investigation from the team appointed by this Court to CBI, and by also referring to the team headed by Mr.A.G.Pon Manickavel as the Special Team appointed by this Court, concurred with the views of the Additional Director General of Police, EOW and requested for early orders of the Government, subject to any orders that may be necessary to be obtained from this Court. Though the letter is dated 31.07.2018, it was signed on 01.08.2018 by the Director General of Police and forwarded to the Additional Chief Secretary to the Government of Tamil Nadu. On 01.08.2018, a letter has been addressed by the Additional Chief Secretary to the learned Additional Advocate General in the same lines, agreeing with the proposal and also placing a request to the learned Additional Advocate General to appraise the same to this Court, when the cases are taken up for hearing. On the same day a letter dated 01.08.2018 was addressed by the learned Additional Advocate General stating that the information has been passed on to this Court, which had asked all the materials placed before this Court in the next hearing date. Thereafter, without furnishing the details to http://www.judis.nic.in 39 this court the impugned G.O No 885 came to be passed on the same day i.e 01.08.2018, wherein all the cases investigated by the Special Team and all future cases were ordered to be transferred to CBI under Section 6 of the Delhi Special Police Establishment Act, 1946. This Court never gave permission to the Government to pass the Government order or in other words, without the concurrence of this Court, which constituted the special team, which is also referred as so in all the above communications, the impugned Government Order ought not to have been passed. This Court is of the view that the action of the officials involved warrants initiation of suo motu contempt action, but is refraining to resort to such action at present. Also, the reports in the media and presumptions cannot be the grounds for transferring the case to CBI. Also, recording that the officials and the Government are not co-operating, instead of requesting all the concerned to co-operate, a recommendation is made to the Government itself to transfer the case to CBI.
(j) One of the reasons given in the Government order is that the decision is taken to win the confidence of this Court. This Court only appointed Mr.A.G.Pon Manickavel and constituted the Special Team. This Court never expressed anything at any stage against the officer. Whileso, it is not for the four officers to take a decision to transfer the case, without the concurrence of this Court. It is pertinent to mention here that not a single allegation is made against the officer in the http://www.judis.nic.in 40 letters addressed by the Additional Director General of Police, Director General of Police or the Additional Chief Secretary on 01.08.2018. This Court also under the circumstances referred above, is constrained to read the words “public at large” referred in the above letters as only “vested parties”. On the one hand the different wings of the Government cannot refuse to co-operate and on the other hand citing the same as a reason, the investigation cannot be transferred.
(k) Though it has been contended that no attention was paid by the said Police Officer for more than a year in spite of reminders for sending clarifications / comments regarding cases in which a foreign national was extradited, a perusal of the letters dated 31.07.2018 and 01.08.2018 does not even mention about the above facts. Further, it has been brought to the knowledge of this Court that the person extradited is an accused in many cases and is the master mind behind the idol thefts and smuggling of the same to foreign countries.
(l) The primary aim of investigation is to render justice. Such an investigation is possible only when an authority heading the investigation is not only knowledgeable but also independent, fair, impartial and honest. It is only when the state agency is either incapable of investigation or when the investigation is influenced or tainted or biased or to ensure that justice has to be done, the question of transfer of investigation to CBI would arise. In the present cases, unable to exert any influence on the officer or his team, the files have http://www.judis.nic.in 41 been directed to be transferred to CBI, demeaning also the character of CBI. Mere apprehension cannot be a ground for transfer.
(m) It is only after the Notification is issued under Section 5 of the Delhi Special Police Establishment Act, 1946, the consent of the State is required. Here, without even any discussion with the State and in violation of the orders of this Court, the impugned Government order has been issued and thereafter, the State is running behind the Central Government and the CBI for appropriate notifications. Even if the Government order is treated as consent under Section 6, it becomes redundant in the absence of the notification of the Central Government and refusal by the CBI.
(n) The cases are now being monitored by this Court, which is appraised of the developments and the action taken by the team. The action by Mr.A.G.Pon Manickavel, I.P.S or his team cannot be termed as tainted or biased. It is also pertinent to mention here that whenever Final Reports are filed before the Magistrate, powers under Section 178(3) Cr.PC. can also be exercised to order re-investigation. But, such an event has not occurred so far at the instance of the Magistrate, which reflects the thorough investigation carried out by the present team. The transfer of the cases to CBI is to be undertaken in rare and exceptional cases. This Court is of the view that this is not the appropriate case and stage for the Government to effect such transfer.
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(o) The State cannot resort to colourable exercise of power under the guise of policy decision, which is well within the scope of judicial review of this Court.
Therefore, concurring with the contentions of the counsels assailing the impugned order and terming the consideration for such a decision as unreasonable, mala fide, irrational, arbitrary and transgression of the judicial orders, this Court is constrained to quash the impugned G.O.Ms.No.885 dated 01.08.2018 and accordingly it is quashed.
33.In so far as the contentions of the impleading parties, since this Court has already quashed the Government Order for the reasons stated above, the impleading petition of Mr.R.Venkataraman in WMP.No.24803 of 2018 is closed. Further, this Court is of the opinion that an accused cannot demand that an investigation must be done by a specific officer or agency. Also, the apprehension of the Association is also only on presumptions. The special team has on many occasions submitted that only if there is incriminating material implicating the accused in the offence, the accused will be secured and at all times after the orders of the constitution of special team was passed, reports have been filed before this Court. We have already expressed our satisfaction and faith in the investigation by the Special Team. The impleading application in W.M.P.No.27441 of 2018 has been filed on http://www.judis.nic.in 43 the ground that the sixth respondent in the writ petition is proceeding arbitrarily against the innocent officers of the HR & CE Department, who are also keen to protect the interest of the temples. This writ petition has been filed to quash the impugned Government Order transferring the investigations of the Idol Theft cases from the sixth respondent to CBI and it is in no way connected with the challenge of the action exercised by the said Officer while discharging his duties, for which the impleading parties have some other remedy. This Court will always protect the interest of the every individual, as and when situation warrants and as such, the apprehension expressed by the impleading petitioners shall not be gone into in detail. Therefore, this Court finds it appropriate to close these impleading applications and accordingly, the same are closed.
34.After the arguments were heard, an affidavit was filed by Mr.A.G.Pon Manickavel, I.P.S on 27.11.2018 alleging that based on frivolous and anonymous petitions, an enquiry is being conducted to demoralise his team investigating the idol theft cases, in which many VIP’s have been accused. Even earlier, during the earliest of hearings, when it was mentioned before this Court about such conduct of the Police Department, the learned Additional Advocate General fairly submitted that the only blemish on the part of the officer is that he has not submitted the reports to the Additional Director General of http://www.judis.nic.in 44 Police and that apart there are no allegations against him. Since, the deliberations on an alleged enquiry continued to create apprehensions in the mind of the investigating team, on 25.10.2018, this Court orally directed that without placing the materials before this Court and without the concurrence of this Court, no action must be taken. As an affidavit was filed on 27.11.2018, again a direction in similar lines was issued by us on 27.11.2018 to place any materials if available before this Court. However, till date no such materials have been placed before us. Nothing is also referred to in the letters dated 01.08.2018 of the Additional Director General of Police, EOW and the Director General of Police. No allegations were ever made before this Court or the Apex Court at any point of time. Also, it is pertinent to mention that no enquiry can be conducted based on anonymous petitions. Such enquiries would not only demoralise the investigating team but would also lead to opening of the pandora’s box, whenever someone wants to disrupt investigation. Therefore this Court is of the view that there exists no material documents impeaching the character and career of Mr.A.G.Pon Manickavel. It is needless to say that if any materials crop up subsequent to our order, it can only be termed as created for the purpose of dislodging his credibility on personal motives.
35.Now, considering that the Government order has been quashed and that the State is not inclined to continue the cases, the CBI has categorically refused to take up the cases and expressed its http://www.judis.nic.in 45 intention to assist the existing team; that the Central Government has so far remained silent, an extraordinary situation has arisen, by which, a vacuum has been created and this Court has to take a timely decision to protect the idols and treasures of the temples. Hence it has become just and necessary for this Court as the custodian of the Idols, in the role of parens patriae to exercise its jurisdiction to formulate a solution to bring about a continuity in the investigation and to safe guard the idols, which are valuable properties of this country. It has come to the knowledge of this Court that Mr.A.G.Pon Manickavel, I.P.S in the rank of Inspector General of Police is attaining superannuation in the forenoon of 30.11.2018. The credibility of the officer is evident from the fact he has been fair and impartial in his actions. This Court is also satisfied with the procedure followed by him in securing the accused. It was also brought to the knowledge of this Court, that even recently, more than 250 idols were unearthed by him based on the information received from credible sources. Some idols were also recovered during transit. He has been able to keep the informants intact and show tremendous progress.
36.Let us for the sake of clarity reveal the statistics regarding the idols recovered by him during his tenure as the Inspector General of Police and the status before he took over:
http://www.judis.nic.in 46 High Court Ordered Investigation Team from Oct-2017 to Oct-2018:Total No. of cases 14
registered Total No. of accused 47 arrested Total No. of idols 19 (including 2 idols recovered located at NGA, Canberra) In addition recently, about 250 idols have been recovered from a notable businessman.
Particulars from 2012 to October, 2018:
Total No. of cases 26 registered Total No. of accused 102 arrested Total No. of idols 1,125 recovered Total No. of idols 1,106 prevented from being exported out of India Total No. of idols 8 repatriated from foreign countries back to Tamil Nadu by the Inspector General of Police pursuant to his number of letters Rogatory addressed to Government of Australia, Government of Singapore and Government of USA
In addition, recently, about 250 idols have been recovered from a notable businessman, whereas the following is the overall particulars of all the Superintendents of Police, Deputy Inspector Generals of Police, Inspector Generals of Police and Additional Director Generals http://www.judis.nic.in 47 of Police of Idol Wing CID in the past 28 years since it was created in the year 1983 vide GO.Ms.No.2098 dated 07.10.1983.Total FIRs registered in 259
28 years Total Panchalogam idols 135 recovered in 28 years Total stone idols 175 recovered in 28 years Total wooden artifacts 03 recovered in 28 years
37.The above statistics would reveal the efficiency of the officer. The investigation into the idol theft cases not only require the knowledge about the procedures but also about the modus operandi of the culprits. It requires continuous information at various levels and continuous follow up action. Mr.A.G.Pon Manickavel, I.P.S., Mr.Sundaram, Deputy Superintendent of Police and Mr.Rajaram and Mr.Ashok Natarajan, Additional Deputy Superintendents of Police, have not only been able to secure the idols and arrest the accused, but also instilled fears in the minds of the accused that they eventually get to them irrespective of the period of offence. Number of idols have been returned voluntarily to the High Court Appointed Team headed by Mr.A.G.Pon Manickavel, I.P.S. Even recently, an officer in the cadre of Deputy Superintendent of Police was arrested for his involvement in suppression of the offence and his hand in helping the real culprit to http://www.judis.nic.in 48 escape. The trial was stopped at Mr.A.G.Pon Manickavel’s request in the midway to secure re-investigation as an innocent was framed.
38.That apart, Mr.A.G.Pon Manickavel, I.P.S. has received several laurels in various judicial decisions, which are given below:
(a)In Paragraph-22 of the judgment of the Hon'ble Supreme Court in Criminal Appeal No.1450 of 2009 dated 09.05.2013, it has been held that “The High Court, while analyzing the entire prosecution case and the different versions, appreciated the efforts made by the team headed by Mr.A.G.Ponn Manickavel (Superintendent of Police) (PW-31), who in spite of being the Head of the District Police Force, keeping in view the importance and complicity of the crime, personally investigated the matter and brought all the relevant and acceptable materials before the Court of law. As appreciated by the High Court, we also express our appreciation to the team headed by Mr.A.G.Ponn Manickavel for their tireless investigation in presenting the truth before the Majesty of Law.”
(b)In the Division Bench judgment of this Court in Criminal Appeal No.792 of 2007 dated 23.04.2008, this Court held as follows, under the head “Encomium”:
“Before we part with the matter, we place on record our appreciation for the prompt and meticulous investigation and the assiduous work undertaken by Mr.Ponn Manickavel, IPS, Superintendent of Police, Mr.K.Palanivel, Deputy Superintendent of Police and http://www.judis.nic.in 49 Mr.P.Ettiyappan, Scientific Officer, along with his team to bring out a clear picture of the crime committed by the accused by their dedicated and determined performance.”
(c)Even though the above judgment had been made by the Division Bench, one of the Judges had written a separate judgment in Crl.A.No.792 of 2007 projecting his own views, the relevant portion of which is extracted hereunder:
“This Court's appreciation also goes to the Investigating Team, in particular, Tr.K.Palanivel (Deputy Superintendent of Police / PW-30), who commenced investigation from 15.08.2003 and Thiru A.G.Ponn Manickavel (Superintendent of Police/P.W.31), who took up further investigation on 19.08.2003. Under normal circumstances, a Superintendent of Police though vested with the authority of supervising the investigation, will not himself take up the investigation; but, in the case on hand, the officer, assessing the seriousness of hte offence committed, himself took up the task and conducted further investigation of the case. The offence had taken place within a short span of about one hour and the accused meticulously planned to screen the offence and set up things to project as if it was a case of suicide. But for the perspicacity and strenuous efforts of the Investigating Officers in unearthing the truth, a guile and cunning person like the appellant would have definitely slipped the net.
With the clue of intelligence available, these efficient officers, vested with all skills of investigation and http://www.judis.nic.in 50 commitment to the job entrusted with, succeeded in chasing and catching the real culprit. Even if there was a minor lapse or deviation or side-tracking in the course of investigation, due to the cunningness of the accused, the crime committed by him would have gone unnoticed. It is only because of the wakeful investigation by the D.S.P. and the S.P., the truth came to surface. Hence, they deserve all appreciation in this regard.”
39.In this connection, it would also be appropriate to refer to the observations made by the Central Administrative Tribunal, Madras Bench, in its order made in O.A.Nos.1483 and 1484 of 2013, dated 02.05.2014. In paragraph-15 of the order, the Tribunal has observed that it has no hesitation in holding that the applicant is one of the outstanding officers and these facts would suggest that all is not well between the applicant and the then Deputy Inspector General of Police, who was later on promoted as Inspector General of Police.
40.The Performance Appraisal Report of Mr.A.G.Pon Manickavel by 28 Officers shows that he has been given excellent grading by 27 officers, except one officer who made adverse remarks, which had been remarked to be out of personal motives by the Central Administrative Tribunal and accepted by the Division Bench of this Court in W.P Nos.17012 & 17013 of 2014.
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41.All the above facts and the manner in which the investigation is taken up by Mr.A.G.Pon Manickavel, I.P.S and his team without any fear, favour, partiality or bias only reposes our faith in the officer and his team. Therefore, under the above circumstances, we are of the view that Mr.A.G.Pon Manickavel, I.P.S in the cadre of Inspector General of Police on his superannuation on 30.11.2018 must continue to head and investigate the theft cases relating to idols and the properties, to facilitate not only continuity but also for proper investigation.
42.At this juncture, we feel it relevant to refer to the proceedings of the Government in G.O.Ms.No.349 Home (Police-1) Department dated 31.05.2013, by which Mr.A.M.S.Gunaseelan, I.P.S, Inspector General of Police/Joint Director (SIC) Vigilance and Anti- Corruption has been re-employed on his superannuation on 31.05.2013 as an officer on special duty in Directorate of Vigilance and Anti-Corruption with the same benefits drawn by him at the time of superannuation for a period of one year initially and such re- employment was extended every year till 31.05.2017.
43.Also, the Full Bench of this Court in the judgment in R.Sankarasubbu v. The Commissioner of Police, reported in 2013 (1) CTC 1, discussed the power of this Court under Article 226 http://www.judis.nic.in 52 of the Constitution of India to appoint any officer or an independent agency to investigate and ultimately appointed Mr.R.K.Raghavan, Former Director of CBI to head a Special Investigation Team. The relevant passages and directions are extracted below:
“35.Nextly, the learned Counsel for the petitioner relies on a judgment of the Hon'ble Supreme Court in Rubabbuddin Sheikh v. State of Gujarat and others, 2010 (2) SCC 200. That was a case where already the Final Police Report had been filed before the jurisdictional Magistrate. When a direction was sought for further investigation by the CBI, it was opposed on the ground that since the Police Report had already been filed before the jurisdictional Magistrate, the remedy for the petitioner was only before the jurisdictional Magistrate and not before the Supreme Court. While rejecting the said objection of the State, the Hon'ble Supreme Court in paras 60 & 61 has held as follows:
“60.Therefore, in view of our discussions made hereinabove, it is difficult to accept the contentions of Mr.Rohatgi, learned Senior Counsel appearing for the State of Gujarat that after the charge-sheet is submitted in the Court in the Criminal proceeding it was not open for this Court or even for the High Court to direct investigation of the case to be handed over to the CBI or to any independent agency. Therefore, it can safely be concluded that in an appropriate case when the Court feels that the investigation by the Police authorities is not in the proper direction and in order to do complete justice in the case and as the high Police officials are involved in the said crime, it was always open to the court to hand over the http://www.judis.nic.in 53 investigation to the independent agency like CBI. It cannot be said that after the charge-
sheet is submitted, the Court is not empowered, in an appropriate case, to hand over the investigation to an independent agency like CBI.
61.Keeping this discussion in mind, that is to say, in an appropriate case, the Court is empowered to hand over the investigation to an independent agency like the CBI even when the charge-sheet has been submitted, we now deal with the facts of this case whether such investigation should be transferred to the CBI Authorities or any other independent agency in spite of the fact that the charge-sheet has been submitted in Court.”
36. From a close reading of the above judgment relied on by the learned counsel for the petitioner, it is crystal clear that there is no bar for the High Court to exercise its power under Article 226 of the Constitution or under Section 482 of Cr.P.C.to examine the Status Reports and to issue a direction to the Investigating Agency to investigate further or to direct a different agency to further investigate. The power of this Court, under Article 226 of the Constitution of India, is so wide and it is not either limited or restricted by any other provision of the Constitution. Nor can there be any such restriction / limitation imposed by the Code of Criminal Procedure. But, in course of the time, the Courts have evolved certain self-imposed restrictions for exercising the said power under Article 226 of the Constitution of India. One such self-imposed restriction is not to entertain a Writ Petition, when the party aggrieved, has got an efficacious alternative remedy. But, it is also the law that in http://www.judis.nic.in 54 appropriate cases, despite the availability of the alternative remedy, the High Courts are inclined to exercise the power under Article 226 of the Constitution of India.
37. As we have seen in the above judgment, even after filing of Final Police Report before the jurisdictional Magistrate, though party aggrieved has got remedy to approach the jurisdictional Magistrate, there is no bar for the higher judiciary to examine the same and to issue a direction for further investigation. But in the instant case, as we have already pointed out, the Final Report has not been filed so far and, therefore, at any rate, there can be no bar for this Court to examine the rival submissions regarding the correctness of the investigation done so far to prima facie satisfy the conscience of this Court as to whether to permit the CBI to file the Final Police Report before the jurisdictional Magistrate or to issue any further direction, like a direction for further investigation by the CBI or by some other agency. Thus, the preliminary objection raised by the learned Senior Counsel for the CBI is rejected.
... ... ...
75.Though the prayer made in the Miscellaneous Petition is for nominating a retired Hon'ble Judge of this Court as head of the investigating team, we are of the firm opinion that the said course is not possible. In our considered view, it would be appropriate only to nominate an independent skilled team of Investigating Officers to thoroughly investigate the matter.
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76.In view of the above conclusions,
(i)We hereby appoint Mr.R.K.Raghavan, former Director of Central Bureau of Investigation, as Investigating Officer of Special Investigation Team (SIT), to be assisted by Dr.M.Narayana Reddy, former Professor and Head of the Department of Forensic Medicine, Osmania University, Hyderabad, Andhra Pradesh to investigate this case.
(ii)Mr.R.K.Raghavan, shall select his own Team of Officers from the Tamil Nadu State Police to be the members of the Special Investigating Team.
(iii)We further direct the Director General of Police, Government of Tamil Nadu, to spare the services of those Police Officers, whom Mr.R.K.Raghavan, requires to be part of the Special Investigating Team.
(iv)The Director General of Police, Government of Tamil Nadu, is further directed to render fullest co- operation and provide all assistance, including manpower to assist the Special Investigating Team and to provide vehicles and other modes of conveyance for the Special Investigating Team.
(v)The Director, Tamil Nadu Forensic Science Laboratory, shall provide all assistance to the Special Investigating Team as and when required by them.
(vi)The Home Secretary, Government of Tamil Nadu, is directed to pay initial remuneration of Rs.1,50,000/-
(Rupees One Lakh Fifty Thousand only) to Mr.R.K.Raghavan and Rs.75,000/- (Rupees Seventy Five Thousand only) to Mr.M.Narayana Reddy within a period of four weeks from today. The final remuneration to be paid http://www.judis.nic.in 56 shall be decided later.
(vii)The C.B.I.is directed to hand over all the records and materials in their hands relating to this case to Mr.R.K.Raghavan, the Head of the Special Investigating Team forthwith.
(viii)The Special Investigating Team shall take up the investigation from the C.B.I., thoroughly investigate the matter and submit a Status Report to this Court within a period of three months from today.”
44.The Hon’ble Supreme Court after considering various decisions, in the judgment in Bharathi Tamang Vs Union of India and others, reported in 2013 (15) SCC 578, held as follows:
“41.3.If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil which try to hide the realities or covering the obvious deficiency, Courts have to deal with the same with an iron hand appropriately within the framework of law.
41.4.It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.
41.5.In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Court can even constitute Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and http://www.judis.nic.in 57 for effective conduct of the prosecution 41.6.While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Court can also monitor such investigation in order to ensure proper conduct of the prosecution.
41.7.In appropriate cases even if the charge sheet is filed it is open for this Court or even for the High Court to direct investigation of the case to be handed over to CBI or to any other independent agency in order to do complete justice.
41.8.In exceptional circumstances the Court in order to prevent miscarriage of criminal justice and if considers necessary may direct for investigation de novo.” The conclusions:-
45.This Court is empowered under Article 226 of the Constitution to pass any orders to secure the ends of justice. We have already expressed our anguish over the conduct of the State in handling the matter insensitively. The directions issued by this Court and confirmed by the Hon’ble Supreme Court have not been complied in full. We have also expressed that we are satisfied with the credentials of the Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police and the steps taken by him in the process of investigation. Hence, the following directions are given, which shall be implemented by the State forthwith:
http://www.judis.nic.in 58 (1)Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police is hereby appointed as a Special Officer to head Idol Wing-CID, Chennai to deal with the cases of theft of idols and antiques in all stages, for a period of one year, who shall assume charge on his superannuation on 30.11.2018 forthwith and function from the same camp with the same facilities. The Government shall pass orders to that effect. It is made clear that any delay by the Government in passing appropriate orders, shall not curtail the powers of Mr.A.G.Pon Manickavel, I.P.S. to head the team and investigate the cases and take appropriate action as per law.
(2)The members of the Special team constituted on the basis of the orders of this Court on 21.07.2017 shall continue to be part of the team and any such member as requested by Mr.A.G.Pon Manickavel, I.P.S., shall be spared by the Government from the Tamil Nadu Police Force.
(3)Mr.A.G.Pon Manickavel, I.P.S., Inspector General of Police, shall draw the same pay and benefits that were available to him at the time of his retirement for the entire tenure of his term as Special officer.
(4)The Special Officer, hereby appointed shall investigate the cases thoroughly and periodically submit all the reports before the appropriate Court as per law and also before this Court in a sealed cover to enable this Court to monitor the investigation. http://www.judis.nic.in 59 (5)The Special Officer and his team shall continue to not only investigate and file charge Sheets and prosecute in the pending cases but shall also continue to do so in the cases arising in future during his tenure or until further orders from this Court.
(6)The CBI and other agencies of Central Government shall continue to give appropriate support to the Special officer and his team.
(7)No action or enquiry against the Special officer or any member of his team shall be initiated except with the concurrence of this Court. If any materials are there to rely upon for necessary action, the same be placed before this court for further directions.
(8)The State shall forthwith issue appropriate communications to concerned Departments of the State including the HR & CE Department to extend their fullest co-operation to the Special Team and furnish necessary particulars and documents sought by them.
(9) The State shall create a separate Division to handle the financial aspects of the functioning of the team so as to ensure that no action is delayed for paucity of funds and separate account is to be created for this purpose and reasonable amount must be available to meet out the daily overheads.
(10)All the directions issued by this Court shall be implemented without any delay or demur and a report shall be submitted regarding the action taken.
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46.With the above directions, the writ petitions are allowed. Consequently, other connected petitions in W.M.P.Nos.23975, 23976, 24609 and 26868 of 2018 are closed. No costs.
47.When we are about to pronounce this order, the petitioner in WP.No.20392 of 2018 produced a copy of the proceedings issued by the Government of Tamil Nadu in Police Note No.SC/19/2018 dated 29.11.2018 indicating that one Thiru.Abhay Kumar Singh, IPS, Additional Director General of Police/Chief Vigilance Officer, Tamil Nadu Newsprint and Papers Limited, Karur has been transferred and posted as Additional Director General of Police, Idol Wing, CID, Chennai by upgrading the post of Inspector General of Police, Idol Wing CID.
48.We are of the view that the State all along, is not inclined to continue with the investigation of idol theft cases as the same were transferred to CBI despite pendency of the stay order of this Court. It is also pertinent to note that after the orders were reserved, they have upgraded the post of the Additional Director General of Police and appointed an officer, by order dated 29.11.2018, which action is inappropriate and it would amply prove the transfer of cases in a most hurried manner within a single day i.e., on 01.08.2018. Similarly, the manner in which the present order dated 29.11.2018 has been http://www.judis.nic.in 61 passed, will speak for itself. Hence, notwithstanding the order dated 29.11.2018 passed by the Government, which has become redundant, Tr.A.G.Pon Manickavel shall take charge as Special Officer to head the Idol Wing as ordered by us, in order to preserve the idols as well as recovery of the stolen idols to uphold the cultural heritage of this land.
Post the matter for reporting compliance after six weeks.
Index : Yes/No (R.M.D.,J.) (P.D.A.,J.)
Internet : Yes/No 30.11.2018
KM
To
1.The Additional Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Chennai-600 009.
2.The Secretary to Government, Home Department, Government of Tamil Nadu, Secretariat, Chennai-600 009.
3.The Secretary to Government, Hindu Religious & Charitable Endowments Department, Government of Tamil Nadu, Secretariat, Chennai-600 009.
4.The Commissioner, Hindu Religious & Charitable Endowments Department, Nungambakkam, Chennai-600 034.
5.The Director General of Police, Mylapore, Chennai-4.
6.The Secretary to Government, Government of India, Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, North Block, New Delhi-110 001.
http://www.judis.nic.in 62 R.MAHADEVAN, J.
AND P.D.AUDIKESAVALU, J.
KM
7.The Secretary to Government, Department of Home Affairs, Government of India, New Delhi-110 001.
8.The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi-110 001.
9.The Joint Director and Head of Chennai Zone, Central Bureau of Investigation, 3rd Floor, EVK Sampath Building, College Road, Chennai-6.
10.The Additional Director of Police, Economic Offences Wing, Chennai-32.
Pre-Delivery Order made in W.P.Nos.20392 of 2018 and 20963 of 2018 and W.M.P.Nos.23975, 23976, 24797, 24803, 24609, 26868 and 27441 of 2018 30.11.2018 http://www.judis.nic.in