Madras High Court
Hasan Ammal vs State Of Tamilnadu on 11 February, 2011
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/02/2011
CORAM
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
Criminal Original Petition (MD)No.458 of 2010
and
Crl.O.P.(MD) No.1 of 2010
Hasan Ammal ... Petitioner
Vs
1.State of Tamilnadu
Represented by Secretary
Home Department,
Chennai - 600 009.
2.The Director General of Police,
Police Head Quarters
Chennai - 600 004.
3.The Deputy Superintendent of Police,
CBCID Camp Office
Tirunelveli.
4.The District Collector,
Collectorate,
Tirunelveli District. ... Respondents
PRAYER
This Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to direct the 1st and 2nd respondents to constitute a
team headed by an I.P.S. Officer to conduct further investigation in crime
No.391 of 2006 on the file of the Inspector of Police, Kadayanallur Police
Station, Tirunelveli District, the same is pending in P.R.C.No.58 of 2009 before
the Judicial Magistrate Court, Thenkasi, Tirunelveli District. and the said team
have to investigate as per law.
!For Petitioner ... Mr.P.Rathinam
^For Respondents ... Mr.P.Kumaresan,
State Public Prosecutor for RR1 to 4
Mr.Siva Ayyappan for Intervenor/A6in
P.R.C.No.58 of 2009 on the file
of J.M.Court, Tenkasi
Mr.R.Anand for A4 and A5 in
P.R.C.No.58 of 2009 on the file
of J.M.Court, Tenkasi
Mr.C.Emalias for A2 and A4 in
P.R.C.No.58 of 2009 on the file
of J.M.Court, Tenkasi
:ORDER
This petition has been filed by the petitioner seeking a direction to be issued to the respondents 1 and 2 to constitute a team headed by an I.P.S. Officer to conduct further investigation in crime No.391 of 2006 on the file of the Inspector of Police, Kadayanallur Police Station, Tirunelveli District, which is pending at the stage of P.R.c.No.58 of 2009 on the file of the learned Judicial Magistrate, Tenkasi.
2.Heard Mr.Rathinam, learned counsel appearing for the petitioner and Mr.L.Murugan, learned counsel appearing for the Government Advocate and Mr.Siva Ayyappan, counsel for the intervenor/A6 and Mr.C.Emalias, learned counsel for A2 and A3 and Mr.R.Anand, learned counsel for A4 and A5 in P.R.C.No.58 of 2009 pending on the file of the learned Judicial Magistrate, Tenkasi
3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is the wife of one Mohammed Mazooth, who was murdered by the police personnel in custody and hence, she filed the present petition seeking for a direction against the respondents 1 and 2 to constitute a team headed by an I.P.S. Officer, to conduct further investigation in crime No.391 of 2006 on the file of the Inspector of Police, kadayanallur Police Station, which is now pending in P.R.C.No.58 of 2009 on the file of the learned Judicial Magistrate, Tenkasi and also to direct the 1st respondent to pay a just and reasonable amount not below a sum of Rs.10 lakhs as compensation for the murder of the said Mohammed Mazooth by the police personnel to the family of the deceased and also to provide suitable rehabilitation measures towards the financial assistance and for the education of the children of the deceased and for other reliefs. He would further submit in his argument that the investigation was carried on by the 3rd respondent for completing the investigation, who created sufficient loop holes in the charge sheet in order to aid and support the accused police personnel. He would further submit that the accused 1 to 3 are enjoying the State powers as A.D.S.P. and D.S.P. respectively and they were permitted even though they are charge sheeted for a custodial murder of the petitioner's husband. He would further submit in his argument that the 3rd respondent police has not bothered about the arrest of the offenders, who are in police uniform and the accused 1 to 3 are happily continuing in their jobs even though they have committed the custodial death of the husband of the petitioner.
4.He would further submit in his argument that the investigation was concluded by the 3rd respondent without gathering proper evidence regarding the location of the throwing of the body of the deceased Mohammed Mazooth when the accused were taking the dead body of Mohammed Mazooth from the said lockup and the said lacuna may be bloomed large to show the prosecution case has not been proved. He would therefore, request the Court that the investigation done by the 3rd respondent police has not been promptly done by 3rd respondent and it should have been ordered for re-investigation for finding out the place of throwing the body of Mohammed Mazooth in order to corroborate the other consequences of the case and it has been wantonly left by the 3rd respondent for the benefit of its Officers, who were arrayed as accused 1 to 3.
5.He would further submit that the duty of the investigating officer is to gather evidence for each and every circumstance of the case until it is completely proving against the accused and it cannot be said that the other circumstances will go to show that the custodial death was done against the husband of the petitioner and would prove the location of the place where the body has been thrown and it need not be investigated. He would further submit in his argument that the Court may think during the time of trial, when the place of disposal has not been spoken, it may come to a conclusion that the death of Mohammed Mazooth which had taken place at the lockup was not corroborated and therefore the investigation done by the 3rd respondent is not upto the mark. He would further request the Court to direct the respondents 1 and 2 to constitute a team headed by an I.P.S. Officer to conduct further investigation in crime No.391 of 2006 on the file of the 3rd respondent police and additional report may also be directed to be filed before the jurisdictional Magistrate Court, where the P.R.C.58 of 2009 is pending on the file of the charge sheet earlier. He would therefore request the Court to order the petition accordingly.
6.The learned Government Advocate (criminal side) would submit in his argument that the investigation was completed and charge sheet has been filed before the jurisdictional magistrate and it was taken on file by the jurisdictional magistrate and it is pending in P.R.C.58 of 2009 and summons were issued to the all the accused and they are also appearing before the said Court. He would further submit that the location of the throwing the body of the deceased is not at all required for the proof of the offence, which took place in the custody of police need not be proved, by the way of proving the place of throwing the body and since there was no evidence available on that aspect, it has not been gathered as to the location of throwing the body and it would not be fatal to the investigation of the 3rd respondent. He would further submit that the petitioner has on an earlier occasion filed a direction petition to transfer the investigation from the file of the 3rd respondent to the file of C.B.I in Crl.O.P.No7487 of 2008 along with Crlo.O.P.(MD) Nos.11684 of 2007 and 12376 of 2007 and the same were dismissed by this Court in its order dated 03.06.2009. The present petition filed on the same lines is therefore not maintainable and accordingly, the prayers mentioned in the petition seeking for constitution of a team under the leadership of an I.P.S. Officer to do further investigation is not at all sustainable. He would further submit that the other reliefs in the same petition may not also be available to the petitioner. He would further submit in his argument that the petition filed by the petitioner is not maintainable.
7.The learned counsel for the Intervenor would submit in his argument that the petitioner cannot ask for any further investigation, especially when the accused persons were charge sheeted and the case was also taken on file in P.R.C.No.58 of 2009 and it is pending before the learned Judicial Magistrate, Tenkasi and the committal proceedings are also pending. He relied upon the judgment of Hon'ble Apex Court reported in 2007(2) Crimes 118 (SC) in between Sasi Thomas Vs. State and Others for the said proposition of law. He would further draw the attention of this Court in yet another judgment of Apex Court reported in 2001(10) SCC 759 in between Rajesh and Others Vs. Ramdeo and Others and yet another judgment in (1998) 8 Supreme Court Cases 661 in between Union of Indian and Others Vs. Sushil Kumar Modi and Others for the same proposition of law and would submit that the request of the petitioner to constitute a team under the head of an I.P.S. Officer to investigate the matter further under Section 173(8) Cr.P.C. is not at all permissible. He would therefore request the Court to dismiss the petition.
8.The learned counsel appearing for A2 and A3 and the counsel for A4 and A5 in P.R.C.No.58 of 2009 pending on the file of the learned Judicial Magistrate, Tenkasi would submit in their argument that the request of the petitioner is too late and the investigation was also completed and the charge sheet has also been filed and the case was taken on file by the learned Judicial Magistrate, Tenkasi in P.R.C.No.58 of 2009 and it is pending for committal. They would further request the Court for the dismissal of the request of the petitioner.
9.I have given anxious consideration to the arguments advanced on either side.
10.This Court, on an earlier occasion had disposed a petition in Crl.M.P.(MD) No.7487 of 2008 along with other Crl.O.P.(MD) Nos.11684 and 12376 of 2007, petitions filed by the petitioner herein seeking for the withdrawal of the investigation from the Inspector of Police, C.B.C.I.D. and to entrust the same to C.B.I, who were impleaded as respondents 3 and 4 in the said petition and the said request of the petitioner was dismissed and the investigation was not disturbed at the hands of the Inspector of Police, C.B.C.I.D., Tirunelveli. The investigating Officer has conducted the investigation and filed the charge sheet before the learned Judicial Magistrate, Tenkasi and the same was taken on file in P.R.C.No.58 of 2009 and it is pending for committal. At this stage, the petitioner has come forward with this application seeking for further investigation under Section 173(8) Cr.P.C. by issuing a direction to the respondents 1 and 2 to constitute a team headed by an I.P.S. Officer to do the said further investigation in crime No.391 of 2006 on the file of the Inspector of Police, Kadayanallur Police Station. The reasons alleged by the petitioner was to the effect that the place of disposal of the body of the deceased Mohammed Mazooth was not investigated and the evidence concerned was not collected so as to corroborate the custodial death of the said deceased at lockup of the said police station.
11.No doubt, it is true that the investigating agency viz., the Inspector of Police, c.B.C.I.D., who investigated the case in crime No.391 of 2006 had filed the charge sheet and in the said charge sheet, the evidence to the effect that the death was caused at the lock up and the accused 1 to 3 are involved in the said commission of crime or offence.
12.The petitioner's request for further investigation under Section 173(8) Cr.P.C. by constituting a team under the head of an I.P.S. Officer has been dealt with in series of judgments of Hon'ble Apex Court. The relevant portion of the Hon'ble Apex court's judgment reported in 2007(2) Crimes 118 (SC) in between Sasi Thomas Vs. State and Others would run thus:
"26.The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under sub section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case"
The relevant portion of the Hon'ble Apex Court's judgment reported in 2001(10) SCC 759 in between Rajesh and Others Vs. Ramdeo and Others would run as follows:
"Since the investigation agency has already filed the charge sheet on the basis of which the accused persons are being proceeded against, if any further materials are available, the Court may alter the charge framed. In the circumstances, we have no hesitation to come to the conclusion that the High Court has overstepped its jurisdiction in issuing the impugned direction calling upon further investigation into the matter, which in our considered opinion, would be an abuse of the process of the Court. We, therefore, set aside the impugned order of the High Court dated 09.03.2000. The appeal is disposed of accordingly. Needless to mention, power of the investigating agency to have any further investigation exercised under Section 173(8) Cr.P.c. is not being taken away by this order."
The relevant portion of the judgment of the Hon'ble Apex Court reported in (1998) 8 Supreme Court Cases 661 in between Union of Indian and Others Vs. Sushil Kumar Modi and Others, is as follows:
"Once a charge sheet is filed in the competent court after completion of the investigation, the process of monitoring by the monitoring Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to an end; and thereafter it is only the Court in which the charge sheet is filed which is to deal with all matters relating to the trial of the accused, including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure."
13. On a careful perusal and understanding of the dicta laid down in the aforesaid judgments, We could see that the jurisdiction vested under Section 482 Cr.P.C for ordering further investigation when the investigating agency has already filed the charge sheet in the basis of which the accused persons are being proceeded against cannot be sustained since the further materials if available, the Court which seized of the matter can frame or alter the charge already framed. The further investigation ordered was discouraged by the judgment of Hon'ble Apex Court since trial Court has got every power to record evidence during the trial and admit evidence even under Section 311 Cr.P.C. As far as this case is concerned, the transfer of investigation as sought for by the petitioner in the earlier proceedings was disallowed by this Court and the investigating agency had investigated the case and filed the charge sheet. If for any reason, the request of the petitioner is acceded, it would be amounting to not only the further investigation but also the transfer of investigation already rejected by the Court.
14. The location of the disposal of the body of the deceased Mohammed Mazooth can be adduced in evidence at the time of the trial by the witnesses, who are competent to speak the same and the trial Court is also empowered to alter the charges, if necessary on the basis of the said evidence. The judgment of Hon'ble Apex Court would go to the extent of saying that it can be achieved by adducing evidence under the provisions of Section 311 Cr.P.C. The offence is said to have been committed in the year 2005 and the crime number is of the year 2006 viz., 391 of 2006.If further investigation is ordered as per the request of the petitioner, it would cause further delay in the case, which is pending for a long period.
15.Therefore, this Court is not inclined to pass an order of further investigation as requested by the petitioner in the light of the afore said judgments of the Hon'ble Apex Court and this petition filed by the petitioner requesting for a direction against the respondents 1 and 2 to constitute a team headed by an I.P.S. Officer to conduct further investigation in crime No.391 of 2006 on the file of the Inspector of Police, Kadayanallur Police Station, Tirunelveli District, which is pending in P.R.C.No.58 of 2009 before the Judicial Magistrate Court, Thenkasi, Tirunelveli District is not at all maintainable and accordingly, the same is dismissed. Consequently, connected miscellaneous petition is closed.
arul To
1. The Secretary Home Department, Chennai-600 009.
2. The Director General of Police, Police Head Quarters, Chennai-600 004.
3. The Deputy Superintendent of Police, CBCID Camp Office Tirunelveli.
4. The District Collector, Collectorate, Tirunelveli District.
5. The Judicial Magistrate, Tenkasi.
6.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
V.PERIYA KARUPPIAH, J.
arul Crl.O.P.(MD) No.458 of 2010 11.02.2011 M.P.No.2 of 2010 in Criminal Original Petition No.458 of 2010 V.PERIYA KARUPPIAH, J.
Heard both sides.
2.Today, this Court has passed an order in Crl.O.P.(MD) No.458 of 2010, dismissing the claim of the petitioner seeking for further investigation for the reasons mentioned therein. This petition has been filed by the petitioner seeking for a direction to be given to the 1st and 4th respondents to pay a sum of Rs.2 lakhs towards the relief amount in the light of G.O.Ms.833 Public (Law and Order) B Department dated 22.05.1998.
3.The learned State Public Prosecutor would produce a Government Order in G.O.Ms.No.106 Public (Law and Order) E Department dated 25.01.2011 sanctioning a sum of Rs.1 lakh payable to the petitioner for the injuries of Mohammed Mazooth, the husband of the petitioner. In the said G.O., the G.O referred by the petitioner in G.O.Ms.153 Public (Law and Order) B Department dated 31.01.1998 has been referred to and the beating up of the said Mohammed V.PERIYA KARUPPIAH, J.
arul Mazooth alone has been mentioned for compensation. The claim of the petitioner is that the said Mazooth died due to the said injuries and she has to be given a compensation for the death of her husband. The cause of death of the husband of the petitioner would be ascertained only after a full fledged trial and in the event, that the petitioner's husband is found to be dead due to beating up by the persons, who are referred to in the G.O. and if it is established, the petitioner is at liberty to get further compensation, which shall be awarded by the Government. The compensation already awarded to the petitioner shall be disbursed to the petitioner within a period of 15 days from the date of receipt of a copy of this order.
4.With the aforesaid observation, this petition is closed.
11.02.2011 arul M.P.No.2 of 2010 in Crl.O.P.No.458 of 2010