Madras High Court
Meenakshi vs The Inspector Of Police on 26 February, 2015
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.02.2015
CORAM
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
CRL.OP(MD)No.7440 of 2014
and
M.P.(MD)No.1 of 2014
Meenakshi ... Petitioner
Vs
1.The Inspector of Police,
Peraiyur Police Station,
Periyur,
Ramanathapuram District
(Crime No.5 of 2008)
2.The Inspector of Police
CBCID, The DSP.Compound,
Ramanathapuram.
3.The Superintendent of Police,
Central Bureau of Investigation,
Shastri Bhavan, Chennai ... Respondents
Prayer
Civil Revision Case filed under Section 482 of the Code of
Criminal Procedure, to withdraw the investigation of the case in Crime No.5
of 2008 from the file of the 2nd respondent and transfer the same to the 3rd
respondent pending for trial in S.C.No.19 of 2014 on the file of the Learned
Additional Sessions Judge, Ramanathapuram District.
!For Petitioner : Mr.M.Kannan
For Respondents : Mr.C.Ramesh, APP
:ORDER
The Revision has been preferred praying to withdraw the investigation of the case in Crime No.5 of 2008 from the file of the 2nd respondent and transfer the same to the file of 3rd respondent pending for trial in S.C.No.19 of 2014, on the file of the Learned Additional Sessions Judge, Ramanathapuram District.
2. The petitioner is the mother of deceased boy Muthupandi, who was aged about 4-1/2 years and she had given a complaint on 17.01.2008 stating that though she lodged a complaint with regard to the missing boy, the jurisdictional Police viz., Peraiyur Police Station, Ramanathapuram District, has not properly investigated the case in Crime No.5/2008 and therefore came forward to transfer the investigation in Crime No.5 of 2008 from the file of Peraiyur Police Station to the file of CB CID and in this regard, filed Crl.O.P(MD)No.4309 of 2008 and this Court has elaborately discussed the facts as well as the submissions made on behalf of the petitioner and upon perusal of the status report, observed as follows:-
?11. On perusal of the status report, it could be seen that there is no further investigation done after 22.03.2008, since no particulars have been given after the said date in the status report. According to the Judgemnt of the Hon'ble Apex Court cited supra, the investigation cannot be transferred at the midst to some other agency, which could always further delay the process. Therefore, it has become necessary for this Court to direct the third respondent to do the investigation in a right way with promptness under the supervision of the first respondent and to get a break through as early as possible and file a final report. Accordingly, the third respondent is directed to do the investigation in a right way with promptness and the first respondent is also directed to supervise the investigation of the third respondent and on filing the final report, a report has to be filed before this Court after serving a copy to the petitioner.
12. With the aforesaid direction, the petition is disposed of?
3. The petitioner has once again approached this Court by filing Crl.O.P.(MD)No.1239 of 2010 praying for transfer of investigation from the file of Peraiyur Police Station to the file of CB CID and vide order dated 15.03.2010, this Court has transferred the investigation to CB CID and fixed the outer time limit of six months from the date of receipt of a copy of that order, for completing the investigation. Thereafter, the case diary was transferred from the file of Peraiyur Police Station to CB CID, who also sought extension of time on various occasions to complete the investigation of the case. The CB CID, Ramanathapuram, after completing the investigation, has filed the final report on 30.07.2010 on the file of Court of Judicial Magistrate No.2, Ramanathapuram arraying one Marimuthu S/o.Muniyandi, East Street, Uppangulam, as sole accused and charging him for the commission of offence under Sections 364, 302 and 201 of IPC. The petitioner has once again expressed the grievance that CB CID has also not properly investigated the case and therefore came forward to file the present petition seeking transfer of investigation from the file of CB CID, Ramanathapuram to the file of CBI.
4. In the petition it is averred by the petitioner among other things that her statement was not at all recorded by the 2nd respondent and in fact, no statement has been recorded from her and it is made to appear as if the 2nd respondent / CB CID was recorded her statement under Section 161(3) of Cr.P.C. It is further stated that in the charge sheet, the fact of non- identification of the author of the anonymous letter disclosing the commission of crime, has been stated and he also undertook to file additional charge sheet under Section 173(8) of Cr.P.C., and whereas, till date they have not filed the Additional Charge sheet and with the available materials they have filed the final report charging one Marimuthu, as sole accused and it has been taken on file in P.R.C.No.13 of 2012 by the jurisdictional Magistrate, Ramanathapuram and in turn it was committed to the Principal Sessions Court, Ramanathapuram which in turn made over the case to the Additional Sessions Court, Ramanathapuram and unless the investigation is transferred to the file of CBI, the truth will not come out and hence, prays for the said relief.
5. The learned counsel appearing for the petitioner made an emotional appeal to this Court by contending that a 4-1/2 year male child of the petitioner was found missing and immediately she lodged a complaint to Peraiyur Police Station, Ramanathapuram District, based on which, a case in Crime No.5 of 2008 was registered under Section 174 of Cr.P.C. Since no progress took place, she was constrained to approach this Court by filing Crl.O.P.(MD)No.4309 of 2008 and this Court taken into consideration the status report, has directed the jurisdictional police to continue the investigation under the supervision of the first respondent viz., The District Superintendent of Police, Ramanathapuram and file the final report, as expeditiously as possible and since no worthwhile progress took place, she was once again constrained to approach this Court by filing Crl.O.P.(MD)No.1239 of 2010 and this Court vide order dated 15.03.2010, transferred the case to the file of CBCID and the said agency also has not done any proper investigation. On account of the fact that the commission of the offence involved one police official and since she has lost faith in the manner of investigation done by the 2nd respondent / CB CID, it should be transferred to the file of CBI so that justice can be rendered to her. The learned counsel appearing for the petitioner in support of his contention has also relies upon the Judgment rendered by the Hon'ble Supreme Court in Bharati Tamang v. Union of India reported in (2014 Cri.L.J.156).
6. Per contra, Mr.C.Ramesh, the learned Additional Public Prosecutor has drawn the attention of this Court to the counter filed by the 2nd respondent / CB CID and would submit that originally the jurisdiction police has registered the case on 17.01.2008 with regard to missing of petitioner's male child viz., Muthupandi, aged about 4-1/2 years and subsequently, the dead body was seized and Postmortem Certificate shows that hyoid bone was fractured and therefore, the Section was altered into one under Sections 364, 302 and 201 of IPC., on 01.02.2008 and after transfer of investigation, they examined 127 witnesses, collected specimen hand writings of 53 suspected persons of that village and its surrounding areas and sent for comparison to find out the person who has written the anonymous letter mentioning the place in which the body was found. It is further submitted by the learned Additional Public Prosecutor that after thorough and proper investigation, the accused, viz., Marimuth was identified and he has also voluntarily came forward to give an extra judicial confession and it was also recorded in the presence of VAO.
7. It was further submitted by the learned Additional Public Prosecutor that fearing of arrest and harassment at the hands of the Police, one Marimuth voluntarily surrendered before the Village Administrative Officer, Pakkuvetti Village, Kamuthi Taluk and gave a statement admitting the guilt and the veracity of the extra judicial confession has also thoroughly enquired into and ultimately, he was arrayed as an accused and charge sheet was filed against him, charging him for the commission of offence under Sections 364, 302 and 201 of IPC., and the final report was also taken on file by the learned Judicial Magistrate and it was also committed to the Sessions Court and it is pending in S.C.No.19 of 2014, on the file of Additional Sessions Court, Ramanathapuram and it has also taken on file and the accused has also been enlarged on bail and however, his whereabouts are not known and on instruction, he would further submit that the trial will be completed as expeditiously as possible.
8. This Court has carefully considered the submissions made by the learned counsel appearing for the petitioner and the learned Additional Public Prosecutor appearing for the respondents and also perused the materials in the form of documents and also considered the decisions relied on by the learned counsel appearing for the petitioner.
9. No doubt, the petitioner, being the mother of 4-1/2 years old boy, is suffering and got a grievance on account of his murder and in fact, approached this Court twice for transfer of investigation and this Court vide order dated 15.03.2010 made in Crl.O.P(MD)No.1239 of 2010, has transferred the investigation to the file of CB CID, fixing of the outer time limit for completion of investigation and the CB CID, after getting extension of time, has completed the investigation and fixed one Marimuth as accused and the trial against him is also going to commence very shortly. It is not as if the petitioner is left with any other remedy and the testimony discloses the commission of offence on the part of some other accused also. The jurisdictional Sessions Court is also entitled to add additional accused, when it feels that evidence is available and it is also open to the said Court to order further investigation under Section 173(c) of Cr.P.C., if it is not satisfied with the materials collected during investigation.
10. The decision relied on by the learned counsel appearing for the petitioner reported in (2014 Cri.L.J.156 SC). (cited supra) would disclose the fact that it was a case of broad day light murder of the petitioner's husband in gaze of public and police and the Hon'ble Supreme Court has taken into consideration the fact that the investigation is yet to be completed and discrepancies and slackness in investigation and further found that the murder is out of political rivalry, has transferred the investigation to the file of CBI.
11. The constitution Bench of Hon'ble Supreme Court of India in the decision reported in 2010 (2) Scale 467 (State of West Bengal & Ors v. The Committee for Protection of Democratic Rights, West Bengal & Ors), has considered the issue mainly whether the High Court in exercise of jurisdiction under Article 226 of Constitution, can direct the CBI to investigate the cognizable office, which is alleged to have been taken place within the territorial jurisdiction of the State and in paragraphs 44 to 46 has concluded as follows:-
?44.Thus, having examined the rival contentions in the context of the Constitutional Scheme, we conclude as follows:
(i) The fundamental rights, enshrined in Part III of the Constitution, are inherent and cannot be extinguished by any Constitutional or Statutory provision. Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State.
(iii) In view of the constitutional scheme and the jurisdiction conferred on this Court under Article 32 and on the High Courts under Article 226 of the Constitution the power of judicial review being an integral part of the basic structure of the Constitution, no Act of Parliament can exclude or curtail the powers of the Constitutional Courts with regard to the enforcement of fundamental rights. As a matter of fact, such a power is essential to give practicable content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. Moreover, in a federal constitution, the distribution of legislative powers between the Parliament and the State Legislature involves limitation on legislative powers and, therefore, this requires an authority other than the Parliament to ascertain whether such limitations are transgressed. Judicial review acts as the final arbiter not only to give effect to the distribution of legislative powers between the Parliament and the State Legislatures, it is also necessary to show any transgression by each entity. Therefore, to borrow the words of Lord Steyn, judicial review is justified by combination of "the principles of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review".
(iv) If the federal structure is violated by any legislative action, the Constitution takes care to protect the federal structure by ensuring that Courts act as guardians and interpreters of the Constitution and provide remedy under Articles 32 and 226, whenever there is an attempted violation. In the circumstances, any direction by the Supreme Court or the High Court in exercise of power under Article 32 or 226 to uphold the Constitution and maintain the rule of law cannot be termed as violating the federal structure.
(v) Restriction on the Parliament by the Constitution and restriction on the Executive by the Parliament under an enactment, do not amount to restriction on the power of the Judiciary under Article 32 and 226 of the Constitution.
(vi) If in terms of Entry 2 of List II of The Seventh Schedule on the one hand and Entry 2A and Entry 80 of List I on the other, an investigation by another agency is permissible subject to grant of consent by the State concerned, there is no reason as to why, in an exceptional situation, court would be precluded from exercising the same power which the Union could exercise in terms of the provisions of the Statute. In our opinion, exercise of such power by the constitutional courts would not violate the doctrine of separation of powers. In fact, if in such a situation the court fails to grant relief, it would be failing in its constitutional duty.
(vii) When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.
45.In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.
46.Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
12. As per the said decision, the power of transferring such investigation, must be in rare and exceptional cases, where the Courts finds it necessary in order to do justice within the parties and instil confidence in the public mind, or where the investigation by the State police, lacks credibility. It is necessary for having ?a fair, honest and complete investigation?, and particularly, when it is imperative to retain public confidence in the impartial working working of State agencies. It has been further held that where the investigation has already been completed and charge sheet has been filed, ordinarily the superior Courts should not reopen the investigation and it should be left open to the court, where the charge sheet has been filed, to proceed with the matter in accordance with law and under no circumstances, should the Court make any expression of its opinion or merit relating to any acquisition against any individual.
13.In the light of the factual aspects coupled with the legal position, as per the above said decision rendered by the Hon'ble Supreme Court of India, this Court is of the view that the prayer sought for by the petitioner cannot be granted and it is always open to the trial Court to resort to such an exercise.
14. In the result, the Criminal Original Petition is dismissed.
26.02.2015 Index : Yes / No Internet : Yes / No MPK To
1.The Additional Sessions Judge, Ramanathapuram District.
2.The Inspector of Police, Peraiyur Police Station, Periyur, Ramanathapuram District (Crime No.5 of 2008)
3.The Inspector of Police CBCID, The DSP.Compound, Ramanathapuram.
4.The Superintendent of Police, Central Bureau of Investigation,
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
M.SATHYANARAYANAN, J.
MPK CRL.OP(MD)No.7440 of 2014 26.02.2015