Madras High Court
Sonaimuthu vs The State Of Tamil Nadu on 23 August, 2000
Equivalent citations: 2000(4)CTC651
ORDER
1. All the three criminal original petitions have arisen out of certain dispute between two group of persons belonging to the Nadar Community.
2. The facts leading to the filing of the three criminal original petitions can be briefly stated as under:-
There is a Nadar Mshajana Sangam at Madurai. Disputes have arisen between one Karikolraj and Arivananda Pandian as to who should be the Secretary of the said Sangam. It has led to formation of factions headed by Arivananda Pandian and Karikolraj. On 26.1.2000, at 23.50 hours, one Maheswaran, Pondy, Paulpondy, Kumar, Sundaramurthy and Kamaraj were chitchating. The persons belonging to Karikolraj group, namely, Karikolraj, Pon Mahendravel, Padmanabhan, Joseph Vasudevan, Gnanasekaran, Mayandi Arumuga Perumal Muttai Selvam and Basker, came there in a vehicle and tried to attack the persons belonging to Arivananda Pandian group. Others escaped, but Pondy was attacked by the group with deadly weapons, as a result of which Pondy died. Kamaraj preferred a complaint to the B2 Temple Police Station, Madurai Town, on the basis of which, a case in Crime No.49 of 2000 under Section 147, 148, 302, I.P.C. was registered. Investigation is going on. In the course of the investigation, the investigating machinery arrested Joseph Vasudevan, Arumuga Perumal, and Bhaskar on 27.1.2000. Muttaisevlam was arrested on 28.1.2000. Rest of the accused are yet to be apprehended.
While the matters stand thus, Indira, wife of Kamaraj lodged a complaint to the first respondent herein on 24.3.2000 alleging that her husband had been abducted by accused Gnanasekaran and others and his whereabouts were not known. A case in Crime No.416 of 2000 was registered and investigation is going on. Kamaraj later returned and he gave a statement under Section 164 of Criminal Procedure Code before the learned Judicial Magistrate No.II, Madurai on 28.3.2000 stating that the accused in Crime No.49 of 2000 had nothing to do with crime. According to the Arivananda Pandian group, Kamaraj had been kidnapped and threatened to give a false statement under Section 164, Criminal Procedure Code.
Now, the petitioner in Criminal O.P.No.7064 of 2000 has been preferred by one M. Sonaimuthu, father of the deceased Pondy. The petitioner had stated that though the case was registered by the Inspector of Police, Law and Order, Madurai Town, at the instance of the orders of the Hon'ble The Chief Minister of Tamil Nadu, the case was transferred to C.B., C.I.D. Police, Chennai at Madurai on 30.1.2000. According to him, the investigation has lost luster; the investigating officer adopted a lackadaisical method and that he has failed to arrest the accused in the main case, though they are available. According to him, Karikolraj is regularly addressing public meetings and the others are also regularly available in their residence and business places, but the investigating officer is not evincing any interest to apprehend them. According to the petitioner, the slow attitude of the police is only to facilitate the accused to utilize the benevolent provisions of Section 167(2), Criminal Procedure Code that if after lapse of ninety days the final report is filed, the accused shall automatically be released on bail. He therefore seeks that the investigation can be entrusted to Central Bureau of Investigation.
Arivananda Pandian had come forward with Crl.O.P.No.7207 of 2000 to direct the Commissioner of Police, Madurai City to continue the personal security offered to the petitioner to safeguard his life and limbs till the disposal of the murder trial in Crl.No.49 of 2000.
The third petition, viz., Crl.O.P.No.7074 of 2000 has also been preferred by Arivananda Pandian seeking direction to the third respondent, the Secretary, Home Prohibition and Excise, Government of Tamil Nadu to direct the first and second respondent, namely, the Commissioner of Police, Madurai City and the Assistant Commissioner of Police, Town Crime Range, Madurai, to open the premises of No.2 South Chitra Street, Madurai and handover the keys to the petitioner to run the Sangam Administration. According to the petitioner, because of the rival claims by the petitioner and Karikolraj, one K. Chandrasakaran has lodged a complaint to the Commissioner of Police; Madurai City on 24.1.2000 regarding certain damages caused to the Sangam premises. Since the police did not take action, Chandrasekaran preferred W.P.N0.1534 of 2000 on 1.2.2000, in which this Court (writ side) ordered for registration of a case and accordingly, a case was registered by B.2 Meenakshiamman Koil Police in Crime No.79 of 2000 on 4.2.2000 for the offences under Sections 144, 149, 201, 204, 454 read with 120(b), I.P.C. and 3(1) of the Tamil Nadu Properties Damages and Loses Act. In the course of the investigation in that crime, the investigating officer locked the Sangam premises and is keeping the key with him. The petitioner Arivananda Pandian filed Writ Appeal No.207 of 2000 before tins-Court against the orders passed in W.P.No. 15344 of 2000. That writ appeal was dismissed with an observation that the orders passed by the Civil Court must be respected. The matter is pending before the Civil Court for adjudication in Sub Court at Madurai and District Munsif Court at Sankarankoil in O.S.No.79 of 2000 and O.S.No.333 of 1999 respectively. According to the petitioner, B.2 Police Officials, Madurai Town, took proceedings under Section 145, Criminal Procedure Code with regard to possession and the Revenue Divisional Officer held that the petitioner Arivananda Pandian and his group are entitled to lawful occupation of the Sangam premises and they can carry on the administration of the Sangam. Inspite of the said order, the investigating officer has not handed over the keys of the Sangam premises. According to the petitioner, the first and second respondent are to be directed to hand over the Sangam premises.
Heard both the sides. Let me consider the petition for transfer of investigation from the C.B., C.I.D., Madurai to C.B.I., viz., Crl.O.P.No.7064 of 2000.
3. The Public Prosecutor submitted that it has become a fashion with every litigant to make a request to Courts that investigation in the criminal case should be handed over to C.B.I. He further submitted that unless there are compelling reasons, such request cannot be complied with. The learned Public Prosecutor cited the decision reported in Som Dut Thakur v. State of Haryana and others, 1992 (2) L.W. (Crl.) 538(1), wherein Their Lordships of the Apex Court have pointed out as under:-
"These days it has become a fashion with every litigant to make a request to Courts that the investigation in criminal cases should be handed over to C.B.I. Unless compelling reasons are there no court should accede to such prayer."
The learned Public Prosecutor also submitted that while the matter was pending with the B.2, Meenakshiamman Temple Police Station, Madurai Town, the Government has evinced interest and they have shown their bona fide by taking prompt action in the matters and transferred the investigation to C.B.C.I.D. and therefore, the entire matter must be left to the State Government to complete its function under the Code of Criminal Procedure without any interference from any outside agency.
4. The learned counsel for the petitioner submitted that if the circumstances of the case warrant investigation by the C.B.I., this Court can directly issue direction to the C.B.I., and the sanction under Sections 5 and 6 of the Delhi Special Police Establishment Act, 1946 is not necessary. The learned Counsel cited the authority reported in State of West Bengal v. Sampat Lal, , wherein it has been held in paragraph no.13 as under;-
....."While Section 6 Of the Delhi Special Police Establishment Act, 1946 ('Act' for short) would require the consent of the Slate Government before jurisdiction under Section 5 of that Act is exercised by officers of that establishment, when a direction is given by the Court in an appropriate case, consent envisaged under Section 6 of the Act would not be a condition precedent to compliance with the Court's direction. In our considered opinion, Section 6 of the Act does not apply when the Court gives a direction to the CBI to conduct an investigation".....
5. The circumstances under which the Court can pass such orders were also canvassed by the learned counsel for the petitioner by referring various authorities.
6. In Kashmeri Devi v. Delhi Administration, AIR 1988 S.C.1823, where there was an allegation of deceased dying in police custody owing to the injuries caused due to beating by police, that the investigating officer converted the case from Section 302, I.P.C. to Section 304, I.P.C. within the hours of registration of the case even without waiting for the post-mortem report, that later while the writ petition and special leave petition for transfer of investigation to C.B.I. were pending, the case was further converted to Section 323 read with 34, I.P.C. and chargesheet was also submitted on that basis, Their Lordships of the Apex Court have held that the appellant, the wife of the deceased, has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint. Considering the peculiar circumstances, Their Lordships have held that even though the chargesheet had already been submitted to the concerned Magistrate, direction can be issued to the trial Court, before whom the chargesheet has been filed, exercising its power under Section 173(8) of Criminal Procedure Code to direct the C.B.I. for proper and thorough investigation of the case and accordingly, such direction was issued in that case.
7. In Gudalure M.J. Cherian v. Union of India, , what is known as Gajraula Nuns rape case, certain Christian nuns were gang-raped. The F.I.R. alleged that three persons were involved in that crime. But the police arrested four persons and the victim did not come forward to identify the accused on the ground that instead of arresting the real culprits, the police asked them to identify the arrested persons as culprits. Their Lordships held that to do justice between the parties and to instill confidence in public mind, the Court may ask the C.B.I. to investigate.
8. R.S. Sodhi v. State of U.P., 1994 Crl.L.J.111, is a case where fake police encounters were alleged against the local police. It was held that the investigation by the State Police will lack credibility, and that because the allegations are leveled against the local police, in the interest of natural justice the case should be investigated by the C.B.I. In that case, the learned Counsel for the State Government raised the identical objection which, has been arisen in the case on hand, that once the State Government has shown its bona fide by taking prompt action, it should be left to the State Government to complete its function under the Code of Criminal Procedure without any interference from the outside agency. Their Lordships of the Supreme Court have expressed the following view in paragraph 2 of the judgment:-
...."We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them ....
9. In Ramanathan v. State represented by Inspector of Police and another 1995 (1) L.W (Crl.) 272, when an allegation was put forth that the police was hand in glove with Revenue Officials and highhandedly removed the roof of the deceased's house and instigated the deceased to pour kerosene on herself and set fire, and there had been a delay in investigation, it was pointed out that under the circumstances, when irresistible inference had to be drawn that the police is desultory, lackadaisical and shielding officers, direction can be issued that the investigation is to be made by the C.B.I. Police.
10. In Madras High Court Advocates' Association, Etc. v. State of Tamil Nadu etc. and 3 others, 1995 W.L.R. 441, where Advocate R. Shanmugasundaram was attacked by a group of persons, regarding which, the Madras High Court Advocates' Association filed a writ to issue a writ of mandamus directing the criminal case to be registered by the third respondent therein and further investigation should be done by the fourth respondent therein, namely, C.B.I., my learned brother S. Jagadeesan, J. has pointed out that normally this Court exercising its writ jurisdiction should not interfere with the investigation of the crime as well as the progress by the investigating agencies of the State. But if mere is any possibility of the investigating agency not being in a position to discharge its functions or duties freely in an unbiased manner, especially there is apprehension regarding the recording of confession from two more assailants to be apprehended, it was held that the apprehension was well founded, for issuing directions in that case, so that the citizens should have faith both in the police officials and the judiciary as well.
11. Let us approach the facts and circumstances of the case on hand with the guidance of the above decisions. The over all circumstances seems to be this: There had been dispute between Arivananda Pandian group and Karikolraj group as to who should be the Secretary of the Sangam. This has resulted in murder of one person belonging to Arivananda Pandian group on 26.1.2000. The complainant Kamaraj was abducted on 24.3.2000. He appeared before the learned Judicial Magistrate on 28.3.2000 and gave a statement under Section 164, Criminal Procedure Code that the accused in the murder case had nothing to do with that crime. Even prior to this murder, there had been another incident regarding which Arivananda Pandian had preferred a complaint to the police on 13.1.2000 alleging that an attempt was made on his life, regarding which a case in Crime No.18 of 2000 under Section 307, I.P.C. was registered. Later, alleging that Arivananda Pandian and his group of persons had purchased a TATA Safari in his name from and out of the Sangam funds, one Mayandi has given a complaint to the Madurai District Crime Branch, who had registered a case in Crime No.52 of 1999 under Section 406, 409 read with 34, I.P.C. On 20.1.2000, Arivananda Pandian and his persons trespassed into the Sangam's office by breaking open the locks and caused damages to the properties worth to Rs.10,000. Therefore, a case had to be registered against Arivananda Pandian and his group of persons under Sections 144, 149, 201, 204, 454 read with 120(b) and 34, I.P.C. and under Section 3(1) of T.N.P.P.D.L. Act. Of course, B.2 Police did not register a case. Later, Chandrasekaran had to prefer a writ petition, in which, it was ordered that the police should register a case and accordingly a case was registered in Crime No. 79 of 2000. It is thus evident that there, is mutual hatred and discontent between these two group of persons.
12. Investigation has been transferred from Madurai Police to C.B.,C.I.D. C.B.,C.I.D. had furnished the diary extract regarding this case. Though the diary extract shows that the police had been vigilant and regular in investigating the matter, but some how they have not thought it fit to apprehend the accused in murder case, namely, Karikolraj, Peris Mahendran, Padmanabhan, Gnanasekaran and Mayandi. According to the petitioner, the C.B.,C.I.D. are not interested in arresting these persons. It is also alleged that in a murder case, the police have not thought it fit to file the chargesheet within 90 days only to enable the arrested accused also to get themselves released under the provisions of Section 167(2), Criminal Procedure Code. The petitioner had alleged that Karikolraj is not a nobody, but a permanent person, who had been addressing several meetings of his minority group, regarding which postures are exhibited in various places in Madurai and even announcements were made in the dailies regarding the holdings of the meetings and participation of Karikolraj. When that is the case, the very inaction on the part of the respondents in not apprehending the accused would certainly create a doubt in the minds of the not only the relatives of the deceased, but also the .general public that the police are slowing investigation with certain ulterior motive. I have perused the case diary, that would also reveal that not much interest has been evinced to arrest the accused in the murder case. I feel, to, do justice between the parties and to instil confidence in the public mind, this Court may ask the C.B.I. to investigate the murder case. C.B.,C.I.D. Police shall hand over the records to the Joint Director, C.B.I., Chennai. The Joint Director, C.B.I., Chennai is asked to entrust the investigation of the murder case to any one of his subordinates. The Joint Director, C.B.I. is to pass such orders within one week from the date of the receipt of the order. The C.B.,C.I.D., Chennai at Madurai is directed to hand over the records to the Officer appointed by the Joint Director, C.B.I. The investigating officer appointed by the Joint Director, C.B.I. shall complete the investigation within three months and submit the final report to the concerned Court. Crl.O.P.No.7064 of 2000 is ordered accordingly.
13. As for as Crl.O.P.No.7207 of 2000 is concerned, from what I have already detailed, it would appear that there are certain cases registered against Arivananda Pandian also and they also being investigated. It appears, after the murder of Pondi, the Commissioner of Police, Madurai had given security to the petitioner herein. He seeks to continue the security. When it is evident that two cases nave been registered against the petitioner, the Court directing to provide security to the accused may not be fair. I do not propose to pass any order in Crl.O.P.No.7207 of 2000. It is within the discretion of the Commissioner of Police, Madurai City whether to extend the security to the petitioner when cases have been registered against him in Crime No.79 of 2000 and 52 of 2000 and investigations are pending. Accordingly, Crl.O.P.No.7207 of 2000 is closed.
14. As far as Crl.O.P.No.7074 of 2000 is concerned, from what I have detailed in the earlier paragraphs, it is evident that on the complaint preferred by one Chandrasekaran against the petitioner herein that he along with his men broke open the locks of Sangam premises and caused extensive damages to the property, a case has been registered against the petitioner herein and investigating officer has locked and sealed the premises and the keys are now available with the Commissioner of Police. According to the petitioner, regarding this incident proceedings under Section 145, Criminal Procedure Code were instituted and the Revenue Divisional Officer has found that the petitioner was in possession of the Sangam premises and therefore, the keys should be handed over to him. But the petitioner himself had referred to the writ proceedings in W.P.No.1534 of 2000 and also Writ Appeal No.207 of 2000. Even as stated in the paragraph No.7 of the affidavit of the petition, in W.A.No.207 of 2000, the writ Court has observed that Civil suits are pending on the file of the Sub Court, Madurai and District Munsif Court, Sankarankoil in O.S.No.79 of 2000 and O.S.No.333 of 1999 respectively, regarding the administration of Nadar Mahajana Sangam and possession of the premises. The Court having writ jurisdiction had directed the parties to abide by the decision of the Civil Courts. When that is the case and when allegations are made out against the petitioner himself that he had broken open the premises, I do not think that the direction now sought for by the petitioner can be issued. He has to follow the direction issued by this Court in Writ Appeal and if he feels any urgency, he should approach the civil Courts for suitable orders. Accordingly, Crl.O.P.No.7074 of 2000 is dismissed.