Madras High Court
C.T.Rajendran vs State Of Tamil Nadu Through on 2 April, 2009
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/04/2009 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.3983 of 2008 C.T.Rajendran ... Petitioner Vs. 1.State of Tamil Nadu through The Superintendent of Police, Kanyakumari at Nagercoil. 2.The Sub-Inspector of Police, Kuzhithurai, Kanyakumari District. In Crime No.306 of 2007. ... Respondents Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to direct the first respondent to have investigation in respect of Crime No.306 of 2007 on the file of the second respondent done by some Police Officer other than the second respondent and file final report in the same within a time to be fixed by this Court. !For Petitioner ... Mr.K.N.Thambi ^For Respondents ... Mr.P.Rajendran Govt. Advocate (Crl.Side) :ORDER
This petition has been filed by the petitioner, who is the de facto complainant, seeking a direction against the first respondent to have the investigation in Crime No.306 of 2007 on the file of the second respondent to be done by some other Police Officer other than the second respondent and to file final report within a time to be fixed by this Court.
2. The gist of the case submitted by the petitioner are as follows:
The petitioner is the physically handicapped person and he is running a petty shop. One Rajesh, who was convicted and sentenced by the Court on the complaint of the petitioner in the year 2004, developed enmity and when the petitioner was going near Vazhaithottam C.S.I. Church on the way to his house on 29.05.2007 at 09.00 p.m., he waylaid the petitioner and beat him with stick and when the blows were blocked by the petitioner on his left hand, it caused a lacerated injury in the left forearm and thereafter the said Rajesh beat the petitioner on his left thigh causing a contusion and therefore he had given a complaint against the said Rajesh and a case was registered in Crime No.306 of 2007 for the offences punishable under Sections 341 and 323 I.p.C. on the same night. The petitioner was also sent to the Government Hospital, Kuzhithurai for treatment of his injuries and thereafter he was referred to Kanyakumari Medical College Hospital, Asaripallam, Nagercoil and he was treated as inpatient from 30.05.2007 to 04.06.2007 and he has got two injuries as described in the Accident Register. But the said injuries would go a long way to show that the offences committed by the said Rajesh were punishable under Sections 341, 325 and 323 I.P.C. But to the shock and surprise of the petitioner, the said Rajesh was not charged with Section 325 I.P.C. and therefore he was moving around freely. When the petitioner verified the proceedings, he found that the charge sheet was filed for the offences punishable under Sections 341 and 323 I.P.C.
only against the said Rajesh and the said final report was taken on file in S.T.C.No.2256 of 2007 by the learned Judicial Magistrate No.I, Kuzhithurai and the said accused Rajesh had pleaded guilty of the said offences on 29.06.2007 and he was fined for a sum of Rs.150/- and Rs.350/- respectively with default sentences.
3. When the petitioner approached various authorities by the way of petition dated 09.01.2008 firstly to the Assistant Superintendent of Police seeking for reinvestigation of the case regarding the offence under Section 325 I.P.C., it was informed that the reinvestigation by the police can be done after a long process only.
4. The petitioner was brutally attacked by the said Rajesh and his left forearm, ulna bone was fractured and it was considered to be a grievous injury. The said fact was not considered by the Investigating Agency, but lesser charge has been filed against the said accused and he was lead on freely. The said Rajesh is a rich and strong person wielding great influence. The petitioner being a physically handicapped, suffered grievous injury due to the brutal attack made by the said Rajesh and the request of the petitioner for reinvestigation was not so far ordered by the police and therefore the petitioner has to nab the door of this Court for justice. If the matter is further delayed, valuable evidence in the case will vanish and therefore the petitioner prays for a direction against the first respondent to have the investigation in respect of Crime No.306 of 2007 on the file of the second respondent to be done by some other police officer other than the second respondent and to fine a final report within a time to be fixed by this Court.
5. Heard the learned counsel appearing for the petitioner and also the learned Government Advocate (Criminal side) appearing for the State.
6. The learned counsel appearing for the petitioner would submit in his argument that the Investigating Agency viz., the second respondent had registered the case in Crime No.306 of 2007 under Sections 341 and 323 I.P.C. and had investigated the case. While such investigation, the second respondent did not find out that the injury sustained by the petitioner in his left forearm was a grievous one due to the fracture sustained by him on the brutal attack inflicted by the said accused Rajesh and altered the Section into 325 I.P.C., but had proceeded with the investigation only under Section 341 and 323 I.P.C., which would basically caused himself to the injury. The petitioner, on a bona- fide belief that the charges would have been framed against the accused Rajesh under Section 325 I.P.C. was kept quiet, but on seeing the accused Rajesh pondering freely without any punishment, it could be verified only after going through the Judgment of the learned Judicial Magistrate No.I, Kuzhithurai made in S.T.C.No.2256 of 2007 on 29.06.2007. He would further submit that the request of the petitioner for reinvestigation with the police higher officials are of no avail and therefore he has to complain to this Court for passing a direction of reinvestigation. He would also submit the Judgment of the Hon'ble Apex Court in Ramekbal Tiwary v. Madan Mohan Tiwary and another reported in AIR 1967 Supreme Court 1156 for the proposition that there can be a fresh charge and trial for a higher offence in respect of the acquittal of the accused on the minor charges. He would also draw the attention of this Court to the Judgment of the Hon'ble Apex Court in Ram Lal Narang v. State (Delhi Admn.) and Om Prakash Narang and another v. State (Delhi Admn.) reported in AIR 1979 Supreme Court 1791 to the said proposition of law. He would further stress in his argument that there is no bar for the police to reinvestigate the matter for the left out offence despite the accused was already convicted for a lesser offence. He would therefore pray for reinvestigation of the case in the interest of justice.
7. The learned Government Advocate (Criminal side) would submit in his argument that the case was investigated by the second respondent and charge sheet was filed under Section 341 and 323 I.P.C. and the same was taken cognizance by the learned Judicial Magistrate No.I, Kuzhithurai in S.T.C.No.2256 of 2007 and the accused pleaded guilty and the Judgment was passed on 29.06.2007 and all these facts should have been known to the de facto complainant, the petitioner herein and he has not raise any objection during that time, but had come forward with this petition belatedly and therefore there is no question of any reinvestigation necessary in this case. He would request the Court to dismiss the petition as unsustainable.
8. I have given anxious thoughts to the submissions made by both sides. The admitted facts are that a complaint was filed by the petitioner against the assault made by the accused Rajesh in Crime No.306 of 2007 and the same was investigated by the second respondent police and the charge sheet was filed against the said accused Rajesh under Section 341 and 323 I.P.C. and the case was taken on file by the learned Judicial Magistrate No.I, Kuzhithurai under Section 341 and 323 I.P.C. and the same was disposed of on 29.06.2007 on the pleading of guilty by the said Rajesh and the said Court had fined at Rs.150/- and Rs.350/- against the respective crimes with default sentences. Now the petitioner had produced the wound certificate and other documents to show that the opinion given by the Doctor, who treated the petitioner for the injuries sustained by him in the said occurrence, that it was a simple injury sustained in both left hand as well as left thigh. Subsequently, the examination of the injury sustained on his left hand was detected to be a fracture of ulna bone and therefore it was certified to be a grievous injury.
9. The wound certificate dated 07.09.2007 was produced for perusal. A copy of the letter addressed to the Incharge Medical Officer, Government Hospital, Kuzhithurai by the Residence Medical Officer, Kanyakumari Government Medical College, Asaripallam dated 04.07.2007 would also show the fracture of the left ulna sustained by the petitioner in the said occurrence. Therefore, the Investigating Agency ought to have taken note of the fresh Wound Certificate given by the Doctors concerned and should have recorded their statements and obtained the said fresh Wound Certificate of the petitioner. Admittedly, the said fresh wound certificate was not obtained during the course of investigation. If the said wound certificate is obtained, the injury sustained by the petitioner in his left forearm would be considered as a grievous one and the attracting Section under Indian Penal Code would be a different one. As per the said higher Section, the accused Rajesh should have been charge sheeted and the case should have been either conducted by the same Magistrate or if it is a first class offence, it would go to the Sessions Court for trial. The failure to collect those documents and recording of evidence from the respective witnesses would certainly affect the victim.
10. The Judgment of the Hon'ble Apex Court in Ramekbal Tiwary v. Madan Mohan Tiwary and another reported in AIR 1967 Supreme Court 1156 would be helpful in passing a perfect order. The relevant passage would run as follows:
"(9) It was lastly contended for the appellant that there can be no commitment for the offence under Section 307, Indian Penal Code in view of the acquittal on the charge under Sections 326 and 338, Indian Penal Code. Reliance was placed on Section 403(1), Criminal Procedure Code which states:
403. (1) A person who has been once tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Section 236, or for which he might have been convicted under Section 237."
There is no substance in the argument of the appellant because Section 403(4) provides that a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. In view of this sub-section it is obvious that there can be a fresh charge and trial under Section 307, Indian Penal Code in spite of the acquittal of the appellant on the minor charges. There is hence no reason why an order for commitment under Section 307, Indian Penal Code cannot be made by the Additional Sessions Judge in spite of the acquittal of the appellant on the charges under Sections 326 and 338, Indian Penal Code".
11. The aforesaid Judgment would guide us to the effect that there cannot be any double jeopardy for the accused persons under the provision of 403(1) Cr.P.C. (Old Court equivalent to Section 300(3) of amended Criminal Procedure Code). When the accused is acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. Therefore, we can understand that there is no bar for the Investigating Agency to go into a fresh charge arising out of the same acts done by the accused, which would constitute other offence.
12. The gist of the Judgment of the Hon'ble Apex Court in Ram Lal Narang v. State (Delhi Admn.) and Om Prakash Narang and another v. State (Delhi Admn.) reported in AIR 1979 Supreme Court 1791 would be also helpful to reach the decision in this case. The relevant portion of the said Judgment would run as follows:
"Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light. There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate. Neither S.173 nor S.190 lead to say that the power of the police to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority, permits repeated investigations on discovery of fresh facts".
13. The said Judgment of the Hon'ble Apex Court would also support the discovery of fresh facts after the Magistrate had taken cognizance of the offence could be referred to repeated investigations.
14. As regards the facts of the present case are concerned, the fact that the petitioner sustained grievous injury was certified by the Doctor, who treated the petitioner was lost sight of the Investigating Officer and it was brought to light only by the petitioner by producing the copies of the same. Therefore, the said facts could have been considered as the discovery of sufficient facts and reinvestigation could be done by the second respondent in the light of the aforesaid Judgment of the Hon'ble Apex Court. There is no impediment for the second respondent to go in for reinvestigation in the same Crime Number in respect of the offence said to have been committed under Section 325 I.P.C. However, it was referred to by the learned Government Advocate (Criminal side) that if any reinvestigation has to be ordered in any exhausted case, prior permission must be obtained from the Home Secretary of Government of Tamil Nadu, Chennai and the Home Secretary has to pass an order to that effect for reinvestigation of the said case. The petitioner has produced a copy of the letter addressed to him to that effect, which was dated 02.11.2007. The learned Government Advocate (Criminal side) is not able to furnish the result of the requisition made to the Government. Therefore, it has become necessary for this Court to pass suitable direction under Section 482 Cr.P.C. The inherent powers of this Court are explained in Section 482 Cr.P.C. For the purpose of convenient understanding, the said ingredients of the Section have to be extracted as under:
"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
15. As per the provisions of the said Section, it has to be necessarily find that if any provision of the Code is likely to be defeated, this Court can interfere and pass suitable direction. It is also made clear by the Hon'ble Apex Court that the power under Section 482 Cr.P.C. has to be sparingly used only for the purpose of upholding the provisions of the Criminal Procedure Code. So far as this case is concerned, it has been prima facie shown by the petitioner that the grievous hurt sustained by him in the occurrence was not properly investigated by the Investigating Agency and the petitioner was not dispensed with justice. However, the provisions are available for reinvestigation under this Court and the same was not followed by the police for doing reinvestigation. Therefore, it is an opt case for exercising the power conferred under Section 482 Cr.P.C. to pass a direction against the second respondent to go for reinvestigation of the case with some other police officers, who had not done the earlier investigation in respect of the sustenance of the grievous hurt by the petitioner in the said occurrence and the collection of evidence regarding that and the filing of additional charge sheet in the said Crime Number.
16. For the foregoing discussions, this Court is convinced for passing an order as desired by the petitioner for reinvestigation of the case by some other competent officer of the second respondent under the supervision of the first respondent to reinvestigate the case and to file a charge sheet within a reasonable time. The petition is ordered accordingly.
smn To
1.The Superintendent of Police, Kanyakumari at Nagercoil.
2.The Sub-Inspector of Police, Kuzhithurai, Kanyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai.