Madras High Court
P.Jeyarajan vs The State Of Tamil Nadu on 12 January, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.01.2015
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD) No.6768 of 2013
P.Jeyarajan ... Petitioner
Vs.
1. The State of Tamil Nadu,
Represented by its
Principal Secretary,
Department of Home,
St.George Fort, Secretariat,
Chennai.
2. The Director General of Police,
CBCID,
No.3, Sidco Electronic Complex,
First Floor, Guindy,
Chennai-32.
3. The Superintendent of Police (CBCID),
Kanyakumari District at Nagercoil,
4. The Inspector of Police,
CBCID, Nagercoil,
Kanyakumari District.
5. The Inspector of Police,
Nithiravilai Police Station,
Nagercoil, Kanyakumari District. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a writ of Mandamus, directing the 1st respondent to transfer
and entrust the investigation of the case in Crime No.229 of 2012 under
Sections 147, 148, 341, 323, 294(b), 153(A), 307 and 302 IPC from the 4th
respondent police to Central Bureau of Investigation.
!For Petitioner : Mr.A.Velan
For M/s.Ajmal Associates
For Respondents : Mr.D.Muruganandam,
Addl. Govt. Pleader
:ORDER
This writ petition has been filed, seeking a direction to the 1st respondent to transfer and entrust the investigation of the case in Crime No.229 of 2012, registered under Sections 147, 148, 341, 323, 294(b), 153(A), 307 and 302 IPC from the 4th respondent police to Central Bureau of Investigation.
2. The facts leading to filing of this writ petition are as follows:
i) The petitioner has submitted that he is a Tailor by profession and that a prayer meeting was conducted in the house of one Gnanamuthan at Sathancodu, which was disturbed by one Dharmaraj, who belongs to a political party along with other 50 persons. When the son of the petitioner was in the tailoring shop of the petitioner, the said Dharmaraj had attacked his son and caused his death. In this regard, the petitioner lodged a complaint with the 5th respondent on 27.08.2012, on the basis of which, a case in Crime No.229 of 2012 for offences under Section 147, 148, 341, 323, 294(b), 153(A), 307 and 302 IPC came to be registered. In the said mishap, the petitioner also sustained injuries on his shoulder and subsequently, the case was suo motu transferred to the 4th respondent by the Government in view of the seriousness of the case.
ii) The petitioner has further submitted that even after a lapse of eight months, there is no progress in the case and though the accused persons are very much available in the local area, no steps have so far been taken to arrest the accused persons. The apprehension of the petitioner is that on account of political pressure, the 4th respondent could not be able to proceed further in a fair and proper manner and the CBCID is taking steps to remove the name of the 1st accused, namely, Dharmaraj, from the charge sheet, even though there is a specific averment against Dharmaraj/A1. fTherefore, the petitioner is before this Court seeking the relief stated supra.
3. The 4th respondent has filed a status report inter alia contending as under:
i) It is stated that on 26.08.2012 at 7pm, when there was a prayer meeting conducted by Christian at the house of one Gnanamuthan, some Hindu Community people objected to the same and at that time, the petitioner herein and his son assaulted one Murugan and in retaliation, seven accused persons assaulted the son of the petitioner and had done to death. Consequent to the orders of the Government, transferring the case to CBCID, the 4th respondent Police took up the case for further investigation.
ii) It is further stated in the counter that during investigation, it was found that Dharmaraj/A1 was neither present at the scene of occurrence nor attacked the deceased Edwinraj. In the investigation, it was disclosed that the injury over the nose of the deceased was due to the attack of the other accused Lazer as per the statement of the eye witnesses in the same locality. It is narrated in the counter that since the petitioner does not know how to read and write Tamil, he explained the whole incident to one Cyril Sundara Jose. Subsequently, on enquiry with the petitioner, he informed that Dharmaraj was not present at the scene of murder and the 4th respondent also seized the Auto of A7, bearing Reg. No.TN-75-C-8768, which was used by the accused in this murder case and sent the same to Court.
iii) In the counter, it has been stated that the 4th respondent has examined many witnesses, who all deposed that A1/Dharmaraj was not at all present at the scene of occurrence. Thus, after an elaborate investigation and on obtaining legal opinion, the 4th respondent deleted the name of A1 from the charge sheet and 4th respondent had also obtained confession statement from Vigilkumar and Sathesh, seized an Ambasador Car and a cash of Rs.37,000/-. After completion of the investigation and also in consultation with the Government Assistant Director of Prosecution, Nagercoil, a charge sheet was laid before the Judicial Magistrate No.II, Kuzhithurai on 26.04.2013 and the same is pending for committal in PRC No.11 of 2013.
Therefore, it is stated that since the investigation was carried out in proper line under the supervision of superior officers, the 4th respondent prayed for dismissal of the petition.
4. The counsel for the petitioner has submitted that the High Court has been conferred a special power, namely, the inherent power, which can be exercised at any stage of the proceeding. The provisions of the Code of Criminal Procedure contains a series of interlocked provisions so as to correct the errors in regard to improper investigation on the part of the investigating officer. He has further submitted the petitioner, having lost faith in the present investigation, being conducted by the 4th respondent, has invoked the provisions of Section 482 Cr.P.C. for transfer of the case to the Central Bureau of Investigation.
4.1. The counsel for the petitioner, in the midst of his arguments, has relied on the following judgments:
i) Rama Chaudhary vs. State of Bihar, reported in AIR 2009 SC 2308;
"12. If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge- sheet, the prosecution filed an application on 12.01.2008 in a pending Sessions Trial No. 63 of 2004 to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the supplementary charge-sheet.
13. The law does not mandate taking prior permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge-sheet is a statutory right of the Police. [vide K. Chandrasekhar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C. that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion.
ii) Popular Muthiah vs. State Rep. by Inspector of Police, reported in (2006) 7 SCC 296;
"28. In certain situations, the court exercises a wider jurisdiction, e.g., it may pass adverse remarks against an investigator or a prosecutor or a judicial officer, although they are not before it. Expunction of such remarks may also be directed by the High Court at a later stage even suo motu or at the instance of the person aggrieved.
29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.
30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammeled by procedural restrictions in that
(i) power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.
(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.
(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists.
ii) Mithabhai Pashabhai Patel and others vs. State of Gujarat, reported in (2009) 6 SCC 332;
"12. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not direct re-investigation. This court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon.
13. It is, however, beyond any cavil that `further investigation' and `re- investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a `State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior could would ordinarily issue such a direction.Pasayat, J. in Ramachandran v. R. Udhayakumar, [(2008) 5 SCC 413], opined as under :-
"7. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation..."
A distinction, therefore, exists between a re-investigation and further investigation.
14. If the investigating authority, in terms of the provisions of the Code, could not ask for re-investigation, we would have to proceed on the basis that this Court in its order dated 26th March, 2008 only directed further investigation. We may notice that this aspect of the matter has also been considered by this Court in Nirmal Singh Kahlon v. State of Punjab, [ (2009) 1 SCC 441 ], wherein it has been opined :-
"63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end and after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta (Taj Corridor Scam) v. Union of India, loses all significance."
5. Per contra, the Additional Government Pleader appearing for the respondents has contended that finding no material whatsoever against the 1st accused, the 4th respondent has chosen to delete the name of the accused from the charge sheet and that investigation cannot be done at the capriciousness of the petitioner. Moreover, the petitioner cannot dictate either this Court or the respondent police to act in a particular angle as desired by him. Therefore, the question of transferring the case to CBI does not arise at all in this case.
6. Heard the counsel on either side and perused the materials available on record.
7. A circumspection of the fact would reveal that pursuant to the emanation of dispute with regard to the conduct of prayer meeting, the son of the petitioner was alleged to have been murdered by one Dharmaraj/A1 along with other 50 persons, which resulted in registration of a case in Crime No.229 of 2012 for offences under Section 147, 148, 341, 323, 294(b), 153(A), 307 and 302 IPC. Subsequently, ever after transferring the case to CBCID for further investigation, no conspicuous change had taken place in the progress of the case. Having apprehended that the 4th respondent could not conduct a fair and proper investigation, owing to high political pressure, the petitioner has knocked at the doors of this Court, seeking for the relief stated supra.
8. The contention of the respondents that if at all the petitioner has got any grievance, he has to approach the concerned Magistrate for his redressal, qua further investigation through a different agency and instead of availing the said remedy, the petitioner has straightaway moved this Court for transfer of the case. In a case where the question arose, whether the Magistrate can direct for reinvestigation, the Hon'ble Supreme Court in Vinay Tyagi vs. Irshad Ali, (2013) 5 SCC 762, has ruled thus;
?43.At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation', 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo' and 'reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection.?
9. The Hon'ble Supreme Court in the recent judgment in Chandra Babu Alias Moses vs. State through Inspector of Police and others, reported in (2015) 8 SCC 774, has reiterated that fresh/denovo investigation/reinvestigation or investigation by a different agency can be directed only by Superior Courts either under Section 482 Cr.P.C. or under Article 226 of the Constitution of India and not by a Magisterial Court, as the Magistrate has got power only to order further investigation in terms of Section 173(8) Cr.P.C., with great caution, that too, by the same agency. A Magistrate can at the best disagree with the Police report, take cognizance, issue process and summons to the accused and independently apply his mind to the facts that have emerged from the investigation. Even with regard to further investigation, the Magistrate should use the said power in a rarest of the rare cases in a cautious manner and not as a matter of routine. As the prayer sought in this petition is to direct transfer of the case to a different agency, the contention of the respondents raised in this particular context does not hold good.
10. In addition, a perusal of the status report filed by the 4th respondent reveals that the case has been proceeded with as that of a case of petty nature, completely ignoring the fact that it is a case of murder, which casts doubt in the mind of this Court. The respondent has not taken any serious steps to unearth as to whether the 1st accused was present in the scene of occurrence and has in a biased manner, come to the constant finality of A1's non involvement in the crime based on the deposition of some witnesses. It is the bounden duty of the respondent to ensure whether there is any conspiracy in the alleged occurrence and the absence of the 1st accused in the spot alone is not sufficient to delink him from the charges.
11. Therefore, bearing in mind the relevant proposition laid down by the Hon'ble Supreme Court that this Court can exercise its inherent power in order to meet the ends of justice in rare and exceptional cases cautiously, finding every justification, the investigation is liable to be entrusted to the Central Bureau of Investigation (CBI) for investigation, even though CBI has not been made as a party to this writ petition.
12. In the result, this Writ Petition is allowed in agreement with the contention raised by the petitioner. The first respondent is directed to transfer the case in Crime No.229 of 2012 to CBI for investigation. On receipt of the case, the CBI shall reinvestigate the mater and submit a report before the concerned Court as expeditiously as possible. No costs.
To
1. The Principal Secretary, Department of Home, St.George Fort, Secretariat, Chennai.
2. The Director General of Police, CBCID, No.3, Sidco Electronic Complex, First Floor, Guindy, Chennai-32.
3. The Superintendent of Police (CBCID), Kanyakumari District at Nagercoil,
4. The Inspector of Police, CBCID, Nagercoil, Kanyakumari District.
5. The Inspector of Police, Nithiravilai Police Station, Nagercoil, Kanyakumari District.
6. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..