Madras High Court
K.Senguttuvan vs The Secretary To Government on 27 March, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.03.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.15779 of 2008 and M.P.Nos.1 to 3 of 2008 and 1 of 2010 K.Senguttuvan .. Petitioner Vs. 1.The Secretary to Government, Home (P&E) Department, Secretariat, Chennai-600 009. 2.The Director General of Police, Radhakrishnan Salai, Mylapore, Chennai-600 004. 3.The Additional Director General of Police, Crime Branch CID, St. Thomas Mount, Chennai-600 016. 4.The Superintendent of Police, Tiruvarur District, Tiruvarur. 5.Inspector of Police, Paravakkottai Police Station, Mannargudi Taluk, Tiruvarur District. 6.Deputy Superintendent of Police, Crime Branch CID, Thanjavur. 7.Elangovan (R-7 impleaded as per order dt.16.2.2009) .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus by calling for all the records on the file of the first and second respondents in connection with the proceedings C.No.42587/POL 18.07 dated 12.03.2008 and also the proceedings of the second respondent in RC.No.191607 Crime 1(2)/2007, dated 26.3.2008 and quash the same and all other proceedings based on that and consequently direct the fifth respondent to proceed with the trial of the case in PRC No.9 of 2006 now pending on the file of the Judicial Magistrate II, Mannargudi. For Petitioner : Mr.V.Murugaiyan For Respondents : Mr.V.Subbiah, Spl.G.P. For RR1 to 6 Mr.D.Veerasekaran for R-7 - - - - ORDER
This case is yet another instance where the organized Bar attempts to derail the criminal investigation in their anxiety to make one of their wayward member from facing the prosecution, being an accused for an offence involving murder. This case also shows the ever willing Government instead of upholding the rule of law, succumbing to the dictates of a pressure group, thanks to a green signal given by the Court.
2.The fifth respondent, who is a Station House Officer and the Inspector of Police at Paravakkottai Police Station, Mannargudi Taluk, had registered an FIR at the behest of the petitioner, who is the resident of East Street, Main Road, Keelathiruppalakudi village. On 25.12.2005, the petitioner had appeared before the police station around 2.30 p.m. and informed them that when he went to the main road at Sundarakottai to meet his brother Tamilselvan around 09.30 a.m., his brother was coming from the northern side to south side after bathing his cattle. At that time, from the house of one Asaithambi, four persons including Ullikottai Poyyamozhi, Elangovan (R-7), who is the then President of Ullikkottai Panchayat, and an another person by name Ullikkottai Selvam came running with Veecharuval (Spring Knife) and attacked Tamilselvan by shouting "rhTlh" (die). Tamilselvan's right arm came off and fell on the road. He was further attacked by all the four accused. There were witnesses present in the public road and were shouting "save him, save him". The criminal gang by collecting his hand got into a waiting Minidor Auto and escaped along with cut arm through the southern side. Tamilselvan was admitted by the writ petitioner in the Mannargudi Government Hospital. He was referred to for further treatment at Thanjavur Medical College Hospital. However he was taken to one private hospital. At about 11.20 a.m., it was informed that he was already dead. On the basis of this information, criminal investigation started and an FIR was registered in FIR No.204 of 2005, dated 25.12.2005 at 2.30 p.m.. The offence which was initially registered under Section 307 IPC after the news of the death and on further investigation was altered as offence under Section 302 read with 109, 34 and 120-B IPC as well as Section 4(1)(b) of the Explosives Substance Act, 1908. The 7th respondent Elangovan who was the President of the Panchayat as well as an Advocate and a member of the Mannargudi Bar Association, was directed to appear before the investigating officer on on 1.8.2006. After conducting an investigation, a final report was submitted to the Judicial Magistrate-II, Mannargudi on 11.08.2006. It was taken on file as PRC No.9 of 2006 and was to be referred to the appropriate Sessions Court.
3.It was at this stage, the said Elangovan (A-2) got a letter sent by one A.Selvaraju claiming to be the President of Mannargudi Bar Association on 5.4.2006 addressed a letter to the Chief Justice of this court. The letter was not typed in the letterhead of the Bar Association. In that communication, there was no reference to any resolution of the Association. At the maximum, it was an attempt by a President of the local Bar Association in attempting to help a member. The gist of the letter was that R-7 was a practicing Advocate and a member of the Bar Association. A criminal case was filed at the instance of the writ petitioner, who was not having cordial relationship with the accused Elangovan. He was not at all present during the occurrence and was falsely implicated. The Station House Officer did not conduct a proper investigation. Even the family members of the said Elangovan, i.e., sister and wife were also detained in the station for several hours. Therefore, they wanted the Chief Justice to conduct a discreet enquiry and to take an appropriate action to safeguard the life and reputation of the Advocate, who was victimized by the police. There was nothing on record to show that the letter was received by the Hon'ble Chief Justice and was acted upon with any endorsement made by the Chief Justice.
4.On the other hand, a criminal original petition was filed before this court under Section 482 Cr.P.C. being Crl.O.P.No.11785 of 2007 seeking for a direction to change the investigation from the Inspector of Police, Paravakottai Police Station for the false implication of the said Elangovan, his wife, sister, sister's daughter-in-law and daughter-in-law's father in Crime No.204/2005. It was also seen that no notice was issued to the respondents. The petitioner who is a defacto complainant was also not made a party to the said criminal original petition. The learned Government Advocate (Criminal side) was given notice. That criminal original petition was disposed of on 25.4.2007 by a learned Judge of this Court without the benefit of any counter statement or looking into the file. The submission made on behalf of the 7th respondent was noted in paragraph 2 of the order, which reads as follows:
"2.It is now submitted by the learned counsel for the petitioner that the petitioner is the member of Mannargudi Bar Association and he has been implicated as one of the accused along with his close relatives for the offence under Sections 307, 302 r/w 109 and 120(b) I.P.C. in Crime No.204 of 2006 pending on the file of the sixth respondent. It is also pointed out by the learned counsel for the petitioner that the Mannargudi Bar Association has given a representation to the Hon'ble Chief Justice on 05.04.2006 and such representation was forwarded to the first respondent and the same is pending for consideration. It is submitted by the learned counsel for the petitioner that till date, no action was taken on the representation given by the Mannargudi Bar Association and as such, the petitioner has been put to great hardship and mental torture." (Emphasis added) In paragraphs 4 and 5, it was directed as follows :
"4.A perusal of the records clearly shows that the petitioner is one of the members of the Bar Association of Mannargudi and he has been implicated for the offence under Section 302 I.P.C along with other relatives. It is also brought to the notice of this Court that Mannargudi Bar Association has given a representation dated 05.04.2006 to the Chief Justice in respect of the alleged false implication of the petitioner herein in a murder case and it is further submitted that the same was referred by the Chief Justice to the first respondent viz., Secretary to the Government, Home Department, Fort St. George, Chennai.
5.In view of the representation made by the Mannargudi Bar Association, this Court is constrained to direct the first respondent viz., Secretary to the Government, Home Department, Fort St. George, Chennai to consider the representation of the petitioner dated 05.04.2006 and to take suitable action in accordance with law by giving an opportunity of hearing to the respective parties. It is made clear that the said President of the Mannargudi Bar Association is directed to furnish a copy of the representation dated 05.04.2006 given to the Chief Justice, which was forwarded to first respondent, within a period of one month from the date of receipt of a copy of this order." (Emphasis added)
5.The aforesaid direction clearly shows that a copy of the memorandum given to the Chief Justice was produced and was strongly relied on by the learned Judge for directing the State Government to consider the representation sent by the President of the Bar Association. In fact, noting that such a copy may not be available with the State Government, a copy of the representation sent by the President of the Bar Association to the Chief Justice was also directed to be furnished. In a criminal investigation and trial, there is no scope for any third party to butt in and interfere. If at all the accused can make appropriate representation. Merely because an office bearer of the association without disclosing in what capacity he sends an unofficial letter to the Chief Justice, that cannot be treated as a substantive document for derailing an otherwise proper investigation.
6.The Supreme Court vide its judgment in Janata Dal v. H.S. Chowdhary reported in (1992) 4 SCC 305 had deprecated the practice of allowing a third party intervention in the matter of criminal investigation. In fact, a third party filing a Public Interest Litigation in the matter of criminal investigation and having recourse to remedy under section 482 of Cr.P.C. was not allowed. It is relevant to extract paragraph 122 of the said judgment which reads as follows:
"122.The High Court rejected the applications of the interveners as having no right to be impleaded as a consequence of the dismissal of the petition of H.S. Chowdhary on the ground that he has no locus standi. We too in our earlier order having held that H.S. Chowdhary has no locus standi to file the petition or to invoke the revisional or extraordinary inherent jurisdiction of the High Court under Sections 397 and 482 of the Code of Criminal Procedure respectively and that the petition under Article 51-A of the Constitution cannot come within the true meaning and scope of public interest litigation, dismissed the applications of the interveners holding thus:
Consequent upon the above conclusions (1) and (2), the appellants namely, Janata Dal, Communist Party of India (Marxist) and Indian Congress (Socialist) who are before this Court equally have no right of seeking their impleadment/intervention. For the same reasons, Dr P. Nalla Thampy Thera also has no right to file the Writ Petition (Crl.) No. 114 of 1991 as a public interest litigant.
7.The stage for interference with a charge sheet through a petition under Section 482 Cr.P.C. came to be considered by the Supreme Court vide its judgment in Bharat Parikh v. Central Bureau of Investigation reported in (2008) 10 SCC 109. The Supreme Court sets out the stage in which any petition can be entertained. In paragraphs 18 and 19, it was observed as follows:
"18.With regard to the second proposition regarding the High Court's powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and/or charges and claims to be tried. It is only in the exceptional circumstances enumerated in State of Haryana v. Bhajan Lal8 that a criminal proceeding may be quashed to secure the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution had produced sufficient material for charges to be framed.
19.As observed in Debendra Nath Padhi case6 at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused have to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to reopen the proceedings once charge has been framed or for invocation of the High Court's powers under Section 482 of the Code of Criminal Procedure."
(Emphasis added)
8.Further, a larger bench judgment of the Supreme Court in State of Orissa v. Debendra Nath Padhi reported in (2005) 1 SCC 568, in paragraphs 8,18,23 and 27 had observed as follows:
"8.What is the meaning of the expression the record of the case as used in Section 227 of the Code. Though the word case is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session and send to that court the record of the case and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
18.We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207-A omitted have already been noticed. Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well-settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.
23.As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case1 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.
27.Insofar as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt, inherent limitations as to the stage or point of time of its exercise, commensurate with the nature of proceedings as also the compulsions of necessity and desirability, to fulfil the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accused. The application filed by the accused under Section 91 of the Code for summoning and production of document was dismissed and order was upheld by the High Court and this Court. But observations were made in para 6 to the effect that if the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to look into the material so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicia1/public time, these observations are clearly obiter dicta and in any case of no consequence in view of conclusion reached by us hereinbefore. Further, the observations cannot be understood to mean that the accused has a right to produce any document at the stage of framing of charge having regard to the clear mandate of Sections 227 and 228 in Chapter 18 and Sections 239 and 240 in Chapter 19."
(Emphasis added)
9.This judgment came to be quoted with approval in a subsequent judgment in Rukmini Narvekar v. Vijaya Satardekar reported in (2008) 14 SCC 1 and in paragraph 36, it was observed as follows:
"36.While deciding the questions referred to it, the larger Bench made a conscious distinction between a proceeding under Section 227 CrPC before the trial court and a proceeding under Section 482 CrPC and made a reference to the court's power to consider material other than those produced by the prosecution in a proceeding under Section 482 CrPC. It is in that context that while holding that the decision rendered in Satish Mehra case10 was erroneous, the larger Bench held that if the submission that the accused would be entitled to produce materials and documents in proof of his innocence at the stage of framing of charge, was to be accepted, it would be unsettling a law well settled over a hundred years. It is in that light that the provisions of Section 227 CrPC would have to be understood and that it only means hearing the submissions of the accused on the records of the case filed by the prosecution and documents submitted therewith and nothing more. The larger Bench arrived at a definite conclusion that the expression hearing the submissions of the accused cannot mean an opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police."
(Emphasis added)
10.In a quash petition (filed under Section 482 Cr.P.C.), the defence of the accused cannot be relied upon and if at all it has to be placed only during trial as held by the Supreme Court in B. Jagdish v. State of Andhra Pradesh reported in (2009) 1 SCC 681. In that judgment in paragraph 24, it was observed as follows:
"24.The question is as to whether the High Court should have interfered with the order summoning the appellant at this stage? It is now a well-settled principle of law that at the stage of quashing of an order taking cognizance, an accused cannot be permitted to use the material which would be available to him only as his defence. In his defence, the court would be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. The jurisdiction of the courts, at this stage, is limited as whether a case of reckless/gross negligence has been made out or not will depend upon the facts of each case."
11.In the present case, the letter sent by the President of the Bar Association alleges that the accused Elangovan was not present on the spot. A defence of 'alibi' has to be pleaded before the trial court and cannot be taken note of for questioning the investigation. Such a defence can never be pleaded even to question the charge sheet as held by the Supreme Court in Rajendra Singh v. State of U.P., reported in (2007) 7 SCC 378 and in paragraphs 8 and 11, it was observed as follows:
"8.That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 CrPC was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to Section 103 reads as under:
B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it. This provision makes it obvious that the burden of establishing the plea of alibi set up by Respondent 2 in the petition filed by him under Section 482 CrPC before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. (See Gurcharan Singh v. State of Punjab4, Chandrika Prasad Singh v. State of Bihar5 and State of Haryana v. Sher Singh6.) This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge.
11.Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 CrPC being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 CrPC. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 CrPC. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 CrPC would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh7 and it was held as under in para 9 of the Report: (SCC p. 743) 9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words could be tried together with the accused in Section 319(1), appear to be only directory. Could be cannot under these circumstances be held to be must be. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court. Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by the learned Sessions Judge on 26-5-2005 as infructuous."
12.While invoking Section 482 Cr.P.C., the court cannot look into any document relied on by the accused and it has to strictly confine itself only to the allegation made in the FIR was held by the Supreme Court in Mahesh Chaudhary v. State of Rajasthan reported in (2009) 4 SCC 439 and in paragraph 12, it was observed as follows:
"12.....For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or the complaint petition fulfil the ingredients of the offences alleged against the accused."
13.Disregarding these issues, directions were issued as if the letter sent by the President of the Bar Association contains Gospel truth. Taking advantage of the directions issued on 25.4.2007, the counsel appearing for the 7th respondent sent a letter dated 22.5.2007 addressed to the Secretary to Home Department of Tamil Nadu, i.e., the first respondent, enclosing a copy of the order and the representation allegedly sent by the Bar Association dated 5.4.2007. Even before the letter from the counsel was received, remarks were called for by the second respondent Director General of Police from the fourth respondent the Superintendent of Police, Thiruvarur District. Pursuant to the same, the fourth respondent sent a detailed remarks dated 1.8.2007. After referring various steps taken by the Investigating Officer, the report as found in paragraphs 14, 16, 17, 19,20,21,22 and 23 reads as follows :
"14.The investigation was continued further and meanwhile Elangovan the petitioner obtained anticipatory bail. He was asked to appear for interrogation by the investigation officer by issuance of notice on 01.08.2006 but he failed to comply with the notice. Subsequently on 03.08.2006 he appeared before the investigation officer and was interrogated. On completion of investigation the Inspector of Police, Paravakkottai filed the police report arraying nine persons including the petitioner as accused to face the trial under sections 302, 109, 34 and 120(B) IPC and Section 4(1)(b) and 6 of the Explosives Substances Act, 1908 on 11.08.2006 before Judicial Magistrate Court II Mannargudi. The Court had taken the police report on file after taking cognizance of the offences mentioned above against the accused in PRC No.9/2006 and the case is now pending for being committed to the court of sessions to be taken up for trial.
16.The grounds that were averred in the para 3 of the petition are false implication of this petitioner and other as accused in this case due to political motive. The petition is devoid of any factual materials to convince this Hon'ble court that there ever existed any political motive. The petitioner could not even remotely suggest any political motive except simply stating that this case was falsely laid up against him and others.....
17.As to the contention of the petitioner in para 4 of the petition it is submitted that it is true, that the petitioner Elangovan is an advocate and hold the post of Village Panchayat president. But this status does not provide him any immunity to wriggle away from the process of law. However high he may be, law is above him.
19....it is submitted, the investigation of the case revealed the complicity of the accused Padmavathy, who is the sister of the petitioner and Mother of accused Poiyamozhi, Kayalvizhi w/o.accused Poiyamozhi, and Kanimozhi wife of accused Elangovan the petitioner, that they were found instigating accused Poiyamozhi to do the heinous act of cutting the right arm of Tamilselvan with the common intention of causing his death. Their act of instigation in pursuance of conspiracy had been let out by witnesses Thangamani and Rajendran, examined during investigation on 26.12.2005. These witnesses disclosed the factual aspect of instigation by conspiracy not only in their statements recorded by the investigation officer but also consistently struck to it before the Judicial Magistrate while recording their statements u/s 164 Cr.P.C. This uncontroverted evidence strengthens the case of the respondent.6.
20.Likewise, the participation of accused Elangovan s/o.Ramasamy Thevar, the father-in-law of Poiyamozhi had been spoken by witness Anbalagan. This witness disclosed during investigation that accused Elangovan s/oRamasamy Thevar instigated Poiyamozhi to cut Tamilselvan and bring his hand.
21.Padmavathi, Kayalvizhi, Kanimozhi and Elangovan son of Ramasamy Thevar were arrayed as accused as their involvement in this case came out during the course of investigation on the examination of witnesses. When there is overwhelming evidence pointing the complicity of the accused in the commission of the offence, it is not only preposterous to brand the investigation as false but also against the established canons of law. Accused Amutharasan had been include on the evidence of Muthuvelu and others.
22......it is submitted that accused Elangovan the petitioner, on his own showing had taken various steps to extricate himself from the process of law by moving the bar association, Mannargudi and bar council of Tamilnadu. His professional status as advocate is no bar for the law to take its legitimate course. The investigation of this case had been done with utmost care and it an unbiased manner leaving no stone unturned. Such meticulous investigation unearthed the whole factual matrix of the case bringing into book all those involved in the commission of the crime. The accused Padmavathy, Kayalvizhi and Kanimozhi were arrested on 26.12.2006 and remanded accused Elangovan son of Ramasamy Thevar was arrested on 27.12.2005 and remanded to Judicial custody on 28.12.2005. The sending telegrams etc., might be the ingenious and manipulative ploy of the petitioner with a view to scuttle the investigation. The facts overwhelmingly point to the culpability of the accused in the commission of the offences.
23.......The evidence gathered during the investigation in an unbiased and proper manner in this case has to be appreciated and decided by the trial court only. The truthfulness, sufficiency or acceptability of the evidence can be judged only at the stage of trial. It is too early and premature at this stage when the case in PRC 9/2006 on the file f the Judicial Magistrate II Court, Mannargudi is awaiting the orders of committal after supply of copies of documents to accused persons." (Emphasis added)
14.The letter received from the Superintendent of Police was forwarded to the State Government. Further, the second respondent Director General of Police informed the State Government by a communication dated 8.8.2007 as follows :
"2.The Superintendent of Police, Thiruvarur District has concluded that there is no speak of legal ground to change the investigation at this stage as the investigation had already been completed, charge sheet had been filed and court had taken cognizance against the accused persons including the petitioner." (Emphasis added)
15.In the meanwhile, the counsel for the 7th respondent accused sent a misleading letter dated 21.9.2007 giving his own version of events. In that letter, in paragraphs 4 and 5, he had stated as follows :
"4.In this connection the 1st reference as cited above is submitted to you on 22.05.2007 within one month as per the order in person along with all documents as stated by the Hon'ble High Court. Again your department asked the Bar Association to present the copy of the representation dated 05.04.2006 for fresh consideration as per the order of the Hon'ble High Court. But the Bar Association of Mannargudi presented a petition dated 05.04.2006 to the Hon'ble Chief Justice of Madras High Court in respect of false implication of the petitioner (Thiru C.Elangovan) in a murder case and the same was referred by the Hon'ble Chief Justice of Madras forwarded to the 1st respondent i.e., the Secretary to Government, Home Department, Government of Tamil Nadu, Chennai.
5.Hence again I am furnishing all relevant documents along with this letter, presented to you for fresh consideration as per the order of the Hon'ble High Court after giving opportunity to me on behalf my client, i.e., the Bar Association and also you may give notice to the State Public Prosecutor on behalf of the States in Crl.O.P.No.11785 of 2007 before considering the Bar as petition dt 5.4.2006 as per the order of Hon'ble High Court, Madras" (Emphasis added)
16.This letter written by the counsel is not borne out by any records. But it is rather unfortunate that the counsel should make a statement implicating the high dignitaries of the court to achieve a narrow end. On the basis of the direction given in the Crl.O.P. by this court, an enquiry was ordered in the Chambers of the Secretary to the Government, Home Department for holding personal hearing on the report dated 5.4.2006 sent by the Bar Association. The communication to this effect was addressed on 10.10.2007 by the Joint Secretary to Government, Home Department. By then, the representation sent by the President Bar Association assumed all importance. The Inspector of Police was also directed to be present with all records. Since the notice was issued to the Inspector of Police, the fifth respondent, he sent a detailed report to the Secretary to the Government on 22.10.2007 denying there was any ulterior motive in the matter. He also stated that merely because the 7th respondent is an Advocate will not give him any immunity from the criminal prosecution. The letter was sent only because he was the member of the Bar Association. Whereas there was no agitation or any Court boycott by the Bar. But he also stated that Poiyamozhi, the first accused is an history-sheeter kept in the Paravakottai Police Station.
17.Even during the pendency of these proceedings, the 7th respondent / Accused No.2 filed a criminal original petition in Crl.O.P.No.3113 of 2008 before this court for the change of the investigation from the Inspector of Police, Paravakottai to the Inspector of Police, CB CID, Thiruvarur. It is not clear as to why such a petition was filed especially when there was already a direction in his earlier Crl.O.P.No.11785 of 2007 disposed of on 25.4.2007. However when the matter came up on 10.3.2008, an another learned Judge of this court disposed of that criminal original petition by making the following order :
"In view of the endorsement made by the learned counsel for the petitioner, the Criminal Original Petition stands dismissed as withdrawn. Consequently, connected M.P.No.1 of 2008 is closed."
18.This action of the 7th respondent to file an application for the change of the investigation even when the final report has already been filed before the Judicial Magistrate-II, Mannargudi as early as 11.08.2006 and that the learned Judge had taken the police report on file in PRC No.9/2006 and was not yet committed the case for Sessions Court, was one of his attempts to stall the investigation. It is the one more obstacle created by him. After a direction issued by this court and after the enquiry was held in the Chambers of the Home Secretary to the Government, an order dated 12.3.2008 came to be passed by the first respondent. In that order, she had ordered as follows:
"4.The petitioner also indicated that although his prayer is to transfer the investigation to CBCID, he would be satisfied if the investigation is transferred to a senior officer so that the same would be free and fair.
5.The Counsel for the petitioner also informed that the charge sheet has been filed in the case against the petitioner and others in the Judicial Magistrate-II Court, Mannargudi some time in 2006.
6.After hearing the arguments and going through the typeset of documents presented by the counsel as also the statements given by the Inspector of Paravakottai PS, it is found that there is a prima facie case in the request of the petitioner for changing of investigation officer. Therefore, it is ordered that the case be reinvestigated by the CBCID. Necessary formal orders in this regard would be issued by DGP. Based on the above orders, the Enquiry Officer of the case is requested to move the JM.II Court, Mannargudi for withdrawing the charge sheet filed in the case so that reinvestigation can be taken up by the CBCID, Thanjavur." (Emphasis added)
19.This order was communicated with a covering letter to the second respondent Director General of Police. Thereafter, the second respondent by an order dated 26.3.2008 had directed the withdrawal of the charge sheet filed in Crime No.204 of 2005 and to hand over the CD file and relevant records to the Crime Branch CID, Thanjavur for re-investigation and for follow-up action. Pursuant to the direction issued by the second respondent Director General of Police, the fourth respondent Superintendent of Police, Thiruvarur had passed an order dated 8.4.2008 and in paragraph 5, it was stated as follows:
"5.Accordingly, in accordance with the Orders issued in the reference third cited, the Deputy Superintendent of Police, Mannargudi is hereby instructed to arrange for withdrawal of the Charge sheet already filed in Paravakottai P.S. Crime No.204/ 05 immediately and hand over the C.D. file and relevant records of this Case to Crime Branch CID., Thanjavur for re-investigation and follow up action."
20.Since this order dated 12.3.2008 was under challenge, it is necessary to extract paragraphs 2 to 6 which is as follows:
"2.The representation of the petitioner dated 5.4.06 was called for in Govt. Ref.No.42587/Courts.V/ 2007-1 dated 18.5.07 and the same was received on 24.9.07. The Inspector of Police, Paravakottai P.S. was heard during the enquiry on 16.10.07. Subsequently hearings were fixed on 1.11.2007, 2.11.2007, 22.11.2007, 28.11.2007, 13.12.2007, 26.12.2007, 9.1.2008 and 8.2.2007 for hearing the petitioner. But, due to various reasons like petitions seeking adjournments etc. hearing could not take place on the above dates and finally the petitioner was finally heard on 11.3.2008. He was represented by his counsel Thiru Veerasekharan.
3.The counsel submitted a typeset of documents consisting of the FIR in Cr.No.204/05, telegrams sent to various authorities, representation submitted before the Honourable Chief Justice, High Court of Madras, and the confession statements in Cr.No.13/06 etc. of two persons. During his oral arguments, he emphasized that the petitioner has been falsely implicated in the FIR relating to Cr.No.204/05 due to political motivation and the petitioner's wife and sisters along with his two children were also harassed by the Police and subsequently the petitioner's wife and sisters were also remanded in the case. The petitioner basically relies on the confession statements in the Cr.No.13/06 in Kudavasal PS given by one Ramaraj @ Cent and by one Hari. In both the confession statements, the individuals have confessed to assisting A-1 Poiyamozhi in murdering the deceased in the case. The counsel for the Petitioner argued that this is clear enough evidence that it is only A-1 who is involved in the crime and not the Petitioner and that the Petitioner has been added on as A-2 only as a result of political involving.
4.The petitioner also indicated that although his prayer is to transfer the investigation to CBCID, he would be satisfied if the investigation is transferred to a senior officer so that the same would be free and fair.
5.The Counsel for the petitioner also informed that the charge sheet has been filed in the case against the petitioner and others in the Judicial Magistrate-II Court, Mannargudi some time in 2006.
6.After hearing the arguments and going through the typeset of documents presented by the counsel as also the statements given by the Inspector of Paravakottai PS, it is found that there is a prima facie case in the request of the petitioner for changing of investigation officer. Therefore, it is ordered that the case be reinvestigated by the CBCID. Necessary formal orders in this regard would be issued by DGP. Based on the above orders, the Enquiry Officer of the case is requested to move the JM.II Court, Mannargudi for withdrawing the charge sheet filed in the case so that reinvestigation can be taken up by the CBCID, Thanjavur." (Emphasis added)
21.It is significant that the counsel for the 7th respondent was not only represented by the counsel Mr.P.Veerasekaran, but also filed vakalath on behalf of A.Selvaraju who by then had become the Ex-President of the Bar Association, Mannargudi and presented a copy of the said representation. On 22.05.2007, he appeared before the Home Secretary and filed a vakalat on behalf of A.Selvaraju claiming to be the Ex-President of the Bar Association, Mannargudi. In the Vakalat executed by the said Selvaraj, a rubber stamp was affixed in the name of the President, Bar Association, Mannargudi. Before the word "President", the word "Ex" was written in hand to mean that at the time of execution of the Vakalat, he was not the President of the Association. It is not clear as to how he can continue to represent the said Association, that too by engaging the same counsel who was appearing for the accused before this court in two criminal original petitions and also before the Home Secretary arguing the case for him as if it was a criminal trial conducted by the Home Secretary and that too by filing typed set of documents before her.
22.Thereafter, due to the direction issued by the State Government and on a further direction by the Director General of Police and the Superintendent of Police, the criminal case was transferred even before the final report was withdrawn from the Judicial Magistrate-II, Mannargudi. The Inspector of Police, Crime Branch CID brought to the notice of the Deputy Superintendent of Police that the CD file was transferred to CB CID without withdrawing the charge sheet in the court and that it is causing obstruction for the unit to proceed with free investigation of the case. Hence he returned the CD file with the request that the charge sheet filed in the court also should be withdrawn and re-submitted. On the basis of the request made by the Inspector of Police, CB CID, the Deputy Superintendent of Police, Mannargudi sought for legal opinion from the Assistant Director of Prosecution, Nagapattinam in this regard. The said officer by his opinion dated 09.07.2008 informed to the Deputy Superintendent of Police that there is no legal provision in the existing law for withdrawal of the charge sheet already filed and assigned with PRC No.9 of 2006. He had further opined that a report may be filed before the appropriate court invoking power under Section 173(8) Cr.P.C. for stopping further proceedings and for transferring the case to the Crime Branch CID and to continue the trial after further report is submitted by the new investigating agency.
23.It was at this stage, the present writ petition is filed seeking to challenge an order passed by the Superintendent of Police, Tiruvarur dated 8.4.2008 and after setting aside the same sought for further direction to proceed with the trial of the case in PRC No.9 of 2006 on the file of the Judicial Magistrate-II, Mannargudi. That writ petition when it came up for admission on 3.7.2008, the learned Government Advocate was directed to take notice. In the application for interim stay, no order was passed. The petitioner also attempted to file a criminal original petition under section 482 Cr.P.C. before this court in Crl.O.P.No.17355 of 2009 seeking to challenge the summons issued by the CBCID, asking the petitioner to appear for an enquiry in relation to the Crime No.204 of 2005. Since the order passed by the Government transferring the case to CBCID was not furnished to him, he also moved the authorities under the RTI Act. The Tamil Nadu Information Commission by its order dated 22.7.2009 directed the Public Information Officer, Home Department to furnish the order transferring the investigation. That criminal O.P was allowed by an order dated 26.8.2009 and in paragraph 5 of the order, it was observed as follows:
"5.In view of the submission made by the learned counsel for the petitioner / defacto-complainant and aggrieved party, the summon dated 16.8.2009 issued by the respondent to the petitioner is hereby quashed and the petition is allowed....."
24.The petitioner filed M.P.No.1 of 2011 seeking for amending the prayer so as to set aside the order of the Director General of Police dated 26.03.2008 and for consequential direction to proceed with the trial in PRC No.9 of 2006 pending on the file of the Judicial Magistrate-II, Mannargudi. That application was ordered on 27.6.2011. Even earlier, the petitioner on direction by this court on 30.10.2008, also filed an impleading application impleading the 7th respondent who is Accused No.2 in the crime. That application was ordered on 16.2.2009.
25.When the matter came up on 8.6.2011, this court directed the State Government to produce the original records relating to the impugned order. Accordingly, the files were produced and circulated for perusal by this court and the matter was heard at length on 27.6.2011. Subsequently the counsel for the 7th respondent had circulated a letter dated 15.7.2011 to the Registry seeking for re-opening of the case so as to advance arguments on behalf of the 7th respondent. It was stated by him that at the time when the matter was heard, the name of the 7th respondent along was printed. After his client got the notice from the counsel for the petitioner, he filed vakalat on 18.7.2011 and hence the matter should be taken again. Therefore, this court directed the matter to be posted on 20.7.2011 for hearing the argument of the counsel for the 7th respondent. Thereafter, once again the orders were reserved. In view of the Madurai roster, orders could not be pronounced immediately.
26.The only question that has to be decided in this writ petition was whether the order passed by the State Government at the instance of the 7th respondent, who is an accused, is legally valid?
27.When a final report is filed before the learned Magistrate and taken on file for the purpose of committal, whether at the instance of the accused, the State Government can withdraw the criminal case for the purpose of facilitating the reinvestigation? In normal circumstances, when the final report is filed under Section 156(3) of Cr.P.C., the entire matter is vest only with the court and that the right of the accused is to make appropriate submission before the court and to get an order from the court for necessary relief. The accused cannot seek for transfer of the investigation as a matter of course.
28.The Supreme Court vide its judgment in Sakiri Vasu v. State of Uttar Pradesh reported in (2008) 2 SCC 409 held in paragraphs 15 to 17 and 24 as follows"
"15.Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16.The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha4 (SCC : AIR para 19).
17.In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.
24.In view of the abovementioned legal position, we are of the view that although Section 156(3) is very briefly worded, there is an implied power in the Magistrate under Section 156(3) CrPC to order registration of a criminal offence and/or to direct the officer in charge of the police station concerned to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) CrPC, we are of the opinion that they are implied in the above provision."
29.The scope of Section 156(3) and 173 (8) of Cr.P.C. came to be considered by the Supreme Court vide its judgment in State of Bihar v. J.A.C. Saldanha reported in (1980) 1 SCC 554 and in paragraphs 19,22,25 and 28, it was observed as follows:
"19.The power of the Magistrate under Section 156(3) to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out hereinbefore. The power conferred upon the Magistrate under Section 156(3) can be exercised by the Magistrate even after submission of a report by the investigating officer which would mean that it would be open to the Magistrate not to accept the conclusion of the investigating officer and direct further investigation. This provision does not in any way affect the power of the investigating officer to further investigate the case even after submission of the report as provided in Section 173(8). Therefore, the High Court was in error in holding that the State Government in exercise of the power of superintendence under Section 3 of the Act lacked the power to direct further investigation into the case. In reaching this conclusion we have kept out of consideration the provision contained in Section 156(2) that an investigation by an officer in charge of a police station, which expression includes police officer superior in rank to such officer, cannot be questioned on the ground that such investigating officer had no jurisdiction to carry on the investigation; otherwise that provision would have been a short answer to the contention raised on behalf of Respondent 1.
22.As pointed out above, if the Chief Secretary as the highest executive officer at the State level exercising power of superintendence over the police of the State posted in general police district would have powers to suggest change of investigating machinery in the circumstances disclosed in the letter dated May 11, 1977, of the DIG, Railway, the report of the Commissioner of South Chhota Nagpur Division, and the complaint of MLAs/MLCs, his action could not be said to be without power or authority. In our opinion, if he had acted otherwise, a charge of inaction or failure or default in performance of his duty as the highest chief executive officer would be squarely laid at his door. He acted in the best tradition of the chief executive officer in public interest and for vindication of truth and in an honest and unbiased manner. After all, if he had even the remotest bias against anyone, he could have as well suggested in agreement with the earlier investigation done by Respondent 6 and the report submitted by him for submitting the charge-sheet that a charge-sheet should be filed. In fact, in the background herein discussed, the Chief Secretary with utmost candour, with a view to vindicating the honour of the administration, proposed ascertainment of truth at the hands of CBI, a body beyond reproach as far as local politics is concerned. The High Court was, therefore, in our opinion, clearly in error in casting aspersions on the Chief Secretary and the observation whether Respondent 2 is lying or the Chief Secretary is feeding us with false facts is not for this Court to determine. . . . is an observation belied by the record and unwarranted in the circumstances of the case. The contention is wholly unmerited.
25.There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad9 .....
28.Is there anything more required to write the final epitaph and say amen by the learned Additional Chief Judicial Magistrate after the finding is recorded by the High Court, more especially finding of fact that railway organisation has profited rather than lost by the unusual procedure? It is a clear case of usurpation of jurisdiction vested in the learned Additional Chief Judicial Magistrate to take or not to take cognizance of a case on the material placed before him. The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more." (Emphasis added)
30.Even earlier, the Supreme Court had an occasion to consider the power of the Magistrate to take cognizance of the case under Cr.P.C, vide its judgment in Ram Lal Narang v. State (Delhi Admn.) reported in (1979) 2 SCC 322 and in paragraph 20, it was observed as follows :
"20.Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defence that the police should have such power........... What action a Magistrate is to take in accordance with the provisions of the CrPC in such situations is a matter best left to the discretion of the Magistrate. The criticism that a further investigation by the police would trench upon the proceeding before the court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate. That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation. We should not, however, be understood to say that the police should ignore the pendency of a proceeding before a court and investigate every fresh fact that comes to light as if no cognizance had been taken by the Court of any offence. We think that in the interests of the independence of the magistracy and the judiciary, in the interests of the purity of the administration of criminal justice and in the interests of the comity of the various agencies and institutions entrusted with different stages of such administration, it would ordinarily be desirable that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light."
(Emphasis added)
31.The distinction between a fresh investigation and further investigation in relation to Section 173 of Cr.P.C. came to be considered by the Supreme Court in K. Chandrasekhar v. State of Kerala reported in (1998) 5 SCC 223 and in paragraph 24, it was observed as follows:
"24.From a plain reading of the above section it is evident that even after submission of police report under sub-section (2) on completion of investigation, the police has a right of further investigation under sub-section (8) but not fresh investigation or reinvestigation. That the Government of Kerala was also conscious of this position is evident from the fact that though initially it stated in the Explanatory Note of their notification dated 27-6-1996 (quoted earlier) that the consent was being withdrawn in public interest to order a reinvestigation of the case by a special team of State police officers, in the amendatory notification (quoted earlier) it made it clear that they wanted a further investigation of the case instead of reinvestigation of the case. The dictionary meaning of further (when used as an adjective) is additional; more; supplemental. Further investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a further report or reports and not fresh report or reports regarding the further evidence obtained during such investigation. Once it is accepted and it has got to be accepted in view of the judgment in Kazi Lhendup Dorji2 that an investigation undertaken by CBI pursuant to a consent granted under Section 6 of the Act is to be completed, notwithstanding withdrawal of the consent, and that further investigation is a continuation of such investigation which culminates in a further police report under sub-section (8) of Section 173, it necessarily means that withdrawal of consent in the instant case would not entitle the State Police, to further investigate into the case. To put it differently, if any further investigation is to be made it is the CBI alone which can do so, for it was entrusted to investigate into the case by the State Government. Resultantly, the notification issued withdrawing the consent to enable the State Police to further investigate into the case is patently invalid and unsustainable in law. In view of this finding of ours we need not go into the questions, whether Section 21 of the General Clauses Act applies to the consent given under Section 6 of the Act and whether consent given for investigating into Crime No. 246 of 1994 was redundant in view of the general consent earlier given by the State of Kerala." (Emphasis added)
32.The Supreme Court also took an exception for conduction further investigation in the context of Section 173(8) of Cr.P.C vide its judgment in N.P. Jharia v. State of M.P., reported in (2007) 7 SCC 358 and in paragraph 14, the Supreme Court had observed as follows:
"14.So far as the further investigation is concerned in the background of Section 173(8) of the Code of Criminal Procedure, 1973 (in short the Code) the plea is clearly untenable."
33.Once a charge sheet has already been filed and the accused are proceeded against, if any further materials are available, the court can only alter the charges so framed and in such circumstances, the further investigation is not taken away in terms of Section 173(8), as held by the Supreme Court in Rajesh v. Ramdeo reported in (2001) 10 SCC 759 and in paragraph 2, it was observed as follows:
"2.This appeal is directed against the impugned order of the High Court of Bombay at Nagpur Bench in criminal writ petition directing a fresh and further investigation by an agency other than the local police, though on the basis of the FIR the local police did investigate into the matter, and in the meantime have filed charge-sheet against the accused persons. While the investigation was on, the complainant approached the High Court by filing a writ petition. The High Court has taken an unusual step of forming a panel and directing them to examine the matter, and on the basis of the said panel report, the High Court has directed a further investigation by an agency other than the local police to be headed by the Superintendent of Police. 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 9-3-2000. The appeal is disposed of accordingly. Needless to mention, power of the investigating agency to have any further investigation exercised under Section 173(8) CrPC is not being taken away by this order."
(Emphasis added)
34.The Supreme Court also held that the court cannot in ordinary circumstance re-open the investigation, vide its judgment in Punjab & Haryana High Court Bar Assn. v. State of Punjab reported in (1994) 1 SCC 616 and in paragraph 9, it was observed as follows:
"9.We are conscious that the investigation having been completed by the police and charge-sheet submitted to the court, it is not for this Court, ordinarily, to reopen the investigation. Nevertheless, in the facts and circumstances of the present case, to do complete justice in the matter and to instil confidence in the public mind it is necessary, in our view, to have fresh investigation in this case through a specialised agency like the Central Bureau of Investigation (CBI)."
(Emphasis added)
35.A similar view was taken by the Supreme Court vide judgment in State through CBI v. Raj Kumar Jain reported in (1998) 6 SCC 551 and in paragraph 6, the Supreme Court had observed as follows:
6.As regards the direction for further investigation, it is, of course, true that the Special Judge has power to so direct if he finds, on consideration of the police report, that the opinion formed by the Investigating Officer seeking discharge of the respondent is not based on full and complete investigation, as observed by this Court in Abhinandan Jha v. Dinesh Mishra1......
36.Whether the High Court on the basis of some unsubstantiated materials produced in a petition filed before this court can deal with and derail the criminal investigation even under Article 226 or 227 of the Constitution came to be considered by the Supreme Court vide its judgment in State of Bihar v. P.P. Sharma reported in 1992 Supp (1) SCC 222 and in paragraphs 16,20,31 and 33 held as follows:
"16.It is thus obvious that the annexures were neither part of the police reports nor were relied upon by the Investigating Officer. These documents were produced by the respondents before the High Court along with the writ petitions. By treating the annexures and affidavits as evidence and by converting itself into a trial court the High Court pronounced the respondents to be innocent and quashed the proceedings. The least we can say is that this was not at all a case where High Court should have interfered in the exercise of its inherent jurisdiction. This Court has repeatedly held that the appreciation of evidence is the function of the criminal courts. The High Court, under the circumstances, could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. Since the High Court strongly relied upon the annexures in support of its findings, we may briefly examine these documents.
20. We do not wish to express any opinion on the rival contentions of the parties based on their respective appreciation of material on the record. We have quoted the annexures, the inferences drawn by the High Court and the factual assessment of Mr Sibal, only to show that the High Court fell into grave error in appreciating the documents produced by the respondents along with the writ petitions and further delving into disputed questions of facts in its jurisdiction under Article 226/227 of the Constitution of India.
31. Finally, we are at a loss to understand as to why and on what reasoning the High Court assumed extraordinary jurisdiction under Article 226/227 of the Constitution of India at a stage when the Special Judge was seized of the matter. He had heard the arguments on the question of cognisance and had reserved the orders. The High Court did not even permit the Special Judge to pronounce the orders.
33.The above order was brought to the notice of the Patna High Court but the High Court refused to be persuaded to adopt the same course. We are of the considered view that at a stage when the police report under Section 173 CrPC has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction. We could have set aside the High Court judgment on this ground alone but elaborate argument having been addressed by the learned counsel for the parties we thought it proper to deal with all the aspects of the case."
37.The Supreme Court in Kishan Lal Vs. Dharmendra Bafna and another reported in (2009) 7 SCC 685 has delineated the circumstances under which the power under Section 173(8) of Cr.P.C. can be invoked and in paragraphs 11 to 15, it was observed as follows:
11.It is now a well-settled principle of law that when a final form is filed by any investigating officer in exercise of his power under sub-section (2) of Section 173 of the Code, the first informant has to be given notice. He may file a protest petition which in a given case may be treated to be a complaint petition, on the basis whereof after fulfilling the other statutory requirements cognizance may be taken. The learned Magistrate can also take cognizance on the basis of the materials placed on record by the investigating agency. It is also permissible for a learned Magistrate to direct further investigation. The investigating officer when an FIR is lodged in respect of a cognizable offence, upon completion of the investigation would file a police report.
12.The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any court is permissible. In Naresh Kavarchand Khatri v. State of Gujarat1 this Court held: (SCC p. 303, para 6) 6. The power of the court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal Procedure has conferred power on the statutory authorities to direct transfer of an investigation from one police station to another in the event it is found that they do not have any jurisdiction in the matter. The court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an investigating officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction.
13. In Dharmeshbhai Vasudevbhai v. State of Gujarat2 this Court held: (SCC pp. 580-82, paras 8-10) 8. Interference in the exercise of the statutory power of investigation by the police by the Magistrate far less direction for withdrawal of any investigation which is sought to be carried out is not envisaged under the Code of Criminal Procedure. The Magistrate's power in this regard is limited. Even otherwise, he does not have any inherent power. Ordinarily, he has no power to recall his order. This aspect of the matter has been considered by this Court in S.N. Sharma v. Bipen Kumar Tiwari3 wherein the law has been stated as under: (SCC pp. 656-57, paras 6-7) 6. Without the use of the expression if he thinks fit, the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.
7. It may also be further noticed that, even in sub-section (3) of Section 156, the only power given to the Magistrate, who can take cognizance of an offence under Section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police. The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.
9. Interpreting the aforementioned provisions vis-`-vis the lack of inherent power in the Magistrate in terms of Section 561-A of the old Criminal Procedure Code (equivalent to Section 482 of the new Code of Criminal Procedure), it was held: (S.N. Sharma case3, SCC p. 657, para 10) 10. This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under Section 561-A CrPC, while we have to interpret Section 159 of the Code which defines the powers of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under Section 157 of the Code. In our opinion, Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.
10. Yet again in Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy4 this Court, upon comparison of the provision of the old Code and the new Code, held as under: (SCC p. 258, para 17) 17. Section 156(3) occurs in Chapter XII, under the caption: Information to the police and their powers to investigate; while Section 202 is in Chapter XV which bears the heading: Of complaints to Magistrates. The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before (emphasis in original) he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.
14. We are, however, not oblivious of the fact that recently a Division Bench of this Court in Sakiri Vasu v. State of U.P.5 while dealing with the power of the court to direct the police officer to record an FIR in exercise of power under Section 156(3) of the Code observed that the Magistrate had also a duty to see that the investigation is carried out in a fair manner (correctness whereof is open to question).
15. An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence. Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel v. State of Gujarat6 in the following terms: (SCC pp. 336-37, paras 12-13) 12. This Court while passing the order in exercise of its jurisdiction under Article 32 of the Constitution of India did not direct reinvestigation. 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 reinvestigation 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 reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar7, opined as under: (SCC p. 415, para 7) 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.
38.Very recently, a Full Bench of Allahabad High Court vide its judgment in Father Thomas Vs. State of U.P. Reported in (2011) Crl.L.J. 2278 went into the entire issue and held that the question of withdrawal of the charge sheet from the court will not arise in the name of re-investigation.
39.In the light of the above factual matrix and the legal precedents referred to above, there is no scope for the State Government to interfere with the course of the trial and that the directions issued by the first respondent by the impugned order is clearly uncalled for and without jurisdiction. In the present case, from the beginning, an attempt was made by the 7th respondent, who is arraigned as Accused No.2, to derail the investigation even though he is faced with serious criminal charge. The criminal original petition filed by him seeking for stall the investigation and subsequently transferred to an outside agency and thereafter before the Home Secretary, to agree for the investigation by some other agency is nothing but an abuse of the process of law. He has made use of the letter sent by one P.Selvaraju, claiming to be the President of the Bar Association without further disclosing as to the opinion of the entire association, addressed to the Chief Justice as a material to torpedo the investigation. It is rather unfortunate, a learned judge of this court must refer to the very same petition as a substantive document to order the Home Secretary to conduct an enquiry and that the Home Secretary should conduct the enquiry as if it is a regular quash proceedings of the charge sheet by giving an opportunity to the counsel for the accused, who filed the document and also argued the case without any notice to the defacto complainant like the petitioner and thereafter relied upon the letter on which no orders have been passed by the Chief Justice as the basis for transferring the agency as well as subsequent legal advice to withdraw the charge memo from the jurisdictional magistrate. Even before any orders are passed by the learned Magistrate, such interventions are clearly uncalled for.
40.Further, it must be noted that the fact that the counsel appearing for the accused was also the counsel for the said Selvaraju, claiming to be the President of the Bar Association at the time of the representation and thereafter authorized him to appear as an Ex-President of the Association before the Home Secretary, also leads suspicion that such document has been created only for the purpose of achieving collateral gain. In this context, the concern expressed by the Inspector of Police, originally the Investigting Officer, that there was no commotion or unrest of the Bar as a whole will show that it was written in the individual capacity. Further, the concern expressed by the Superintendent of Police that merely because a person holding professional status, that will not give an immunity from the criminal prosecution also has to be taken note of. The investigation that has been conducted in accordance with law cannot be forestalled by these acts. The first respondent Home Secretary has misundersood the scope of the direction issued by this court in the criminal original petition and did not take note of the objections raised by the Investigating Officer as well as the Superintendent of Police. The reason given by the first respondent in the impugned order also does not show that there was any clear understanding of the legal proposition of law. There is lack of power for the State Government to order re-investigation, especially when the final report was also filed and taken cognizance by the Magistrate and that the accused will have to be directed to move the trial court for an appropriate relief. There was gross miscarriage of justice taken place in the present case and the criminal investigation was stalled for nearly about four years.
41.Of late, whenever any member of the Bar was involved in a criminal case, there is an attempt to send petitions to all kinds of authorities including the Chief Justice of this Court. On that basis, petitions are filed either to quash the proceedings pending before the trial court or to derail the investigation by asking for different investigation. When a petition is sent to the Chief Justice, he can deal with the petition only on the judicial side. On the administrative side, he can take note of any misbehavour of the judicial officer and take an appropriate controlling measures in terms of Article 235 of the Constitution. But merely because a petition is sent to the Chief Justice either by an individual member of the Bar or by a Bar Association, the contents of the said petition do not become truth. Unless these allegations are tested in the manner known to law. One such case was brought to the notice of this court reported in 2011-2-LW (Crl.) 436. In that case after sending a petition to the Chief Justice, an attempt was made to quash the complaint given by a judicial officer against two members of the Bar by taking the averments in the letter as defence. The complaint filed was set aside by this court. Unless a proper investigation is done and a final report is filed, the trial court will not be in a position to decide whether it requires any further investigation or that the matter should be closed on the basis of the submission made before him. The provisions of the Cr.P.C are adequately empowers a Magistrate to deal with such a situation. Therefore, there shall be no cause to set aside such an action even at the threshold only because members of the Bar are involved.
42.As rightly contended, there is no special immunity granted only because the person is holding a law degree or he is practicing before a particular court. Even in the present case, the credentials of the person who sent a petition before the Chief Justice claiming himself to be an office bearer of the association itself was doubtful. In the normal course, a letterhead of the association would have been used and the resolution of the Bar would have been appended and an endorsement of the office of the Chief Justice would have been found in the petition. On the other hand, when a vakalat was presented before the Home Secretary on behalf of the said person, the rubber stamp containing the seal of the President of the Bar Association was prefixed with the word Ex to show that he is no longer the President. In this context, it is necessary to refer to the stand taken by the Superintendent of Police, Thiruvarur that there was no resolution of the Bar and there was no protest by the Bar Association on the said incident. He has also questioned that some one became the member of the Bar will not keep him out of the Criminal Procedure Code.
43.The 7th respondent has filed the case only under Section 482 Cr.P.C. and not by invoking the constitutional power of this court under Article 226. In such circumstance, the Supreme Court has held that the power cannot be used for directing the investigation to some other officer, merely because there was some fault found with the Inspector of Police vide its judgment in T.C.Thangaraj Vs. V.Engammal and others reported in (2011) 12 SCC 328 and in paragraphs 11 and 12 it was observed as follows:
11.In the impugned order, the High Court has not exercised its constitutional powers under Article 226 of the Constitution and directed CBI to investigate into the complaint with a view to protect the complainants personal liberty under Article 21 of the Constitution or to enforce her fundamental rights guaranteed by Part III of the Constitution. The High Court has exercised its power under Section 482 CrPC on a grievance made by the complainant that her complaint that she was cheated in a loan transaction of Rs 3 lakhs by the three accused persons, was not being investigated properly because one of the accused persons is an Inspector of Police. In our considered view, this was not one of those exceptional situations calling for exercise of extraordinary power of the High Court to direct investigation into the complaint by CBI. If the High Court found that the investigation was not being completed because P. Kalaikathiravan, an Inspector of Police, was one of the accused persons, the High Court should have directed the Superintendent of Police to entrust the investigation to an officer senior in rank to the Inspector of Police under Section 154(3) CrPC and not to CBI.
12. It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of U.P.3)
44.The Supreme Court in this context, had forewarned the High Courts from issuing directions which will cause miscarriage of justice and thwart the criminal process and held that no such directions can be issued either at the instance of any individual member of the Bar or at the instance of the Association. The warning given by the Supreme Court in this regard vide its judgment in R.K. Anand v. Registrar, Delhi High Court reported in (2009) 8 SCC 106 in paragraphs 338 to 341 may be usefully reproduced below :
338...... All this and several other similar developments calculated to derail the trial would not have escaped the notice of the Chief Justice or the Judges of the Court. But there is nothing to show that the High Court, as an institution, as a body took any step to thwart the nefarious activities aimed at undermining the trial and to ensure that it proceeded on the proper course. As a result, everyone seemed to feel free to try to subvert the trial in any way they pleased.
339. We must add here that this indifferent and passive attitude is not confined to the BMW trial or to the Delhi High Court alone. It is shared in greater or lesser degrees by many other High Courts. From experience in Bihar, the author of these lines can say that every now and then one would come across reports of investigation deliberately botched up or of the trial being hijacked by some powerful and influential accused, either by buying over or intimidating witnesses or by creating insurmountable impediments for the trial court and not allowing the trial to proceed. But unfortunately the reports would seldom, if ever, be taken note of by the collective consciousness of the Court. The High Court would continue to carry on its business as if everything under it was proceeding normally and smoothly. The trial would fail because it was not protected from external interferences.
340.Every trial that fails due to external interference is a tragedy for the victim(s) of the crime. More importantly, every frustrated trial defies and mocks the society based on the rule of law. Every subverted trial leaves a scar on the criminal justice system. Repeated scars make the system unrecognisable and it then loses the trust and confidence of the people.
341.Every failed trial is also, in a manner of speaking, a negative comment on the State's High Court that is entrusted with the responsibility of superintendence, supervision and control of the lower courts. It is, therefore, high time for the High Courts to assume a more proactive role in such matters. A step in time by the High Court can save a criminal case from going astray. An enquiry from the High Court Registry to the quarters concerned would send the message that the High Court is watching; it means business and it will not tolerate any nonsense. Even this much would help a great deal in insulating a criminal case from outside interferences. In very few cases where more positive intervention is called for, if the matter is at the stage of investigation the High Court may call for status report and progress reports from police headquarter or the Superintendent of Police concerned. That alone would provide sufficient stimulation and pressure for a fair investigation of the case. (Emphasis added)
45.In the light of the above, the writ petition will stand allowed. The impugned orders are set aside. The learned Judicial Magistrate-II, Mannargudi is directed to proceed with PRC No.9 of 2006 in accordance with law and pass appropriate orders. No costs. Consequently connected miscellaneous petitions stand closed.
27.03.2012 Index : Yes Internet : Yes vvk To
1.The Secretary to Government, Home (P&E) Department, Secretariat, Chennai-600 009.
2.The Director General of Police, Radhakrishnan Salai, Mylapore, Chennai-600 004.
3.The Additional Director General of Police, Crime Branch CID, St. Thomas Mount, Chennai-600 016.
4.The Superintendent of Police, Tiruvarur District, Tiruvarur.
5.Inspector of Police, Paravakkottai Police Station, Mannargudi Taluk, Tiruvarur District.
6.Deputy Superintendent of Police, Crime Branch CID, Thanjavur.
K.CHANDRU, J.
vvk ORDER IN W.P.NO.15779 of 2008 27.03.2012