Madras High Court
D.Subramanian vs The Inspector Of Police on 22 July, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.07.2019
CORAM :
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.O.P.No.1856 of 2015
and Crl MP No.5859 of 2017
D.Subramanian ..... Petitioner
Defacto complainant
Vs.
1. The Inspector of Police, (Crime),
Ambur Taluk Police Station,
Vellore District. .... Respondent/Complainant
2. The District Superintendent of Police,
Vellore District at Vellore. ....Respondent
Prayer: Criminal Original Petition has been filed seeking for a
direction transfer for further investigation or reinvestigation of the
case in SC No.134 of 2016 Fast Track Court, Tirupattur, Vellore
District, in Crime No.453 of 2014 on the file of Ambur Taluka Police
Station, Vellore District, to the CBCID, Vellore District.
For Petitioner : Dr.V.Suresh and
M/s.D.Nagasaila
For Respondent : Mr.C.Raghavan
http://www.judis.nic.in
Government Advocate
2
ORDER
This Criminal Original Petition has been filed seeking for transfer of the case in SC No.134 of 2016 Fast Track Court, Tirupattur, Vellore District in Crime No.453 of 2014 on the file of Ambur Taluka Police Station, Vellore District for further investigation or reinvestigation to the CBCID, Vellore District.
2. This is a pathetic case, where a social activist who was fighting to evict the encroachers from a water body, was brutally killed and this petition has been filed by the brother of the deceased seeking for transfer of investigation on the ground that the investigation has not been conducted properly and there is a conscious attempt to shield some of the accused persons.
3. The deceased named Thanikachalam was a Social activist, who was concerned about preserving water bodies. He found that some persons have encroached upon two branch channels in Survey Nos.265 & 266, which measures nearly 9 acres and initiated a suit in the year 2009 against all the encroachers. He also http://www.judis.nic.in 3 filed WP No.23238 of 2009, seeking for a direction to remove the encroachments in both the side channels. This Court by an order dated 13.11.2009, disposed of the writ petition by directing the authorities to remove the encroachments. A similar order was passed in WP No.8214 of 2011 on 31.03.2011.
4. Since the orders were not complied with, the deceased Thanikachalam filed a contempt petition before this Court. The Collector was directed to file a report and a report was filed before this Court to the effect that there are 19 encroachers who have occupied the water channels. This process was going on till November 2014.
5. The encroachers thought that enough is enough and decided to liquidate the above said Tanikachalam. On 11.11.2014, during night hours, Thanikachalam was brutally attacked and killed.
6. The petitioner, who is the brother of the above said Thanikachalam gave a complaint and an FIR came to be http://www.judis.nic.in 4 registered against 7 named accused persons in Crime No.453 of 2014 for an offence under Section 302 of IPC.
7. The investigation was not carried on effectively and therefore, the present petition came to be filed before this Court seeking for transfer of investigation, even at the stage of F.I.R. During the pendency of the proceedings, the respondent police completed the investigation and filed a final report against one accused person and dropped the proceedings against the remaining accused persons. The case was also committed before the District and Sessions, Fast Track Court, Thirupathur and it was assigned SC No.134 of 2016. Therefore, a petition came to be filed before this Court to amend the relief and this Court by an order dated 19.04.2017 made in Crl MP No.5464 of 2017, permitted the amendment petition and accordingly, the amendment was also carried out seeking for reinvestigation of the case.
8. Dr.V.Suresh, learned counsel appearing on behalf of the petitioner submitted that the respondent police have intentionally shielded the important accused persons in this case and http://www.judis.nic.in 5 the final report has been conveniently filed only against one Venkatesan @ Loganathan, who is a history sheeter. The learned counsel submitted that the persons who had encroached upon the water channel and who had a grudge against the deceased, were dropped in the final report and according to the learned counsel for the petitioner, the entire investigation that was conducted by the respondent police is a sham.
9. The learned counsel for the petitioner brought to the notice of this Court the post-morterm report and the final opinion given by the Doctor. It reveals that very serious head injuries had been caused to the deceased and it is also seen that his hyoid bone has also suffered a irregular complete fracture and therefore, the Doctor has opined that the deceased would have died due to head injury and also asphyxia due to suffocation on being throttled.
10. The learned counsel also relied upon the supporting affidavit filed by one Mr.V.Ramesh, who was closely associated with the deceased in his fight against removal of http://www.judis.nic.in 6 encroachments. It is also seen from the final report that this person has been examined by the Investigating officer and his statement has been recorded. The learned counsel submitted that initially the investigation was proceeding against all the accused persons and the investigating officer had enquired about them to this witness. The call details of the accused persons on the fateful day, was also collected during investigation. However, there is no reference to any of these materials in the final report and the final report has been filed only against one accused person and purely based on the alleged extra judicial confession made to the Village Administrative officer and the recovery made under Section 27 of the Evidence Act.
The learned counsel concluded his arguments by submitting that this case requires a reinvestigation by a different agency, since the entire truth has to be brought out and all the accused persons involved in this crime must be punished.
11. The learned Government Advocate appearing on behalf of the respondent police relied upon the status report filed by the 1st respondent police. He submitted that the respondent police were not able to get any materials against the other accused http://www.judis.nic.in 7 persons and therefore, their names were dropped and the final report was filed only against one accused person. The learned counsel further submitted that the final report has been filed against the accused person based on the extra judicial confession and the recovery made under Section 27 of the evidence Act. The learned counsel submitted that a proper investigation has been conducted in this case and the case has already been committed to the Sessions Court and it is at the stage of examination of witnesses.
12. This Court has carefully considered the submissions made on either side and the materials available on record.
13. This Court also perused the case dairy furnished by the learned Government Advocate.
14. It is seen from records that the petitioner is a highly educated person, who decided to devote his life towards conservation of water bodies. When majority of the people are in pursuit of self aggrandizement, very few dedicate their lives towards http://www.judis.nic.in 8 public cause. It is a cruel truth that these people in some of the cases get the punishment of death for seeking the truth. These social activists know the lurking danger waiting for them and in spite of the same, proceed to fight for the truth at the cost of their lives. The story of the deceased, in the present case is one more chapter in the list of activists, who have died in a similar fashion, while in pursuit of truth. These social activists are the most vulnerable sections in this society and there is absolutely no protection for them and more particularly, when they fight against persons who have money and muscle power.
15. This Court carefully perused the case dairy and the status report filed by the respondent police. It is very clear from the records that the respondent police had focused upon only one accused person, who is already a history sheeter and conveniently filed a final report by showing him as the accused person. The respondent police relies upon the extra judicial confession and the recovery under Section 27 of the Evidence Act, to file the final report. There has been absolutely no effort made to investigate the case as against the other named accused persons and it is not known http://www.judis.nic.in 9 as to what happened to the call details collected in the course of investigation against the accused persons.
16. Mr.V.Ramesh is a very vital witness in this case and he was the one, who had been closely in touch with the deceased till few hours, before the deceased was attacked and killed. He provides very vital information in the supporting affidavit filed before this Court. If the respondent police was serious enough, they would have taken into consideration the leads provided by the said V.Ramesh and it was perfectly possible for the respondent police to have unearthed the truth. However, for reasons best known to the respondent police, they found an easy way out to file the final report, by dropping the names of all the accused persons and filed a final report against one history sheeter. In other words, the names of all the encroachers against whom the deceased was fighting and upon whom, the needle of suspicion was pointing, have all been dropped from the final report. In short, this is one of the most slipshod investigation conducted by the respondent police.
http://www.judis.nic.in
17. This Court is even more disappointed in the 10 manner in which the Committal Court reacted in this case. When the final report was filed before the Committal Court, the committal Court had the advantage of looking at the FIR and the final report and it could have easily found that there are seven named persons in the FIR and the final report has been filed only as against one accused person and the rest of the 6 names have been dropped from the final report. Once such a final report is filed, it was the duty of the Committal Court to have sent a notice to the defacto complainant regarding the omission of the names of the accused persons in the final report. This procedure has been insisted time and again by the Hon'ble Supreme Court and this Court, by way of several reported judgments. However, the Committal Court failed to take note of this vital procedure and had mechanically dealt with the final report and committed it to the Sessions Court.
18. It is relevant to rely upon the Judgement of this Court in [C.Ve.Shanmugam S/o.Venugopal Vs. The Deputy Superintendent of Police, Tindivanam Sub-division, Rosanai Police Station, Tindivanam, Villupuram District and others] in 2010 2 MLJ Crl 833, in this regard. The relevant portions are extracted http://www.judis.nic.in 11 hereunder :-
15. At the outset, I have to state that in the Code of Criminal Procedure, there is no provision impelling the learned Magistrate to issue notice to the de facto complainant before accepting the final report of the police where either some of the accused against whom allegations were made in the FIR have been omitted or the entire report is a negative report. The Hon'ble Supreme Court,however, considering the said lacuna in the Code, in Bhagawant Singh's case cited supra (AIR 1985 SC 1285) has held that such a notice is absolutely necessary. In para 4 of the judgement, the Hon'ble Supreme Court has laid down as follows:-
"4. ....... There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section 2(i) of S.173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of C.Ve.Shanmugam vs The Deputy Superintendent Of ... on 21 January, 2010 Indian Kanoon
- http://indiankanoon.org/doc/699824/ 5 the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is http://www.judis.nic.in forwarded under sub-section 2(i) of S.173 decides not to 12 take cognizance of the offence and to drop the proceedings or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But, we do not think this can beregarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be supplied to him under sub- section 2(i) of S.173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate."
16. When the said law came to be again considered by http://www.judis.nic.in the Hon'ble Supreme Court in Union Public Service 13 Commission v. S.Papaiah 1998(3) Crimes 40 (SC), the same was reaffirmed. There are several such judgements rendered subsequently wherein the Hon'ble Supreme Court has followed the said law laid down in Bhagawant Singh's case [AIR 1985 SC 1285]. Thus, undoubtedly, it is a settled law as of now that before accepting a final report, where some of the accused, whose names find a place in the FIR, have been omitted, the learned Magistrate must issue notice to the de facto complainant. On receipt of such notice, the de facto complainant has got right to file a petition known as 'protest petition'. Only after hearing him, the learned Magistrate has to pass an order either accepting the final report in its entirety or rejecting the same and to proceed to take cognizance of the offence on the basis of the materials on record and the Court can direct further investigation or to treat the protest petition as a complaint in terms of Chapter XV of the Code of Criminal Procedure.
17. In para 16 of the judgement in S.Papaiah's case cited supra, the Hon'ble Supreme Court has held as follows:-
"Thus, for what we have said above we are of the opinion that the learned Magistrate was not justified in accepting the final report of the C.B.I. and closing the case without any notice to the appellant and behind its http://www.judis.nic.in back. The order of the learned Magistrate dated March 14 6, 1995 closing the case and of November 4, 1995 dismissing the petition filed by the appellant as well as the order of the learned Sessions Judge dated March 8, 1996 dismissing the revision petition are set aside. The matter is remitted to the earned Metropolitan Magistrate for its disposal in accordance with law. ......."
18. Applying the above law laid down in Bhagwant Singh's case cited supra and followed in the other cases cited supra to the present case, it is crystal that the order of the learned Magistrate accepting the final report without notice to the petitioner is absolutely illegal and the same is, therefore, liable to be set aside. Consequentially, the order of committal of the case to the Court of Sessions for trial C.Ve.Shanmugam vs The Deputy Superintendent Of ... on 21 January, 2010 Indian Kanoon - http://indiankanoon.org/doc/699824/ 6 and all the consequential proceedings before the Court of Sessions are liable to be set aside.
19. Now, yet another question arises as to whether, in the absence of any specific challenge to the order of the learned Magistrate taking cognizance and the order of committal by filing appropriate petition, in this revision, which questions only the legality and correctness of the order passed by the learned http://www.judis.nic.in 15 Additional Sessions Judge, this Court can set aside the above orders of the learned Magistrate and the consequential proceedings. In this regard, it needs to be pointed out that though separate petition has not been filed to challenge the above proceedings, nevertheless, a specific ground has been taken before the learned Additional Sessions Judge as well as in this revision that the orders of the learned Magistrate are vitiated for want of notice as laid down in Bhagwant Singh's case.
20. At this juncture, it would be worthwhile to refer to a judgement of the Hon'ble Supreme Court in Popular Muthiah v. State Rep. By Inspector of Police (2006) 7 SCC 296, in para 27 has held as follows:
"27. While exercising its appellate power, the jurisdiction of the High Court although is limited but,in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revision jurisdiction and/or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the http://www.judis.nic.in matter.16
Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being "a case before the court' in contradistinction from "a person who is arrayed as an accused before it" when the High Court seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal Procedure in relation to the matter which is not before it."
21. In a recent judgement in Dharmeshbhai Vasudevbhai and others v. State of Gujarat and others, (2009) 3 SCC (Cri) 76 in para 12, the Hon'ble Supreme Court has held as follows:-
"12. The High Court, apart from exercising its supervisory jurisdiction under Articles 227 and 235 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates in terms of Section 483 of the Code of Criminal Procedure."
22. While dealing with an identical situation, like the one before us, when the case had already been committed to the Court of Sessions, the Calcutta High http://www.judis.nic.in Court in Aditi Sarkar v. State of West Bengal and others, 17 2008(1) Crimes 156 (Cal.) has held that the nature of the power under Section 482 of the Code is undoubtedly enormous and wide. It is said that hands of law are long enough. Essentially, the inherent power under Section 482 of the Code can always be exercised when there is no provision, nor any prohibition in the Code. Ultimately, the Calcutta High Court, set aside the order taking cognizance by the learned Magistrate, subsequent order of commitment of the case to the Court of Sessions and the order passed by the Court of Sessions on the petition filed by the de facto complainant.
23. The learned Senior Counsel appearing for the respondents 2 to 15 and the learned Public Prosecutor do concede that this Court can, at this stage, exercise its power under Sections 482 and 483 of the Code in the instant case to set things right. In view of the above settled position of law,though this revision relates only to the order passed by the learned Additional Sessions Judge, in exercise of the power under Sections 482 and 483 of the Code, I find every legal justification to set aside the above orders of the Magistrate also.
24. In view of the above conclusion, I am of the view that it is unnecessary to go into the other grounds raised in the revision petition. Even the learned senior counsel appearing for the petitioner does not press for http://www.judis.nic.in 18 any adjudication in respect of the other grounds. His only request would be to keep all such grounds open for the petitioner to raise before the learned Magistrate while filing a protest petition. Such submission is also recorded.
25. The learned Senior Counsel appearing for the respondents 2 to 15 would submit that liberty may be given to the petitioner and the respondents 2 to 15 herein and also to the accused who have been omitted to be included in the charge-sheet to make their submissions on the protest petition to be filed by the petitioner before the Magistrate. The learned senior counsel appearing for the petitioner would submit that he has got no objection for the learned Magistrate affording such opportunity to the respondents 2 to 15 herein as well as the accused who have been omitted to be included in the charge-sheet. In this regard, I have to state that at the stage when a protest petition on the final report submitted by the police is considered by the learned Magistrate, the accused have got no right of hearing. In this regard, a useful reference can be had to the judgement in Popular Muthiah's case cited supra wherein the Hon'ble Supreme Court in para 51 and 52 has held as follows:-
"51. In a case of this nature, therefore, in our opinion, http://www.judis.nic.in it would have been in the fitness of things, the 19 appellant should have been heard by the High Court.
52. We may, however, hasten to add that our direction is not intended to lay down the law that while the Magistrate directs a further investigation or while a Sessions Judge exercises his jurisdiction under Section 319 of the Code of Criminal Procedure, an accused is entitled to he heard; he is not as he has no right therefor and,thus, the question of hearing him at that stage would not arise."
26. In the case on hand also, having regard to the peculiar circumstances of the case and the fact that the learned senior counsel appearing for the petitioner has no objection for an opportunity being afforded by the Magistrate to the FIR named accused and to the respondents 2 to 15 herein, I deem it appropriate to direct the Magistrate to afford such opportunity to them to make their submissions. I would, however, hasten to add that this shall not be taken as a precedent in future, as the liberty given in this case is in tune with the opinion expressed by the Hon'ble Supreme Court in para 51 of the judgement cited supra and because of the consent of the petitioner.
19. It is clear from the above judgment that before accepting a final report, where some of the accused, whose names find a place in the F.I.R, have been omitted, the Committal Court must issue notice to the defacto complainant and give an http://www.judis.nic.in 20 opportunity to the defacto complainant to file a protest petition.
Only after hearing the defacto complainant, the Committal Court can pass an order either accepting the final report in its entirety or rejecting the same and proceed further to take cognizance of the offence on the basis of the materials on record or treat the protest petition as a complaint in terms of Chapter XV of the Code of Criminal Procedure. If this procedure is not followed, the order of the Committal court committing the case to the Court of Sessions and all other consequential proceedings before the Court of Sessions, are liable to be set aside. The law on this issue is well settled.
20. In the present case, this procedure has been given a clear go by by the Committal Court. In fact, the defacto complainant was completely kept in dark and he came to know about the committal of the case to the Court of Sessions only at a later stage, during the pendency of the Criminal Original petition.
Therefore, this Court has no hesitation to come to a conclusion that the procedure followed by the Committal Court is illegal and as a consequence, http://www.judis.nic.in all the subsequent proceedings have also 21 automatically became illegal.
21. The Hon'ble Supreme Court in Pooja Pal .Vs. Union of India (UOI) and Ors reported in [2016 3 SCC] 135 had dealt with the entire law on fresh investigation / reinvestigation / further investigation and the duty cast upon the Constitutional Courts to exercise its jurisdiction to ensure fair investigation. The relevant portions of the judgment is extracted hereunder :-
"50. It was propounded that in a criminal case, the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community and are harmful to the society in general. That the concept of fair trial entails the triangulation of the interest of the accused, the victim, society and that the community acts through the state and the prosecuting agency was authoritatively stated. This Court observed that the interests of the society are not to be treated completely with disdain and as persona non grata. It was remarked as well that due administration of justice is always viewed as a continuous process, not confined to the determination of a particular http://www.judis.nic.in 22 case so much so that a court must cease to be a mute spectator and a mere recording machine but become a participant in the trial evincing intelligence and active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community.
51. While highlighting the courts’ overriding duty to maintain public confidence in the administration of justice, it was enunciated as well, that they cannot turn a blind eye to vexatious and oppressive conduct, discernable in relation to the proceedings. That the principles of rule of law and due process are closely linked with human rights protection, guaranteeing a fair trial, primarily aimed at ascertaining the truth, was stated. It was held as well, that the society at large and the victims or their family members and relatives have an inbuilt right to be dealt fairly in a criminal trial and the denial thereof is as much injustice to the accused as to the victim and the society. Dwelling upon the uncompromising significance and the worth of witnesses in the perspective of a fair trial, the following revealing comments of Bentham were extracted in paragraph 41:
http://www.judis.nic.in 23 “41. “Witnesses”, as Bentham said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political count and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate causalities. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slot process but irreversibly and irretrievably, which if allowed would undermine http://www.judis.nic.in 24 and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert the trial getting tainted and derailed and truth becoming a causality. As a protector of its citizens it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he has deposed.”
52. It was underlined that if ultimately the truth is to be arrived at, the eyes and ears of justice have to be protected so that the interest of justice do not get incapacitated in the sense of making the proceedings before the courts, mere mock trials. While elucidating that a court ought to http://www.judis.nic.in 25 exercise its powers under Section 311 of the Code and Section 165 of the Evidence Act judicially and with circumspection, it was held that such invocation ought to be only to subserve the cause of justice and the public interest by eliciting evidence in aid of a just decision and to uphold the truth. It was proclaimed that though justice is depicted to be blindfolded, it is only a veil not to see who the party before it is, while pronouncing judgment on the cause brought before it by enforcing the law and administer justice and not to ignore or turn the attention away from the truth of the cause or the lis before it, in disregard of its duty to prevent miscarriage of justice. That any indifference, inaction or lethargy displayed in protecting the right of an ordinary citizen, more particularly when a grievance is expressed against the mighty administration, would erode the public faith in the judicial system was underlined. It was highlighted that the courts exist to do justice to the persons who are affected and therefore they cannot afford to get swayed by the abstract technicalities and close their eyes to the factors which need to be positively probed and noticed.
The following statement in Jennison vs. Baker, (1972) 1 All ER 997 was recalled:
“The law should not be seen to sit by limply, while http://www.judis.nic.in 26 those who defy it go free, and those who seek its protection lose hope.”
53. It was declared that the courts have to ensure that the accused persons are punished and that the might or the authority of the state is not used to shield themselves and their men and it should be ensured that they do not wield such powers, which under the Constitution has to be held only in trust for the public and society at large. That if any deficiency in investigation or prosecution is visible or can be perceived by lifting the veil covering such deficiency, the courts have to deal with the same with an iron hand appropriately within the framework of law was underlined.
54. Referring to its earlier decision in Karnel Singh vs. State of M.P. (1995) 5 SCC 518, it was reiterated that in a case of a defective investigation, the court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 of the Code or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair.
It recalled as well its observations in Ram Bihari Yadav v. State of Bihar & others, (1998) 4 SCC 517 that the courts are installed for justice http://www.judis.nic.in 27 oriented mission and thus if a negligent investigation or omissions or lapses due to perfunctory investigation are not effectively rectified, the faith and confidence of the people would be shaken in the law enforcing agency and also in the institution devised for administration of justice.
55. Though, as referred to herein above, trial was completed and the accused persons were acquitted, in the textual facts, this Court did direct retrial as prayed for, to avoid subversion of the justice delivery system and ordered the investigating agency or those supervising the investigation to act in terms of Section 173(8) of the Code as the circumstances would so warrant.
56. The observations and the propositions, though made in the backdrop of a request for retrial, those pertaining to the essentiality of a fair and complete investigation and trial as well as the solemn duty of the courts to ensure the discernment of truth to administer even handed justice as institutions of trust of public faith and confidence, are in our estimate, of universal application and binding effect, transcending the factual settings of a case. An adverse deduction vis-à-vis the quality of investigation and/a trial trivializing the cause of http://www.judis.nic.in 28 justice, is however the essential pre-requisite, for such remedial intervention by way of further investigation, reinvestigation, additional evidence, retrial etc. to be made objectively but assuredly for the furtherance of the salutary objectives of the justice dispensing system as contemplated in law, it being of paramount pre-eminence.
57. This Court in Mohd. Hussain @ Julifikar Ali (supra) was also seized of a situation imploring for a retrial following the termination of the prosecution principally on account of delay, when juxtaposed to the demand for justice in cases involving grave crimes affecting the society at large. The offence involved was under Sections 302/307/120B IPC and Sections 3 and 4 of the Explosive Substances Act, 1908 and had perpetrated an explosion in a passenger carrying bus. This Court amongst others recalled its observations in Kartar Singh vs. State of Punjab (1994) 3 SCC 569 that while dispensing justice, the courts should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear ones and above all the collective interest of the community and the safety of the nation, so that the public, may not lose faith in the system of judicial administration and indulge in private retribution. It however also took note of http://www.judis.nic.in 29 its ruling in State of M.P. vs. Bhooraji and others (2001) 7 SCC 679 that a de novo trial should be the last resort and that too only when such a course becomes desperately indispensable and should be limited to the extreme exigency to avert a failure of justice. It noted with approval the observation in P. Ramachandra Rao (supra) that it is neither advisable nor feasible nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings and that the criminal courts are not obliged to terminate the trial or criminal proceedings merely on account of lapse of time. That such time limits cannot and will not by themselves be treated by any court as a bar to further continuance of the trial or proceedings or to terminate the same and acquit or discharge the accused, was emphatically underlined. Reference too was made of the decision in Zahira Habibulla H. Sheikh (supra).
58. Vis-à-vis the notions of ‘speedy trial’ and ‘fair trial’ as the integral constituents of Article 21 of the Constitution of India, it was observed that there was a qualitative difference between the right to speedy trial and the right of the accused to fair trial. While pointing out that unlike the accused’s right of fair trial, the deprivation of the right to speedy trial does not per se prejudice the http://www.judis.nic.in 30 accused in defending himself, it was proclaimed that mere lapse of several years since the commencement of prosecution by itself, would not justify the discontinuance of prosecution or dismissal of the indictment. It was stated in no uncertain terms, that the factors concerning the accused’s right to speedy trial have to be counterpoised with the impact of the crime on the society and the confidence of the people in the judicial system. It was noted that speedy trial secures rights to an accused but it does not preclude the rights of public justice. It was exposited that the nature and gravity of the crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former, the long delay in conclusion of trial should not operate against the continuation of the prosecution but if the right of the accused in the facts and circumstances of the case and the exigencies or situation leans the balance in his favour, the prosecution may be brought to end. It was held that the guiding factor for a retrial essentially has to be the demand of justice. It was emphasized that while protecting the right of an accused to fair trial and due process of law, the interest of the public at large who seek protection http://www.judis.nic.in 31 of law ought not to be altogether overlooked so much so, that it results in loss of hope in the legal system. Retrial in the facts of the case was ordered.
59. The content and scope of the power under Article 226 of the Constitution of India to direct investigation by the CBI in a cognizable offence, alleged to have taken place within the territorial jurisdiction of the State, without the consent of the State Government fell for scrutiny of this Court in Committee for Protection of Democratic Rights (supra).
60. While examining the issue in the context of the power of judicial review as embedded in the constitutional scheme, it was held that no Act of Parliament could exclude or curtail the powers of the constitutional courts in that regard. Reiterating, that the power of judicial review, is an integral part of the basic structure of the Constitution, it was underlined that the same was essential to give a pragmatic content to the objectives of the Constitution embodied in Part III and other parts thereof. In elaboration, it was held that Article 21 of the Constitution not only takes within its fold, the enforcement of the rights of the accused but also the rights of the victim. It was predicated that the State has a duty to enforce the http://www.judis.nic.in 32 human rights of the citizens providing for fair and impartial investigation, against any person accused of commission of any cognizable offence. Referring to Section 6 of the Delhi Special Police Establishment Act, 1946, it was ruled that any restriction imposed thereby could not be construed to be one on the powers of the constitutional courts and thus cannot be taken away or curtailed or diluted thereby. While proclaiming the supervening powers of the High Court under Article 226 of the Constitution of India to direct, entrustment of the investigation to the CBI as in the case involved, this Court sounded a caveat as well that the very plentitude of such power inheres a great caution in its exercise and though no inflexible guidelines can be laid down in that regard, the same has to be invoked sparingly, cautiously and in exceptional situation when it becomes necessary to provide credibility and to instill confidence in the investigation or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. (emphasis supplied)
61. The facts in Bharati Tamang (supra) seeking de novo investigation, present somewhat an identical fact situation. The appellant’s http://www.judis.nic.in 33 husband, President of a political party was brutally murdered in public view and in the presence of police and security personnel by the supporters of the rival party. The investigation into the sordid incident had been completed. Alleging that the probe initially held by the state police and thereafter by the CID and by the CBI were faulty, the prayer for de novo inquisition was made. Imputation of attempts by the prosecution to suppress the truth in spite of the fact that the assailants were identified and named in the FIR and that the incident was in effectuation of a deep rooted conspiracy and preceded by previous threats were made. The CBI in its pleadings, inter alia, cited,
(i)prevailing law and order situation in the town;
(ii)abscondence of most of the accused persons;
(iii)murder of its informants;
(iv)fear psychosis in the locality and resultant want of support from the local public as hindrances to its investigation.
62. On behalf of the appellant, accusation of tardy prosecution of the case, and free and open movement of the key accused persons in the city avoiding arrest were made as http://www.judis.nic.in 34 well. The plea of the impleaded accused persons that the appellant after the demise of her husband had initiated the writ proceedings for political gain was rejected. Their contention based on Section 319 of the Code that in course of the trial, on availability of sufficient evidence, any person not being an accused could be ordered to be tried, was also negated. The propositions expounded in Zahira Habibulla H. Sheikh (supra) qua the duty of the court to ensure fair investigation by remedying the deficiencies and defaults therein so as to bring forth full and material facts to prevent miscarriage of justice were reiterated. It was concluded that when the courts find extra ordinary or exceptional circumstances rendering reinvestigation imperative, in such eventualities even de novo investigation can be ordered. While ruling that in case of discernable deficiency in investigation or prosecution, the courts have to deal with the same with iron hand appropriately with the framework of law, it was underlined that in appropriate cases even, if charge-sheet was filed, it was open for the High Court and also this Court to direct investigation of the case to be handed over to CBI or to any other agency or to direct investigation de novo in order to do complete justice, in the facts of the case.
http://www.judis.nic.in 35
71. This Court dealing with the proposition that once a charge sheet is filed, it would then be exclusively in the domain of the competent court to deal with the case on merits in accordance with law and that the monitoring of the investigation would cease in all respects, held, in particular, in K.V. Rajendran (supra) in reiteration of the enunciations aforestated, that though it is ordinarily so, the power of transferring investigation in rare and exceptional cases for the purpose of doing justice between the parties and to instill confidence in the public mind, can be made invoking its constitutional power available, to ensure a fair, honest and complete investigation.
72. The precedential ordainment against absolute prohibition for assignment of investigation to any impartial agency like the CBI, submission of the charge-sheet by the normal investigating agency in law notwithstanding, albeit in an exceptional fact situation warranting such initiative, in order to secure a fair, honest and complete investigation and to consolidate the confidence of the victim(s) and the public in general in the justice administering mechanism, is thus unquestionably absolute and hallowed by time. Such a measure however can by no means be a matter of course or routine but has to be http://www.judis.nic.in 36 essentially adopted in order to live up to and effectuate the salutary objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike.
73. In the decisions cited on behalf of the CBI as well, this Court in K. Saravanan Karuppasamy and Sudipta Lenka, (supra), recounted the above propositions underpinning the primacy of credibility and confidence in investigations and a need for complete justice and enforcement of fundamental rights judged on the touchstone of high public interest and the paramountcy of the rule of law.
74. The judicially propounded propositions on the aspects of essentiality and justifiability for assignment of further investigation or reinvestigation to an independent investigating agency like the CBI, whether or not the probe into a criminal offence by the local/state police is pending or completed, irrespective of as well, the pendency of the resultant trial have concretized over the years, applicability whereof however is contingent on the factual setting involved and the desideratum for vigilant, sensitised and evenhanded justice to the parties.
75. The exhaustive references of the http://www.judis.nic.in 37 citations seemingly repetitive though, assuredly attest the conceptual consisting in the expositions and enunciations on the issue highlighting the cause of justice as the ultimate determinant for the course to be adopted.
76. A “speedy trial”, albeit the essence of the fundamental right to life entrenched in the Article 21 of the Constitution of India has a companion in concept in “fair trial”, both being in alienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the state police notwithstanding, has to be essentially invoked if the statutory agency already in-charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot http://www.judis.nic.in 38 reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty. Though a court’s satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
77. As every social order is governed by the rule of law, the justice dispensing system cannot afford any compromise in the discharge of its sanctified role of administering justice on the basis of the real facts and in accordance with law. This is indispensable, in order to retain and http://www.judis.nic.in 39 stabilize the faith and confidence of the public in general in the justice delivery institutions as envisioned by the Constitution.
78. As succinctly summarised by this Court in Committee for Protection of Democratic Right (supra), the extra ordinary power of the Constitutional Courts in directing the CBI to conduct investigation in a case must be exercised sparingly, cautiously and in exceptional situations, when it is necessary to provide credibility and instill confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and for enforcing the fundamental rights. In our comprehension, each of the determinants is consummate and independent by itself to justify the exercise of such power and is not inter- dependent on each other.
79. A trial encompasses investigation, inquiry, trial, appeal and retrial i.e. the entire range of scrutiny including crime detection and adjudication on the basis thereof. Jurisprudentially, the guarantee under Article 21 embraces both the life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the http://www.judis.nic.in 40 community at large and therefore cannot be alienated from each other with levity. It is judicially acknowledged that fair trial includes fair investigation as envisaged by Articles 20 and 21 of the Constitution of India. Though, well demarcated contours of crime detection and adjudication do exist, if the investigation is neither effective nor purposeful nor objective nor fair, it would be the solemn obligation of the courts, if considered necessary, to order further investigation or reinvestigation as the case may be, to discover the truth so as to prevent miscarriage of the justice. No inflexible guidelines or hard and fast rules as such can be prescribed by way of uniform and universal invocation and the decision is to be conditioned to the attendant facts and circumstances, motivated dominantly by the predication of advancement of the cause of justice.
80. Any criminal offence is one against the society at large casting an onerous responsibility on the state, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibly and committedly, always accountable to the law abiding citizenry for any lapse. The power of the constitutional courts to direct further investigation or reinvestigation is a dynamic component of its http://www.judis.nic.in 41 jurisdiction to exercise judicial review, a basic feature of the Constitution and though has to be exercised with due care and caution and informed with self imposed restraint, the plentitude and content thereof can neither be enervated nor moderated by any legislation.
81. The expression “fair and proper investigation” in criminal jurisprudence was held by this Court in Vinay Tyagi vs Irshad Ali @ Deepak and others (2013)5SCC 762 to encompass two imperatives; firstly the investigation must be unbiased, honest, just and in accordance with law and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction.
82. Prior thereto, in the same vein, it was ruled in Samaj Parivartan Samudaya and others vs. State of Karnataka and others (2012)7SCC 407 that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and to ensure that the guilty are punished. It held further that the jurisdiction of a court to ensure fair and proper investigation in an adversarial system of criminal administration is of a higher degree than in an inquisitorial system and it has to take precaution that interested or influential persons http://www.judis.nic.in 42 are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders, escaping the punitive course of law. Any lapse, it was proclaimed, would result in error of jurisdiction.
83. That the victim cannot be afforded to be treated as an alien or total stranger to the criminal trial was reiterated by this Court in Rattiram and others vs. State of Madhya Pradesh (2012)4SCC 516. It was postulated that the criminal jurisprudence with the passage of time has laid emphasis on victimology, which fundamentally is the perception of a trial from the view point of criminal as well as the victim when judged in the social context.
84. This Court in National Human Rights Commission vs. State of Gujarat and others (2009)6SCC 767 did proclaim unambiguously that discovery, investigation and establishment of truth are the main purposes of the courts of justice and indeed are raison d’etre for their existence.
85. That the preeminence of truth is the guiding star in a judicial process forming the foundation of justice had been aptly propounded by this Court in Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (dead) through L.Rs (2012)5SCC 370. It was ruled http://www.judis.nic.in 43 that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasizing that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. While referring with approval, the revealing observation made in Ritesh Tewari and another vs. State of U.P. and others (2010)10SCC 677 that every trial is voyage of discovery in which truth is the quest, the following passage of Lord Denning scripted in Jones vs. National Coal Board (1957) 2 All ER 155(CA) was extracted in affirmation:
“…It’s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.”
86. A strain of piognance and disquiet over the insensitive approach of the court concerned in the textual facts in the context of fair trial in the following observations of this Court in Vinod Kumar vs. State of Punjab (2015)3 SCC 220 sounds an awakening caveat:
http://www.judis.nic.in 44 “The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question: Is it justified for any conscientious trial Judge to ignore the statutory command, not recognize “the felt necessities of time” and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on the rule of law which includes “fair trial” for the accused as well as the prosecution.”
87. The observations though made in the backdrop of repeated adjournments granted by the trial court, chiefly for cross-examination of a witness resulting in the delay of the proceedings, the concern expressed is of overarching relevance demanding sentient attention and remedial response. The poser indeed stems from the indispensable interface of the orderly existence of the society founded on the rule of law and “fair trial” for the accused as well as the prosecution.
That the duty of the Court while conducting a trial is to be guarded by the mandate of law, conceptual fairness and above all its sacrosanct role to arrive at the truth on the basis of material brought on record, was reiterated.
88. Adverting to the role of the police to http://www.judis.nic.in 45 be one for protection of life, liberty and property of citizens, with investigation of offences being one of its foremost duties, it was underscored in Manohar Lal Sharma vs. Principal Secretary and others (2014)2SCC 532 that the aim of investigation is ultimately to search for truth and to bring the offendor to book. The observations of Lord Denning in his rendering in “The Due Process of Law” First Indian Reprint 1993 page 102 were alluded to at page 553 as under:
“In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well-trained and well-disciplined force of police whom it can trust; and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.
The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man’s house without authority. They must not use more force than the occasion warrants.”
89. The avowed purpose of a criminal investigation and its efficacious prospects with the advent of scientific and technical advancements have been candidly synopsized in the prefatory http://www.judis.nic.in 46 chapter dealing with the history of criminal investigation in the treatise on Criminal Investigation – Basic Perspectives by Paul B. Weston and Renneth M. Wells:
“Criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry. Successful investigations are based on fidelity, accuracy, and sincerity in lawfully searching for the true facts of an event under investigation and on an equal faithfulness, exactness, and probity in reporting the results of an investigation. Modern investigators are persons who stick to the truth and are absolutely clear about the time and place of an event and the measurable aspects of evidence. They work throughout their investigation fully recognizing that even a minor contradiction or error may destroy confidence in their investigation. The joining of science with traditional criminal investigation techniques offers new horizons of efficiency in criminal investigation. New perspectives in investigation bypass reliance upon informers and custodial interrogation and http://www.judis.nic.in 47 concentrate upon a skilled scanning of the crime scene for physical evidence and a search for as many witnesses as possible. Mute evidence tells its own story in court, either by its own demonstrativeness or through the testimony of an expert witness involved in its scientific testing. Such evidence may serve in lieu of, or as corroboration of, testimonial evidence of witnesses found and interviewed by police in an extension of their responsibility to seek out the truth of all the circumstances of crime happening. An increasing certainty in solving crimes is possible and will contribute to the major deterrent of crime – the certainty that a criminal will be discovered, arrested and convicted.
90. Reverting to the facts, the gruesome and sordid assassination of the appellant’s husband in broad day light under the public gaze is not in dispute. As a consequence of the murderous assault with firearms and indiscriminate use thereof, Raju Pal along with two others fell to the bullets. Records seem to suggest that even prior to the incident, attempts were made on his life but he survived the same in view of the timely intervention of the security guards. That representations were made by him seeking additional protection and that after his murder, the http://www.judis.nic.in 48 appellant and the party higher ups of Raju Pal had persistently appealed, amongst others, to the Governor and the Chief Minister of the State for handing over the investigation to the CBI is also testified by the records.
91. Pleaded imputations of the appellant include deliberate, uncalled for and mysterious replacement of the earlier sets of personal security officers/gunners of the deceased, presence of high police officials near the place of occurrence, indifference on the part of the state police to act with alacrity, hasty conduct of the post mortem of the dead body and cremation thereof without handing over the same to the appellant or any of his relatives, political pressure on the investigating agency to distort the course of the probe and to screen the incriminating evidence collected etc. One of the Investigating Officers in his writ petition, questioning his suspension had also pleaded on oath about the unexpected and unwarranted interference of the higher ups in the department to withhold evidence gathered in course of the investigation underway. Though nothing decisively turn on these accusations, the same having been refuted by the respondents, the fact remains that the appellant’s husband had been mercilessly killed by a group of gun wielding http://www.judis.nic.in 49 assailants in a public place, in the open view of all concerned. Such a daring and desperate act did have a terrorizing impact on the society sending shock waves amongst all cross sections of the community and received wide coverage by the media. The incident understandably is not one to be lightly glossed over or trivialized.
92. The trial on the basis of the investigation completed hitherto by the state police and the CBCID has remained stayed by the orders of this Court. Prior thereto however as per the materials laid before this Court, several eye- witnesses cited by the investigating agency have been examined. As the trial is pending for the present, we refrain from commenting on their testimony, except that they seem to have resiled from their statements under Section 161 of the Code. Having regard to the manner in which the offence had been committed, it is incomprehensible that there was no eye- witness to the incident. Thus, if the persons cited as eye- witnesses by the investigating agency retract from their version made before the police, then either they have been wrongly projected as eye- witnesses or they have for right or wrong reasons resiled from their earlier narration. In both the http://www.judis.nic.in 50 eventualities, in our opinion, the investigation has to be faulted as inefficient, incomplete and incautious with the inevitable consequence of failure of the prosecution in the case in hand. Such a fall out also spells a dismal failure of the state machinery as a pivotal stake holder in the process of justice dispensation to protect and assure the witnesses of their safety and security so to fearlessly testify the truth. We would hasten to add that these observations are by no means suggestive of the complicity of the respondent Nos. 4 & 5 and other accused persons standing trial. These, to reiterate, are farthest from even any presumptive hypothesis of their involvement in the offence for the present and are engendered by the concern of possible failure of justice. If the investigating agencies, as involved, have not been able to identify and present eye- witnesses of the incident who would under all circumstance religiously and devotedly abide by their version about the same, the shortcoming apparently is in the probe made, sadly reflecting on the competence, commitment and efficacy of such agencies. The very fact that this Court had earlier stayed the trial while permitting the appellant to approach the High Court with the relief for assignment of the investigation to the CBI http://www.judis.nic.in 51 does signify its expectation that the High Court would adopt a sensitive insight into the issues raised and appropriately address the same. The pendency of the trial and the examination of the witnesses so far made thus in our estimate is not a disarming factor for this Court, to consider the necessity of entrusting the investigation to the CBI even at this stage. To reiterate, a decision in this regard has to be induced and impelled by the cause of justice viewed in the overall facts and circumstances attendant on the incident. No inflexible norm or guideline is either available or feasible".
22. It is clear from the above judgment that the Court of law cannot reduce itself to be resigned and became a helpless spectator, on the face of a faulty investigation. The very aim of investigation is to find out the truth. A trial encompasses investigation, enquiry, trial etc., Without a fair investigation, there can never be a fair trial. Article 21 of the Constitution of India embraces both the life and liberty of an accused person as well as the interest of the victim. The power of the constitutional Court to direct further investigation or reinvestigation, is a dynamic http://www.judis.nic.in 52 component of its jurisdiction to exercise judicial review.
23. This Court had an occasion to deal with a case involving transfer of investigation and after taking note of the judgment in Pooja Pal .Vs. Union of India (UOI) and Ors reported in [2016 3 SCC] 135 referred supra, this Court in Crl.OP No.4670 of 2019, by order dated 02.07.2019, has held as follows :-
20. It is clear from the above judgments that the constitutional Court in an appropriate case in order to instill any confidence in the investigation has very wide powers to order for further investigation or re-
investigation by a different agency. The only caveat that is to be borne in mind is that this power should not be used in a routine manner without there being strong reasons to order for transfer of investigation.
21. As the cause of justice has to reign supreme, a Court of law cannot reduce itself to be a resigned and helpless spectator, in the face of a faulty investigation. A fair trial encompasses within it a fair http://www.judis.nic.in 53 investigation. Article 21 of the Constitution of India embraces both the life and liberty of the accused as well as the interest of the victim. It cannot be one sided only favouring the accused person. The investigation must be unbiased, honest, just and in accordance with law and the emphasis of an investigation is to bring out the truth of the case before the Court of Competent jurisdiction. The jurisdiction of a Court to ensure fair and proper investigation in an adversarial system of criminal administration is of a very high decree than in an inquisitorial system and it has to take care and precaution to ensure that interested or influential persons do not misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping from the clutches of law.
22. Every citizen in this country has a right to get his or her complaint properly investigated. A fair http://www.judis.nic.in and proper investigation is always conducive to the 54 ends of justice and to for establishing the rule of law and to maintaining proper balance in law and order in a democratic set up. This must be taken care by the constitutional Courts.
24. On carefully assessing the entire materials available on record, this Court has no hesitation to come to a conclusion that the 1st respondent has not investigated this case effectively and a clear attempt has been made to shield the main accused persons. That apart, the Committal Court also failed to follow the settled principles of law and had committed illegality while committing the case to the Court of Sessions. Therefore, in order to ensure fair investigation and to bring to book all the accused persons, this Court passes the following order:-
25. This Criminal Original petition is allowed. The final report filed by the respondent police is hereby set aside. The Committal made by the learned Judicial Magistrate Court, Ambur, in P.R.C.No.5 of 2016 is hereby set aside and the Charges framed by http://www.judis.nic.in 55 the District and Sessions Court, Thirupathur in S.C.No.134 of 2016 is also set aside. The First respondent police shall hand over the entire case dairy to the Additional Director General of Police, CBCID, Chennai within a period of two weeks from the date of receipt of copy of this order and the Additional Director General of Police, CBCID, Chennai, shall nominate a police officer not less than the rank of the Deputy Superintendent of Police and direct the police officer to conduct the investigation in Crime No.453 of 2014 and it shall be monitored by the Additional Director General of Police, CBCID, Chennai. All efforts shall be made to effectively conduct the investigation and a final report shall be filed as expeditiously as possible. Consequently, the connected miscellaneous petition is also closed.
22.07.2019 Index : Yes /No. Internet : yes / No rka http://www.judis.nic.in 56 To
1. The Additional Director General of Police, CBCID, Chennai.
2. The District Superintendent of Police, Vellore District,Vellore.
3. The Inspector of Police, (Crime), Ambur Taluk Police Station, Vellore District.
4. The District Superintendent of Police, Vellore District at Vellore.
5. The Fast Track Court, Tirupattur, Vellore District http://www.judis.nic.in 57 N.ANAND VENKATESH.,J rka Crl.O.P.No.1856 of 2015 and Crl MP No.5859 of 2017 22.07.2019 http://www.judis.nic.in