Madras High Court
G.Murugan vs The Secretary To Government on 11 September, 2009
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/09/2009 Coram THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.(MD).No.8707 of 2009 and M.P.(MD).No. 1 of 2009 G.Murugan . . Petitioner Vs 1.The Secretary to Government, Home Secretary, Fort St. George, Chennai-600 009. 2.State rep. by The Director General of Police, Chennai. 3.State rep. by The Superintendent of Police, Dindigul, Dindigul District. 4.State rep. by The Inspector of Police, All Women Police Station, Dindigul, Dindigul District. 5.State rep. by The Director of C.B.I., Shastri Bhavan, Chennai. . . Respondents Prayer Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the first respondent to instruct the fifth respondent to reinvestigate the case in Cr.No.195 of 2007 in S.C.No.140 of 2008 pending on the file of the learned Assistant Sessions Judge, Periakulam, Theni District. !For Petitioner ... Mr.E.Somasundaram ^For Respondents ... Mr.D.Gandhirajan for R1 to R4 Government Advocate :ORDER
The prayer in the writ petition is for issuance of a Writ of Mandamus to direct the first respondent to instruct the fifth respondent to re-investigate the case in Cr.No.195 of 2007 in S.C.No.140 of 2008 pending on the file of the learned Assistant Sessions Judge, Periakulam, Theni District.
2. In the affidavit filed in support of the writ petition, the petitioner has stated that he married one K.Parameshwari, on 12.06.1994 at Dindigul, according to Hindu Rites and Customs and out of their wedlock, they had two daughters and one son and they were leading a happy married life. The petitioner's wife used to go to her native place at Periakulam to see her parents and during her visit she is said to have developed illegal intimacy with one Karuppusamy, who is running a pharmacy and he is a bachelor. According to the petitioner, though he had advised his wife to mend her ways, she did not heed to his sincere advise. On the contrary, she lodged a compliant before All Women Police Station, Dindigul against the petitioner. It is stated that this complaint was given at the instance of the said Karuppusamy.
3. It is further stated by the petitioner that one Geetha, who is a Sub Inspector of Police, had advised the petitioner's wife to file a H.M.O.P. before the Sub Court, Dindigul for a decree of divorce. It is further stated that Rs.47,000/- was plundered from the petitioner by threat on 16.12.2007 in the presence of the relatives of the petitioner's wife. The petitioner would further submit that his wife had eloped with the said Karuppusamy along with her daughter to Alli Nagar at Theni and when Karuppusamy was being with her, the neighbours objected to the same and Karuppusamy shifted her to another place at Pattalamman Street, Lakshmipuram, Theni, with the help of one Solaiyappan, who is said to be a close associate of Karuppusamy.
4. It is further stated that the said Karuppusamy had tortured the petitioner's wife and asked her to run away, since he wanted to marry a girl as arranged by his parents. The petitioner's wife came to Thiruppur and stayed with her relative, one Mrs.Rani.
5. According to the petitioner, Geetha, the Sub Inspector of Police, Karuppusamy, Ramraj (Karuppusamy's father), Solaiyappan and Raja planned to kill petitioner's wife. It is further alleged that the aforesaid persons brought the petitioner's wife to Mohaideen Pallivasal Street, North Forest Road, Vadakarai, Periyakulam and killed her.
6. Based on this allegations, the petitioner submitted a representation to the District Collector, Dindigul on 17.12.2007 and the matter was also widely published in the Newspaper. However, the petitioner's representation was not considered and he made further representation to the Honourable Chief Minister on 28.08.2008, to the Director General of Police on 11.09.2008 as well as a petition before the State Human Rights Commission on 04.09.2008. The petitioner would further submit that the post morterm certificate reveals that the "Hyoid Bone" is intact and photograph also revealed that the murderers had hanged the petitioner's wife.
7. It is further stated that based on such incident, the fourth respondent registered a case in Cr.No.195 of 2007 under Section 306 IPC. It is further stated that the Sub Inspector of Police, Geetha, was not included in the First Information Report as well as in the Charge Sheet. The case has been committed to Sessions in S.C.No.140 of 2008 and even according to the petitioner six witnesses have already been examined on the side of the prosecution and the petitioner's minor daughter was also examined on the side of the prosecution. According to the petitioner, in spite of evidence, the police have not converted the case under Section 306 to 302 IPC. Therefore, the petitioner has sought for the present relief.
8. I have heard Mr.E.Somasundaram, the learned counsel appearing for the petitioner at length and Mr.D.Gandhirajan, learned Government Advocate for the respondents 1 to 4 and perused the materials available on record.
9. The learned counsel for the petitioner had set out the facts of the case as mentioned in the affidavit filed in support of the writ petition. In fact, the learned counsel for the petitioner took pains to narrate the details as to how the entire episode had happened. However, the learned counsel would fairly admit that at present the matter is now pending before the Sessions Court and the trial is proceeding expeditiously. After considering the factual submissions made by the learned counsel for the petitioner, it is necessary for this Court, to decide upon the scope of interference of this Court in such matters and more particularly in matters seeking for transfer of investigation after commencement of trial.
10. The legal principle on this issue has been settled by the Honourable Supreme Court in several decisions and this Court proposed to refer some of the decisions here under;
11.The Hon'ble Supreme Court in a decision reported in 1992 (1) SCC 397 (Gudalure M.J.Cherian and others Vs. Union of India and others) was dealing with a petition under Article 32 of the Constitution of India, which was filed as a PIL, regarding the rape two nuns at Gajraula in Uttar Pradesh wherein the petitioners contend that the investigation of the case should be entrusted to the Central Bureau of Investigation. After discussing about the factual averments in the said case, the Hon'ble Supreme Court held that the investigation having been completed by the Police and charge sheet submitted to the Court, it is not for the Supreme Court, ordinarily, to reopen the investigation specially by entrusting the same to a specialised agency like CBI. The Supreme Court further observed that they were conscious, that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless in a given situation, to do justice between the parties and to instil confidence in the public mind, it may become necessary to ask the CBI to investigate a crime as it only shows the efficiency and the independence of the agency. Therefore, in the light of the averments made and keeping in view the facts and circumstances of the said case, the Hon'ble Supreme Court has held that ends of justice would be met if the CBI is directed to hold further investigation in respect of the offences committed.
12.The Hon'ble Supreme Court in 2004 (7) SCC 768 (Gangadhar Janardan Mhatre Vs. State of Maharashtra and others) was dealing with the legality of the order passed by a Division Bench of the Bombay High Court dismissing a criminal writ petition filed seeking for a direction for transfer of investigation from State CID to any other impartial investigating agency. While considering the question of maintainability of the writ petition for such relief, the Hon'ble Supreme Court observed thus:
"13.When the information is laid with the police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India
4. It was specifically observed that a writ petition in such cases is not to be entertained.
14.The inevitable conclusion is that the High Court's order does not suffer from any infirmity. The writ application was not the proper remedy, and without availing the remedy available under the Code, the appellant could not have approached the High Court by filing a writ application".
13. In 2002 (5) SCC 521 (Secretary Minor Irrigation & Rural Engineering Services, U.P. and others Vs. Sahngoo Ram Arya and another), the Hon'ble Supreme Court decided the question as to when the High Court cannot direct enquiry by CBI by exercising its power under Article 226 has held as follows:
"5. While none can dispute the power of the High Court under Article 226 to direct an inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such inquiry. It is not sufficient to have such material in the pleadings. On the contrary, there is a need for the High Court on consideration of such pleadings to come to the conclusion that the material before it is sufficient to direct such an inquiry by CBI. This is a requirement which is clearly deducible from the judgment of this Court in the case of Common Cause1. This Court in the said judgment at paragraph 174 of the Report has held thus:
(SCC p. 750, para 174) "174. The other direction, namely, the direction to CBI to investigate 'any other offence' is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of 'life' and 'liberty' guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of 'life' has been explained in a manner which has infused 'life' into the letters of Article 21."
6.It is seen from the above decision of this Court that the right to life under Article 21 includes the right of a person to live without being hounded by the police or CBI to find out whether he has committed any offence or is living as a law-abiding citizen. Therefore, it is clear that a decision to direct an inquiry by CBI against a person can only be done if the High Court after considering the material on record comes to a conclusion that such material does disclose a prima facie case calling for an investigation by CBI or any other similar agency, and the same cannot be done as a matter of routine or merely because a party makes some such allegations. In the instant case, we see that the High Court without coming to a definite conclusion that there is a prima facie case established to direct an inquiry has proceeded on the basis of "ifs" and "buts" and thought it appropriate that the inquiry should be made by CBI. With respect, we think that this is not what is required by the law as laid down by this Court in the case of Common Cause1".(emphasis supplied)
14. In Sasi Thomas Vs. State and others reported in 2006(12) SCC 421, the Hon'ble Supreme Court while considering the scope of interference with criminal, trials held as follows:
"26.The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where cognizance had not been taken. It is not even a case where a direction under sub-section (8) of Section 173 of the Code of Criminal Procedure can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case.
33.Such a direction, thus, can be issued where there had been complete failure of justice and in a case where the investigating and prosecuting agencies were found to have not performed their role in the manner they were expected to do". (emphasis supplied)
15. In Sakiri Vasu v. State of U.P.,(2007) 4 Crimes 338 SC, the Hon'ble Supreme Court while discussing the scope of interference in criminal matters under Article 226 of the Constitution of India and when High Court can direct enquiry by CBI has held as follows:
"33.In Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram Arya15 (SCC vide para 6) this Court observed that although the High Court has power to order a CBI inquiry, that power should only be exercised if the High Court after considering the material on record comes to a conclusion that such material discloses prima facie a case calling for investigation by CBI or by any other similar agency. A CBI inquiry cannot be ordered as a matter of routine or merely because the party makes some allegation.
34.In the present case, we are of the opinion that the material on record does not disclose a prima facie case calling for an investigation by CBI. The mere allegation of the appellant that his son was murdered because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when inquiries were held by the army authorities as well as by GRP at Mathura, which revealed that it was a case of suicide". (emphasis supplied)
16. In Divine Retreat Centre Vs.State of Kerala reported in AIR 2008 SC 1614, relied on by the learned counsel for the petitioner, the Hon'ble Supreme Court dealt with the scope, content and ambit of the inherent power conferred on the High Court under Section 482 of Cr.P.C., 1974. While dealing with the said question, the Hon'ble Supreme Court observed as follows:
"33.The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.
34.In our view, the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither are the accused nor the complainant or informant entitled to choose their own investigating agency to investigate a crime in which they may be interested.
35.It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.
36....
37....
38.One of the documents enclosed to the anonymous petition is a magazine by name Divine Voice published by the appellant. In one of the volumes published in June 2005 the names of senior IAS and IPS officers were mentioned as the members of the Advisory Board; one such named officer is stated to have decided some matter in favour of the appellant. The High Court in Writ Petition (C) No. 22543 of 2005 made some observations to the effect that the said officer was really associated with the appellant Centre and the order passed by that officer in favour of the appellant is a nullity. Thereafter the name of that officer was deleted from the names of persons of the Advisory Board. Based on such vague and indefinite allegations the High Court gave the following directions without even issuing notice to the appellant:
(i) The Government shall issue notification under Section 17 of the Prevention of Corruption Act conferring power to the special investigation team constituted by the Court to investigate the offences under the Prevention of Corruption Act;
(ii) The special investigation team shall also inquire into the allegations of foreign exchange violation;
(iii) The special investigation team shall also inquire into the allegations of unnatural deaths stated in the petition.
40.On a careful perusal of the order passed by the learned Judge, we find that the learned Judge initiated suo motu proceedings without even examining as to whether the contents of the anonymous letter and material sent along with it disclosed any prima facie case for ordering an investigation. The question is:
can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence? Whether such directions could have been issued by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India?
43.It is evident from Sections 154, 156 and 157 of the Code that even a police officer can act on the basis of information received or otherwise and proceed to investigate provided he has reason to suspect the commission of a cognizable offence which he is empowered to investigate under Section 156 Cr.PC.
If the essential requirements of the penal provisions are not prima facie disclosed by a first information report and the police officer has no reason to suspect the commission of a cognizable offence, no investigation can be undertaken by him based on the information received or otherwise. Can the High Court set the law in motion against the named and unnamed individuals based on the information received by it without recording the reasons that the information received by it prima facie disclosed the commission of a cognizable offence? Setting criminal law in motion is fraught with serious consequences, which cannot lightly be undertaken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India. In our view, the High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a special investigation team on the strength of anonymous petitions. The High Courts cannot be converted into station houses. (emphasis supplied)
17. A Division Bench of this Court in Alliraj Gounder Vs.The Inspector of Police, Udumalpet Town Police Station, Udumalpet, Coimbatore District and another reported in 2005 (3) CTC 673 also dealt with a writ petition seeking for transfer of investigation wherein the Division Bench of this Court after relying upon the decision of the Hon'ble Supreme Court in C.B.I. Vs. Rajesh Gandhi reported in 1997 Crl.L.J. 63, held as follows:
"4.Moreover if the writ petitioner is not satisfied with the investigation being done by the police, he has a remedy to approach the Magistrate concerned under Section 156(3), Cr.P.C vide H.S.Bains Vs. State, AIR 1980 SC 1883, and if the said Magistrate is satisfied about the allegations of the petitioner, he can direct the police agency which he deems to be appropriate to do the proper investigation into the complaint of the petitioner, and he can also monitor the police investigation.
5.Sub-section (3) of Section 156, in other words, provides a check by the Magistrates on the duties to be performed by the police under Chapter XII, Cr.P.C. 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 for the police to do it properly or do it again, and/or issue such other directions to the police as he deems appropriate for securing a proper investigation into the complaint.
6.Thus, the petitioner has an efficacious alternative remedy under Section 156(3), which he should avail of by approaching the Magistrate. Writ petitions of this nature should not be entertained by this Court in view of the existence of the appropriate efficacious alternative remedy under the Criminal Procedure Code itself, otherwise this Court will be flooded with such writ petitions".
(emphasis supplied)
18. In Asit Bhattacharjee Vs. Hanuman Prasad Ojha and others reported in 2007(5) SCC 786, the Hon'ble Supreme Court, the Supreme Court has dealt with the scope of the interference in criminal matters under Article 226 of the Constitution of India as follows:
"33.Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever".
19. Thus, based on the above referred judgments, the following could be culled out:
"i)That the power under Article 226 of the Constitution of India can always be invoked to issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an Investigating Officer mala fide.
ii)That power of the High Court is to be exercised in rarest of rare cases where a clear case of abuse of power and non compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High court cannot direct as to how the investigation has to be conducted but can always insist for observation of process as provided under the Code.
iii)None can dispute the power of the High Court under Article 226 of the Constitution to direct inquiry by CBI, the said power can be exercised only in cases where there is sufficient material to come to a conclusion that there is need for such inquiry. It is not sufficient to have such materials in the pleadings.
iv)Setting the criminal liability and fraught with serious consequences which cannot lightly be taken by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution.
v)The High Court in exercise of its whatsoever jurisdiction cannot direct investigation by constituting a Special Investigation Team on the strength of vague allegations".
20. If the facts of the present case are examined by applying above referred legal principles, it is to be noted that there are no sufficient materials warranting interference of this Court for transfer of investigation that too when the trial has commenced before the sessions Court and more than six witnesses have been examined on the side of the prosecution.
21. The learned counsel for the petitioner was at pains to point out that there is suspicion in the manner and the nature of death of the petitioner's wife by stating about the circumstances of the case as well as by placing reliance upon the postmortem certificate and would contend that this is a fit case where such power should be exercised.
22. As noted above, the Hon'ble Supreme Court has added a word of caution that the power of transfer of investigation could be exercised only in the rarest of rare cases and such power should not be exercised to stifle a legitimate prosecution and the High Court should refrain from giving a prima facie decision in a case where the entire facts are incomplete and evidence has not been collected and produced before the Court. The Hon'ble Supreme Court has further held that based on vague and indefinite allegations, the High court ought not to have issued directions for transfer of investigation or for ordering investigation by any other special investigating body.
23. If these allegations are put to scrutiny on the tests laid down by the Hon'ble Supreme Court, in the decision referred supra, these are not sufficient material for the court to come to a conclusion that there is need for transfer of the investigation agency. As held by the Hon'ble Supreme Court in the case of Divine Retreat Centre Vs.State of Kerala referred supra, that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice. The High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the mid-stream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions. Further the Honourable Supreme Court in the cases of Sasi Thomas and Sakiri Vasu, cited supra, that the High Court cannot interfere with the trial of the case.
24. Therefore, considering the facts and circumstances of the case and applying the law laid down by the Hon'ble Supreme Court, it is to be held that the doubts raised by the petitioner in his representation and the affidavit are not sufficient to make out a case for transfer of investigation. Therefore, the prayer sought for by the petitioner cannot be granted and the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed. Consequently, the connected miscellaneous petition is closed.
JIKR To
1.The Secretary to Government, Home Secretary, Fort St. George, Chennai-600 009.
2.State rep. by The Director General of Police, Chennai.
3.State rep. by The Superintendent of Police, Dindigul, Dindigul District.
4.State rep. by The Inspector of Police, All Women Police Station, Dindigul, Dindigul District.
5.State rep. by The Director of C.B.I., Shastri Bhavan, Chennai.