Madras High Court
Ramachandran vs State Rep By on 5 July, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.07.2018
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
Crl.O.P.(MD)Nos.12519 of 2012
, 12994, 10605 and 12171 of 2012
and
M.P.(MD)Nos.1to 3, 1 to 3, 1 and 2 of 2012
Ramachandran ...Petitioner in Crl.O.P.(MD)No.12519 of 2012
Baluchamy ... Petitioner in Crl.O.P.(MD)No.12994 of 2012
1.Ramachandran
2.Jeyaraj
3.Athilingam @ Lingam
4.LIC Krishnan ...Petitioners in Crl.O.P.(MD)No.10605 of 2012
R.Udhayakumar ...Petitioner in Crl.O.P.(MD)No.12171 of 2012
-Vs-
1.State rep by
The Inspector of Police,
CB CID, Sivagangai District,
Sivagangai.
2.The Inspector of Police,
Palayanoor Police Station,
Palayanoor,
Sivagangai District. ..1st and 2nd Respondents in
Crl.O.P.(MD)Nos.12994,
10605 and 12171 of 2012
3.Baluchamy ..3rd Respondent in Crl.O.P.(MD)No.
10605 of 2012
1.The Secretary,
Home Department,
State of Tamil Nadu,
Fort St.George,
Chennai.
2.The Secretary,
Public Department,
State of Tamil Nadu,
Fort. st. George,
Chennai.
3.The Inspector of Police,
CBCID, Sivagangai District,
Sivagangai.
4.The Inspector of Police,
Palayanoor Police Station,
Palayanoor,
Sivagangai District.
5.The Director,
The Central Bureau of Investigation,
Shastri Bhavan,
26, Haddows Road,
Chennai-600 006. ..Respondents in Crl.O.P.(MD)No.
12519 of 2012
PRAYER in Crl.O.P.(MD)No.12519 of 2012: Criminal Original petition - filed
under Section 482 of Code of Criminal Procedure, to transfer the
investigation of the case in SC No.230 of 2010 on the file of the Principal
Sessions Judge, Sivagangai to the 5th respondent and consequently direct the
1st and 2nd respondents to pay compensation of Rs.15,00,000/- to the
petitioner herein.
PRAYER in Crl.O.P.(MD)No.12994 of 2012: Criminal Original petition - filed
under Section 482 of Code of Criminal Procedure, to call for the records in
S.C.No.230 of 2010 on the file of the District and Sessions Judge, Sivagangai
and to quash the same.
PRAYER in Crl.O.P.(MD)No.10605 of 2012: Criminal Original petition - filed
under Section 482 of Code of Criminal Procedure, to quash the final report
filed by the third respondent in S.C.No.230 of 2010 on the file of the
District and Sessions Judge, Sivagangai.
PRAYER in Crl.O.P.(MD)No.12171 of 2012: Criminal Original petition - filed
under Section 482 of Code of Criminal Procedure, to direct the District and
Sessions Court, Sivagangai to complete the trial and dispose the case in
S.C.No.230 of 2010 within a period that may be stipulated by this Court.
!For Petitioner in Crl.O.P.(MD)
No.12994 of 2012 : No Appearance
For Petitioner in Crl.O.P.(MD)
No.12519 and 10605 of 2012 : Mr.D.Geetha
for R.Diwakaran
For Petitioner in Crl.O.P.(MD)
No.12171 of 2012 : Mr.Ajamal Khan,
senior counsel
for M/s Ajmal Associates
For Respondents : Mr.A.Robinson,
Government Advocate (Crl.Side)
(For R1 and R2 in all petitions and
for R1 to R4 in Crl.O.P.
(MD)No.12519 of 2012)
For R5 in Crl.O.P.(MD)
No.12519 of 2012 : Mr.Nagendiran
Special Public Prosecutor for CBI
For R3 in Crl.O.P.(MD)
No.10605 of 2012 : No Appearance
:ORDER
The Petitioner in Crl.O.P.(MD)No.12519 of 2012 seeks transfer of investigation of the case in S.C.No.230 of 2010 on the file of the learned Principal Sessions Judge, Sivagangai to the Central Bureau of Investigation.
2.Placing reliance on the decision rendered by the Hon'ble Supreme Court of India reported in AIR 2018 SC 1459 (Bimal Gurung Vs. Union of India and others), the learned counsel for the petitioner submitted that an order for transfer of investigation can be made, not withstanding the fact that the final report has been submitted and the case has been taken on file. He pointed out that the said decision is also an authority for the proposition that as a principle, there is no fetter for an accused to move the court of law for transfer of investigation.
3.I am unable to agree the petitioner's request. The Hon'ble Supreme Court of India in the decision reported in 2011 (5) SCC 79 (Narmada Bai vs. State of Gujarat) has held that it is a trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigation agency must investigate the alleged offence committed by them.
4.I do not propose to dismiss this Criminal Original Petition for transfer of investigation on the ground of maintainability or locus standi. The offence in question was committed on 16.07.2004. Crime No.39 of 2004 was registered on the file of Palayanoor Police Station, Sivagangai District for the offences punishable under sections 147, 148, 324, 307 and 302 IPC. On 24.03.2005 final report was filed by the Inspector of Police against one R.Uthaya Kumar and eight others. Crl.M.P.No.2227 of 2006 was filed by the Inspector of Police, Palayanoor Police Station before the learned Judicial Magistrate, Manamadurai seeking permission to conduct further investigation of the case. Permission was granted.
5.On 20.11.2006, Crl.O.P.No.9175 of 2006 was filed by Udhayakumar before the High Court seeking a direction for reinvestigation of the case by CBI. On 18.12.2006 (CBCID) was directed to investigate the matter afresh and thereafter file a final report. This order was challenged by none other than the petitioner himself before the Hon'ble Supreme Court by filing Crl.A.No.871 of 2008 and by an order dated 13.05.2008, the appeal was allowed in the following terms:-
?the directions of the High Court for re-investigation or fresh investigation are clearly indefensible. We, therefore, direct that instead of fresh investigation there can be further investigation if required under Section 173 (8) of the Code. The same can be done by the CB (CID) as directed by the High Court.?
6.Thereafter, CBCID filed a fresh final report on 13.01.2009, in which the Muthuramalingam and and twelve others, which included the present petitioner, were implicated as accused. Thus, the issue has already been the subject matter of the proceedings both before this Court as well as the Hon'ble Supreme Court. The present final report was filed by the CBCID as mandated by the Hon'ble Supreme Court. Therefore, this Court cannot entertain one more challenge of the prayer for transfer of investigation. In fact this Crl.O.P.No.12519 of 2012 has to be dismissed for this reason. Accordingly, this Criminal Original Petition stands dismissed.
7.The third accused, in S.C.No.230 of 2010 on the file of the Sessions Judge, Sivagangai, is the petitioner in Crl.O.P.(MD)No.12994 of 2012. He seeks to quash the final report. However, he has passed away. Therefore, Crl.O.P.(MD)No.12994 of 2012 is dismissed as not maintainable as the charge against the accused has abated.
8.The accused 2, 5, 6 and 13 are the petitioners in Crl.O.P.(MD)No.10605 of 2012. They also seek to quash the final report in S.C.No.230 of 2010. The same has been taken on file for the offences punishable under Sections 120-B, 147, 148, 302 IPC r/w 149, 182 and 201 (ii) IPC. The learned counsel for the petitioners contends that the impugned final report rests on the statements of the witnesses, which were recorded almost four years after the occurrence. The murder took place on 16.07.2004. The examination of the witnesses took place on 16.11.2008 and later. The said witnesses would make a claim that they had seen the occurrence. If that be so, they would have certainly lodged a complaint immediately. He therefore, submits that such statements cannot inspire the confidence of any Court. He also contended that the aforesaid statements are not in consonance with the forensic opinion.
9.I am of the considered view that these contentions are not sufficient to quash the impugned proceedings. This Court cannot lose sight of the fact that the offence in question is one of murder. The parameters that are invoked for quashing Criminal proceedings, if applied in the instance case, would certainly not pass muster. Therefore leaving open all the contentions and defences of the petitioner, this petition stands dismissed.
10.Crl.O.P.(MD)No.1217 of 2012 has been filed by the list witness No.21. The occurrence took place as early as on 16.07.2004. More than full fourteen years have gone by. Therefore, any further delay will certainly not serve the ends of justice. Therefore the sessions Court is directed conclude the entire trial proceedings within a period of ten months from the date of receipt of a copy of this order. Accordingly, this Petition stands allowed. Consequently, connected Miscellaneous Petitions are closed.
To
1.The Inspector of Police, CB CID, Sivagangai District, Sivagangai.
2.The Inspector of Police, Palayanoor Police Station, Palayanoor, Sivagangai District.
3.The Secretary, Home Department, State of Tamil Nadu, Fort St.George,Chennai.
4.The Secretary, Public Department, State of Tamil Nadu, Fort. st. George, Chennai.
5.The Director, The Central Bureau of Investigation, Shastri Bhavan, 26, Haddows Road, Chennai-600 006.
.