Madras High Court
R.Udhayakumar vs The Commissioner Of Police on 10 September, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/09/2013
CORAM
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
W.P.(MD)No.7163 of 2010
and
W.P.(MD)No.7606 of 2010
and
M.P.Nos.1, 2 & 2 of 2010
W.P.(MD)No.7163 of 2010
R.Udhayakumar .. Petitioner
Vs.
1. The Commissioner of Police,
Madurai City, Madurai.
2. The Superintendent of Police,
South Zone, CBCID Wing,
Chennai.
3. The Deputy Commissioner of Police (Crime),
Madurai City, Madurai.
4. The Inspector of Police,
CBCID Wing,
Sivaganga District,
Sivaganga.
5. The Inspector of Police,
Palayanoor Police Station,
Thiruppuvanam Union,
Sivaganga District.
6. Mr.Subbiah,
Retd. Inspector of Police,
Govt. Hospital Opposite,
Theni Town, Theni District.
7. Mr.Gunasundaram,
Inspector of Police (Crime),
B2 Temple Crime Police Station,
Madurai City, Madurai. .. Respondents
W.P.(MD)No.7606 of 2010
1. R.Udhayakumar
2. R.Thiruselvam
3. R.Jeyaraman
4. J.Thirukumaran
5. J.Thirunavukarasu
6. M.Subbaiah
7. T.Nallamuthu
8. M.Karuppu @ Karuppasamy
9. V.Muthu .. Petitioners
Vs.
1. The State of Tamil Nadu
Rep. by the Secretary to Government,
Home Department,
Secretariat, Chennai.
2. The Director General of Police,
Office of the Director General of Police,
Chennai.
3. The Inspector General of Police,
South Zone, Madurai.
4. The Superintendent of Police,
Sivagangai District.
5. The District Collector,
Sivagangai District.
6. The Inspector of Police,
Palaiyanoor Police Station,
Thiruppuvanam Union,
Sivagangai District.
7. The Inspector of Police,
C.B.C.I.D. Wing,
Sivagangai District.
8. The Commissioner of Police,
Madurai City.
9. The Deputy Commissioner of Police (Crime),
Madurai City.
10.Mr.Gunasundaram,
Inspector of Police (Crime),
B2, Temple Crime Police Station,
Madurai City. .. Respondents
* * *
Prayer in W.P.(MD)No.7163 of 2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of writ of Mandamus directing
the first respondent to change the enquiry officer to conduct enquiry as per law
on petitioner's representation dated 05.09.2009 and 28.05.2010 and further
direct the first respondent to place the seventh respondent under suspension
pending disposal of the said disciplinary proceedings.
Prayer in W.P.(MD)No.7606 of 2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of writ of Mandamus directing
the first respondent to pay a total compensation of Rs.50,00,000/- (Fifty Lakhs
only) to the petitioners from the date of filing with 12% reasonable interest
per year till the date of realization.
* * *
!For Petitioner in W.P.(MD) ... Mr.G.Prabhu Rajadurai
No.7163 of 2010 for M/s.Dr.D.Gnanasekaran
^For Petitioner in W.P.(MD) ... Mr.G.Prabhu Rajadurai
No.7606 of 2010 for M/s.R.Lakshmanan
and V.Selvakumar
For Respondents 1 to 5 in ... Mr.B.Pugalenthi for RR 1 to 5
W.P.(MD)No.7163/2010 Special Government Pleader
& Respondents 1 to 9 in
W.P.(MD)No.7606/2010
For Respondent 7 in W.P. ... Ms.D.Geetha
(MD) No.7163/2010 and
& Respondent 10 in W.P.
(MD)No.7606/2010
:COMMON ORDER
Since the issues involved in both the writ petitions are common, both the writ petitions are taken up together for hearing and a common order is passed.
2. There are nine petitioners in W.P.(MD)No.7606 of 2010 and the first petitioner therein, who is a practicing advocate in the Madurai Bench of Madras High Court, is the sole petitioner in W.P.(MD)No.7163 of 2010.
3. The petitioners belong to Chokkanathiruppu village in Sivagangai District. Even according to the petitioners, they belong to 'Rajendran Group' of the said village. The rival group is called 'Chengaisamy group' and they also belong to the same village. The first petitioner in W.P.(MD)No.7606 of 2010, who is the sole petitioner in W.P.(MD)No.7163 of 2010, is the son of Rajendran, leader of the said Rajendran group.
4. All of them, i.e., both the groups, belong to the same community. They also belong to the same political party. But there is a continuous rivalry between both the groups.
5. The Chengaisamy group gave a complaint dated 15.04.2004 to the Palayanoor Police Station against R.Udayakumar (petitioner in W.P.(MD)No.7163 of 2010 and the first petitioner in W.P.(MD)No.7606 of 2010) and others and the same was registered in Crime No.21 of 2004 for the offences under Sections 147, 148, 323, 324, 336, 427 and 506 (ii) IPC. Later after investigation, charge sheet was filed and same was taken in C.C.No.315 of 2004 on the file of the Judicial Magistrate, Manamadurai, and the same is pending.
6. A counter complaint was lodged by Rajendran group on the same day, i.e., on 15.04.2004, against Sengaisamy and 15 others before the same police station and it was registered in Crime No.22 of 2004 for the offences under Sections 147, 148, 323, 324, 427, 379 and 506 (ii) IPC. After investigation, charge sheet was filed and the same is now pending for trial in C.C.No.317 of 2004 before the Judicial Magistrate, Manamadurai.
7. Likewise, Chengaisamy group lodged another complaint on 04.06.2004 against Thirumurugan and 39 others belonging to Rajendran group before the same police station and the same was registered in Crime No.27 of 2004 for the offences under Sections 147, 148, 336, 427, 294(b), 436 and 506 (ii) IPC and after investigation and after filing charge sheet, the case is now pending in C.C.No.319 of 2006 before the Judicial Magistrate, Manamadurai.
8. As in the earlier occasion, counter complaint was given by Rajendran group against Sengaisamy and 20 others on 04.06.2004, which was registered in Crime No.28 of 2004 for the offences under Sections 147, 148, 336, 324, 427 and 307 IPC and after filing charge sheet, the same is now pending in C.C.No.318 of 2006 on the file of the Judicial Magistrate, Manamadurai.
9. While Chengaisamy group is facing proceedings under Section 107 of the Code of Criminal Procedure before the Revenue Divisional Officer, Sivagangai, pursuant to the case registered in Crime No.30 of 2004 at the instance of the Rajendran group, Rajendran group is facing proceedings under Section 107 of the Code of Criminal Procedure before the same R.D.O., Sivagangai, pursuant to the case registered in Crime No.31 of 2004.
10. While those cases are pending, a person belonging to Chengaisamy group was nominated by the high command of the political party as 'Kazhaga Kilai Seyalaalar' on 12.07.2004. This nomination aggravated the situation.
11. One Revathy was attacked by the Chengaisamy group at 4.00 p.m. on 16.07.2004 and a criminal case was registered in Crime No.41 of 2004 under Sections 341, 323 and 324 IPC against one Jayaraj and three others belonging to Chengaisamy group.
12. There was another attack at 5.30 p.m. on 16.07.2004 resulting in the death of one Thangaraj, aged 73 years, who belongs to Chengaisamy group. A complaint was lodged in Crime No.39 of 2004 against all the nine writ petitioners in W.P.(MD)No.7606 of 2010 under Sections 147, 148, 324, 307 and 302 IPC. These writ petitions are relating to the criminal case registered in Crime No.39 of 2004.
13. The said criminal case in Crime No.39 of 2004 was investigated by Mr.Subbiah, the then Inspector of Police, Poovanthi Police Station. Allegations are made by Chengaisamy group that Mr.Subbiah failed to act properly while investigating the serious crime in Crime No.39 of 2004 and none of the accused persons, named in the First Information Report, was arrested in that crime number and two of the accused among the nine accused, namely, seventh and ninth petitioners in W.P.(MD)No.7606 of 2010, were arrested. But the arrest was shown in Crime No.27 of 2004 by Mr.Subbiah, and not in Crime No.39 of 2004.
14. Mr.Subbiah, was of the view that Chengaisamy group/de facto complainant group, only committed the heinous crime of murder of Thangaraj. But the Deputy Superintendent of Police, Manamadurai, and the Deputy Superintendent of Police, District Crime Records Bureau, refused to agree with him.
15. The Deputy Superintendents also alleged that Mr.Subbiah, did not produce case diary for their perusal and he failed to arrest the accused persons named in the First Information Report though they directed to him arrest them.
16. One Ramachandran, son of the deceased Thangaraj, filed Crl.O.P.(MD)No.444 of 2004 praying for change of investigating officer Mr.Subbiah.
17. In the circumstances, the Superintendent of Police, changed the investigating officer and on 11.08.2004, the investigation was handed over to Mr.Gunasundaram, who was the then Inspector of Police, Manamadurai.
18. Mr.Gunasundaram arrested Nallamuthu and Muthu, the seventh and the ninth petitioners in W.P.(MD)No.7606 of 2010, in Crime No.39 of 2004. Thereafter, he completed the investigation and filed the charge sheet against the petitioners on 24.03.2005.
19. In the meantime, Mr.Rajendran made a representations to the Home Secretary, Government of Tamil Nadu, seeking to change the investigating officer Mr.Gunasundaram making allegations against him. Based on the same, on 25.02.2005, the Home Secretary, requested the Director General of Police, to enquire into the matter and send a report to the Government. Accordingly, the Additional Superintendent of Police (Crime), Sivagangai, was appointed to give a report in this regard.
20. Mr.J.Jeyachandra Bose, the then Additional Superintendent of Police (Crime), Sivagangai District, Sivagangai, gave a report dated 25.04.2005 concluding that further investigation is required in Crime No.39 of 2004.
21. In the circumstances, Inspector of Police, Palayanoor Police Station filed an application under Section 173(8) of the Code of Criminal Procedure before the Judicial Magistrate, Manamadurai, seeking permission to conduct further investigation in Crime No.39 of 2004 and it was ordered on 27.03.2006 and a direction was issued by the Judicial Magistrate, Manamadurai, to conduct further investigation and to submit final report based on the further investigation within a period of two months.
22. While so, the first petitioner in W.P.(MD)No.7606 of 2010 filed Crl.O.P.(MD)No.9175 of 2006 for change of investigation to Central Bureau of Investigation (CBI). This Court granted stay of investigation on 24.11.2006. On 18.12.2006, the criminal original petition in Crl.O.P(MD)No.9175 of 2006 was ordered entrusting the investigation to CB CID to carry out fresh investigation and to file final report within three months.
23. Mr.Ramanchandran, son of the deceased Thangaraj, took up the matter before the apex court questioning the order dated 18.12.2006 in Crl.O.P.(MD)No.9175 of 2006. The apex court, by order dated 13.05.2008, refused to interfere with the order of this Court entrusting the investigation to CB CID, but only modified the order to the extent that the CB CID shall carry out further investigation and there cannot be fresh investigation.
24. Thereafter, the Inspector of Police, CB CID, Sivagangai, Mr.Jeyaram, arrested the accused and filed the charge sheet on 31.01.2009 against 13 persons, i.e., one Muthu Ramalingam and 12 others of the de facto complainant group/ Chengaisamy group. Mr.Ramachandran, son of the deceased Thangaraj, is also shown as one of the accused. The said charge sheet is taken on the file of the Principal Sessions Judge, Sivagangai, in S.C.No.230 of 2010 and the same is pending.
25. Mr.Jeyaram, Inspector of Police, CB CID, Sivagangai, sent a letter dated 18.07.2009 to the Superintendent of Police, CB CID, South Zone, Chennai, complaining that Mr.Gunasundaram misused his official power and illegally arrested Mr.Nallamuthu and Mr.Muthu.
26. In the written submissions filed by the learned counsel for the tenth respondent in W.P.(MD)No.7606 of 2010 (seventh respondent in W.P.(MD)No.7163 of 2010), it is stated that among 13 accused persons, four accused have filed Crl.O.P.(MD)No.10605 of 2012 to quash the charge sheet and the matter is pending before the Madurai Bench of this Court.
27. While so, the petitioner in W.P.(MD)No.7163 of 2010 sent a representation on 05.09.2009 to the Home Secretary, Government of Tamil Nadu, requesting to pay a sum of Rs.50,00,000/- as compensation and to initiate disciplinary proceedings against Mr.Gunasundaram, for the misuse of his official position. Mr.Nallamuthu and Mr.Muthu, the seventh and ninth petitioners in W.P.(MD)No.7606 of 2010, also made similar representations on 05.09.2009 to the Home Secretary seeking the similar relief, as sought for by the petitioner.
28. A charge Memo was issued to Mr.Gunasundaram in P.R.No.50 of 2010 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. The third respondent Deputy Commissioner, (Crime) in W.P.(MD) No.7163 of 2010 was appointed as Enquiry Officer.
29. According to the petitioner in W.Ps.(MD)No.7163 of 2010, the Deputy Commissioner (Crime), Madurai City, (Ms.Jeyashree), was appointed as Enquiry Officer, to enquire into the allegations against Mr.Gunasundram. The petitioner has stated that he sought for information about the stage of that proceedings under the Right to Information Act, 2005 and he had obtained information in the letter dated 18.05.2010 from the Superintendent of Police, wherein, it was stated by the Deputy Commissioner that the disciplinary proceedings is pending and the same could not be continued since the criminal case in Crime No.39 of 2004 is pending before the Court.
30. Hence, the petitioner filed W.P.(MD)No.7163 of 2010 sought the change of the Enquiry Officer, alleging that the enquiry was proceeded against Mr.Subbiah by the same Enquiry Officer/Deputy Commissioner when the trial is pending, but now she says that the enquiry cannot be proceeded against Mr.Gunasundaram on the ground that the criminal case is pending before the Court.
31. The petitioners also filed W.P.(MD)No.7606 of 2010, seeking for a direction to the Home Secretary, Government of Tamil Nadu, to pay a total compensation of Rs.50,00,000/- to the petitioners with interest at the rate of 12% p.a. till the date of realization. The compensation was claimed since a false case was foisted against them and two of the petitioners, namely, seventh and ninth petitioners, were arrested by Mr.Gunasundaram in connection with Crime No.39 of 2004.
32. In W.P.(MD)No.7606 of 2010, a counter affidavit was filed by the Additional Director General of Police, CB CID, on behalf of the Government as well as the Director General of Police, and two counter-affidavits were filed by the Inspectors of Police, CB CID, Sivagangai, one by Mr.Manikandan and other other by Mr.Jeyaram. It is stated in paragraph 23 of the counter-affidavit filed by the Additional Director General of Police that the enquiry against Mr.Gunasundaram was over and the Commissioner of Police, Madurai, imposed the punishment of postponment of increment for one year without cumulative effect on 12.01.2011 and against the said order of punishment, Mr.Gunasundaram filed an appeal through proper channel and the Additional Director General of Police modified the punishment to one of Censure for six months on 02.08.2011. It is stated that the departmental action was taken against Mr.Gunasundaram and proper investigation was conducted by the CB CID in the criminal case and the same is pending. Hence the Government, is not liable to pay compensation.
33. Mr.Gunasundaram filed a counter-affidavit in both the writ petitions and averred that he has filed W.P.No.5412 of 2012 challenging the order dated 02.08.2011 passed by the appellate authority in the appeal preferred by him modifying the punishment to one of censure from the postponment of increment for one year without cumulative effect and the writ petition was allowed by the order dated 20.04.2012 and the matter was remanded back to the appellate authority to pass a fresh order after considering various grounds raised by him. He gave various details and submitted that he discharged his duties in accordance with law and more particularly, as directed by the Deputy Superintendent of Police, Manamadurai, and the Deputy Superintendent of the District Crime Records Bureau.
34. Heard both sides.
35. The learned counsel for the petitioners vehemently contended that since the further investigation was entrusted with the CB CID and pursuant to the further investigation, CB CID filed the charge sheet against 13 persons belonging to Chengaisamy group and the investigation revealed that the de-facto complainant party in Crime No.39 of 2004 are the real accused and the petitioners, who are named in the First Information Report, are not accused and also two of the petitioners, i.e., seventh and ninth petitioners, were arrested by Mr.Gunasundaram, who hurriedly filed the charge sheet, the petitioners are entitled to seek compensation of Rs.50,00,000/- as claimed in the writ petition.
36. The learned counsels relied on the following judgments:
(1)Saheli, A Women's Resources Center, through Ms.Nalini Bhanot and others Vs. Commissioner of Police, Delhi Police Headquarters reported in MANU/SC/0478/1989; (2)Peruboyina Satyanarayana V. State of A.P. reported in 2006 Cri.L.J. 3027; (3)S.Krishnamoorthy V. The State of Tamil Nadu, dated 20.11.2007 in Crl.O.P.No.8543 of 2006;
(4)Mahesh Ram V. State of Bihar reported in 2008 Cri. L.J. 59 (Patna); and (5)Prakash Kadam and etc. V. Ramprasad Vishwanathan Gupta and Another reported in MANU/SC/0616/2011.
37. On the other hand, learned Special Government Pleader, has submitted that nothing survives in W.P.(MD)No.7163 of 2010 in view of the later development and the same may be dismissed as infructuous. Insofar as W.P.(MD)No.7606 of 2010 is concerned, the learned Special Government Pleader submitted that the same is premature and the petitioners cannot seek for compensation at this stage, as the criminal case in S.C.No.230 of 2010 is pending and any order passed in these cases would cause serious prejudice to the trial.
38. The learned counsel for the tenth respondent submitted that nothing survives in W.P.(MD)No.7163 of 2010 in view of the later development and the same may be dismissed as infructuous. The learned counsel for the tenth respondent also submitted that W.P.(MD)No.7606 of 2010 is a premature one and the petitioners cannot ask for compensation at this stage as any decision rendered in these writ petitions would cause serious prejudice to the trial of S.C.No.230 of 2010.
39. In the written submissions of the learned counsel for the tenth respondent, it is stated that the accused persons have now questioned the final report filed in Crime No.39 of 2004 which is now pending in S.C.No.230 of 2010 on the file of the District and Sessions Judge, Sivagangai, in Crl.O.P.(MD)No.10605 of 2012 and the same is pending and if this Court allows the criminal original petition and quashes the charge sheet, then there is no basis for the writ petition itself.
40. Furthermore, it is submitted that if the criminal original petition is dismissed and the trial commenced and proceeded against accused persons as per the charge sheet laid by the CB CID and even if those persons are convicted, the State is not liable to pay compensation as the action of Mr.Gunasundaram was in pursuance of the discharge of his duties and more particularly, his action was supported by two Deputy Superintendents of Police, namely, DSP, Manamadurai and the DSP, District Crime Records Bureau.
41. According to her, when there was a First Information Report and the tenth respondent proceeded, investigated and filed the charge sheet on that basis, it does not give rise to the writ petitioners to claim for compensation.
42. The learned counsel for the tenth respondent relied on various judgments in support of her submissions.
43. I have considered the submissions made by either side.
44. The aforesaid narration of facts makes it clear that there are two groups in Chokkanathiruppu village and both the groups belong to the same community and also belong to the same political party. However, there was a continuous rivalry between the two groups. The continuous rivalry is clearly seen from the lodging of complaints by one group against the other in Crime Nos.21, 22, 27 and 28 of 2004 and also 107 proceedings in Crime Nos.30 and 31 of 2004 on the file of the Revenue Divisional Officer, Sivagangai.
45. In those circumstances, the incident took place on 16.07.2004 at 4.00 p.m., in which, one Revathy of Rajendran group was assaulted and she got injured and a case was registered in Crime No.41 of 2004. Another incident took place at 5.30 p.m. on the same day, wherein, one Thangaraj of Chengaisamy group was murdered and Crime No.39 of 2004 was registered to this incident. The First Information Report was lodged by Mr.Balusamy, who is the father of Sengaisamy, and the petitioners are shown as accused in the First Information Report.
46. The Chengaisamy group made allegations against the first investigating officer Mr.Subbiah that he did not arrest the accused named in the First Information Report and did not proceed with the investigation of the crime in Crime No.39 of 2004. Mr.Jeyachandran, Deputy Superintendent of Police, Manamadurai, also addressed a letter dated 02.08.2004 to the Superintendent of Police that though he instructed Mr.Subbiah to arrest the accused persons named in the FIR in Crime No.39 of 2004, he was reluctant to arrest the accused and that he did not submit the case diary for his perusal.
47. Mr.Ramachandran, the son of the deceased Thangaraj, filed Crl.O.P.No.444 of 2004 seeking direction to change the investigation from Mr.Subbiah.
48. In the circumstances, the Superintendent of Police changed the investigation to Mr.Gunasundaram, the then Inspector of Police, Manamadurai Police Station from Mr.Subbiah and on 11.08.2004 the investigation was entrusted with Mr.Gunasundaram. Mr.Gunasundaram proceeded with the investigation and filed the charge sheet and the Deputy Superintendent of Police, Manamadurai supervised the investigation done by Mr.Gunasundaram.
49. But the same was questioned by the Rajendran group successfully and this Court in Crl.O.P.No.9175 of 2004 by the order dated 18.12.2006 transferred the investigation to CB CID. The order of this Court was questioned by Mr.Ramachandran, son of the deceased, before the Apex Court and the Apex Court refused to interfere with the order of this Court entrusting the investigation to CB CID, but the order was modified to the extent that the investigation shall not be a fresh one and it should be a further investigation.
50. In the meantime, Rajendran gave a representation to the Government making certain allegations against the investigating officer Mr.Gunasundaram and acting on that representation, the Home Secretary requested the Director General of Police to enquiry into the matter. Accordingly, the Additional Superintendent of Police, Crime, Sivagangai, was nominated to enquire into the matter and he gave a report that the matter requires further investigation. Then CB CID investigated the matter and filed final report and the same is now pending in S.C.No.230/2010, which is challenged by some of the accused persons in Crl.O.P.(MD)No.10605/2012 before this Court and the same is pending.
51. The narration of facts also makes it clear that any finding of this Court on the issues raised by both sides would cause serious prejudice to the issues involved in Crime No.39 of 2004. Still both sides are making allegations against the other that the murder of Thangaraj was committed by the other group. Further, there was initially a charge sheet filed by Mr.Gunasundaram. It is no more on record and a totally a different charge sheet is filed by the CB CID. The same is now questioned in Crl.O.P.(MD)No.10605 of 2012. Ultimately, the trial relating to the murder of Thangaraj is pending before the Sessions Court at Sivagangai.
52. As stated above, if any finding is rendered by this Court on the issues raised by the parties in this case, it would definitely cause serious prejudice to the trial that would take place in future relating to the murder of Thangaraj that took place on 16.07.2004. Hence, I am of the considered view that the writ petition in W.P.(MD)No.7606 of 2010 is a premature one.
53. In fact, the learned counsel for the tenth respondent in W.P.(MD)No.7606 of 2010 has submitted that even, after the trial, untimely, if the petitioners herein were held to be innocent and have not committed the crime, the same could not vest with the right on the petitioners to claim compensation. According to her, the petitioners should lay a suit for malicious prosecution and should claim damages. The submission of the learned counsel for the tenth respondent in W.P.(MD)No.7606 of 2010 ha much force. In any event, I am of the view that the writ petition is a premature one as I have no hesitation to come to the conclusion that any decision would hamper the trial proceedings relating to Crime No.39 of 2004 which is now pending in S.C.No.230 of 2010 on the file of Sessions Court, Sivagangai.
54.1. The judgements relied on by the learned counsels for the petitioners are dealt with hereunder :
(1) The Apex Court Judgment in Saheli, A Women's Resources Center, through Ms.Nalini Bhanot and others Vs. Commissioner of Police, Delhi Police Headquarters and Others reported in MANU/SC/0478/1989 :
(i) In this case, the writ petition was filed by the Women's and Civil Rights Organization, known as SAHELI questioning the death of a 9 year old child caused due to the police excess.
(ii) In this case, two women, namely, Kamlesh Kumari and Maya Devi, were residing in one room tenement in Delhi. Kamlesh Kumari moved into the tenement in 1974 along with her family. She had three children and one among them was Naresh aged about 9 years. The husband of both Kamlesh Kumari and Maya Devi were truck drivers and they were often away from their home.
(iii) There was a dispute over the ownership of the house. One Puram Chand and his two sons Shambu Dayal and Prakash Chand claimed to have bought the property from one Manohar Lal. They illegally evicted all the tenants from the premises except the two families of Kamlesh Kumari and Maya Devi.
(iv) Kamlesh Kumari obtained an order of stay from the Court against forceful eviction and the order was in force. In October, 1987, the so-called landlords cut off the water and electricity supply to the tenement of Kamlesh Kumari and the same were not restored till the decision was rendered by the Apex Court.
(v) The police personnel acted in favour of the landlord and threatened Kamlesh Kumari and Maya Devi to vacate the house by taking some money from the landlord. Since Kamlesh Kumari did not vacate even after such threat, on 12.11.1987, the Station House Officer of the concerned Police Station again called Kamlesh Kumari and threatened her that she would be locked up if she refused to vacate the tenement.
(vi) On 13.11.1987, she went to Tis Hazari Court to consult her lawyer. On coming back, she found her children missing and all her belongings were thrown out. Maya Devi told Kamlesh Kumari that the Sub-Inspector of Police of Anand Parbat Police Station came there and took away her children and threw away May Devi from her room.
(vii) Kamlesh Kumari went to the police station and met the Station House Officer, Lal Singh and asked him about her children. The S.H.O. told her that her children had been kept locked up and she would not be allowed to see her children unless she vacated the tenement. With great difficulty, Kamlesh Kumari's lawyer got the three children released from the police station.
(viii) The landlord on the same day, i.e., on 13.11.1987, trespassed into the tenement of Kamlesh Kumari and hit her with a brick and caused head injury. She complained to the police. But the police refused to take any action against the assailants.
(ix) While so, on 14.11.1987, Kamlesh Kumari was attacked by the landlord, his brother and the police personnel. Her clothes were torn and she was molested. All the events took place in the presence of her 9 year old son. The child Naresh clung to his mother to protect her and the police personnel forcibly threw the child on the floor and the child was beaten.
(x) Thereafter, Kamlesh Kumari was dragged away to the police station and a criminal case of trespass was foisted on her. She was sent to Tihar jail and the lawyer got her released on 16.11.1987. On release Kamlesh Kumari found that her son Naresh was in a very bad condition. Medical help did not help him and the child died in the Ram Manohar Lohia Hospital on 26.11.1987.
(xi) The People's Union for Democratic Rights sent a fact-finding team and they gave a report that police personnel and the landlord were responsible for the death of the child.
(xii) In the said backdrop, the apex Court directed the Delhi Administration to pay Rs.75,000/- as compensation to Kamlesh Kumari for the death of the child.
(xiii) The aforesaid narration makes it clear that the said case cannot be applied to this case as lot of factual controversies have to be resolved by the competent trial court in this case. Before the same, any finding of this Court would cause serious prejudice to the trial pending in S.C.No.230 of 2010 before the Sessions Court, Sivagangai.
(2) Judgment of the High Court, A.P., in Peruboyina Satyanarayana V. State of A.P. reported in 2006 Cri.L.J. 3027 :
(i) In this case, the father of a girl by name one Penuboina Kumari gave a complaint at T.Narsapuram Police Station on 08.06.2000 that his daughter was found missing and the complaint was registered as Crime No.14 of 2000 under the head 'girl missing'.
(ii) It was alleged that during investigation on 04.05.2001 both the petitioners confessed to the Investigating Officer that they committed murder and cremated her. Based on the confession, the petitioners were arrested on 04.05.2001. They were sent to judicial custody. They were in custody for nearly two months and thereafter, they were granted bail by the Andhra Pradesh High Court on 26.06.2001.
(iii) Later the charge sheet in P.R.C.No.37 of 2001 was filed before the Judicial Magistrate of First Class, Chintalapudi under Sections 302 and 201 read with 34 IPC. It was committed to the First Additional District Judge, Eluru, West Godavari District, and the Additional District Judge took it on file in S.C.No.67 of 2002.
(iv) While so, on 17.01.2003, the alleged deceased - Penuboina Kumari returned back alive to her village. In the circumstances, the accused / petitioners therein filed an application under Section 482 of the Code of Criminal Procedure to quash the charge sheet laid against them.
(v) While quashing the charge sheet, in the said circumstances, the Andhra Pradesh High Court awarded compensation of Rs.10,000/- each to the petitioners.
(vi) On the face of it, the said facts do not apply to this case.
(3) Order of this Court dated 20.11.2007 in Crl.O.P.No.8543 of 2006 (S.Krishnamoorthy V. The State of Tamil Nadu) :
(i) It was also a case of murder and the dead person came alive later.
(ii) There were two petitioners in the Crl.O.P.No.8543 of 2006. The first petitioner was alleged to have raped and murdered one Sujatha aged about 12 years and threw away the dead body with the assistance of the second petitioner.
The case was based on the alleged confession made by the first petitioner/accused. The petitioners were arrested and they were in custody for 90 days. Sujatha came alive later.
(iii) In those circumstances, the petitioners filed petition under Section 482 of the Code of Criminal Procedure to declare that they are innocent and they were falsely implicated in the Crime in S.C.No.117 of 2002 before the Special Court constituted under SC/ST (P & A) Act, Madurai.
(iv) In the said circumstances, their applications were allowed by this Court on 20.011.2007 and a direction was issued to the State to pay Rs.1,00,000/- to each of the petitioners.
(v) Hence, the facts of this Court cannot be relied upon by the petitioners.
(4) Judgment of Patna High Court in Mahesh Ram V. State of Bihar reported in 2008 Cri. L.J. 59 (Patna):
(i) This case is also similar to the earlier two cases, wherein, the murdered person came alive.
(ii) On 09.10.2000, the Matihani police was informed that some people have thrown a mutilated dead body of a lady. On 11.10.2000, the parents of one Ranju Devi stated to have identified the dead body as that of their daughter, who was allegedly missing. The said Ranju Devi was married to the first petitioner three months back to the incident. The parents were of the view that the first petitioner murdered their daughter and disposed of her body.
(iii) On 11.10.2000 a confessional statement was recorded by the investigating officer from the first petitioner/the husband of Ranju Devi.
Thereafter, he was arrested pursuant to the disclosure made by the parents. The second petitioner is his brother and the third petitioner is his friend. They were also implicated and all of them remained in custody for almost eight months.
(iv) While so, an application was filed by the petitioners on 02.01.2001 before the Chief Judicial Magistrate that the girl in question was alive and living in Asansol to the knowledge of her parents. The application was rejected on 12.01.2001.
(v) In the meantime, the charge sheet dated 31.12.2000 was filed against the petitioners. Thereafter, the High Court granted bail on 26.02.2001 to the second petitioner. He traced out the girl and informed the Delhi Police that persons are being tried for having killed a girl, who is living with another man at Delhi. Police in Delhi immediately acted and arrested Ranju Devi and her so- called second husband and they were remanded to Tihar jail. The said girl and the boy were brought to Begusarai.
(vi) After nothing the aforesaid facts, the Sessions Court, Begusarai, granted bail to the first petitioner on 01.06.2001. The investigating officer, who recorded the confession statement was proceeded departmentally and the minor punishment was imposed.
(vii) In this case, the Patna High Court directed the Chief Secretary, the Home Secretary, the Secretary (Personnel), the Director General of Police and the Government of Bihar to look into the matter and take appropriate action in accordance with law against the official concerned since the minor punishment shocks the conscience of the court. Each of the petitioners was awarded Rs.1,00,000/- as compensation.
(viii) The Court disapproved the minor punishment and issued the direction, as stated above.
(ix) Hence, this order is of no use to the petitioners.
(5) The judgment of the Apex Court in Prakash Kadam and etc. V. Ramprasad Vishwanathan Gupta and Another reported in MANU/SC/0616/2011.
(i) In this case, the appellants before the apex court are policemen accused of contract killing in Sessions Case No.317 of 2010 pending before the Sessions Judge, Greater Bombay. The police have been charge sheeted for offences punishable under Sections 302/34, 120B and 364/34 IPC.
(ii) The victim of the offence is Ramnaryan Gupta. The accused No.14 wanted to eliminate the deceased and the police personnel were engaged for the same. The deceased was abducted by the police personnel on 11.11.2006. Thereafter, the accused No.9, a police official, made a complaint that he along with the other police officials had gone to Nani-Nani Park on the basis of certain information and asked the deceased to surrender before the police. But the deceased had attempted to kill the police and in retaliation he was shot by them.
(iii) The brother of the deceased is a practicing Advocate. He lodged a complaint that his deceased brother was abducted and was eliminated in a false police encounter. He approached the High Court on 15.11.2006 by filing W.P.No.2473 of 2006 for a direction to the police to register the case in respect of the death of his brother.
(iv) On 13.02.2008, the High Court issued a direction to register the case against the accused for the offence of murder. The High Court directed the Metropolitan Magistrate, Railway Mobile Court, Andheri, to make an enqiury under Section 176(1A) of the Code of Criminal Procedure and to submit a report.
(v) The Magistrate submitted a report that the deceased was shot by the police while he was in their custody. The report also recorded that the deceased was abducted by the police. The report further stated that a false First Information Report was lodged by Accused No.9 as if the deceased was killed in the encounter.
(vi) After the enquiry report submitted by the Metropolitan Magistrate, the Division Bench of the Bombay High Court by its order dated 13.08.2009 constituted a Special Investigation Team for the investigation and based on the investigation, ultimately 19 persons were charge sheeted.
(vii) The accused persons obtained bail from the Sessions Court. However, the same were cancelled by the High Court. Against the cancellation of bail, the accused persons approached the Apex Court. The Apex Court rejected their case and refused to interfere with the order of the High Court cancelling the bail in the aforesaid facts and circumstances of the case.
(viii) Hence, this judgment also cannot be relied on by the petitioners.
54.2. I am of the view that the writ petition in W.P.(MD)No.7606 of 2010 is a premature one and the petitioners could wait for the outcome of the trial relating to Crime No.39 of 2004 now pending in S.C.No.230 of 2010 on the file of Sessions Court, Sivagangai, and any finding rendered by this Court on the issues raised by the parties in this case would cause serious prejudice to the trial. Hence, the writ petition in W.P.(MD)No.7606 of 2010 is liable to be dismissed.
54.3. I am also of the view that nothing survives for further adjudication W.P.(MD)No.7163 of 2010 as the disciplinary proceedings was already over and therefore, the question of change of enquiry officer would not arise. The writ petition fails and the same is also liable to be dismissed as infructuous.
55. In the result,
(i) W.P.(MD)No.7163 of 2010 is dismissed as infructuous.
(ii) W.P.(MD)No.7606 of 2010 is dismissed as the same is a premature one. No costs. Consequently, connected miscellaneous petitions are closed.
gg To
1. The Secretary Home Department, Government of Tamil Nadu, Secretariat, Chennai-600 009.
2. The Director General of Police, Office of the Director General of Police, Chennai - 600 004.
3. The Inspector General of Police, South Zone, Madurai.
4. The Commissioner of Police, Madurai City, Madurai.
5. The District Collector, Sivagangai District.
6. The Superintendent of Police, Sivagangai District.
7. The Superintendent of Police, South Zone, CBCID Wing, Chennai.
8. The Deputy Commissioner of Police (Crime), Madurai City, Madurai.
9. The Inspector of Police, Palayanoor Police Station, Thiruppuvanam Union, Sivaganga District.
10. The Inspector of Police, CBCID Wing, Sivaganga District, Sivaganga.