Madras High Court
D.Damodharasamy vs State Represented By on 11 April, 2012
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.04.2012
CORAM
THE HONOURABLE MS. JUSTICE R.MALA
CRL.R.C.No. 1441 of 2005
D.Damodharasamy .. Petitioner/Accused-4
..Vs..
State represented by
its Deputy Superintendent of Police
Directorate of Vigilance and Anti-corruption
Erode Detachment, Erode. .. Respondent/Complainant
Prayer:- This Criminal Revision Case is filed under Section 401 of Cr.P.C. r/w 397 of Cr.P.C., against the order made in Crl.M.P.No.496/2005 in S.C.No.32/2002 dated 27.09.2005, on the file of the Chief Judicial Magistrate's Court (Special Court), Erode.
For Petitioner : Mr.Vimal B.Crimson
For Respondent : Mr.R.Prathap Kumar
Government Advocate (Crl. Side)
ORDER
This revision has been preferred against the dismissal of the order dated 27.09.2005 made in Crl.M.P.No.496 of 2005 in Spl.C.C.No.32/2002. The petition in Crl.M.P.No.496 of 2005 was filed under Section 239 of Cr.P.C. for discharging A4/petitioner herein from the offences under Sections 120B read with 468, 420, 409 and 467 IPC and Section 13(2) read with 13(1)(c) and 13(2) r/w 13(1)(d) of P.C. Act and Section 109 IPC in Crime No.4/AC/96/PD, F.I.R dated 3.12.1996.
2.The facts of the case are as follows:
(i)One Pari, who was the Deputy Superintendent of Police, Directorate of Vigilance and Anti-corruption as a informant/complainant, registered a case and investigated the matter and filed the charge sheet. The petitioner herein filed a petition to discharge him from the offences as stated above stating that no case has been registered against the petitioner at the time of registering F.I.R. and after conducting preliminary enquiry, his name has been included. He further stated that no fair and proper enquiry has been conducted by the D.S.P.-Mr.Pari. Further, Mr.U.C. Natarajan, D.S.P. of Directorate of V and AC has examined only few witnesses and filed the charge sheet, which shows that the informant/complainant and Investigating Officer is one and the same.
(ii) As per the dictum of the Apex Court, the complainant himself act as an Investigating Officer and such practice is against fair and impartial investigation. He further stated that there was an inordinate delay in filing the final report and no reason has been assigned for the same. The investigating agency does not follow the principles of natural justice and that without having direct or indirect evidence or material evidence, they simply arrayed the petitioner as A4 in the final report only with the political pressure from the political party. None of the witnesses during the investigation had stated anything about the involvement of the petitioner and in their Section 161 Cr.P.C. statements. There is no averment in the final report filed by the investigating agency for the involvement of the petitioner. In the final report itself, it was stated that the petitioner is not a competent person to participate in the tender and further the petitioner does not hold any post in the Society, which is bid in the tender auction. Therefore, investigating agency did not clear themselves and also it shows that they did not act independently.
(iii) The allotment order was ordered to Attur Society and the Society is no way connected to the petitioner and the petitioner had also no way linked with that Society. The petitioner is a private individual, therefore none of the private persons cannot step into the activities of the Society. The list of witnesses such as Witness No.12-Nagamanickam, No.37-S.M.Murugasamy, No.39-Rangasamy, No.40-K.Rajeswaran, No.41-Balasubramanian, No.42-Annadurai, No.69-M.Natarajan, had not stated anything against the petitioner. Further, the petitioner is not benefited and he had no way connected with the activities of Attur Society and the affairs, whereas the petitioner is having a steel plant and rolling mill. He has no business to have a link with the Attur Society to get an order to install a Steam Laundry Plant in the Hospitals and he is stranger to the transaction. The investigating agency fails to prove the prima facie case made out against the petitioner and therefore, he prayed for discharge him from the case.
(iv)The respondent/DV&AC filed a detailed counter and submitted that the investigation has been done in a proper manner and FIR was registered by the then D.S.P. Mr.Pari based on the concrete information available about the commission of offence and the case was registered after getting proper concurrence from the Government. The mere fact that the FIR did not contain the name of the petitioner/A4, will not absolve him of the part played in the offence narrated in the charge sheet. Mr.Pari, the then D.S.P. registered the case and investigated the matter. Later on his promotion as Superintendent of Police, his successor U.C.Natarajan, the then Deputy Superintendent of Police, further investigated the matter and filed a final report. There is an ample evidence to establish that the petitioner/A4 is the mastermind in the case and he with the assistance of N.Sampathnathan/A5 and V.Ramasamy/A6 all are private individuals hatched a conspiracy at the office of M/S.Talent Alloys Private Limited, Coimbatore (office of the petitioner) with the connivance and assistance of A2/K.Rajagopal to swindle the Government money on seeing the PWD's advertisement that appeared in the newspapers during the last week of December 1993 and the first week of January 1994 regarding the contract of supply and erection of steam laundry equipments to the Government Headquarters Hospitals at Tiruppur (clause-17) and by way of obtaining the contract A2, A4, A5 and A6 fabricated the tender schedules and other documents with false details aided by A3 and obtained the contract of supply and erection of steam laundry equipments for Government Hospital at Tiruppur in the name of a non functioning Society namely "Attur Carpentry and Black Smithy Workers Co-operative Cottage Industrial Society Limited", Attur, Salem District and A1 processed tenders from non functioning Tenderers and entered into an agreement with Attur Society contravening the conditions laid down by the Government Board of Engineers and Public Works Department and caused release of advance payment of Rs.16,58,889/- to the said Society and A5 received the cheque on behalf of A2 and A2 assisted by A3, A7 and A8 misappropriated the whole amount without executing the work and thereby, A1 to A8 caused loss to the Government Funds in which A4 played the key role. Witness Nos.37, 39, 40, 41 and 42 also gave their statements for the involvement of A4 in the commission of offence. Hence, he prayed for the dismissal of discharge application.
(v) The learned Chief Judicial Magistrate-cum-Special Judge considered the arguments of both sides and dismissed the application, against which, the petitioner preferred this revision.
3.Challenging the order of dismissal, the learned counsel for the petitioner putforth the following three points for consideration.
(i)The informant himself registered a case and investigated the matter. So the final report itself non-est in the eye of law.
(ii)There is no corroboration between the documentary evidence and Section 161 Cr.P.C. statements.
(iii)There is no documentary evidence filed against A4/petitioner herein.
Hence, he prayed for allowing of this revision.
4.Refuting the same, Mr.R.Prathap kumar, the learned Government Advocate (Crl. Side) filed his written arguments and submitted that it is not bar that the informant investigated the matter and filed a charge sheet. He would further take me through the statements of following witnesses under Section 161 Cr.P.C., namely, the list witness Nos.6, 34 to 37, 39, 40 to 42, 69, 72, 84, 85, 93 & 94 and submitted that their evidence have made out a prima facie case against the petitioner for framing charges and for framing charges, a prima facie case has been made out against the petitioner/accused is sufficient and the Court need not be go into the fact that whether the evidence is sufficient to convict the accused. He further submitted that a final report has been filed by one U.C.Natarajan, who is the D.S.P. and he is not an informant. He examined 2 or 3 witnesses and concluded his investigation and after obtaining permission, he filed a charge sheet against the accused. Hence he prayed for the dismissal of the revision. To substantiate his arguments, he relied upon the decisions of the Apex Court.
5.I have carefully considered the rival contentions put forward by either side and also thoroughly scanned through the entire evidence available on record.
6.The first point is to be decided that whether the informant is not a competent person to investigate the matter? While perusing F.I.R., it reveals that F.I.R. has been registered by one Pari, who himself is an informant. In column No.6 in the F.I.R., it was stated that the informant is Mr.A.Pari, s/o Ambalavanan, Occupation:Deputy Superintendent of Police, V and AC, Erode. In page-3 of F.I.R., it was shown that the case has been registered by the same Officer. On perusal of statements under Section 161 Cr.P.C., except witness No.1-Gupta, the Commissioner and Director of Most Backward Class, Chepauk and all other witnesses were examined by Pari. The charge sheet has been filed by U.C.Natarajan, who filed a final report before the Court.
7.Now this Court has to decide that whether the final report itself is valid under law? At this juncture, the learned counsel appearing for the petitioner would rely upon the decision reported in 1997 SCC (Cri) 267 (Megha Singh v. State of Haryana), it was held by the Apex Court that investigation by the very same police officer who lodged the complaint, not conducive to fair and impartial investigation and conviction therefore was set aside. At this juncture, it is appropriate to incorporate the following passage of the above judgment.
"4. .. .. It was on his compliant a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
8.The learned Government Advocate (Crl. Side) relied upon the decision reported in 2004 SCC (Cri) 1607 (State represented by Inspector of Police, Vigilance and Anti-corruption, Tiruchirappalli, T.N. v. V.Jayapaul), in which, the Megha Singh v. State of Haryana case has been discussed along with Bhagwan Singh v. State of Rajasthan in (1976) 1 SCC 15 and distinguished all the facts and held that investigation by the same police Officer, who lodged the F.I.R. is not barred by law if at all such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. It is appropriate to incorporate para-6 of the judgment, which is as follows:
"6. .. .. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack."
The above decision is squarely applicable to the facts of the present case. Because in the case on hand, Mr.Pari, D.S.P. only registered the case and investigated the matter. In para-12 of the same Judgement, the Apex Court held that the question of testing the veracity of the evidence of any witness, as was done in Megha Singh case. But in the case on hand, the revision is arising out of the dismissal of the discharge application. So the question of testing the veracity of the witness does not arise. The charge is yet to be framed and trial is yet to be taken place. In such circumstances, the decision in 2004 SCC (Cri) 1607 (cited supra) is squarely applicable to the facts of the present case, wherein the criminal appeal was filed to quash the charge sheet and final report. As per the dictum laid down in 2004 SCC (Cri) 1607 (cited supra), I am of the view, merely because Mr.Pari, who is an informant registered a case and it is not barred by law to investigate the matter and filed a charge sheet. So the argument advanced by the learned counsel for the revision petitioner that if the informant registered a case and investigated the matter, the investigation is vitiated on the ground of bias or the like factor does not merit acceptance. Whether investigation done in bias manner has to be decided at the time of trial while testing the veracity of the witness.
9.It is a well settled law for framing charges to make out the prima facie case made against the petitioner/A4 is sufficient. There is no need to consider whether the material available is sufficient to convict the revision petitioner. The learned counsel for the petitioner relied upon the decision in Crl.R.C.No.525 of 2007 (U.Srikrishnan v. State rep. by Inspector of Police, Ambalamoola Police station). But the citation is not applicable to the facts of the present case. It is pertinent to note that the final report filed against the accused stating that the revision petitioner along with A1, A3, A5 to A8 who aided and abetted A2-Rajagopal to commit the offences under Sections 120B read with 468, 420, 409, 467 IPC and Sections 13(2) r/w 13(1)(c) and 13(2) r/w 13(1)(d) of P.C. Act. But A4/revision petitioner is not a public servant and he is the Managing Director of M/S.Talent Alloys Private Limited, Coimbatore. The case of the prosecution is that the revision petitioner had created a fake fictitious Society and submitted a tender for installing Steam Laundry in the Hospitals at Tirupur and they received the advance amount and not carry out the work.
10.At this juncture, Mr.R.Prathap Kumar, the learned Government Advocate (crl.side) would submit that A2/Rajagopal-Special Officer, A3/Ramasamy-Assistant Director of Khadi and Village Industries, Salem are appointed by the revision petitioner. While perusing the statements of following list of witnesses under Section 161 Cr.P.C., viz., Nos.6, 34 to 37, 39 to 42, 69, 72, 84, 85, 93 and 94, they have mentioned the involvement of the petitioner in the said offence, which shows that prima facie case made out against the petitioner. As per the decision reported in AIR 2007 5 SCC page 403 (Soma Chakravarty v. State through CBI), it was held that charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exists some materials. It is pertinent to incorporate para-10 of the judgment, which is as follows:
"10.It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial."
In the above said judgment, it was specifically mentioned that in the Antulay case, it was held at the stage at which the Court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. A prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. A better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. Considering the same, I am of the view, Section 161 Cr.P.C. statements of the above said witnesses before the Investigating Officer shows the involvement of the petitioner in commission of the offence. The question of veracity of the evidence to be decided only at the time of trial. In such circumstances, I am of the view, there is a prima facie case made out against the petitioner. So the Special Court has considered this aspect and came to the correct conclusion.
11.Even though the learned counsel for the revision petitioner submitted that there is no documentary evidence to prove the guilt of the petitioner, whether the petitioner is guilty for the charges levelled against him that too to be decided only at the time of trial after considering the oral and documentary evidence. Furthermore, one of the charges framed against the petitioner is 120B IPC. Whether the ingredients of Section 120A has to be made out against the petitioner can be inferred in direct and circumstantial evidence. It is also a well settled principle of law that there is no possibility for direct evidence for conspiracy. Considering the same, nearly 15 witnesses have deposed about the involvement of the petitioner for commission of offence and misappropriation of the amount. Hence, I do not find any infirmity or illegality in the order passed by the Special Court and therefore, it is hereby confirmed.
12.In fine, The Criminal Revision is dismissed confirming the order dated 27.09.2005 made in Crl.M.P.No.496/2005 in Spl.C.C.No.32 of 2002, on the file of the Chief Judicial Magistrate's Court/Special Court, Erode.
Consequently, connected Miscellaneous Petition is closed.
kj To
1. Chief Judicial Magistrate's Court Court/Special Court Erode.
2. Deputy Superintendent of Police Directorate of Vigilance and Anti-corruption Erode Detachment, Erode.
3. The Public Prosecutor High Court, Madras