Madras High Court
P.Sathish Kumar vs The State Of Tamil Nadu Rep By Its ... on 13 February, 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.02.2014 CORAM THE HON'BLE MR.JUSTICE S.NAGAMUTHU CRL.O.P.No.2954 of 2014 P.SATHISH KUMAR S/O.K.PATCHAYAPPAN NO.19, KOTHAVAL STREET ALANDUR, CHENNAI .. Petitioner vs THE STATE OF TAMIL NADU REP BY ITS INSPECTOR OF POLICE TEAM-II,CCB CHENNAI CR.NO.413/2013 .. Respondents For Petitioner : Mr.A.V.Arun For Respondents: PUBLIC PROSECUTOR ORDER:
S.NAGAMUTHU.J., The salutary concept of Fair Trial which has received recognition under the Universal Declaration of Human Rights, 1948 and guarantee under Article 21 of the Constitution of India, has received wider interpretation at the hands of the Hon'ble Supreme Court so as to include fair investigation of a crime as well. Thus, prompt registration of a case by a competent police officer followed by swift investigation resulting in a quick final report are all concomitants of a fair trial. To be fair to the victim, fair to the accused and fair to the society at large are the Constitutional obligations of the police. If there is any deviance, it is likely to result in failure of justice. That is the reason why a Constitution Bench of the Hon'ble Supreme Court in Lalita Kumari Vs. Government of U.P. and Others reported in 2013 (6) CTC 353 has issued as many as eight directions in the matter of registration of a case. But, the instant case illustrates as to how an information, promptly launched, has taken a long journey, changing many hands and at last landed in the hands of a Sub-Inspector of Police for investigation after ten months of its launching. Now let us trace the route and the root cause.
2. The petitioner, during the relevant period was working as a Team Leader in a private concern known as M/s.A.I.E. Cars, who is a dealer of Maruthi Cars. The first accused Mr.P.J.Balaguru had approached the petitioner company to purchase a Maruthi car. He obtained quotation for a car so as to arrange for loan from a bank. Accordingly the first accused applied for loan with the Karnataka Bank, West Mambalam Branch. The bank sanctioned loan for the same to the tune of Rs.8,39,000/- on 13.09.2012. The bank issued a demand draft in favour of M/s A.I.E. Cars viz., the petitioner. As per the arrangement the vehicle should be sold in the name of the first accused and the same should be hypothecated in favour of the complainant bank after it is registered under the Motor Vehicles Act.
3. After availing the loan, neither the first accused nor the petitioner herein had taken any interest to produce copies of the registration certificate of the car, insurance certificate and other documents. When the bank demanded the first accused and the petitioner for those documents, a copy of the registration certificate of the car bearing registration No.TN-10-AJ-4703, registered in the name of the first accused was e-mailed. But in the said registration certificate there was no hypothecation endorsement in favour of the bank. When the bank further enquired, it came to know that the demand draft was not presented for collection in the account of the dealer viz., AIE Cars, instead a separate account had been opened in a hurried manner in the State Bank of India, Shastri Nagar Branch, Adyar in the name of AIE Cars by one Mr.V.G.Arun and the demand draft was presented. The amount due under the demand draft was thereafter withdrawn from the said account. But the fact remains that the same was not paid to the actual dealer of the car viz., AIE Cars, in which the petitioner herein was a team leader.
4. According to the further case of the prosecution, the bank has been cheated to the tune of Rs.8,39,000/- by the accused 1, 2 and the petitioner. With these serious allegations making out cognizable offences the Branch Manager of the Karnataka Bank Limited rushed to the Commissioner of Police, Chennai City on 11.01.2013 and submitted a written information hoping that prompt action would be taken immediately to register a case and to investigate. But it did not happen soon and it all happened in the following manner:-
(i) On 11.01.2013, the Commissioner of Police, Chennai forwarded the information to the Joint Commissioner of Police, Central Crime Branch, Egmore.
(ii) The Joint Commissioner of Police, Central Crime Branch, Egmore forwarded the information on the same day to the Deputy Commissioner of Police, T.Nagar, Chennai.
(iii) The Deputy Commissioner of Police, T.Nagar, Chennai on the same day forwarded the same to the Assistant Commissioner of Police, Ashok Nagar, Chennai.
(iv) The Assistant Commissioner of Police, Ashok Nagar, Chennai forwarded the same to the Inspector of Police, R-3, Ashok Nagar Police Station (Crime), Chennai.
(v) The Inspector of Police, R-3, Ashok Nagar Police Station (Crime), Chennai, sent a letter to the Assistant Commissioner of Police, Ashok Nagar, Chennai requesting to transfer the petition to the Central Crime Branch, Egmore, Chennai.
(vi) The Assistant Commissioner of Police, Ashok Nagar, Chennai sent a letter to the Deputy Commissioner of Police, T.Nagar on 20.01.2013.
(vii) The Deputy Commissioner of Police, T.Nagar forwarded the same to the Joint Commissioner of Police, South Zone, Chennai on 29.01.2013.
(viii) The Joint Commissioner of Police, South Zone, Chennai forwarded the same to the Additional Commissioner of Police, South Zone, Chennai on 04.02.2013.
(ix) The Additional Commissioner of Police, South Zone, Chennai forwarded the same to the Joint Commissioner of Police, Central Crime Branch, Egmore, Chennai.
(x) The Joint Commissioner of Police, Central Crime Branch, Egmore, Chennai forwarded the same to the Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai.
(xi) The Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai forwarded the same to the Assistant Commissioner of Police, Anti Land Grabbing Special Cell, Central Crime Branch, Egmore, Chennai.
(xii) On 01.03.2013, the Assistant Commissioner of Police, Anti Land Grabbing Special Cell, Central Crime Branch, Egmore, Chennai forwarded the same to the Inspector of Police, Anti Land Grabbing Special Cell, Team XVI, Egmore, Chennai.
(xiii) The Inspector of Police, Anti Land Grabbing Special Cell, Team XVI, Egmore, Chennai forwarded the same to the Assistant Commissioner of Police, Central Crime Branch, Bank Fraud Wing, Egmore, Chennai on 27.03.2013.
(xiv) The Assistant Commissioner of Police, Central Crime Branch, Bank Fraud Wing, Egmore, Chennai forwarded the same to the Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Mr.Selvin Santhakumar on 29.03.2013 for necessary action.
(xv) The Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Mr.Selvin Santhakumar was relieved on 08.04.2013 and thereafter one Tmt.Malliga joined as Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai and she took up the case for enquiry on 19.06.2013.
(xvi) The Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Tmt.Malliga enquired the matter between 20.06.2013 to 15.09.2013 and collected vital documents from various departments.
(xvii) The Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Tmt.Malliga sent a letter on 15.09.2013 to the Assistant Commissioner of Police, Central Crime Branch, Bank Fraud Wing, Egmore, Chennai seeking approval from the Commissioner of Police, Chennai for registering FIR.
(xviii) The Assistant Commissioner of Police, Central Crime Branch, Bank Fraud Wing, Egmore, Chennai forwarded the same on 15.09.2013 seeking approval for registering the case.
(xix) The Commissioner of Police, Chennai gave approval for registration of a case on 01.10.2013 and the same was forwarded to the Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Tmt.Malliga on 07.10.2013.
(xx) After such approval, the Sub Inspector of Police, Central Crime Branch, Bank Fraud Wing, Egmore Chennai Tmt.Malliga registered the present case in Crime No.413 of 2013 for alleged offences under Sections 420, 406, 465, 467 r/w 34 of IPC on 07.10.2013 and the matter is under investigation.
5. As narrated above, after taking a circuitous route changing many hands of police officers at various levels, the effort of the defacto complainant to get the case registered materialised after 10 months. During the course of investigation, the first accused was arrested, however, the money allegedly swindled by playing fraud upon the bank could not be recovered. It is not known as to whether the second accused V.G.Arun is a fictitious person or he lives elsewhere hiding from the eyes of the police. The petitioner was arrested and remanded to custody. So far, not even a single pie has been recovered. Now the petitioner is before this Court with this petition seeking bail.
6. Pausing for a moment regarding the manner in which the case has been registered and investigated, let us go into the question of grant of bail to the petitioner. According to the materials so far placed, the petitioner had no role to play in the matter of opening of the account in the name of V.G.Arun. It is also not on record that the demand draft was encashed by the petitioner. He is after all a Team Leader in M/s.AIE Cars. In view of the same, I am inclined to grant bail.
7. Reverting back to the manner of registration of the case and investigation, I have to state the following:
(i) In a petition in Crl.O.P.No.932 of 2014 (Shyam @ Baisul Vs. State), I had an occasion to deal with a similar situation wherein, I have meticulously dealt with Chapter XII of the Code of Criminal Procedure more particularly with Sections 154 and 155 of the Code.
(ii) In the said order, I have extensively referred to the Constitution Bench Judgement of the Hon'ble Supreme Court in R.P.Kapur Vs. Sardar Pratap Singh reported in AIR 1961 SC 1117 so as to hold that in view of Section 36 of the Code of Criminal Procedure, any superior police officer can choose to exercise the powers of an officer in charge of the police station to receive an information relating to the commission of a cognizable offence and to register a case.
(iii) I have also elaborately quoted a recent Constitution Bench decision of the Hon'ble Supreme Court in Lalita Kumari Vs. Government of U.P. and Others reported in 2013 (6) CTC 353, wherein the Hon'ble Supreme Court has issued as many as eight directions to the police as to how an information relating to a cognizable offence has to be received and registered as a case.
(iv) In the said case in direction (iv) it is stated that the police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. The Hon'ble Supreme Court has gone to the extent of directing that action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
(v) Referring to these judgments, I have in the said order deprecated the practice of encouraging the people to directly rush to the superior police officers with information relating to a cognizable offences without laying the information to the officer-in-charge of the police station within whose jurisdiction the offence has been committed.
(vi) In the said order, I have further stated that one should not get confused between an information relating to the commission of a cognizable offence and the grievance relating to inaction or failure to take appropriate action by the subordinate officer.
(vii) I have also further observed that it is the high time that the public should be educated through print and electronic media that information relating to the commission of cognizable offence should preferably, at the first instance, be laid to the Station House Officer. This is because of the reason that if there is any delay, it may become handy for the unscrupulous accused to escape from the clutches of law.
(viii) I have also observed that disclosing such information to the superior officers and making wide publicity through media and press may facilitate the real accused to escape by destroying the evidence available.
8. After the said order in Crl.O.P.No.932 of 2014 was passed this Court is informed that there were lot of debates in the press and media and among the public about the observations made in the said order. It has come to light that it is strongly believed by the people, if only the information is laid to a superior police officer in respect of a cognizable offence, action would be taken forthwith and when such information is laid to the Station House Officer action may not be taken promptly. Thus the faith in the subordinate police at the level of police station is slowly eroded. It is only to restore the confidence in the minds of the people on the police stations, I was constrained to make the above observations.
9. In the present case, as I have narrated herein above, the information, which was laid on 11.01.2013 to the Commissioner of Police on the fond hope that prompt action would be immediately taken, was registered as F.I.R. only on 07.10.2013 i.e. after 10 months. In the meanwhile, the person in whose name the bank account was opened with the State Bank of India, Shastri Nagar Branch, Adyar has escaped and he is yet to be secured. It is not known whether he is a fictitious person or he is alive. In the meanwhile the public money which was siphoned out from the bank could not be recovered though the first accused has been arrested. I apprehend many other important materials would have been lost by this time. This in my considered opinion amounts to denial of fair trial to the complainant.
10. Further as found in the affidavit filed by the Additional Commissioner of Police, Central Crime Branch, Egmore, Chennai FIR was registered in this case only after getting approval from the Commissioner of Police, Chennai. When the learned Public Prosecutor was called upon to explain as to how such approval from the Commissioner of Police, Chennai becomes necessary in law, he readily answered that it is only by practice and there is no sanction of law for the said procedure.
11. Now, who is responsible for these lapses ? Had the information been laid at the first instance directly to the officer-in-charge of the police station concerned, I have no doubt, the Station House Officer would have registered the case immediately and the money could have been recovered. Because of the misapprehension of the defacto complainant that prompt action would not be taken by the Station House Officer and because of the belief that if information is laid directly to the Commissioner of Police there would be prompt action, there had occurred delay of ten months paving way for the culprits to escape. At least from this case, the people will learn that information should be laid at the first instance, without delay at the police station and the officers concerned shall realise their mistake and endeavour to instil confidence in the mind of the people on the police Station House Officer. It is the time for the Station House Officers to raise up to the occasion to prove that they shall take prompt action on such information.
12. The Tamil Nadu Police is not inferior in its capabilities in any manner to any other police in the country. The Tamil Nadu Police is a well organised institution which has proved its mettle in the past on many difficult situations. The Tamil Nadu Police has unearthed the truth in very sensational cases and ensured that the guilt were punished. Thus, the Tamil Nadu Police has got its own glory to celebrate. The observations made in this order are only to express the anxiety of the Court that the Tamil Nadu police should maintain its glory for ever and not with a view to derogate or undermine the services rendered by the Tamil Nadu Police. It is well known that to police is very difficult and more difficult is to police the police. It is time that police should police themselves. I believe that the Tamil Nadu Police will reaffirm its commitment to the people of this Country. I am hopeful that the directions of the Hon'ble Supreme Court in Lalita Kumari's case (cited supra) and various other cases decided by the Hon'ble Supreme Court as well as this Court will be scrupulously followed. With this I conclude.
13. In the result, the criminal original petition is allowed and the petitioner is ordered to be released on bail, on executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the learned XI Metropolitan Magistrate, Saidapet, Chennai and on further condition that the petitioner shall appear before the respondent police daily at 10.30 a.m. for a period of four weeks and shall co-operate with the respondent police for further investigation.
13.02.2014 Index : Yes / No Internet : Yes / No kk Note: Issue order copy on 13.02.2014.
S.NAGAMUTHU.J., kk CRL.O.P.No.2954 of 2014 13.02.2014