Madras High Court
Saeeda Irfana vs Inspector Of Police, R4, Pondy Bazar ... on 17 October, 2001
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER
1. The pertinent question that arises for my consideration in this writ petition is whether the petitioner, who is the wife of P.K. Salahuddin, accused in FIR No. 1048 of 2001 dated 13.6.2001 on the file of the R4-Pondy Bazaar Police Station, T.Nagar, Chennai, viz., the first respondent herein can invoke Article 226 of the Constitution of India, to seek a direction to transfer the investigation of the crimes in FIR No. 1048 of 2001, dated 13.6.2001 on the file of the R4-Pondy Bazaar Police Station, T.Nagar, Chennai, viz., the first respondent herein, against the petitioner's husband and his twin brother, and FIR No. 816 of 2001 dated 28.6.2001 on the file of the E4, Abhiramapuram Police Station, Chennai, viz., fourth respondent herein, against the twin brother of petitioner's husband, from the State Police, viz. Inspector of Police, Pondy Bazaar Police Station and Inspector of Police, Abhiramapuram Police Station, Chennai, to the Central Bureau of Investigation (hereinafter referred to as the 'CBI'), viz., the eighth respondent herein, or any other agency independent of the control of the sixth respondent, viz. the former Chief Minister and the leader of the ruling party in the State of Tamil Nadu, on the ground that the said complaints are false and frivolous, in view of the tape-recorded telephonic conversation dated 1.7.2001, 2.7.2001, 3.7.2001, and 5.7.2001 filed as Annexures 1 to 8 to this writ petition.
2.1. In brief, a criminal complaint was lodged against the petitioner's husband P.K. Salahuddin, and his twin brother, one Moinudin, which was registered as F.I.R. No. 1048 of 2001 on 13.6.2001 at 0600 hrs on the file of first respondent herein for the offences punishable under Sections 120(B), 147, 148, 323, 452, 307, 427, 506(ii) of Indian Penal Code, Sections 3 and 8 of T.N.P.(D & L) Act, 1992 and Sections 25(1-b)(A) and 27 of Arms Act, 1959, by one Gopusridhar, the 7th respondent herein, and another criminal complaint was lodged against the said Moinudin, which was registered as F.I.R. No. 816 of 2001 on 28.6.2001 at 1730 hrs on the file of the fourth respondent herein for the offences punishable under Sections 8-C read with 21 of Narcotic Drugs and Psychotropic Substances Act, by one M.E.M. Jayaraman, the second respondent herein.
2.2. According to the petitioner, both the above criminal complaints registered as F.I.R. Nos. 1048 of 2001 and 816 of 2001 before the first and fourth respondents respectively, are false and frivolous, and they were registered at the instance of the sixth respondent who was the former Chief Minister of Tamil Nadu and leader of the ruling party in the Tamil Nadu.
2.3. It is claimed that the relationship of the petitioner's husband P.K. Salahuddin, who is the Managing Director of Silicon Valley Corporation, with the sixth respondent was only commercial in nature, for installation of a dish antenna at the residence of the sixth respondent at No. 6, Poes Garden, Chennai, and relating to supply of hardware and technical advisory services for 'J.J. T.V.' (a Television Channel) and Super Duper T.V. (a Cable Network Company), which are said to be owned by the sixth respondent, and that the petitioner's husband is in no way connected with any illegal or corrupt transactions.
2.4. However, it is alleged that the sixth respondent, after coming to power in May, 2001, started demanding the petitioner's husband, his twin brother and V.N. Sudhagaran, huge money, which was said to have been taken away by V.N. Sudhagaran from the residence of the sixth respondent when she was in jail during the year 1997, under an impression that the said V.N. Sudhagaran had entrusted the said money to the petitioner's husband and his twin brother for safe custody of the same.
2.5. It is further alleged that upon denial of acquaintance of the petitioner's husband and his twin brother with V.N. Sudhagaran, the sixth respondent threatened them with dire consequences, making use of her power and is said to have directed the Assistant Commissioner of Police, third respondent herein, requiring the petitioner's husband to settle the money dealings with S. Natarajan, the ninth respondent herein, who is said to be handling the matter at the directions of the sixth respondent.
2.6. It is stated that the respondents 3, 9 and 10 started pressurising the petitioner, her husband and his twin brother, demanding money, illegally, through their cell phones and landline, and the same were tape-recorded and filed in this writ petition as Annexures - 1 to 8, viz.;
(i) Annexure: 1 - Translated copy of the telephonic conversation of the petitioner's husband with the third respondent herein on 1.7.2001.
(ii) Annexure: 2 - Translated copy of the telephonic conversation of the petitioner's husband with the tenth respondent herein on 1.7.2001.
(iii) Annexure: 3 - Translated copy of the telephonic conversation of the petitioner's husband with the tenth respondent herein on 2.7.2001.
(iv) Annexure: 4 - Translated copy of the telephonic conversation of the petitioner's husband with the third respondent herein on 2.7.2001.
(v) Annexure: 5 - Translated copy of the telephonic conversation of the petitioner's husband with the ninth respondent herein on 3.7.2001.
(vi) Annexure: 6 - Translated copy of the telephonic conversation of the petitioner's husband with the third respondent herein on 3.7.2001.
(vii) Annexure: 7 - Translated copy of the telephonic conversation of the petitioner's husband with the ninth respondent herein on 5.7.2001.
(viii) Annexure: 8 - Translated copy of the telephonic conversation of the petitioner's husband with the ninth respondent herein on 5.7.2001.
2.7. As the petitioner's husband refused to comply with the demand, it is alleged that respondents 1 and 4 have foisted criminal cases against the petitioner's husband and his twin brother and registered the same in FIR No. 1048 of 2001 on 13.6.2001 cm the file of the first respondent and FIR No. 816 of 2001 on 28.6.2001 on the file of the fourth respondent. Hence, the petitioner seeks to transfer the investigation of the said cases from respondents 1 to 4 to CBI, on the ground that respondents 1 to 4 have foisted the said false and frivolous cases in F.I.R. Nos. 1048 of 2001 and 816 of 2001 on the file of the first and fourth respondents respectively, to harass the husband of the petitioner and his twin brother, along with one V.N. Sudhagaran, at the instance of the sixth respondent herein, the former Chief Minister of Tamil Nadu and the leader of the ruling party, on the basis of the tape-recorded telephonic conversations filed as Annexures 1 to 8 to the writ petition.
3.1. The learned counsel for the petitioner, placing reliance on the decisions in Yusufalli Esmatl Nagree v. State of Maharashtra, 1968 (1) L.W. (Crl.) 12; N. Sri Rama Reddy, Etc. v. V.V. Giri, , R.M. Malkani v. State of Maharashtra, 1973 SCC (Crl.) 399 and Z.H. Bukhari v. B.R. Mehra, , contends that tape-recorded telephonic conversation is admissible in law and therefore, in view of the tape-recorded telephonic conversations furnished in Annexures 1 to 8, the very complaints lodged against the petitioner's husband and his twin brother along with one V.N. Sudhagaran are false and frivolous.
3.2. The learned counsel for the petitioner, placing reliance on the decisions in State of Bihar v. Ranchi Zila Samta Party, and State of Maharashtra v. Sheela Ramesh Kini, , and referring the tape-recorded telephonic conversations filed as Annexures 1 to 8, contends that since respondents 1 to 4 have foisted the said false and frivolous cases in F.I.R. Nos. 1048 of 2001 and 816 of 2001 on the file of the first and fourth respondents respectively, to harass the husband of the petitioner and his twin brother, along with one V.N. Sudhagaran, at the instance of the sixth respondent herein, the former Chief Minister of Tamil Nadu and the leader of the ruling party, the petitioner is justified to seek transfer of the investigation of both the cases, viz., F.I.R.-Nos. 1048 of 2001 and 816 of 2001 from respondents 1 and 4 respectively, who are functioning under the fifth respondent, who, in turn is acting under the influence of the sixth respondent, the former Chief Minister and the leader of the ruling party in Tamil Nadu, to CBI or any other investigating agency independent of the control of the sixth respondent.
4.1. Elaborate argument of Mr. Rakesh Khanna, learned counsel for the petitioner raises a pertinent question viz. whether the petitioner, who is the wife of P.K. Salahuddin, accused in FIR No. 1048 of 2001 dated 13.6.2001 on the file of the R4-Pondy Bazaar Police Station, T.Nagar, Chennai, viz., the first respondent herein can invoke Article 226 of the Constitution of India, to seek a direction to transfer the investigation of the crimes in FIR No. 1048 of 2001, dated 13.6.2001 on the file of the R4-Pondy Bazaar Police Station, T.Nagar, Chennai, viz., the first respondent herein, against the petitioner's husband and his twin brother, and FIR No. 8l6 of 2001 dated 28.6.2001 on the file of the E4, Abhiramapuram Police Station, Chennai, viz., fourth respondent herein, against the twin brother of petitioner's husband, from the State Police, viz. Inspector of Police, Pondy Bazaar Police Station and Inspector of Police, Abhiramapuram Police Station, Chennai, to the Central Bureau of Investigation (hereinafter referred to as the 'CBI'), viz., the eighth respondent herein, or any other agency independent of the control of the sixth respondent, viz.
the former Chief Minister and the leader of the ruling party in the State of Tamil Nadu, on the ground that the said complaints are false and frivolous, in view of the tape-recorded telephonic conversations dated 1.7.2001. 2.7.2001, 3.7.2001, and 5.7.2001 filed as Annexures 1 to 8 to this writ petition.
4.2. Two issues would arise on the question in consideration before me, viz:-
(i) Even though the tape-recorded telephonic conversation is admissible in law as contended by the learned counsel for the petitioner, to what extent the same could be relied upon in a judicial review by this court while exercising the powers under Article 226 of the Constitution of India.? And
(ii) Would it be proper for this Court to transfer the investigation of the impugned crimes viz., FIR No. 1048 of 2001 dated 13.6.2001 on the file of the first respondent and FIR No. 816/200l dated 28.6.2001 on the file of the fourth respondent from the State Police, viz., respondents 1 to 5 to CBI, viz., the eighth respondent herein, interfering with the investigation by the Stale Police, viz., respondents 1 to 5?
5.1. The learned counsel for the petitioner also brought to my notice that the petitioner had already moved the Apex Court for transferring the case to CBI and the Apex Court rejected the same with liberty to the petitioner to move the High Court, as per the order dated 13.8.2001 in W.P. (Crl.) No. 154 of 2001, which reads as follows:
"Heard Mr. Mishra, the learned senior counsel for the petitioner. Perused the assertions made in the petition. For the relief sought for, we are not inclined to invoke our jurisdiction under Article 32 of the Constitution, as in our opinion, the petitioner can well move the High Court or any other appropriate forum in the State of Tamil Nadu."
5.2. However, in my considered opinion, the petitioner is entitled for the benefit of the said observation of the Apex Court dated 13.8.2001, only if she is entitled for the relief as prayed for invoking Article 226 of the Constitution of India.
6.1. Issue: 1 - Even though the tape-recorded telephonic conversation is admissible in law as contended by the learned counsel for the petitioner, to what extent the same could be relied upon in a judicial review by this Court while exercising the powers under Article 226 of the Constitution of India?
6.2. In Yusufalliesmail Nagree v. State of Maharashtra, , the Apex Court has held that like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act, and that if a statement is relevant, an accurate tape record of the statement is also relevant and admissible.
6.3. In Rupchand v. Mahabir Parshad, , Manindra Nath v. Biswanath, 1967 CWN 191, S. Pratap Singh v. The State of Punjab, , the tape-recorded conversation had been admitted as evidence.
6.4. In R.M. Malkani v. State of Maharashtra, 1973 SCC (Crl.) 399, it is held that a tape-recorded conversation is contemporaneous relevant evidence and therefore it is admissible. If the conversation is voluntary and there is no compulsion, the attaching of the tape-recording instrument, though unknown to the person whose conversation is recorded, does not render the evidence of conversation inadmissible.
6.5. In Z.B. Bukhari v. B.R. Mehra, , the Apex Court has held that a contemporaneous tape record of a relevant conversation or speech would be part of res gestae.
6.6. However, the admissibility of the tape-recorded conversation is subject to certain qualifications, as held in Yusufalli Esmail Nagree v. State of Maharashtra, , referred supra, viz.,
(a) the time, place and accuracy of the recording must be proved by a competent witness;
(b) the voices of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it;
(c) accuracy of what was actually recorded has to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, has to be there so as to rule out possibilities of tampering with the record;
(d) the Court should be satisfied, beyond reasonable doubt, mat the record has not been tampered with; and
(e) the subject-matter recorded has to be shown to be relevant according to rules of relevancy found in the Indian Evidence Act.
6.7. In the instant case, the time, place and accuracy of the alleged tape-recorded telephonic conversations filed as Annexures 1 to 8 to the writ petition as well as the voice of the same are yet to be proved and identified. Equally, the factum that the impugned tape-recorded conversations had not been tampered with has to be ruled out and similarly, the relevancy of these tape-recorded telephonic conversations to the charges in issue are to be established. On the other hand, the alleged tape-recorded telephonic conversations viz., Annexures 1 to 8 to the writ petition, are neither part of the police-reports nor are relied upon by the investigating officer and therefore, by treating these Annexures 1 to 8 as evidence, this Court cannot be converted into a trial court to get it satisfied that the above qualifications for holding the alleged tape-recorded telephonic conversations filed as Annexures 1 to 8 are admissible in law.
6.8. Hence, while exercising the powers of judicial review conferred under Article 226 of the Constitution of India, it may not be proper for this Court to function as a criminal Court and to interfere with the process of investigation pending with the State Police on the basis of such tape-recorded telephonic conversations, the validity, accuracy and relevancy of the same are yet to be substantiated in appropriate criminal proceedings before the competent criminal Court.
7.1. Issue; 2 - Would it be proper for this Court to transfer the investigation of the impugned crimes viz., FIR No. 1048 of 2001 dated 13.6.2001 on the file of the first respondent and FIR No. 816 of 2001 dated 28.6.2001 on the file of the fourth respondent from the State Police, viz., respondents 1 to 5 to CBI, viz., the eighth respondent herein, interfering with the investigation by the State Police, viz., respondents 1 to 5?
7.2. The Apex Court in State of Bihar v. Ranchi Zila Samta Party, , taking note of the fact that a large scale of defalcation of public funds, enormity of fraudulent transactions and falsification of accounts to the tune of Rs. 500 crores came to light in Animal Husbandry Department of Bihar State and a similar situation prevailed in Education, Co-operation and Fisheries Departments, within the administration of the State, refused to interfere with the transfer of investigation from State Police to CBI, with an observation that the investigation by CBI shall be under the overall control and supervision of the then Chief Justice of Patna High Court.
7.3. It may be noted that in State of Bihar v. Ranchi Zila Samta Party, , the complaint itself was against the persons in power in the State of Bihar and therefore, the complainant sought transfer of case from State Police to CBI, as, in a democratic set up, when a cloud was cast on the administration, it would be appropriate for an independent agency to conduct the investigation. But in the instant case, the petitioner seeks the transfer of investigation on behalf of the accused, who, in my considered opinion, have no right to select the investigating agency in a criminal case pending against them.
7.4. It is well settled in law that ordinarily the Court should refrain from interfering at a premature stage of the investigation as that may derail the investigation and demoralise the same and therefore, the Court should be wary of its possible consequences, as such interference and the consequential transfer of investigation from State Police to CBI, as prayed for, cannot be approved as the tape-recorded telephonic conversation is admissible in law only at the time of trial. The tape-recorded telephonic conversations filed as Annexures I to 8 in the instant case, are subject to certain proof and qualifications referred above. Hence, it is not permissible for this court, while exercising the power under Article 226 of the Constitution of India, to transfer the investigation from State Police viz., respondents 1 to 5 to CBI viz., respondent 8, on mere conjecture or surmise as a flight of fancy that such tape recorded telephonic conversations relied on by the petitioner might have taken place or otherwise. If such transfer is otherwise ordered as prayed for by exercising the powers conferred under Article 226 of the Constitution of India, in my considered opinion, it would be in the nature of a blind shot fired in the dark without even knowing whether there is a prey at all, that may create sound and fury but not result in hunting down the prey'.
8. Hence, finding no merits this writ petition is dismissed. No costs. Consequently, connected W.M.P. No. 23678 of 2001 is also dismissed.