G.Kutty Alias Ramesh vs The Superintendent Of Police on 3 September, 2010

Madras High Court
G.Kutty Alias Ramesh vs The Superintendent Of Police on 3 September, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 03/09/2010

CORAM:
THE HONOURABLE MS.JUSTICE R.MALA

Criminal Original Petition (MD) No.8151 Of 2010


G.Kutty alias Ramesh                		... Petitioner
			
Vs.

1.The Superintendent of Police,
   Kanyakumari District,
   Nagercoil.

2.The Inspector of Police,
   Kottar Police Station,
   Kottar,
   Kanyakumari District.

3.The Inspector of Police,
   CBCID Branch,
   Nagercoil,
   Kanyakumari District.			 ... Respondents


PRAYER

This petition is preferred under Section 482 Cr.P.C to issue a direction to the
first respondent to withdraw the case in Crime No.868 of 2010, on the file of
the second respondent and to transfer the investigation of the same to the third
respondent and to file final report against all culprits in accordance with law.
	
!For Petitioner  ... Mr.N.Rajan
		     For Mr.C.Rajakumar

^For Respondents ... Mr.S.Muthu Venkatesan
		     Government Advocate (Crl.Side)

:ORDER

The petitioner approaches this Court with a prayer to issue a direction to
the first respondent to withdraw the case in Crime No.868 of 2010, on the file
of the second respondent and to transfer the investigation of the same to the
third respondent and to file final report against all culprits in accordance
with law.

2. The learned counsel for the petitioner would contend that the
petitioner’s younger brother by name Manikandan was murdered by six named
accused; one Udhayakumar is an advocate and his brother Udhayashankar is
working as Sub Inspector in intelligence wing; the said Udhayakumar is running
chit business in the village; the deceased Manikandan collected some
informations regarding chit business and informed the same to the free legal aid
for Human Rights Violation, Nagercoil; the founder of the legal aid center, sent
a complaint to the higher officers informing the activities of the said Sub
Inspector, Udhayashankar and on 06.07.2010, a news was also published in a
weekly viz., “Kumadam Reporter” and so the accused believed that the brother of
the petitioner was the root cause for the news.

3. He would further submit that due to the said motive, they hatched conspiracy
in the house of the said Udhayakumar to do away with the life of the said
Manikandan and tTo execute the same, on 07.07.2010 at about 6.30 p.m., the
accused one Thiyagu, Jagatsingh, Chauhan, Raja, Sivakandan along with
Udhayakumar searched the deceased Manikandan and they murdered him with deadly
weapons and caused damage to the vehicle; iImmediately, the petitioner gave a
complaint before the second respondent police on the basis of which, a case has
been registered in Crime No.868 of 2010 under Sections 147, 148, 148, 341,
294(b) and 302 I.P.C. r/w. 3(1) of TNPPDL Act against Thiyagu, Jagatsingh,
Chauhan, Udhayakumar, Udhayashankar, Raja, Sivakandan and two others; the
brother-in-law of the said Udhayakumar viz., Selvakumar has handed over the said
Thyagarajan, Jagatsingh, Chauhan, Raja, Sivakandan and Sudan to the second
respondent; in order to safeguard the culprits namely Udhayakumar and
Udhayashankar retained them in the police Station till 10.07.2010 without
producing them before the Court; the said Udhayakumar and Udhayashankar are
having many criminal cases and they have influenced in the Police Department;
now the second respondent having hand in glove with the said Udhayakumar and
Udhayashankar, taking effective steps to delete their names from the array of
the accused in the charge sheet.

4. He would further submitted that even though on 12.07.2010, at about 10.00
a.m. the accused Udhayakumar has participated in a function at Pazhavilai
Polytechnic College, the second respondent has not taken any steps to arrest
him; moreover, the Investigation Agency has recorded the 161 statement of other
witnesses, whereas the eye witness is ready to give 164 statement before the
Magistrate, but they are not taking steps to substantiate the same.

5. The learned counsel appearing for the petitioner would also file an affidavit
of this petitioner and other eye witness. and submit that on the basis of the
news published in “Kumadam Reporter” only, the occurrence has been taken place
and to clarify the same as to when the article has been published, he filed a
document showing the news published in “Kumadam Reporter” on 18.07.2010; since
one of the accused is Sub Inspector of Police and he is intelligence wing, the
Police officers have not taken any steps to investigate the matter in a right
and proper manner and they are taking steps to delete the name of Udhayashankar,
Sub-Inspector of Police and his brother Udhayakumar. He further submitted that
since he wants fair and proper investigation in the right direction and
apprehends that he will not get proper direction in the hands of the second
respondent, he prays for the transfer of investigation and to substantiate his
case, he relied upon the decisions of the Apex Court as well as this Court.

6. Per contra, the learned Government Advocate (Crl. Side) had filed a counter
affidavit stating that after receipt of the complaint, the case has been
registered and it was forwarded to the learned Judicial Magistrate No.II,
Nagercoil on the same day. Immediately, investigation has been commenced, the
second respondent conducted the inquest and sent the body for autopsy, he
examined the witnesses and recorded the statements of the eye witnesses viz.,
Thirukumar, Rajmohan and Sekar and prepared the observation Mahazar, rough
sketch and recovered the material objects from the scene of occurrence. That
apart, he also examined Jeyachandran, Sivachandran, Thirumohan and Vinoth. A
special team was formed for arresting the accused persons in this case. On
10.07.2010, Thiyagu @ Thiyagarajan, Jegan @ Jegathsingh, Chauhan, Raja @ Ashok
Kumar, Sivakandan and Sudhan were arrested and their confession statements have
been recorded and two motor cycle has been seized and they are remanded to
judicial custody. It is also stated that so far 50 witnesses were examined,
weapons have been recovered, the vehicle of the deceased was sent to R.T.O.,
statements under Section 164 Cr.P.C. were recorded from Jeyachandran,
Sriraghavan and Vivekananthan and they also made a requisition to the Telephone
Companies seeking details of the phone calls of the accused. During the
investigation, they recovered the Magazine extract and it is seen that the
publication is only on 11.07.2010, but the previous edition is on 08.07.2010,
the occurrence itself has been reported on 07.07.2010. Therefore, the motive
alleged by the petitioner is found to be not correct and except this petitioner,
none has deposed about the presence of Udhayakumar in the scene of occurrence.
It is also stated in the counter affidavit that the founder of the legal aid
center for Human Rights Violation is one Srinivasa Prasath, who is also an
advocate practicing in Nagercoil and there is complaint and counter complaint
between Udhayakumar and Srinivasa Prasath, they have motive against each other,
they are taking steps to investigate the matter in Crime No.653 of 2010, which
was already registered on the basis of the complaint lodged by one Vijayamohan.
Neither Udhayakumar nor Udhayashankar were arrayed as accused in the said case
and hence, he prays for dismissal of this application.

7. Considering the rival submissions made by both sides and materials before the
Court, the petitioner’s brother is one Manikandan and a news item has been
published before the incident, on 26.05.2010, the mother of the petitioner has
given a representation before the police and sought for a protection, that has
been find place in Page No.1 of the typed set and it has been received by the
Inspector of Police, Chief Judicial Magistrate and other people, that has been
find place in Page Nos.6 to 8 of the typed set, the deceased also sent one
representation to the President, Kanyakumari District Advocate Association,
Nagercoil against the Udhayakumar and Page No.9 of the typed set contains the
article reported in “Kumadam Reporter” on 11.07.2010 and the petitioner has also
filed another article published in “Kumadham Reporter”, which was reported on
18.07.2010 and in that it was stated as follows:

“,e;epiyapy; fle;j Vohk; Njjp (ekJ ,jo; ntspahd kWjpdk;) ,e;j tptfhuj;jpy;
jd;dhh;t mikg;gplk; Gfhh; njhptpj;j kzpfz;ld; ntl;bf; nfhiy nra;ag;gl;Ls;shh;.
,e;jr; rk;gtk; ele;jNghJ csTg;gphpT v];.I.ahd cjarq;fh;, jdJ mYtyfj;jpy;jhd;
gzpapy; ,Ue;Js;shh;. vdpDk; mtuJ J}z;Ljypy; mtuJ rNfhjuuhd tof;fwpQh; cjaFkhh;,
,th;fsJ rpj;jg;gh kfd; jpahF cs;spl;l vl;Lg; Ngh; Nehpy; te;J kzpfz;lidj;
jPh;j;Jf;fl;bajhf Gfhh; $wg;gl;Ls;sJ.”

So, it shows that the release of article in “Kumadham Reporter” is only on
11.07.2010, but the occurrence has been taken place on 07.07.2010 and hence, the
averment in Paragraph 5 of the counter affidavit does not merit any acceptance.

8. The learned Government Advocate would fairly conceded that they have taken
steps to record statements under Section 164 Cr.P.C. of Jeyachandran,
Sriraghavan and Vivekananthan before the learned Judicial Magistrate No.I,
Nagercoil, but admittedly they are not taking any steps to record 164 statement
of the petitioner and others viz., Thirukumar, Rajomohan, Thirumohan and Vinoth
and they also filed an affidavit to show that they are the eye witnesses and
they are ready to give statement under Section 164 Cr.P.C. before the
Magistrate, that has been find place in Page Nos.22 to 31 of the typed set. The
learned Government Advocate (Crl. Side) has not able to give any reason as to
why the Investigation Agency has not taken any steps to record statement under
Section 164 Cr.P.C. of the other eye witnesses including the petitioner herein.

9. Admittedly, Udhayakumar is arrayed as A3 in the F.I.R. and his brother
Udhayashankar is arrayed as A4, who is working as Sub-Inspector of Police in
S.B.C.I.D., the occurrence has been taken place on 07.07.2010 at 18.30 hours and
the complaint has been given on the same day at 19.00 hours and in that, the
name of the accused has been clearly mentioned and the manner of the assault has
also been mentioned. In such circumstances, it is the duty of the Investigation
Agency to investigate the matter on the line. So far, the said Udhayakumar and
Udhayashankar are not yet arrested. At this juncture, it is appropriate to
consider the arguments advanced by the learned counsel for the petitioner and
the decision relied upon by him stating that one of the accused is a Police
Officer and so, in order to instill confidence in the minds of the public and
victim family, it is the duty of the Investigation Officer to refer the matter
to CBCID, but here no steps have been taken place. It is also relevant to
consider the decision relied upon by the learned counsel for the petitioner in
Kashmeri Devi vs. Delhi Administration and another reported in 1988 SC (CRl.)
864, wherein it has been held as follows.

“5. After hearing learned counsel for the parties and on perusal of the
record we are satisfied that prima facie the police have not acted in a
forthright manner in investigating the case, registered on the complaint of
Sudesh Kumar. The circumstances available on record prima facie show that effort
has been made to protect and shield the guilty officers of the police who are
alleged to have perpetrated the barbaric offence of murdering Gopi Ram by
beating and torturing. The appellant has been crying hoarse to get the
investigation done by an independent authority but none responded to her
complaint

6. We are in full agreement with the observations made by the learned
Sessions Judge. As already noted during the pendency of the writ petition before
the High Court and special leave petition before this Court the case was further
converted from 304 IPC to 323/34 IPC. Prima facie the police has acted in
partisan manner to shield the real culprits and the investigation of the case
has not been done in a proper and objective manner.

7. Since according to the respondents charge-sheet has already been
submitted to the Magistrate we direct the trial court before whom the charge
sheet has been submitted to exercise his powers under Section 173(8) Cr. P.C. to
direct the Central Bureau of Investigation for proper and thorough investigation
of the case. On issue of such direction the Central Bureau of Investigation will
investigate the case in an independent and objective manner and it will further
submit additional charge sheet, if any, in accordance with law. The appeal
stands disposed of accordingly. N.V.K. Appeal disposed of.

10. In Ramesh Kumari vs. State (NCT of Delhi) and others reported in 2006
(1) T.N.L.R. 615 (SC), it is held as follows:

“7. In this case, admittedly, the complaint was filed against the Police
Officer. Learned counsel for the parties are not at variance that in such a
situation the interest of Justice would be better served if this Court directs
the CBI to register the case and investigate the matter

8. Mr.Vikas Singh, learned Additional Solicitor General although vehemently
opposed registration of the case but he fairly concedes that if at all the case
be registered and investigation is to be carried out, the CBI would be an
appropriate authority to register a case and investigate. We are also of the
view that since there is allegation against the police personnel, the interest
of justice would be better served if the case is registered and investigated by
an independent agency like the CBI.

9. We, accordingly, direct that the CBI shall now register a case and
investigate of the complaint filed by the appellant on 09.09.1997 and
13.09.1997. The CBI can collect the complaint from the SHO, Police Station,
Kapashera dated 09.09.1997 and 13.09.1997. The complainant will also provide
photocopies of the complaint dated 09.09.1997 and 13.09.1997 in case the
original complaint is not traceable in the Police Station. since, the matter is
pending form 1997 the CBI is directed to register the case and complete
investigation within a period of three months form today. We further clarify
that by the aforesaid directions we are not entering into the merits of the
controversy of the case nor casting aspersions on anybody including the local
police.”

11. In Rakindo Developers (P) Ltd., No.I, Subburaya Avenue, C.P.Ramaswamy
Road, Alwarpet, Chennai-60018, rep. by its Authorised Representative,
V.K.Venkatraman vs. 1.The Commissioner of Police, Greater Chennai, Egmore,
Chennai-600 008., 2.The Inspector of Police, E4 Abhiramapuram Police Station,
Chennai, 3.Additional Director General of Police, CBCID, Chennai, 4.The Joint
Director, Central Bureau of Investigation, Shastri Bhavan, Chennai reported in
2009 (3) CTC 43, it is stated as follows:

9. Free and fair investigation is the fundamental right of a citizen under
Articles 14 and 21 of the Constitution and Courts i.e., Supreme Court and High
Courts, can entertain petitions for CBI investigation only in case of violation
of fundamental rights of a citizen. The only requirement for the Court while
weighing the prayer is to examine and analyse the case as to whether it is a
rare and exceptional on where such relief should be granted in the interests of
justice and to avoid resultant grave injustice in the event of denial of the
prayer.

11. ………. If really the first respondenthad applied his mind without
any bias, in all probability, having regard to the allegation made against the
officers on of whom is a Deputy Commissioner of Police working under him, he
would have himself conducted a preliminary enquiry before even passing on the
task to be done by his subordinates. it is agonizing to note that the Deputy
Commissioner of Police, CCB, without even conducting an indeendent enquiry by
herself, mechanically forwarded the same to be investigated by an Inspector of
Police. I am of the considered view that if the investigation is allowed to
contine in this fashion, certainly, the present officer, who has to investigate
into the allegations against his superior officers, will come to an erroneous
conclusion as if tis a matter of civil nature, for, it glaringly appears, only
with such intention, the F.I.R. has been registered.

13…………. But, is there any embargo on the Supreme Court or the High
Court in transferring the investigation to a special agency when it is
established with the available materials that in a given case, there is a total
failure on the part of the state police in impartially proceeding with the
investigation as expected of them and thereby, a great injustice would result to
the complainant; the answer would be ‘no’, for the Court has ample power to
order so, to avoid injustice provided such power is exercised sparingly and only
in deserving cases. The erluctance and hesitation on the part of R1 translates
a clear meaning that if the investigation is allowed to be handled by the State
Machinery, it will undoubtedly end in grave injustice to the complainant. That
is why the Supreme Court has held that in the even of the High Court coming to a
conclusion that it is a fit case for transfer of the investigation, consent from
the State Government is not required at all. In the case on hand, bias having
been attributed to the machinery of teh State Government, it is the Court which
alone can assess the matter with regard to various aspects and factors as
referred to above and decide whether a direction needs to be issued.

14………..Taking not of the fact that even after registration of the
case, the police could not even knock at the doors of the main accused, one can
conclude that the main accused is still controlling the affars through through
his relatives and patrons who are in power. In view of the compelling
circumstances making out this case a rare and exceptional matter to transfer the
investigation to the CBI, this Court directs the first respondent to forthwith
transmit the papers/records, if any, pending with him or CCB, to the Joint
director, CBI, Chennai. since huge money is involved and allegations are very
servious in nature, the Director, CBI, New Delhi, is directed to depute an
officer not below the rank of Inspector General of Police to conduct
preliminaryu enquiry and thereafter, the task may be entrusted with an officer
not below the rank of Superintendent of Police. The CBI should take into
account the serious allegations made against the controversial police officers
of the State and porceed strictly in a proper perspective, for, none is above
law and if the theory of influence is allowed to rule over the police
administration, then injustice would be rampant defeating the rule of law,
sometimes even resulting in deprivation of judicial remedies to the victimized
persons. The Registry, High Court, Madras, is hereby directed to forthwith:-

(a) despatch a copy of this order to the Director, CBI, New Delhi, through
EMS.Speed Post; and

(b) forward the Case Diary File (running to 81 pages) produced before this Court
on 08.04.2009 pertaining to X.Cr.No.119 of 2009 ont eh file of Inspector of
Police, CCB, Egmore, Chennai, alongw ith a copy of this order to the office of
the Joint Director, CBI, Chennai, in a sealed cover through a Special Messenger.
It is further directed that the CBI shall endeavor to conclude the investigation
as expeditiously as possible.”

12. Considering the above said citation, free and fair investigation is the
fundamental right of a citizen under Articles 14 and 21 of the Constitution and
Courts i.e., Supreme Court and High Courts, can entertain petitions for CBI
investigation only in case of violation of fundamental rights of a citizen. The
only requirement for the Court while weighing the prayer is to examine and
analyse the case as to whether it is a rare and exceptional case. Here the
allegation is against one Sub-Inspector of Police, who is working in S.B.C.I.D.
In such circumstances, the other Police people did not want to antagonize with
the Udhayashankar and they are not conducting investigation in a right manner.
Since he was arrayed as accused in a murder case, even though he was
participated in the public function, neither he was arrested nor he was
suspended from service.

13. A perusal of the decisions relied upon by the learned counsel for the
petitioner would reveal that if a complaint was filed against the Police
Officer, interest of justice would be better served if this Court directs the
CBCID to register a case and investigate the matter. Further perusal of
records, prima facie shows that efforts has been made to protect and shield the
Police Officer A3 and A4, who are alleged to have though instigated the barbaric
offence of murdering Manikandan by assaulting with knife, caused instaneous
death and caused damages to the vehicle. In such circumstances, the prayer of
the petitioner to get the investigation done by the independent authorities
seems to be a genuine one. Even though in the counter affidavit, the second
respondent has stated that they had made the investigation in a proper manner,
they created some loop holes to escape the accused from the clutches of law and
they are not investigating the matter in a correct direction with a proper care
and caution. Since A3 is an advocate and his brother A4 is the Sub-Inspector of
Police in S.B.C.I.D., is the duty of the Court to instill the confidence in the
minds of victim family and the public. Since it is a day light murder at 18.30
hours and furthermore, the allegation is against the Police Officer, who is
working as Sub-Inspector of Police in S.B.C.I.D., it is a fit case to transfer
the investigation from the second respondent to third respondent.

14. The High Court, in exercise of its inherent and pecuniary powers, is
entitled to intervene to set right the illegality and/or malafide action on the
part of the investigating authorities. While the Courts sould not intervene in
matters of investigation, which power, under the scheme of Cr.P.C. has been
vested in the police authorities and an exception has also been made . In
certain circumstances, the Court could intervene in order to do justice to the
parties, particularly the High Courts are the guardians of the life and liberty
of the citizens and if there is any flavour of deliberate misuse of the
authority vested in the investigating authority, the High Court or the Supreme
Court may certainly may step in to correct such injustice or failure of justice.
In order to instil confidence in the public mind and to do justice to the
petitioner and his family it would be appropriate to withdraw the investigation
from the second respondent and direct the CBCID to hold a proper investigation
in accordance with law.

15. In an appropriate case when the Court feels that the investigation by
police authorities is not in the proper direction and in order to do complete
justice in the case, it is always open to the Court to hand over the
investigatiion to the independent agency like CBI. The investigation of an
offence is the field exclusively reserved for the police officers whose power in
the fieed are unfettered so long as the power to investigate into the cognizable
offences is legitimately exercised in strict compliance with the provisions
under Chapter XII of the Code. However, the unfettered discretion does not mean
any unaccountable or unlimited discretion and act according to one’s own choice.
The power to investigate must be exercised strictly on the condition of which
the power is granted by the Code itself.

16. On careful consideration of the submissions made by both parties as well as
the dictum laid down by the Hon’ble Apex Court and this Court, the investigation
and the detection of the crime, since A3 is working as an advocate and A4 is
working as Sub-Inspector of Police in S.B.C.I.D., in order to instill confidence
in the minds of the victim famly and the public, I am of the view that it is
fair and proper to transfer the investigation from the second respondent to the
third respondent.

17. Accordingly, this Criminal Original Petition is allowed and the case in
Crime No.868 of 2010 on the file of the second respondent is transferred to the
third respondent.

cs

To

1.The Superintendent of Police,
Kanyakumari District,
Nagercoil.

2.The Inspector of Police,
Kottar Police Station,
Kottar,
Kanyakumari District.

3.The Inspector of Police,
CBCID Branch,
Nagercoil,
Kanyakumari District.

4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

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