BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11/09/2009 Coram THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P.(MD).No.8707 of 2009 and M.P.(MD).No. 1 of 2009 G.Murugan . . Petitioner Vs 1.The Secretary to Government, Home Secretary, Fort St. George, Chennai-600 009. 2.State rep. by The Director General of Police, Chennai. 3.State rep. by The Superintendent of Police, Dindigul, Dindigul District. 4.State rep. by The Inspector of Police, All Women Police Station, Dindigul, Dindigul District. 5.State rep. by The Director of C.B.I., Shastri Bhavan, Chennai. . . Respondents Prayer Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the first respondent to instruct the fifth respondent to reinvestigate the case in Cr.No.195 of 2007 in S.C.No.140 of 2008 pending on the file of the learned Assistant Sessions Judge, Periakulam, Theni District. !For Petitioner ... Mr.E.Somasundaram ^For Respondents ... Mr.D.Gandhirajan for R1 to R4 Government Advocate :ORDER
The prayer in the writ petition is for issuance of a Writ of Mandamus to
direct the first respondent to instruct the fifth respondent to re-investigate
the case in Cr.No.195 of 2007 in S.C.No.140 of 2008 pending on the file of the
learned Assistant Sessions Judge, Periakulam, Theni District.
2. In the affidavit filed in support of the writ petition, the petitioner
has stated that he married one K.Parameshwari, on 12.06.1994 at Dindigul,
according to Hindu Rites and Customs and out of their wedlock, they had two
daughters and one son and they were leading a happy married life. The
petitioner’s wife used to go to her native place at Periakulam to see her
parents and during her visit she is said to have developed illegal intimacy with
one Karuppusamy, who is running a pharmacy and he is a bachelor. According to
the petitioner, though he had advised his wife to mend her ways, she did not
heed to his sincere advise. On the contrary, she lodged a compliant before All
Women Police Station, Dindigul against the petitioner. It is stated that this
complaint was given at the instance of the said Karuppusamy.
3. It is further stated by the petitioner that one Geetha, who is a Sub
Inspector of Police, had advised the petitioner’s wife to file a H.M.O.P. before
the Sub Court, Dindigul for a decree of divorce. It is further stated that
Rs.47,000/- was plundered from the petitioner by threat on 16.12.2007 in the
presence of the relatives of the petitioner’s wife. The petitioner would further
submit that his wife had eloped with the said Karuppusamy along with her
daughter to Alli Nagar at Theni and when Karuppusamy was being with her, the
neighbours objected to the same and Karuppusamy shifted her to another place at
Pattalamman Street, Lakshmipuram, Theni, with the help of one Solaiyappan, who
is said to be a close associate of Karuppusamy.
4. It is further stated that the said Karuppusamy had tortured the
petitioner’s wife and asked her to run away, since he wanted to marry a girl as
arranged by his parents. The petitioner’s wife came to Thiruppur and stayed with
her relative, one Mrs.Rani.
5. According to the petitioner, Geetha, the Sub Inspector of Police,
Karuppusamy, Ramraj (Karuppusamy’s father), Solaiyappan and Raja planned to kill
petitioner’s wife. It is further alleged that the aforesaid persons brought the
petitioner’s wife to Mohaideen Pallivasal Street, North Forest Road, Vadakarai,
Periyakulam and killed her.
6. Based on this allegations, the petitioner submitted a representation to
the District Collector, Dindigul on 17.12.2007 and the matter was also widely
published in the Newspaper. However, the petitioner’s representation was not
considered and he made further representation to the Honourable Chief Minister
on 28.08.2008, to the Director General of Police on 11.09.2008 as well as a
petition before the State Human Rights Commission on 04.09.2008. The petitioner
would further submit that the post morterm certificate reveals that the “Hyoid
Bone” is intact and photograph also revealed that the murderers had hanged the
petitioner’s wife.
7. It is further stated that based on such incident, the fourth respondent
registered a case in Cr.No.195 of 2007 under Section 306 IPC. It is further
stated that the Sub Inspector of Police, Geetha, was not included in the First
Information Report as well as in the Charge Sheet. The case has been committed
to Sessions in S.C.No.140 of 2008 and even according to the petitioner six
witnesses have already been examined on the side of the prosecution and the
petitioner’s minor daughter was also examined on the side of the prosecution.
According to the petitioner, in spite of evidence, the police have not converted
the case under Section 306 to 302 IPC. Therefore, the petitioner has sought for
the present relief.
8. I have heard Mr.E.Somasundaram, the learned counsel appearing for the
petitioner at length and Mr.D.Gandhirajan, learned Government Advocate for the
respondents 1 to 4 and perused the materials available on record.
9. The learned counsel for the petitioner had set out the facts of the
case as mentioned in the affidavit filed in support of the writ petition. In
fact, the learned counsel for the petitioner took pains to narrate the details
as to how the entire episode had happened. However, the learned counsel would
fairly admit that at present the matter is now pending before the Sessions Court
and the trial is proceeding expeditiously. After considering the factual
submissions made by the learned counsel for the petitioner, it is necessary for
this Court, to decide upon the scope of interference of this Court in such
matters and more particularly in matters seeking for transfer of investigation
after commencement of trial.
10. The legal principle on this issue has been settled by the Honourable
Supreme Court in several decisions and this Court proposed to refer some of the
decisions here under;
11.The Hon’ble Supreme Court in a decision reported in 1992 (1) SCC 397
(Gudalure M.J.Cherian and others Vs. Union of India and others) was dealing with
a petition under Article 32 of the Constitution of India, which was filed as a
PIL, regarding the rape two nuns at Gajraula in Uttar Pradesh wherein the
petitioners contend that the investigation of the case should be entrusted to
the Central Bureau of Investigation. After discussing about the factual
averments in the said case, the Hon’ble Supreme Court held that the
investigation having been completed by the Police and charge sheet submitted to
the Court, it is not for the Supreme Court, ordinarily, to reopen the
investigation specially by entrusting the same to a specialised agency like CBI.
The Supreme Court further observed that they were conscious, that of late the
demand for CBI investigation even in police cases is on the increase.
Nevertheless in a given situation, to do justice between the parties and to
instil confidence in the public mind, it may become necessary to ask the CBI to
investigate a crime as it only shows the efficiency and the independence of the
agency. Therefore, in the light of the averments made and keeping in view the
facts and circumstances of the said case, the Hon’ble Supreme Court has held
that ends of justice would be met if the CBI is directed to hold further
investigation in respect of the offences committed.
12.The Hon’ble Supreme Court in 2004 (7) SCC 768 (Gangadhar Janardan
Mhatre Vs. State of Maharashtra and others) was dealing with the legality of the
order passed by a Division Bench of the Bombay High Court dismissing a criminal
writ petition filed seeking for a direction for transfer of investigation from
State CID to any other impartial investigating agency. While considering the
question of maintainability of the writ petition for such relief, the Hon’ble
Supreme Court observed thus:
“13.When the information is laid with the police, but no action in that
behalf is taken, the complainant is given power under Section 190 read with
Section 200 of the Code to lay the complaint before the Magistrate having
jurisdiction to take cognizance of the offence and the Magistrate is required to
enquire into the complaint as provided in Chapter XV of the Code. In case the
Magistrate after recording evidence finds a prima facie case, instead of issuing
process to the accused, he is empowered to direct the police concerned to
investigate into offence under Chapter XII of the Code and to submit a report.
If he finds that the complaint does not disclose any offence to take further
action, he is empowered to dismiss the complaint under Section 203 of the Code.
In case he finds that the complaint/evidence recorded prima facie discloses an
offence, he is empowered to take cognizance of the offence and would issue
process to the accused. These aspects have been highlighted by this Court in All
India Institute of Medical Sciences Employees’ Union (Regd.) v. Union of India
4. It was specifically observed that a writ petition in such cases is not to be
entertained.
14.The inevitable conclusion is that the High Court’s order does not
suffer from any infirmity. The writ application was not the proper remedy, and
without availing the remedy available under the Code, the appellant could not
have approached the High Court by filing a writ application”.
13. In 2002 (5) SCC 521 (Secretary Minor Irrigation & Rural Engineering
Services, U.P. and others Vs. Sahngoo Ram Arya and another), the Hon’ble Supreme
Court decided the question as to when the High Court cannot direct enquiry by
CBI by exercising its power under Article 226 has held as follows:
“5. While none can dispute the power of the High Court under Article 226
to direct an inquiry by CBI, the said power can be exercised only in cases where
there is sufficient material to come to a prima facie conclusion that there is a
need for such inquiry. It is not sufficient to have such material in the
pleadings. On the contrary, there is a need for the High Court on consideration
of such pleadings to come to the conclusion that the material before it is
sufficient to direct such an inquiry by CBI. This is a requirement which is
clearly deducible from the judgment of this Court in the case of Common Cause1.
This Court in the said judgment at paragraph 174 of the Report has held thus:
(SCC p. 750, para 174)
“174. The other direction, namely, the direction to CBI to investigate ‘any
other offence’ is wholly erroneous and cannot be sustained. Obviously, direction
for investigation can be given only if an offence is, prima facie, found to have
been committed or a person’s involvement is prima facie established, but a
direction to CBI to investigate whether any person has committed an offence or
not cannot be legally given. Such a direction would be contrary to the concept
and philosophy of ‘life’ and ‘liberty’ guaranteed to a person under Article 21
of the Constitution. This direction is in complete negation of various decisions
of this Court in which the concept of ‘life’ has been explained in a manner
which has infused ‘life’ into the letters of Article 21.”
6.It is seen from the above decision of this Court that the right to life
under Article 21 includes the right of a person to live without being hounded by
the police or CBI to find out whether he has committed any offence or is living
as a law-abiding citizen. Therefore, it is clear that a decision to direct an
inquiry by CBI against a person can only be done if the High Court after
considering the material on record comes to a conclusion that such material does
disclose a prima facie case calling for an investigation by CBI or any other
similar agency, and the same cannot be done as a matter of routine or merely
because a party makes some such allegations. In the instant case, we see that
the High Court without coming to a definite conclusion that there is a prima
facie case established to direct an inquiry has proceeded on the basis of “ifs”
and “buts” and thought it appropriate that the inquiry should be made by CBI.
With respect, we think that this is not what is required by the law as laid down
by this Court in the case of Common Cause1″.(emphasis supplied)
14. In Sasi Thomas Vs. State and others reported in 2006(12) SCC 421, the
Hon’ble Supreme Court while considering the scope of interference with criminal,
trials held as follows:
“26.The High Court or this Court in exercise of the said power is entitled
to reach injustice wherever it is found. But, it is not a case where cognizance
had not been taken. It is not even a case where a direction under sub-section
(8) of Section 173 of the Code of Criminal Procedure can be issued at this
stage. It is also not a case, in our opinion, to interfere with the trial of the
case.
33.Such a direction, thus, can be issued where there had been complete
failure of justice and in a case where the investigating and prosecuting
agencies were found to have not performed their role in the manner they were
expected to do”. (emphasis supplied)
15. In Sakiri Vasu v. State of U.P.,(2007) 4 Crimes 338 SC, the Hon’ble
Supreme Court while discussing the scope of interference in criminal matters
under Article 226 of the Constitution of India and when High Court can direct
enquiry by CBI has held as follows:
“33.In Secy., Minor Irrigation & Rural Engg. Services, U.P. v. Sahngoo Ram
Arya15 (SCC vide para 6) this Court observed that although the High Court has
power to order a CBI inquiry, that power should only be exercised if the High
Court after considering the material on record comes to a conclusion that such
material discloses prima facie a case calling for investigation by CBI or by any
other similar agency. A CBI inquiry cannot be ordered as a matter of routine or
merely because the party makes some allegation.
34.In the present case, we are of the opinion that the material on record
does not disclose a prima facie case calling for an investigation by CBI. The
mere allegation of the appellant that his son was murdered because he had
discovered some corruption cannot, in our opinion, justify a CBI inquiry,
particularly when inquiries were held by the army authorities as well as by GRP
at Mathura, which revealed that it was a case of suicide”. (emphasis supplied)
16. In Divine Retreat Centre Vs.State of Kerala reported in AIR 2008 SC
1614, relied on by the learned counsel for the petitioner, the Hon’ble Supreme
Court dealt with the scope, content and ambit of the inherent power conferred on
the High Court under Section 482 of Cr.P.C., 1974. While dealing with the said
question, the Hon’ble Supreme Court observed as follows:
“33.The sum and substance of the above deliberation and analysis of the
law cited leads us to an irresistible conclusion that the investigation of an
offence is the field exclusively reserved for the police officers whose powers
in that field 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, we may hasten to add that
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 that power is granted by the Code
itself.
34.In our view, the High Court in exercise of its inherent jurisdiction
cannot change the investigating officer in the midstream and appoint any agency
of its own choice to investigate into a crime on whatsoever basis and more
particularly on the basis of complaints or anonymous petitions addressed to a
named Judge. Such communications cannot be converted into suo motu proceedings
for setting the law in motion. Neither are the accused nor the complainant or
informant entitled to choose their own investigating agency to investigate a
crime in which they may be interested.
35.It is altogether a different matter that the High Court in exercise of
its power under Article 226 of the Constitution of India can always issue
appropriate directions at the instance of an aggrieved person if the High Court
is convinced that the power of investigation has been exercised by an
investigating officer mala fide. That power is to be exercised in the rarest of
the rare case where a clear case of abuse of power and non-compliance with the
provisions falling under Chapter XII of the Code is clearly made out requiring
the interference of the High Court. But even in such cases, the High Court
cannot direct the police as to how the investigation is to be conducted but can
always insist for the observance of process as provided for in the Code.
36….
37….
38.One of the documents enclosed to the anonymous petition is a magazine
by name Divine Voice published by the appellant. In one of the volumes published
in June 2005 the names of senior IAS and IPS officers were mentioned as the
members of the Advisory Board; one such named officer is stated to have decided
some matter in favour of the appellant. The High Court in Writ Petition (C) No.
22543 of 2005 made some observations to the effect that the said officer was
really associated with the appellant Centre and the order passed by that officer
in favour of the appellant is a nullity. Thereafter the name of that officer was
deleted from the names of persons of the Advisory Board. Based on such vague and
indefinite allegations the High Court gave the following directions without even
issuing notice to the appellant:
(i) The Government shall issue notification under Section 17 of the
Prevention of Corruption Act conferring power to the special investigation team
constituted by the Court to investigate the offences under the Prevention of
Corruption Act;
(ii) The special investigation team shall also inquire into the
allegations of foreign exchange violation;
(iii) The special investigation team shall also inquire into the
allegations of unnatural deaths stated in the petition.
40.On a careful perusal of the order passed by the learned Judge, we find
that the learned Judge initiated suo motu proceedings without even examining as
to whether the contents of the anonymous letter and material sent along with it
disclosed any prima facie case for ordering an investigation. The question is:
can investigation be ordered by the High Court in exercise of its inherent
jurisdiction under Section 482 of the Code based on such vague and indefinite
allegations made in unsigned petition without even arriving at any prima facie
conclusion that the contents thereof reveal commission of any cognizable
offence? Whether such directions could have been issued by the High Court even
in exercise of its jurisdiction under Article 226 of the Constitution of India?
43.It is evident from Sections 154, 156 and 157 of the Code that even a
police officer can act on the basis of information received or otherwise and
proceed to investigate provided he has reason to suspect the commission of a
cognizable offence which he is empowered to investigate under Section 156 Cr.PC.
If the essential requirements of the penal provisions are not prima facie
disclosed by a first information report and the police officer has no reason to
suspect the commission of a cognizable offence, no investigation can be
undertaken by him based on the information received or otherwise. Can the High
Court set the law in motion against the named and unnamed individuals based on
the information received by it without recording the reasons that the
information received by it prima facie disclosed the commission of a cognizable
offence? Setting criminal law in motion is fraught with serious consequences,
which cannot lightly be undertaken by the High Court even in exercise of its
jurisdiction under Article 226 of the Constitution of India. In our view, the
High Court in exercise of its whatsoever jurisdiction cannot direct
investigation by constituting a special investigation team on the strength of
anonymous petitions. The High Courts cannot be converted into station houses.
(emphasis supplied)
17. A Division Bench of this Court in Alliraj Gounder Vs.The Inspector of
Police, Udumalpet Town Police Station, Udumalpet, Coimbatore District and
another reported in 2005 (3) CTC 673 also dealt with a writ petition seeking for
transfer of investigation wherein the Division Bench of this Court after relying
upon the decision of the Hon’ble Supreme Court in C.B.I. Vs. Rajesh Gandhi
reported in 1997 Crl.L.J. 63, held as follows:
“4.Moreover if the writ petitioner is not satisfied with the investigation
being done by the police, he has a remedy to approach the Magistrate concerned
under Section 156(3), Cr.P.C vide H.S.Bains Vs. State, AIR 1980 SC 1883, and if
the said Magistrate is satisfied about the allegations of the petitioner, he can
direct the police agency which he deems to be appropriate to do the proper
investigation into the complaint of the petitioner, and he can also monitor the
police investigation.
5.Sub-section (3) of Section 156, in other words, provides a check by the
Magistrates on the duties to be performed by the police under Chapter XII,
Cr.P.C. In cases where the Magistrate finds that the police has not done its
duty of investigating the case at all or has not done it satisfactorily, he can
issue a direction for the police to do it properly or do it again, and/or issue
such other directions to the police as he deems appropriate for securing a
proper investigation into the complaint.
6.Thus, the petitioner has an efficacious alternative remedy under Section
156(3), which he should avail of by approaching the Magistrate. Writ petitions
of this nature should not be entertained by this Court in view of the existence
of the appropriate efficacious alternative remedy under the Criminal Procedure
Code itself, otherwise this Court will be flooded with such writ petitions”.
(emphasis supplied)
18. In Asit Bhattacharjee Vs. Hanuman Prasad Ojha and others reported in
2007(5) SCC 786, the Hon’ble Supreme Court, the Supreme Court has dealt with the
scope of the interference in criminal matters under Article 226 of the
Constitution of India as follows:
“33.Stricto sensu, therefore, the High Court should not have issued such a
direction. Assuming, however, that the High Court could mould the relief, in our
opinion, it was not a case where on the face of the allegations made in the
complaint petition, the same could be said to be mala fide. A major part of the
cause of action might have arisen in the State of U.P., but the same by itself
would not mean that the Calcutta Court had no jurisdiction whatsoever”.
19. Thus, based on the above referred judgments, the following could be
culled out:
“i)That the power under Article 226 of the Constitution of India can
always be invoked to issue appropriate directions at the instance of an
aggrieved person if the High Court is convinced that the power of investigation
has been exercised by an Investigating Officer mala fide.
ii)That power of the High Court is to be exercised in rarest of rare cases
where a clear case of abuse of power and non compliance with the provisions
falling under Chapter XII of the Code is clearly made out requiring the
interference of the High Court. But even in such cases, the High court cannot
direct as to how the investigation has to be conducted but can always insist
for observation of process as provided under the Code.
iii)None can dispute the power of the High Court under Article 226 of the
Constitution to direct inquiry by CBI, the said power can be exercised only in
cases where there is sufficient material to come to a conclusion that there is
need for such inquiry. It is not sufficient to have such materials in the
pleadings.
iv)Setting the criminal liability and fraught with serious consequences
which cannot lightly be taken by the High Court even in exercise of its
jurisdiction under Article 226 of the Constitution.
v)The High Court in exercise of its whatsoever jurisdiction cannot direct
investigation by constituting a Special Investigation Team on the strength of
vague allegations”.
20. If the facts of the present case are examined by applying above
referred legal principles, it is to be noted that there are no sufficient
materials warranting interference of this Court for transfer of investigation
that too when the trial has commenced before the sessions Court and more than
six witnesses have been examined on the side of the prosecution.
21. The learned counsel for the petitioner was at pains to point out that
there is suspicion in the manner and the nature of death of the petitioner’s
wife by stating about the circumstances of the case as well as by placing
reliance upon the postmortem certificate and would contend that this is a fit
case where such power should be exercised.
22. As noted above, the Hon’ble Supreme Court has added a word of caution
that the power of transfer of investigation could be exercised only in the
rarest of rare cases and such power should not be exercised to stifle a
legitimate prosecution and the High Court should refrain from giving a prima
facie decision in a case where the entire facts are incomplete and evidence has
not been collected and produced before the Court. The Hon’ble Supreme Court has
further held that based on vague and indefinite allegations, the High court
ought not to have issued directions for transfer of investigation or for
ordering investigation by any other special investigating body.
23. If these allegations are put to scrutiny on the tests laid down by the
Hon’ble Supreme Court, in the decision referred supra, these are not sufficient
material for the court to come to a conclusion that there is need for transfer
of the investigation agency. As held by the Hon’ble Supreme Court in the case of
Divine Retreat Centre Vs.State of Kerala referred supra, that the investigation
of an offence is the field exclusively reserved for the police officers whose
powers in that field 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, unfettered discretion does
not mean any unaccountable or unlimited discretion and act according to one’s
own choice. The High Court in exercise of its inherent jurisdiction cannot
change the Investigating Officer in the mid-stream and appoint any agency of its
own choice to investigate into a crime on whatsoever basis and more particularly
on the basis of complaints or anonymous petitions. Further the Honourable
Supreme Court in the cases of Sasi Thomas and Sakiri Vasu, cited supra, that the
High Court cannot interfere with the trial of the case.
24. Therefore, considering the facts and circumstances of the case and
applying the law laid down by the Hon’ble Supreme Court, it is to be held that
the doubts raised by the petitioner in his representation and the affidavit are
not sufficient to make out a case for transfer of investigation. Therefore, the
prayer sought for by the petitioner cannot be granted and the writ petition is
liable to be dismissed. Accordingly, the writ petition is dismissed.
Consequently, the connected miscellaneous petition is closed.
JIKR
To
1.The Secretary to Government,
Home Secretary,
Fort St. George,
Chennai-600 009.
2.State rep. by
The Director General of Police,
Chennai.
3.State rep. by
The Superintendent of Police,
Dindigul,
Dindigul District.
4.State rep. by
The Inspector of Police,
All Women Police Station,
Dindigul,
Dindigul District.
5.State rep. by
The Director of C.B.I.,
Shastri Bhavan,
Chennai.