BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/06/2009 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD).No.7487 of 2008 Crl.O.P.(MD).Nos. 11684 of 2007 and 12376 of 2007 Crl.O.P(MD)No.7487 of 2008: Hasan Ammal ... Petitioner Vs 1.State of Tamilnadu rep. by The Home Secretary, Fort St. George, Chennai - 9. 2.The Superintendent of Police, Tirunelveli District. 3.The Inspector of Police, CBCID, Tirunelveli. 4.Central Bureau of Investigation rep. by the Superintendent of Police, Shastri Bhawan, Nungampakkam, Chennai. ... Respondents
Prayer
Petition filed under Section 482 of the Code of Criminal Procedure, to
withdraw the case in Crime No.391 of 2006 on the file of the respondent No.3 and
entrust the same to the respondent No.4 to appoint a fair officer for
investigation under the supervision of respondent No.1 and direct the respondent
No.4 to file the final report before the Judicial Magistrate within the time
frame fixed by this Court.
!For Petitioner ... Mr.T.Lajapathi Roy ^For RR1 to 3 ... Mr.Siva Ayyappan Government Advocate (Crl. Side) For Respondent ... Mr.S.Rozario Sundarraj No.4 Special Public Prosecutor for CBI cases * * * * * Crl.O.P(MD)No.11684 of 2007: T.Rathinaswamy ... Petitioner Vs 1.The District Collector, Kanyakumari District. 2.The Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District. 3.The State rep. by The Deputy Superintendent of Police, CBCID, Tirunelveli. (Crime No.391 of 2006). ... Respondents Prayer
Petition filed under Section 482 of the Code of Criminal Procedure, to
direct the respondent police to implement the order passed by this Court dated
25.04.2007 in Crl.O.P(MD)No.3854 of 2007 and consequently direct the third
respondent to hand over the investigation in Crime No.391 of 2006 to Central
Bureau of Investigation or any other Investigation Agency.
!For Petitioner … Mr.C.Ramachandran
^For Respondents … Mr.Siva Ayyappan
Government Advocate (Crl. Side)
* * * * *
Crl.O.P(MD)No.12376 of 2007:
#Hasan Ammal ... Petitioner Vs $1.State of Tamilnadu rep. by The Home Secretary, Fort St. George, Chennai - 9. 2.The Superintendent of Police, CBCID, Tirunelveli District. 3.The Inspector of Police, CBCID, Tirunelveli. 4.Central Bureau of Investigation rep. by the Superintendent of Police, Shastri Bhawan, Nungampakkam, Chennai. ... Respondents Prayer
Petition filed under Section 482 of the Code of Criminal Procedure, to
withdraw the case in Crime No.391 of 2006 on the file of the respondent No.3 and
entrust the same to the respondent No.4 to appoint a fair officer for
investigation of the case with a competent officer and to file a final report
before the Judicial Magistrate within the time stipulated by this Court.
!For Petitioner... Mr.T.Lajapathi Roy ^For RR1 to 3 ... Mr.Siva Ayyappan Government Advocate (Crl. Side) For Respondent ... Mr.S.Rozario Sundarraj No.4 Special Public Prosecutor for CBI cases * * * * * :COMMON ORDER Crl.O.P(MD)No.7487 of 2008:
This petition has been filed by the petitioner/aggrieved person seeking
for the withdrawal of the case in Crime No.391 of 2006 on the file of the third
respondent and to entrust the same to the fourth respondent/C.B.I. for
investigation and to file the final report.
2. The brief facts stated by the petitioner are as follows as in the
petition:
(i) The petitioner’s husband viz., Mohammed Masud was doing chit fund
business in their locality and met with substantial loss because of several
defaulters and regarding the non-payment of the chit amount, few subscribers
lodged criminal complaints and initiated civil suits against her husband.
(ii) It was alleged that on 27.11.2005, her husband and one Kalyani had
arranged a Tata Sumo car owned by one Kudib Meera Hussain for rent and one
Krishnamoorthy was engaged as driver. They picked up three persons at Edaikal
and they dropped two persons at Tenkasi and went to Nagercoil and picked up two
more persons. While they were proceeding to Trivandrum, they stopped the
vehicle near one Bungalow at Nedumangadu Village and they went into the bungalow
along with the driver. The four persons secretly made deliberations and tied
the driver Krishnamoorthy with a rope. Then the three persons drove away the
vehicle and returned after six hours. Thereafter they released the driver and
gave some sum. Then, the driver informed the said incident to his owner and the
owner lodged a complaint before the police and based on that complaint, the
Inspector Ravichandran and his sleuth went to Nedumangadu and brought the driver
Krishnamoorthy and the Tata Sumo Car back to Kadayanallur.
(iii) On 28.11.2005 at about 04.00 p.m. the Inspectors of Aralvaimozhi and
Kadayanallur Police Stations along with police personnel had come to the
petitioner’s house and taken her husband into custody. In the midnight, they
also brought her brother, her sister’s husband and herself to Aralvoimozhi
Police Station and obtained statements against her husband illegally and they
did not sent her husband. Then, she approached the police, but they did not
inform about her husband. Hence, she approached this Court in H.C.P.No.223 of
2006 and the same was closed in view of the submission made by the Inspector of
Police, Kadayanallur Police Station that he registered a Man Missing case in
Crime No.391 of 2006. Then, she approached the higher official through
representations, the case was transferred to C.B.C.I.D.
(iv) On investigation, C.B.C.I.D. examined 12 witnesses and recorded their
statements under Section 164 Cr.P.C. before the learned Judicial Magistrate,
Senkottai on 12.04.2007. From their statements, she found that her husband was
tortured and murdered by police personnel. But, the second respondent did not
take any action. Hence, she approached this Court by filing a petition in
Crl.O.P(MD)No.12376 of 2007 and this Court directed the Revenue Divisional
Officer, Padmanabhapuram to conduct the enquiry under Police Standing Order 151
and submit his final report before this Court on 02.01.2008. Thereafter, the
Revenue Divisional Officer submitted his enquiry report before this Court on
23.04.2008. But till now no action was taken against the proposed accused and
the same would aid the real accused to go scot-free from the clutches of law.
Hence, the petitioner prays for the withdrawal of the case in Crime No.391 of
2006 on the file of the third respondent and entrust the same to the fourth
respondent/C.B.I. for investigation and file the final report.
3. The fourth respondent had filed the counter, which would run as
follows:
The case was transferred to CBCID as per the orders of the Director
General of Police, Chennai and as per the direction of this Court in
Crl.O.P(MD)No.12376 of 2007, the Revenue Divisional Officer, Padmanabhapuram
conducted enquiry and submitted his report before this Court on 23.04.2008.
Hence, two different agencies in Police Department have investigated this case
and also an Executive Magistrate have completed the enquiry. As per the dictum
laid down by Division Bench of the Hon’ble Apex Court, in case of filing a writ
petition or petition under Section 482 Cr.P.C., the High Court should not
encourage this practice and should ordinarily refuse to interfere in the matter
and relegate the petitioner to his alternative remedy. Hence, the petition may
be dismissed in the interest of justice.
Crl.O.P(MD)No.11684 of 2007:
4. This petition has been filed by the petitioner/accused seeking for a
direction (i) to the third respondent police to implement the order passed by
this Court in Crl.O.P(MD)No.3854 of 2007 dated 25.04.2007 and also (ii) to
direct the third respondent to hand over the investigation in Crime No.391 of
2006 to the Central Bureau of Investigation or to any other Investigating
Agency. This Court passed an order on 26.11.2007 in respect of the first prayer
and the petition is kept pending in respect of second prayer.
5. The reasons stated for by the petitioner are briefly stated as follows:
The petitioner is working as a Head Constable in the Police Department.
The petitioner was wrongly implicated in the case registered at Aaralvoimozhi
Police Station for safeguarding some police personnel. The third respondent
CBCID recorded some statements by falsely implicating some of the police
officers to help their own subordinates and they helped them to escape from the
liability. In the meantime, one S.J.S.Thiruselvam has filed Crl.O.P(MD)No.3854
of 2007 praying to hand over the investigation to the Sub Divisional Magistrate
cum Revenue Divisional Officer, Padmanabhapuram for conducting enquiry as per
Police Standing Order 151. After hearing both sides, this Court has allowed
the petition and directed the first respondent therein to entrust the
investigation to the Sub-Divisional Magistrate cum Revenue Divisional Officer,
Padmanabhapuram. Despite the order passed by this Court, the first respondent
had failed to obey the same. Hence, this petition seeking for a direction to
the third respondent police to implement the order passed by this Court in
Crl.O.P(MD)No.3854 of 2007 dated 25.04.2007 and also to direct the third
respondent to hand over the investigation in Crime No.391 of 2006 to the Central
Bureau of Investigation or to any other Investigating Agency.
Crl.O.P(MD)No.12376 of 2007:
6. This petition has been filed by the petitioner/aggrieved person seeking
for the withdrawal of the case in Crime No.391 of 2006 on the file of the third
respondent and to entrust the same to the fourth respondent police for
investigation and to file the final report.
7. The brief facts stated by the petitioner are as follows as in the
petition:
(i) The petitioner’s husband viz., Mohammed Masud was doing chit fund
business in their locality and met with substantial loss because of several
defaulters and regarding the non-payment of the chit amount, few subscribers
lodged criminal complaints and initiated civil suits against her husband.
(ii) It was alleged that on 27.11.2005, her husband and one Kalyani had
arranged a Tata Sumo car owned by one Kudib Meera Hussain for rent and one
Krishnamoorthy was engaged as driver. They picked up three persons at Edaikal
and they dropped two persons at Tenkasi and went to Nagercoil and picked up two
more persons. While they were proceeding to Trivandrum, they stopped the
vehicle near one Bungalow at Nedumangadu Village and they went into the bungalow
along with the driver. The four persons secretly made deliberations and tied
the driver Krishnamoorthy with a rope. Then the three persons drove away the
vehicle and returned after six hours. Thereafter they released the driver and
gave some sum. Then, the driver informed the said incident to his owner and the
owner lodged a complaint before the police and based on that complaint, the
Inspector Ravichandran and his sleuth went to Nedumangadu and brought the driver
Krishnamoorthy and the Tata Sumo Car back to Kadayanallur.
(iii) On 28.11.2005 at about 04.00 p.m. the Inspectors of Aralvaimozhi and
Kadayanallur Police Stations along with police personnel had come to the
petitioner’s house and taken her husband into custody. In the midnight, they
also brought her brother, her sister’s husband and herself to Aralvoimozhi
Police Station and obtained statements against her husband illegally and they
did not sent her husband. Then, she approached the police, but they did not
inform about her husband. Hence, she approached this Court in H.C.P.No.223 of
2006 and the same was closed in view of the submission made by the Inspector of
Police, Kadayanallur Police Station that he registered a Man Missing case in
Crime No.391 of 2006. Then, she approached the higher official through
representations, the case was transferred to C.B.C.I.D.
(iv) On investigation, C.B.C.I.D. examined 12 witnesses and recorded their
statements under Section 164 Cr.P.C. before the learned Judicial Magistrate,
Senkottai on 12.04.2007. From their statements, she found that her husband was
tortured and murdered by police personnel. But, the second respondent did not
take any action. Hence, she approached this Court by filing a petition in
Crl.O.P(MD)No.12376 of 2007 and this Court directed the Revenue Divisional
Officer, Padmanabhapuram to conduct the enquiry under Police Standing Order 151
and submit his final report before this Court on 02.01.2008. Thereafter, the
Revenue Divisional Officer submitted his enquiry report before this Court on
23.04.2008. But till now no action was taken against the proposed accused and
the same would aid the real accused to go scot-free from the clutches of law.
Hence, the petitioner prays for the withdrawal of the case in Crime No.391 of
2006 on the file of the third respondent and entrust the same to the fourth
respondent/C.B.I. for investigation and file the final report.
8. Heard Mr.T.Lajapathi Roy learned counsel appearing for the petitioner
in Crl.O.P(MD)Nos.7487 of 2008 and 12376 of 2007 and Mr.C.Ramachandran, learned
counsel appearing for the petitioner in Crl.O.P(MD)No.11684 of 2007
respectively, Mr.Siva Ayyappan, learned Government Advocate (Criminal side)
appearing for the State and also Mr.Rozario Sundarraj, learned Special Public
Prosecutor for C.B.I. Cases.
9. The learned counsel for the petitioners in all the three applications
would commonly submit that the case was registered by the third respondent
police in the year 2006 and the investigation is not completed so far, despite
directions given by this Court. In an earlier occasion, this Court had passed
an order on 25.04.2007 in Crl.O.P(MD)No.3854 of 2007 to hand over the
investigation by the third respondent police to the Revenue Divisional Officer
cum Sub Divisional Magistrate, Padmanabhapuram for enquiry to be conducted under
Police Standing Order 151 and to proceed further in the case registered in Crime
No.391 of 2006 and the same was not obeyed by the third respondent police and
therefore the petitioner had to resort to another petition in
Crl.O.P(MD)No.11684 of 2007 seeking to implement the said order of this Court by
the third respondent and also seeking for transfer of investigation from the
file of the third respondent to the fourth respondent viz., Central Bureau of
Investigation. The third respondent police has not acted promptly and the
aggrieved person/petitioner had to file Crl.O.P(MD)No.12376 of 2007 seeking for
transfer of the case from the file of the third respondent to the fourth
respondent for investigation and the third respondent police was directed to
hand over the Case Diary file to the Revenue Divisional Officer for the purpose
of conducting enquiry under Police Standing Order 151 and to file the report on
02.01.2008.
10. It is further submitted that the third respondent had reluctantly
handed over the file to the Revenue Divisional Officer, Padmanabhapuram and he
had conducted enquiry under Police Standing Order 151 and filed his report
before this Court on 23.04.2008. Thereafter the third respondent had not
proceeded with the further investigation and therefore the investigation has to
be transferred from the file of the third respondent to the file of the fourth
respondent. They would further submit that the lethargy and slackness in the
investigation on the part of the third respondent police would certainly lead to
the fading of evidence and the accused, who are the police personnel will escape
from the clutches of law. Therefore, it could be considered as rarest rare case
for the purpose of passing an order of transfer of investigation from the file
of the third respondent to the fourth respondent.
11. The learned Government Advocate (Criminal side) would submit in his
argument that the third respondent is ready to proceed with the investigation
and to complete the same and to file the final report in a specified time. He
would further submit that since the Case Diary File was handed over to the
Revenue Divisional Officer, Padmanabhapuram for the purpose of conducting
enquiry under Police Standing Order 151, they had to await the file for doing
further investigation and filing the final report after the enquiry. He would
also submit in his argument that the report of the Revenue Divisional Officer,
Padmanabhapuram was submitted only on 23.04.2008 and the Government had also
passed an order directing the Revenue Divisional Officer in
G.O.Ms.No.1322/Public (L&O-E) dated 27.11.2008 and recommended the District
Collector, Kanyakumari District to launch both criminal and departmental action
against the petitioner in Crl.O.P(MD)No.11684 of 2007 and ten others and to take
necessary action to file a criminal complaint before the competent Court of
jurisdiction against the same police personnel and accordingly departmental
action were taken against them. Further the Revenue Divisional Officer,
Padmanabhapuram had launched a complaint before the learned Chief Judicial
Magistrate, Nagercoil on 02.03.2009 and thereafter only, the Case Diary file was
handed over to the third respondent for doing further investigation.
12. He would further submit in his argument that a clarification was
obtained from the Government regarding the continuance of investigation, since
parallel proceedings have been launched by the Collector as per the direction of
the Government and it was clarified by the Government through its letter
No.1630/L&O-E/2008-8 dated 11.02.2009 that the CBCID may also proceed with the
investigation and file a final report. Since, in view of the order passed by
the Government to proceed parallelly and after obtaining clarification from the
Government, the Case Diary file was received by the third respondent and the
Investigating Officer had visited Kadayanallur and examined seven witnesses on
01.04.2009. Thereafter also, the Investigating officer visited the scene of
occurrence of Keeriparai Police Station and examined three witnesses and some
more documents are to be collected and the investigation is in progress and
therefore there is no need for transfer of investigation at this stage.
13. He would also draw the attention of this Court to the Judgment of the
Hon’ble Apex Court in Divine Retreat Centre v. State of Kerala & Ors. reported
in AIR 2008 Supreme Court 1614 to the effect that the change of Investigating
Officer in the mid-stream and appoint any agency of its own choice may not be
one of the unfettered discretions of the Court. He would further submit that
this is not a case, in which the inherent powers of the Court conferred under
Section 482 Cr.P.C. can be utilized for the purpose of transferring the
investigation from the file of the third respondent to the fourth respondent.
14. The learned Special Public Prosecutor for C.B.I. cases would submit in
his argument that the two agencies in Police Department have already
investigated this case and an Executive Magistrate also completed the enquiry
under Police Standing Order 151 and the circumstances submitted by the
petitioners do not warrant any change of investigation. He would also submit
that the Hon’ble Apex Court had observed that the High Court should not
encourage the practice of seeking for transfer of investigation under the writ
jurisdiction or under Section 482 Cr.P.C. without relegating to the alternative
remedy. He would also cite an authority of the Hon’ble Apex Court in Sakiri
Vasu v. State of U.P. & Ors. reported in 2008 AIR SCW 309. However, he would
submit that in the event of a direction has been issued by this Court ordering
the transfer of the investigation to the fourth respondent, it is ready to abide
to the direction of this Court.
15. I have given anxious consideration to the arguments submitted by
either side. For better understanding of the case, we should go through the
sequence of filing of petitions before this Court by the petitioners. The
petitioner in Crl.O.P(MD)No.11684 of 2007 is one of the accused, against whom
also, the case has been registered in Crime No.391 of 2006 on the file of the
third respondent and the investigation is pending. He had filed the said
petition, seeking to implement the order passed by this Court dated 25.04.2007
in Crl.O.P(MD)No.3854 of 2007 and also for a direction to the third respondent
to hand over the investigation in Crime No.391 of 2006 to the C.B.I. or any
other Investigating Agency. The petition in Crl.O.P(MD)No.3854 of 2007 was
filed by him earlier and this Court had passed an order on 25.04.2007 directing
the Additional Director General of Police, CBCID, Omandur, Government Estate,
Chennai – 4, the first respondent therein to go through the petition dated
23.03.2007 of the petitioner and after hearing the witnesses to take a decision
in accordance with the Police Standing Order 151 and to act in accordance with
law. In the subsequent petition filed in Crl.O.P(MD)No.11684 of 2007, this
Court had passed an order directing the third respondent to entrust the
investigation to the Sub Divisional Magistrate cum Revenue Divisional Officer,
Padmanabhapuram, Kanyakumari District within ten days for the purpose of doing
enquiry under Police Standing Order 151 in respect of the case registered in
Crime No.391 of 2006. While passing such order, the relief sought for by the
petitioner seeking for the transfer of the investigation from the third
respondent to C.B.I. was kept pending. On the same day, this court had disposed
another petition filed by one Hasan Ammal, the petitioner/aggrieved person
seeking for the transfer of the investigation from the file of the respondent
therein to the file of the C.B.I., by dismissing the same with liberty to file a
fresh petition after completion of enquiry as per the Police Standing Order 151,
by the Revenue Divisional Officer, Padmanabhapuram. In consequence of the said
order, the said petitioner/aggrieved person has filed the petition in
Crl.O.P(MD)No.7487 of 2008 seeking for the same relief of transfer of
investigation from the third respondent to the fourth respondent. After the
passing of directions by this Court on various occasions, the Case Diary file
was handed over by the third respondent to the Sub Divisional Magistrate cum
Revenue Divisional Officer, Padmanabhapuram, Kanyakumari District and he had
also conducted the enquiry under Police Standing Order 151 and had submitted his
report before this Court. Similarly, he had complied with the ingredients of
the Police Standing Order 151 and accordingly a report was submitted by him
before the Government for further action. The Government after appraising and
scrutinizing the report of the Revenue Divisional officer, Padmanabhapuram,
Kanyakumari District to the effect of finding guilty of eight police personnel
for the offence mentioned therein had directed the District Collector to launch
both criminal action and disciplinary proceedings against them, as in
G.O.Ms.No.1322/Public (L&O-E) dated 27.11.2008. It is also made known to the
Court that the Revenue Divisional Officer has presented a complaint before the
learned Chief Judicial Magistrate, Nagercoil on the basis of the said direction
given in the aforesaid G.O. by the Government dehors the investigation in Crime
No.391 of 2006 is pending before the third respondent. The Revenue Divisional
Officer had filed the report after the completion of enquiry and accordingly the
report with the papers containing evidence recorded by him were submitted. The
Government had also passed an order directing the CBCID viz., the third
respondent to proceed further investigation. There is no dispute that both the
complaint before the learned Chief Judicial Magistrate and the investigation
pending before the third respondent arise upon the same cause of action. The
grievances of the petitioner is that the investigation was not promptly done by
the third respondent and therefore it has to be transferred to the file of
C.B.I.
16. At this stage, we have to see whether the investigation pending before
the third respondent could be transferred to the file of C.B.I. for the reasons
submitted by the petitioner. According to the Judgment of the Hon’ble Apex
Court in Divine Retreat Centre v. State of Kerala & Ors. reported in AIR 2008
Supreme Court 1614, the following passage would guide us to find out the
circumstances under which transfer of investigation could be ordered.
“The investigation of an offence is the filed 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 Chap.XII of the Code. However, unfettered
discretion does not mean any unaccountable or unlimited discretion and act
accordingly 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
addressed to a named Judge. Such communications cannot be converted into suo
motu proceedings for setting the law in motion. Neither the accused nor the
complainant or informant are entitled to choose their own investigating agency
to investigate a crime in which they may be interested”.
17. The investigation in this case is no doubt pending for a longer period
from the year 2006. Admittedly, the report of the Revenue Divisional Officer
was filed into the Court recently and that too after repeated orders passed by
this Court. The report of the Revenue Divisional Officer is a legal requisite
as per Police Standing Order 151 and it is finding fault with certain accused
police personnel in respect of certain offences. In accordance of the
provisions of Police Standing Order 151, the Government has also passed order in
G.O.Ms.No.1322/Public (L&O-E) dated 27.11.2008 directing the District Collector
to launch criminal prosecution before the competent Court. The long pendency of
the investigation at the hands of the third respondent was not justified in the
said G.O. However the third respondent was directed to continue the
investigation, in a separate letter of Government. After receiving the report
from the Revenue Divisional Officer of Padmanabhapuram, the third respondent is
proceeding with the investigation by examining the petitioner/aggrieved person
also along with the other witnesses. No doubt, the report of the Revenue
Divisional Officer points lesser offences towards the police personnel and does
not include Section 302 and 201 I.P.C. as registered in Crime No.391 of 2006.
The mere omission of sections in the report of the Revenue Divisional officer
will not make the Investigating Officer not to pursue or to collect evidence in
respect of those offences. It is for the Investigating Agency to consider the
report of the Revenue Divisional Officer as one of the pieces of evidence, since
the case has been registered even prior to the reference of the complaint to the
Revenue Divisional Officer under Police Standing Order 151.
18. In the Judgment of the Hon’ble Apex Court in Sakiri Vasu v. State of
U.P. & Ors. reported in 2008 AIR SCW 309, the Hon’ble Apex Court had laid down
the dictum as follows:
“31. No doubt the Magistrate cannot order investigation by the CBI vide
CBI vs. State of Rajasthan and another (supra), but this Court or the High Court
has power under Article 136 or Article 226 to order investigation by the CBI.
That, however should be done only in some rare and exceptional case, otherwise,
the CBI would be flooded with a large number of cases and would find it
impossible to properly investigate all of them”.
19. The same position of law was laid down by yet another earlier Judgment
of the Hon’ble Apex Court in State of Bihar and another v. A.C.Saldanna and
another reported in AIR 1980 SC 326. In the said Judgment, another Judgment of
the Hon’ble Apex Court in S.N.Sharma v. Bipen Kumar Tiwari reported in (1970)3
SCR 946 noted as follows:
“… the Court should be quite loathe to interfere at the stage of
investigation, a field of activity reserved for police and the executive. It
would be advantageous to extract what this Court observed in S.N.Sharma’s case:
“It appears to us that, though the Code of Criminal Procedure gives to the
police unfettered power to investigate all cases where they suspect that a
cognizable offence has been committed, in appropriate cases an aggrieved person
can always seek a remedy by invoking the power of the High Court under Article
226 of the Constitution under which, if the High Court could be convinced that
the power of investigation has been exercised by a police officer mala fide, the
High Court can always issue a writ of mandamus restraining the police officer
from misusing his legal powers”.
20. On a careful consideration of the submissions made by both the parties
and the dicta laid down by the Hon’ble Apex Court in the aforesaid Judgments,
the investigation and detection of crime, which is a domain of executives and
the Investigating Agency need not be interfered by the judiciary without any
finding of mala fide on the part of such agencies. Moreover, it is also laid
down that the transfer of investigation can be done by the High Court only under
Article 226 of the Constitution of India in rare and exceptional cases. The
Government had passed orders in G.O.Ms.No.1322/Public (L&O-E) dated 27.11.2008
directing the District Collector to pursue criminal complaint on the basis of
the report of the Revenue Divisional officer and the Revenue Divisional Officer
had also filed a complaint before the learned Chief Judicial Magistrate,
Nagercoil in obedience to the said G.O. and the complaint is also pending.
Therefore, two parallel proceedings are pending for the same cause of action.
The petitioners have not stated anything regarding the steps taken by them for
clubbing both the proceedings. However, if clubbing of two cases has to be
done, it should have been done only after filing of final report in this case
and after taking cognizance of the final report by the competent Court. In the
meanwhile, the submission of the third respondent would go to show that the
report of the Revenue Divisional Officer was considered as one of the pieces of
evidence and subsequent investigation is being carried on. In these
circumstances, I do not find any mala fide on the part of the third respondent
in doing the investigation. Moreover the investigation of the case by the third
respondent was delayed only by the adherence to the procedures laid down in
Police Standing Order as per the direction of this Court, which is also
essential to the investigation of the case. The reasons submitted by the
petitioners in their petitions are not sufficient to classify their case as one
of the rarest rare cases, in which the discretion of the Court with the help of
the power conferred under Section 482 Cr.P.C. can be exercised in their favour.
It is the clear wording of the Hon’ble Apex Court that the transfer of
investigation in the mid-stream and to entrust the investigation to some other
agency of its own choice is not applicable. Coupled with the various dicta of
the Hon’ble Apex Court, when we apply the facts of this case, we could find that
there is no mala fide shown on the part of the third respondent to classify the
case as one of the rarest rare case. Therefore, I do not find any reason for
ordering transfer of the investigation from the file of the third respondent to
the fourth respondent viz., C.B.I. Hence, the request for transfer of
investigation from the file of the third respondent viz., C.B.C.I.D. to the
fourth respondent viz., C.B.I. is not possible in Crl.O.P(MD)No.12376 of 2007.
However, it has become necessary for this Court to pass a direction to the third
respondent to expedite the investigation and to file a final report as early as
possible, since the case is of the year 2006. With the aforesaid observations,
the petition is dismissed. Consequently, Crl.O.P(MD)Nos.11684 and 12376 of 2007
are also dismissed.
smn
To
1.The Home Secretary,
Government of Tamil Nadu,
Fort St. George,
Chennai – 9.
2.The Superintendent of Police,
Tirunelveli District.
3.The Inspector of Police,
CBCID,
Tirunelveli.
4.The Superintendent of Police,
Central Bureau of Investigation,
Shastri Bhawan,
Nungampakkam,
Chennai.
5.The District Collector,
Kanyakumari District.
6.The Revenue Divisional Officer,
Padmanabhapuram,
Kanyakumari District.
7.The Deputy Superintendent of Police,
CBCID, Tirunelveli.
8.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.