IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 9.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE ARUNA JAGADEESAN
Crl.OP.No.7474/2006 & 34121/2007
Crl.MP.No.1/2007
J.Balasubramaniam Petitioner in both Crl.OPs
Vs
1.State by Inspector of Police
Karipatti Police Station,
Salem District R1 in both Crl.OPs
2.The Superintendent of Police
Salem Rural Division, Salem R2 in Cr.OP.7474/06
Prayer:- This Criminal Original Petition are filed to direct the 2nd Respondent to transfer the case in Cr.No.102 of 2005 on the file of the 1st Respondent to CBCID Salem or any other agent to complete the investigation in the above case in Cr.No.102/2005 and file a final report before the concerned court within a specified time and to call for the records and to quash the impugned notice dated 14.6.2007 issued by the Judicial Magistrate II, Salem in Cr.No.102/2005 (On the file of the Respondent).
For Petitioner : Mr.R.Mususwamy
For Respondents : Mr.S.Senthil Murugan
COMMON ORDER
Since these Criminal Original Petitions have been filed in respect of the very same Cr.No.102/2005 by the Petitioner herein, they are heard together and disposed of by this common order.
2. The brief facts, which are necessary for the dispose of these Criminal Original Petitions are as follows:-
The Petitioner/defacto complainant is possessing a valid heavy motor vehicle driving licence. On coming to know that one Gunalan, who is arrayed as the accused, the Proprietor of M/s.Selvi Bus Services, Kichipalayam is selling his bus permit, the Petitioner approached him and purchased the bus permit from the accused and thereafter, the Petitioner spent huge amount of Rs.1,25,000/- for the purpose of building the body of the mini bus and also he purchased the vehicle through auction on 3.2.2002 through one Thilagar. As the permit was in the name of the accused, the vehicle was also purchased in his name, so as to get the name transfer in his name at a future date. It is stated that subsequently he approached the accused Gunalan to give him the RC Book, permit etc. of the vehicle for the purpose of inspection at RTO Office. But with an intention to cheat the Petitioner, the accused refused to hand over the said documents. Having received the entire cost of the vehicle and in spite of the repeated demands, since the accused failed to hand over the documents, he requested the accused to refund the amount. But, that was also not complied with. When he questioned the act of the accused, it is alleged that he threatened with dire consequences. This necessitated the Petitioner to lodge a complaint before the 1st Respondent Police against the accused for the offences punishable under Section 420 and 506(ii) of IPC on 8.3.2005.
3. Initially the 1st Respondent Police refused to register the FIR and only issued receipt in acknowledgement of filing of the FIR, but no action was taken for several days. Therefore, the Petitioner approached the Superintendent of Police/2nd Respondent, Salem District with a request to direct the 1st Respondent to register a case and take appropriate action against the accused and thereafter, on the direction of the higher officials, the 1st Respondent Police registered a case in Cr.No.102/2005 on 2.4.2005. However, there was no progress in the investigation by the 1st Respondent Police, even after lapse of nearly six months. Thereafter, the Petitioner filed a petition in Cr.OP.No.24292/2005, seeking for a direction directing the Respondent therein to investigate into the complaint and file a report. This court by order dated 14.9.2005 directed the 1st Respondent police to investigate into the complaint and to file a report, as expeditiously as possible. But in spite of the said direction of this court, no action was taken by the 1st Respondent Police and it is alleged that the 1st Respondent Police colluded with the accused and acted in a partisan manner and openly declared that he would not take any action against the accused in the above case and he would close the case. Apprehending partisan attitude on the side of the Respondents, again the Petitioner has filed this Crl.OP.No.7474/2006, praying for a direction to transfer the case on the file of the 1st Respondent Police to CBCID, Salem District.
4. In such circumstances, he had received the impugned notice dated 14.6.2007 from the Court of the learned Judicial Magistrate II, Salem, calling upon him to appear before the Court on 18.7.2007 to hear him regarding the report filed by the Police to drop the above complaint as a mistake of fact. Therefore, this Crl.OP.No.34121/2007 has been filed to quash the said impugned notice.
6. A perusal of the FIR registered in Cr.No.102/2005 for the offences under Sections 420 and 506(ii) of IPC shows that there is a specific allegation made against the accused Gunalan that having received the entire cost of the vehicle, he refused to hand over the documents relating to the vehicle and on such refusal, when the Petitioner demanded the accused to refund the amount, he failed to respond, but he threatened with dire consequences. The above FIR discloses the commission of cognizable offences. When the 1st Respondent Police failed to take action, the Petitioner has approached this court by filing Cr.OP.No.24292/2005, wherein the learned Public Prosecutor, after getting instructions, had given an undertaking to this court that he would give suitable instructions to the Police concerned to do proper investigation and file a report as expeditiously as possible. Based on the said undertaking, this court has passed an order dated 14.9.2005, directing the Respondent Police therein to investigate the case and file a final report, as expeditiously as possible. Even thereafter, no positive steps had been taken by the 1st Respondent Police and therefore, the Petitioner has again approached this court in this Cr.OP.No.7474/2006 to direct the 2nd Respondent to transfer the case in Cr.No.102/2005 on the file of the 1st Respondent to CBCID Salem or any other agent to complete the investigation.
7. The learned Government Advocate has taken notice on 23.3.2006 in this Cr.OP.No.7474/2006 and the same was adjourned for his response. In the mean while, the Petitioner has received the impugned notice from the learned Judicial Magistrate II, Salem, calling upon him to appear before him and to hear him regarding the complaint being closed as a mistake of fact.
8. The impugned notice is challenged by the Petitioner on the ground that no investigation has been done by the Respondents and he was not examined at any point of time by the concerned Police. He would further state that after the order passed by this court, the 1st Respondent Police hastily closed the case in order to wriggle out of the situation apprehending that the case may be transferred from his file to CBCID or to any other agency.
9. It is held by the Allahabad High Court in the case of Bhopal and others Vs. State of UP and another (1997-Crl.LJ.-2363) that in a case where a complainant or victim comes to the court and makes an allegation that the local police is not investigating the case properly or fairly, the court may issue a direction for investigation by any other impartial agency to ensure that the crime is properly investigated.
10. The Honourable Supreme Court in the case of Punjab and Haryana High Court Bar Association, Chandigarh through its Secretary Vs. State of Punjab and others (AIR-1994-SC-1023) has observed that the investigation having been completed by the police and charge sheet submitted to the court, it is not for the court ordinarily to reopen the investigation. However, it held on the facts of the said case that to do complete justice in the matter and to instill confidence in the public mind, it is necessary to have a fresh investigation in that case through a specialised agency.
11. Bearing in mind the above said observations made by the Apex Court and the High Court, in order to do complete justice and instill confidence on the public more particularly, the Petitioner in this case, it is necessary to issue suitable directions to the concerned Police. On a perusal of the FIR, it is abundantly clear that a cognizable offence is committed by the accused Gunalan. The grievance of the Petitioner is that he was not examined nor material was gathered from him to prove his case and without conducting any investigation, the Police had filed the report, as “a mistake of fact”.
12. The Respondent Police have not produced any material to show that the investigation was done properly and fairly and the conclusion arrived at by the Respondent Police is in accordance with law. In such view of the matter, the impugned notice dated 14.6.2007 is liable to be quashed and accordingly, it is quashed.
13. The FIR in this case does not show the case as a complicated one or it is of public interest. Therefore, the request of the Petitioner to transfer the case to CBCID is not required. However, to meet the ends of justice and to redress the grievance of the Petitioner, the Superintendent of Police, Salem/the 2nd Respondent is directed to transfer the FIR in Cr.No.102/2005 from the file of the 1st Respondent Police, to any other officer not below the rank of Inspector of Police to reinvestigate the case and file his report within a period of three months from the date of receipt of the copy of this order.
14. With the above directions, these Criminal Original Petitions are ordered accordingly.
The Registry is directed to communicate this order to the Superintendent of Police, Salem District forthwith.
Srcm
To:
The Public Prosecutor, High Court,
Madras