{"id":42399,"date":"2009-06-03T00:00:00","date_gmt":"2009-06-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hasan-ammal-vs-state-of-tamilnadu-rep-by-on-3-june-2009"},"modified":"2015-08-12T15:22:27","modified_gmt":"2015-08-12T09:52:27","slug":"hasan-ammal-vs-state-of-tamilnadu-rep-by-on-3-june-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hasan-ammal-vs-state-of-tamilnadu-rep-by-on-3-june-2009","title":{"rendered":"Hasan Ammal vs State Of Tamilnadu Rep. By on 3 June, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
Hasan Ammal vs State Of Tamilnadu Rep. By on 3 June, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 03\/06\/2009\n\nCORAM\nTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH\n\nCrl.O.P.(MD).No.7487 of 2008\nCrl.O.P.(MD).Nos. 11684 of 2007 and 12376 of 2007\n\nCrl.O.P(MD)No.7487 of 2008:\n\nHasan Ammal\t\t\t\t... Petitioner\n\nVs\n\n1.State of Tamilnadu rep. by\n  The Home Secretary,\n  Fort St. George,\n  Chennai - 9.\n\n2.The Superintendent of Police,\n  Tirunelveli District.\n\n3.The Inspector of Police,\n  CBCID,\n  Tirunelveli.\n\n4.Central Bureau of Investigation\n  rep. by the Superintendent of Police,\n  Shastri Bhawan,\n  Nungampakkam,\n  Chennai.\t\t\t\t... Respondents<\/pre>\n
Prayer<\/p>\n
Petition filed under Section 482 of the Code of Criminal Procedure, to
\nwithdraw the case in Crime No.391 of 2006 on the file of the respondent No.3 and
\nentrust the same to the respondent No.4 to appoint a fair officer for
\ninvestigation under the supervision of respondent No.1 and direct the respondent
\nNo.4 to file the final report before the Judicial Magistrate within the time
\nframe fixed by this Court.<\/p>\n
\n\n!For Petitioner\t... Mr.T.Lajapathi Roy\n^For RR1 to 3\t... Mr.Siva Ayyappan\t\t\t\t\t\n\t\t    Government Advocate (Crl. Side)\nFor Respondent\t... Mr.S.Rozario Sundarraj\nNo.4\t\t    Special Public Prosecutor\n\t\t    for CBI cases\n* * * * *\n\nCrl.O.P(MD)No.11684 of 2007:\n\nT.Rathinaswamy\t\t\t\t... Petitioner\n\nVs\n\n1.The District Collector,\n  Kanyakumari District.\n\n2.The Revenue Divisional Officer,\n  Padmanabhapuram,\n  Kanyakumari District.\n\n3.The State rep. by\n  The Deputy Superintendent of Police,\n  CBCID, Tirunelveli.\n  (Crime No.391 of 2006).\t\t... Respondents\n\nPrayer\n\n<\/pre>\n
Petition filed under Section 482 of the Code of Criminal Procedure, to
\ndirect the respondent police to implement the order passed by this Court dated
\n25.04.2007 in Crl.O.P(MD)No.3854 of 2007 and consequently direct the third
\nrespondent to hand over the investigation in Crime No.391 of 2006 to Central
\nBureau of Investigation or any other Investigation Agency.\n<\/p>\n
!For Petitioner\t\t… Mr.C.Ramachandran
\n^For Respondents\t… Mr.Siva Ayyappan
\n    \t\t            Government Advocate (Crl. Side)
\n* * * * *
\nCrl.O.P(MD)No.12376 of 2007:\n<\/p>\n
#Hasan Ammal\t\t\t\t\t\t... Petitioner\n\nVs\n\n$1.State of Tamilnadu rep. by\n  The Home Secretary,\n  Fort St. George,\n  Chennai - 9.\n\n2.The Superintendent of Police,\n  CBCID, Tirunelveli District.\n\n3.The Inspector of Police,\n  CBCID,\n  Tirunelveli.\n\n4.Central Bureau of Investigation\n  rep. by the Superintendent of Police,\n  Shastri Bhawan,\n  Nungampakkam,\n  Chennai.\t\t\t\t\t\t... Respondents\n\nPrayer\n\n<\/pre>\n
Petition filed under Section 482 of the Code of Criminal Procedure, to
\nwithdraw the case in Crime No.391 of 2006 on the file of the respondent No.3 and
\nentrust the same to the respondent No.4 to appoint a fair officer for
\ninvestigation of the case with a competent officer and to file a final report
\nbefore the  Judicial Magistrate within the time stipulated by this Court.<\/p>\n
\n\n!For Petitioner... Mr.T.Lajapathi Roy\n^For RR1 to 3  ... Mr.Siva Ayyappan\t\t\t\t\t\n\t\t   Government Advocate (Crl. Side)\nFor Respondent ... Mr.S.Rozario Sundarraj\nNo.4\t\t   Special Public Prosecutor\n\t\t   for CBI cases\n* * * * *\n\n:COMMON ORDER\nCrl.O.P(MD)No.7487 of 2008:\n<\/pre>\n
\tThis petition has been filed by the petitioner\/aggrieved person seeking
\nfor the withdrawal of the case in Crime No.391 of 2006 on the file of the third
\nrespondent and to entrust the same to the fourth respondent\/C.B.I. for
\ninvestigation and to file the final report.\n<\/p>\n
\t2. The brief facts stated by the petitioner are as follows as in the
\npetition:\n<\/p>\n
\t(i) The petitioner’s husband viz., Mohammed Masud was doing chit fund
\nbusiness in their locality and met with substantial loss because of several
\ndefaulters and regarding the non-payment of the chit amount, few subscribers
\nlodged criminal complaints and initiated civil suits against her husband.\n<\/p>\n
\t(ii) It was alleged that on 27.11.2005, her husband and one Kalyani had
\narranged a Tata Sumo car owned by one Kudib Meera Hussain for rent and one
\nKrishnamoorthy was engaged as driver.  They picked up three persons at Edaikal
\nand they dropped two persons at Tenkasi and went to Nagercoil and picked up two
\nmore persons.  While they were proceeding to Trivandrum, they stopped the
\nvehicle near one Bungalow at Nedumangadu Village and they went into the bungalow
\nalong with the driver.  The four persons secretly made deliberations and tied
\nthe driver Krishnamoorthy with a rope.  Then the three persons drove away the
\nvehicle and returned after six hours.  Thereafter they released the driver and
\ngave some sum.  Then, the driver informed the said incident to his owner and the
\nowner lodged a complaint before the police and based on that complaint, the
\nInspector Ravichandran and his sleuth went to Nedumangadu and brought the driver
\nKrishnamoorthy and the Tata Sumo Car back to Kadayanallur.\n<\/p>\n
\t(iii) On 28.11.2005 at about 04.00 p.m. the Inspectors of Aralvaimozhi and
\nKadayanallur Police Stations along with police personnel had come to the
\npetitioner’s house and taken her husband into custody.  In the midnight, they
\nalso brought her brother, her sister’s husband and herself to Aralvoimozhi
\nPolice Station and obtained statements against her husband illegally and they
\ndid not sent her husband.  Then, she approached the police, but they did not
\ninform about her husband.  Hence, she approached this Court in H.C.P.No.223 of
\n2006 and the same was closed in view of the submission made by the Inspector of
\nPolice, Kadayanallur Police Station that he registered a Man Missing case in
\nCrime No.391 of 2006.  Then, she approached the higher official through
\nrepresentations, the case was transferred to C.B.C.I.D.\n<\/p>\n
\t(iv) On investigation, C.B.C.I.D. examined 12 witnesses and recorded their
\nstatements under Section 164 Cr.P.C. before the learned Judicial Magistrate,
\nSenkottai on 12.04.2007.  From their statements, she found that her husband was
\ntortured and murdered by police personnel.  But, the second respondent did not
\ntake any action.  Hence, she approached this Court by filing a petition in
\nCrl.O.P(MD)No.12376 of 2007 and this Court directed the Revenue Divisional
\nOfficer, Padmanabhapuram to conduct the enquiry under Police Standing Order 151
\nand submit his final report before this Court on 02.01.2008.  Thereafter, the
\nRevenue Divisional Officer submitted his enquiry report before this Court on
\n23.04.2008.  But till now no action was taken against the proposed accused and
\nthe same would aid the real accused to go scot-free from the clutches of law.
\nHence, the petitioner prays for the withdrawal of the case in Crime No.391 of
\n2006 on the file of the third respondent and entrust the same to the fourth
\nrespondent\/C.B.I. for investigation and file the final report.\n<\/p>\n
\t3. The fourth respondent had filed the counter, which would run as
\nfollows:\n<\/p>\n
\tThe case was transferred to CBCID as per the orders of the Director
\nGeneral of Police, Chennai and as per the direction of this Court in
\nCrl.O.P(MD)No.12376 of 2007, the Revenue Divisional Officer, Padmanabhapuram
\nconducted enquiry and submitted his report before this Court on 23.04.2008.
\nHence, two different agencies in Police Department have investigated this case
\nand also an Executive Magistrate have completed the enquiry.  As per the dictum
\nlaid down by Division Bench of the Hon’ble Apex Court, in case of filing a writ
\npetition or petition under Section 482 Cr.P.C., the High Court should not
\nencourage this practice and should ordinarily refuse to interfere in the matter
\nand relegate the petitioner to his alternative remedy.  Hence, the petition may
\nbe dismissed in the interest of justice.\n<\/p>\n
Crl.O.P(MD)No.11684 of 2007:\n<\/p>\n
\t4. This petition has been filed by the petitioner\/accused seeking for a
\ndirection (i) to the third respondent police to implement the order passed by
\nthis Court in Crl.O.P(MD)No.3854 of 2007 dated 25.04.2007 and also (ii) to
\ndirect the third respondent to hand over the investigation in Crime No.391 of
\n2006 to the Central Bureau of Investigation or to any other Investigating
\nAgency.  This Court passed an order on 26.11.2007 in respect of the first prayer
\nand the petition is kept pending in respect of second prayer.\n<\/p>\n
\t5. The reasons stated for by the petitioner are briefly stated as follows:
\n\tThe petitioner is working as a Head Constable in the Police Department.
\nThe petitioner was wrongly implicated in the case registered at Aaralvoimozhi
\nPolice Station for safeguarding some police personnel.  The third respondent
\nCBCID recorded some statements by falsely implicating some of the police
\nofficers to help their own subordinates and they helped them to escape from the
\nliability.  In the meantime, one S.J.S.Thiruselvam has filed Crl.O.P(MD)No.3854
\nof 2007 praying to hand over the investigation to the Sub Divisional Magistrate
\ncum Revenue Divisional Officer, Padmanabhapuram for conducting enquiry as per
\nPolice Standing Order 151.    After hearing both sides, this Court has allowed
\nthe petition and directed the first respondent therein to entrust the
\ninvestigation to the Sub-Divisional Magistrate cum Revenue Divisional Officer,
\nPadmanabhapuram.  Despite the order passed by this Court, the first respondent
\nhad failed to obey the same.  Hence, this petition seeking for a direction to
\nthe third respondent police to implement the order passed by this Court in
\nCrl.O.P(MD)No.3854 of 2007 dated 25.04.2007 and also to direct the third
\nrespondent to hand over the investigation in Crime No.391 of 2006 to the Central
\nBureau of Investigation or to any other Investigating Agency.\n<\/p>\n
Crl.O.P(MD)No.12376 of 2007:\n<\/p>\n
\t6. This petition has been filed by the petitioner\/aggrieved person seeking
\nfor the withdrawal of the case in Crime No.391 of 2006 on the file of the third
\nrespondent and to entrust the same to the fourth respondent police for
\ninvestigation and to file the final report.\n<\/p>\n
\t7. The brief facts stated by the petitioner are as follows as in the
\npetition:\n<\/p>\n
\t(i) The petitioner’s husband viz., Mohammed Masud was doing chit fund
\nbusiness in their locality and met with substantial loss because of several
\ndefaulters and regarding the non-payment of the chit amount, few subscribers
\nlodged criminal complaints and initiated civil suits against her husband.\n<\/p>\n
\t(ii) It was alleged that on 27.11.2005, her husband and one Kalyani had
\narranged a Tata Sumo car owned by one Kudib Meera Hussain for rent and one
\nKrishnamoorthy was engaged as driver.  They picked up three persons at Edaikal
\nand they dropped two persons at Tenkasi and went to Nagercoil and picked up two
\nmore persons.  While they were proceeding to Trivandrum, they stopped the
\nvehicle near one Bungalow at Nedumangadu Village and they went into the bungalow
\nalong with the driver.  The four persons secretly made deliberations and tied
\nthe driver Krishnamoorthy with a rope.  Then the three persons drove away the
\nvehicle and returned after six hours.  Thereafter they released the driver and
\ngave some sum.  Then, the driver informed the said incident to his owner and the
\nowner lodged a complaint before the police and based on that complaint, the
\nInspector Ravichandran and his sleuth went to Nedumangadu and brought the driver
\nKrishnamoorthy and the Tata Sumo Car back to Kadayanallur.\n<\/p>\n
\t(iii) On 28.11.2005 at about 04.00 p.m. the Inspectors of Aralvaimozhi and
\nKadayanallur Police Stations along with police personnel had come to the
\npetitioner’s house and taken her husband into custody.  In the midnight, they
\nalso brought her brother, her sister’s husband and herself to Aralvoimozhi
\nPolice Station and obtained statements against her husband illegally and they
\ndid not sent her husband.  Then, she approached the police, but they did not
\ninform about her husband.  Hence, she approached this Court in H.C.P.No.223 of
\n2006 and the same was closed in view of the submission made by the Inspector of
\nPolice, Kadayanallur Police Station that he registered a Man Missing case in
\nCrime No.391 of 2006.  Then, she approached the higher official through
\nrepresentations, the case was transferred to C.B.C.I.D.\n<\/p>\n
\t(iv) On investigation, C.B.C.I.D. examined 12 witnesses and recorded their
\nstatements under Section 164 Cr.P.C. before the learned Judicial Magistrate,
\nSenkottai on 12.04.2007.  From their statements, she found that her husband was
\ntortured and murdered by police personnel.  But, the second respondent did not
\ntake any action.  Hence, she approached this Court by filing a petition in
\nCrl.O.P(MD)No.12376 of 2007 and this Court directed the Revenue Divisional
\nOfficer, Padmanabhapuram to conduct the enquiry under Police Standing Order 151
\nand submit his final report before this Court on 02.01.2008.  Thereafter, the
\nRevenue Divisional Officer submitted his enquiry report before this Court on
\n23.04.2008.  But till now no action was taken against the proposed accused and
\nthe same would aid the real accused to go scot-free from the clutches of law.
\nHence, the petitioner prays for the withdrawal of the case in Crime No.391 of
\n2006 on the file of the third respondent and entrust the same to the fourth
\nrespondent\/C.B.I. for investigation and file the final report.\n<\/p>\n
\t8. Heard Mr.T.Lajapathi Roy learned counsel appearing for the petitioner
\nin Crl.O.P(MD)Nos.7487 of 2008 and 12376 of 2007 and Mr.C.Ramachandran, learned
\ncounsel appearing for the petitioner in Crl.O.P(MD)No.11684 of 2007
\nrespectively, Mr.Siva Ayyappan, learned Government Advocate (Criminal side)
\nappearing for the State and also Mr.Rozario Sundarraj, learned Special Public
\nProsecutor for C.B.I. Cases.\n<\/p>\n
\t9. The learned counsel for the petitioners in all the three applications
\nwould commonly submit that the case was registered by the third respondent
\npolice in the year 2006 and the investigation is not completed so far, despite
\ndirections given by this Court.  In an earlier occasion, this Court had passed
\nan order on 25.04.2007 in Crl.O.P(MD)No.3854 of 2007 to hand over the
\ninvestigation by the third respondent police to the Revenue Divisional Officer
\ncum Sub Divisional Magistrate, Padmanabhapuram for enquiry to be conducted under
\nPolice Standing Order 151 and to proceed further in the case registered in Crime
\nNo.391 of 2006 and the same was not obeyed by the third respondent police and
\ntherefore the petitioner had to resort to another petition in
\nCrl.O.P(MD)No.11684 of 2007 seeking to implement the said order of this Court by
\nthe third respondent and also seeking for transfer of investigation from the
\nfile of the third respondent to the fourth respondent viz., Central Bureau of
\nInvestigation.  The third respondent police has not acted promptly and the
\naggrieved person\/petitioner had to file Crl.O.P(MD)No.12376 of 2007 seeking for
\ntransfer of the case from the file of the third respondent to the fourth
\nrespondent for investigation and the third respondent police was directed to
\nhand over the Case Diary file to the Revenue Divisional Officer for the purpose
\nof conducting enquiry under Police Standing Order 151 and to file the report on
\n02.01.2008.\n<\/p>\n
\t10. It is further submitted that the third respondent had reluctantly
\nhanded over the file to the Revenue Divisional Officer, Padmanabhapuram and he
\nhad conducted enquiry under Police Standing Order 151 and filed his report
\nbefore this Court on 23.04.2008.  Thereafter the third respondent had not
\nproceeded with the further investigation and therefore the investigation has to
\nbe transferred from the file of the third respondent to the file of the fourth
\nrespondent.  They would further submit that the lethargy and slackness in the
\ninvestigation on the part of the third respondent police would certainly lead to
\nthe fading of evidence and the accused, who are the police personnel will escape
\nfrom the clutches of law.  Therefore, it could be considered as rarest rare case
\nfor the purpose of passing an order of transfer of investigation from the file
\nof the third respondent to the fourth respondent.\n<\/p>\n
\t11. The learned Government Advocate (Criminal side) would submit in his
\nargument that the third respondent is ready to proceed with the investigation
\nand to complete the same and to file the final report in a specified time.  He
\nwould further submit that since the Case Diary File was handed over to the
\nRevenue Divisional Officer, Padmanabhapuram for the purpose of conducting
\nenquiry under Police Standing Order 151, they had to await the file for doing
\nfurther investigation and filing the final report after the enquiry.  He would
\nalso submit in his argument that the report of the Revenue Divisional Officer,
\nPadmanabhapuram was submitted only on 23.04.2008 and the Government had also
\npassed an order directing the Revenue Divisional Officer in
\nG.O.Ms.No.1322\/Public (L&O-E) dated 27.11.2008 and recommended the District
\nCollector, Kanyakumari District to launch both criminal and departmental action
\nagainst the petitioner in Crl.O.P(MD)No.11684 of 2007 and ten others and to take
\nnecessary action to file a criminal complaint before the competent Court of
\njurisdiction against the same police personnel and accordingly departmental
\naction were taken against them.  Further the Revenue Divisional Officer,
\nPadmanabhapuram had launched a complaint before the learned Chief Judicial
\nMagistrate, Nagercoil on 02.03.2009 and thereafter only, the Case Diary file was
\nhanded over to the third respondent for doing further investigation.\n<\/p>\n
\t12. He would further submit in his argument that a clarification was
\nobtained from the Government regarding the continuance of investigation, since
\nparallel proceedings have been launched by the Collector as per the direction of
\nthe Government and it was clarified by the Government through its letter
\nNo.1630\/L&O-E\/2008-8 dated 11.02.2009 that the CBCID may also proceed with the
\ninvestigation and file a final report.  Since, in view of the order passed by
\nthe Government to proceed parallelly and after obtaining clarification from the
\nGovernment, the Case Diary file was received by the third respondent and the
\nInvestigating Officer had visited Kadayanallur and examined seven witnesses on
\n01.04.2009.  Thereafter also, the Investigating officer visited the scene of
\noccurrence of Keeriparai Police Station and examined three witnesses and some
\nmore documents are to be collected and the investigation is in progress and
\ntherefore there is no need for transfer of investigation at this stage.\n<\/p>\n
\t13. He would also draw the attention of this Court to the Judgment of the
\nHon’ble Apex Court in Divine Retreat Centre v. State of Kerala & Ors.<\/a> reported
\nin AIR 2008 Supreme Court 1614 to the effect that the change of Investigating
\nOfficer in the mid-stream and appoint any agency of its own choice may not be
\none of the unfettered discretions of the Court.  He would further submit that
\nthis is not a case, in which the inherent powers of the Court conferred under
\nSection 482 Cr.P.C. can be utilized for the purpose of transferring the
\ninvestigation from the file of the third respondent to the fourth respondent.\n<\/p>\n
\t14. The learned Special Public Prosecutor for C.B.I. cases would submit in
\nhis argument that the two agencies in Police Department have already
\ninvestigated this case and an Executive Magistrate also completed the enquiry
\nunder Police Standing Order 151 and the circumstances submitted by the
\npetitioners do not warrant any change of investigation.  He would also submit
\nthat the Hon’ble Apex Court had observed that the High Court should not
\nencourage the practice of seeking for transfer of investigation under the writ
\njurisdiction or under Section 482 Cr.P.C. without relegating to the alternative
\nremedy.  He would also cite an authority of the Hon’ble Apex Court in Sakiri
\nVasu v. State of U.P. & Ors.<\/a> reported in 2008 AIR SCW 309.  However, he would
\nsubmit that in the event of a direction has been issued by this Court ordering
\nthe transfer of the investigation to the fourth respondent, it is ready to abide
\nto the direction of this Court.\n<\/p>\n
\t15. I have given anxious consideration to the arguments submitted by
\neither side.  For better understanding of the case, we should go through the
\nsequence of filing of petitions before this Court by the petitioners.  The
\npetitioner in Crl.O.P(MD)No.11684 of 2007 is one of the accused, against whom
\nalso, the case has been registered in Crime No.391 of 2006 on the file of the
\nthird respondent and the investigation is pending.  He had filed the said
\npetition, seeking to implement the order passed by this Court dated 25.04.2007
\nin Crl.O.P(MD)No.3854 of 2007 and also for a direction to the third respondent
\nto hand over the investigation in Crime No.391 of 2006 to the C.B.I. or any
\nother Investigating Agency.  The petition in Crl.O.P(MD)No.3854 of 2007 was
\nfiled by him earlier and this Court had passed an order on 25.04.2007 directing
\nthe Additional Director General of Police, CBCID, Omandur, Government Estate,
\nChennai – 4, the first respondent therein to go through the petition dated
\n23.03.2007 of the petitioner and after hearing the witnesses to take a decision
\nin accordance with the Police Standing Order 151 and to act in accordance with
\nlaw.  In the subsequent petition filed in Crl.O.P(MD)No.11684 of 2007, this
\nCourt had passed an order directing the third respondent to entrust the
\ninvestigation to the Sub Divisional Magistrate cum Revenue Divisional Officer,
\nPadmanabhapuram, Kanyakumari District within ten days for the purpose of doing
\nenquiry under Police Standing Order 151 in respect of the case registered in
\nCrime No.391 of 2006.  While passing such order, the relief sought for by the
\npetitioner seeking for the transfer of the investigation from the third
\nrespondent to C.B.I. was kept pending.  On the same day, this court had disposed
\nanother petition filed by one Hasan Ammal, the petitioner\/aggrieved person
\nseeking for the transfer of the investigation from the file of the respondent
\ntherein to the file of the C.B.I., by dismissing the same with liberty to file a
\nfresh petition after completion of enquiry as per the Police Standing Order 151,
\nby the Revenue Divisional Officer, Padmanabhapuram.  In consequence of the said
\norder, the said petitioner\/aggrieved person has filed the petition in
\nCrl.O.P(MD)No.7487 of 2008 seeking for the same relief of transfer of
\ninvestigation from the third respondent to the fourth respondent.  After the
\npassing of directions by this Court on various occasions, the Case Diary file
\nwas handed over by the third respondent to the Sub Divisional Magistrate cum
\nRevenue Divisional Officer, Padmanabhapuram, Kanyakumari District and he had
\nalso conducted the enquiry under Police Standing Order 151 and had submitted his
\nreport before this Court.  Similarly, he had complied with the ingredients of
\nthe Police Standing Order 151 and accordingly a report was submitted by him
\nbefore the Government for further action.  The Government after appraising and
\nscrutinizing the report of the Revenue Divisional officer, Padmanabhapuram,
\nKanyakumari District to the effect of finding guilty of eight police personnel
\nfor the offence mentioned therein had directed the District Collector to launch
\nboth criminal action and disciplinary proceedings against them, as in
\nG.O.Ms.No.1322\/Public   (L&O-E) dated 27.11.2008.  It is also made known to the
\nCourt that the Revenue Divisional Officer has presented a complaint before the
\nlearned Chief Judicial Magistrate, Nagercoil on the basis of the said direction
\ngiven in the aforesaid G.O. by the Government dehors the investigation in Crime
\nNo.391 of 2006 is pending before the third respondent.  The Revenue Divisional
\nOfficer had filed the report after the completion of enquiry and accordingly the
\nreport with the papers containing evidence recorded by him were submitted.  The
\nGovernment had also passed an order directing the CBCID viz., the third
\nrespondent to proceed further investigation.  There is no dispute that both the
\ncomplaint before the learned Chief Judicial Magistrate and the investigation
\npending before the third respondent arise upon the same cause of action.  The
\ngrievances of the petitioner is that the investigation was not promptly done by
\nthe third respondent and therefore it has to be transferred to the file of
\nC.B.I.\n<\/p>\n
\t16. At this stage, we have to see whether the investigation pending before
\nthe third respondent could be transferred to the file of C.B.I. for the reasons
\nsubmitted by the petitioner.  According to the Judgment of the Hon’ble Apex
\nCourt in Divine Retreat Centre v. State of Kerala & Ors.<\/a> reported in AIR 2008
\nSupreme Court 1614, the following passage would guide us to find out the
\ncircumstances under which transfer of investigation could be ordered.
\n\t“The investigation of an offence is the filed exclusively reserved for the
\npolice officers whose powers in that field are unfettered so long as the power
\nto investigate into the cognizable offences is legitimately exercised in strict
\ncompliance with the provisions under Chap.XII of the Code.  However, unfettered
\ndiscretion does not mean any unaccountable or unlimited discretion and act
\naccordingly to one’s own choice.  The High Court in exercise of its inherent
\njurisdiction cannot change the Investigating Officer in the mid-stream and
\nappoint any agency of its own choice to investigate into a crime on whatsoever
\nbasis and more particularly on the basis of complaints or anonymous petitions
\naddressed to a named Judge.  Such communications cannot be converted into suo
\nmotu proceedings for setting the law in motion.  Neither the accused nor the
\ncomplainant or informant are entitled to choose their own investigating agency
\nto investigate a crime in which they may be interested”.\n<\/p>\n
\t17. The investigation in this case is no doubt pending for a longer period
\nfrom the year 2006.  Admittedly, the report of the Revenue Divisional Officer
\nwas filed into the Court recently and that too after repeated orders passed by
\nthis Court.  The report of the Revenue Divisional Officer is a legal requisite
\nas per Police Standing Order 151 and it is finding fault with certain accused
\npolice personnel in respect of certain offences.  In accordance of the
\nprovisions of Police Standing Order 151, the Government has also passed order in
\nG.O.Ms.No.1322\/Public (L&O-E) dated 27.11.2008 directing the District Collector
\nto launch criminal prosecution before the competent Court.  The long pendency of
\nthe investigation at the hands of the third respondent was not justified in the
\nsaid G.O.  However the third respondent was directed to continue the
\ninvestigation, in a separate letter of Government.  After receiving the report
\nfrom the Revenue Divisional Officer of Padmanabhapuram, the third respondent is
\nproceeding with the investigation by examining the petitioner\/aggrieved person
\nalso along with the other witnesses.  No doubt, the report of the Revenue
\nDivisional Officer points lesser offences towards the police personnel and does
\nnot include Section 302 and 201 I.P.C. as registered in Crime No.391 of 2006.
\nThe mere omission of sections in the report of the Revenue Divisional officer
\nwill not make the Investigating Officer not to pursue or to collect evidence in
\nrespect of those offences.  It is for the Investigating Agency to consider the
\nreport of the Revenue Divisional Officer as one of the pieces of evidence, since
\nthe case has been registered even prior to the reference of the complaint to the
\nRevenue Divisional Officer under Police Standing Order 151.\n<\/p>\n
\t18. In the Judgment of the Hon’ble Apex Court in Sakiri Vasu v. State of
\nU.P. & Ors.<\/a> reported in 2008 AIR SCW 309, the Hon’ble Apex Court had laid down
\nthe dictum as follows:\n<\/p>\n
\t“31. No doubt the Magistrate cannot order investigation by the CBI vide
\nCBI vs. State of Rajasthan and another (supra), but this Court or the High Court
\nhas power under Article 136 or Article 226 to order investigation by the CBI.
\nThat, however should be done only in some rare and exceptional case, otherwise,
\nthe CBI would be flooded with a large number of cases and would find it
\nimpossible to properly investigate all of them”.\n<\/p>\n
\t19. The same position of law was laid down by yet another earlier Judgment
\nof the Hon’ble Apex Court in State of Bihar and another v. A.C.Saldanna and
\nanother reported in AIR 1980 SC 326.  In the said Judgment, another Judgment of
\nthe Hon’ble Apex Court in S.N.Sharma v. Bipen Kumar Tiwari<\/a> reported in (1970)3
\nSCR 946 noted as follows:\n<\/p>\n
\t“… the Court should be quite loathe to interfere at the stage of
\ninvestigation, a field of activity reserved for police and the executive.  It
\nwould be advantageous to extract what this Court observed in S.N.Sharma’s case:
\n\t“It appears to us that, though the Code of Criminal Procedure gives to the
\npolice unfettered power to investigate all cases where they suspect that a
\ncognizable offence has been committed, in appropriate cases an aggrieved person
\ncan always seek a remedy by invoking the power of the High Court under Article
\n226 of the Constitution under which, if the High Court could be convinced that
\nthe power of investigation has been exercised by a police officer mala fide, the
\nHigh Court can always issue a writ of mandamus restraining the police officer
\nfrom misusing his legal powers”.\n<\/p>\n
\t20. On a careful consideration of the submissions made by both the parties
\nand the dicta laid down by the Hon’ble Apex Court in the aforesaid Judgments,
\nthe investigation and detection of crime, which is a domain of executives and
\nthe Investigating Agency need not be interfered by the judiciary without any
\nfinding of mala fide on the part of such agencies.  Moreover, it is also laid
\ndown that the transfer of investigation can be done by the High Court only under
\nArticle 226 of the Constitution of India in rare and exceptional cases.  The
\nGovernment had passed orders in G.O.Ms.No.1322\/Public (L&O-E) dated 27.11.2008
\ndirecting the District Collector to pursue criminal complaint on the basis of
\nthe report of the Revenue Divisional officer and the Revenue Divisional Officer
\nhad also filed a complaint before the learned Chief Judicial Magistrate,
\nNagercoil in obedience to the said G.O. and the complaint is also pending.
\nTherefore, two parallel proceedings are pending for the same cause of action.
\nThe petitioners have not stated anything regarding the steps taken by them for
\nclubbing both the proceedings.  However, if clubbing of two cases has to be
\ndone, it should have been done only after filing of final report in this case
\nand after taking cognizance of the final report by the competent Court.  In the
\nmeanwhile, the submission of the third respondent would go to show that the
\nreport of the Revenue Divisional Officer was considered as one of the pieces of
\nevidence and subsequent investigation is being carried on.  In these
\ncircumstances, I do not find any mala fide on the part of the third respondent
\nin doing the investigation.  Moreover the investigation of the case by the third
\nrespondent was delayed only by the adherence to the procedures laid down in
\nPolice Standing Order as per the direction of this Court, which is also
\nessential to the investigation of the case.  The reasons submitted by the
\npetitioners in their petitions are not sufficient to classify their case as one
\nof the rarest rare cases, in which the discretion of the Court with the help of
\nthe power conferred under Section 482 Cr.P.C. can be exercised in their favour.
\nIt is the clear wording of the Hon’ble Apex Court that the transfer of
\ninvestigation in the mid-stream and to entrust the investigation to some other
\nagency of its own choice is not applicable.  Coupled with the various dicta of
\nthe Hon’ble Apex Court, when we apply the facts of this case, we could find that
\nthere is no mala fide shown on the part of the third respondent to classify the
\ncase as one of the rarest rare case.  Therefore, I do not find any reason for
\nordering transfer of the investigation from the file of the third respondent to
\nthe fourth respondent viz., C.B.I.  Hence, the request for transfer of
\ninvestigation from the file of the third respondent  viz., C.B.C.I.D. to the
\nfourth respondent viz., C.B.I. is not possible in Crl.O.P(MD)No.12376 of 2007.
\nHowever, it has become necessary for this Court to pass a direction to the third
\nrespondent to expedite the investigation and to file a final report as early as
\npossible, since the case is of the year 2006.  With the aforesaid observations,
\nthe petition is dismissed.  Consequently, Crl.O.P(MD)Nos.11684 and 12376 of 2007
\nare also dismissed.\n<\/p>\n
smn<\/p>\n
To\n<\/p>\n
1.The Home Secretary,
\n  Government of Tamil Nadu,
\n  Fort St. George,
\n  Chennai – 9.\n<\/p>\n
2.The Superintendent of Police,
\n  Tirunelveli District.\n<\/p>\n
3.The Inspector of Police,
\n  CBCID,
\n  Tirunelveli.\n<\/p>\n
4.The Superintendent of Police,
\n  Central Bureau of Investigation,
\n  Shastri Bhawan,
\n  Nungampakkam,
\n  Chennai.\n<\/p>\n
5.The District Collector,
\n  Kanyakumari District.\n<\/p>\n
6.The Revenue Divisional Officer,
\n  Padmanabhapuram,
\n  Kanyakumari District.\n<\/p>\n
7.The Deputy Superintendent of Police,
\n  CBCID, Tirunelveli.\n<\/p>\n
8.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Hasan Ammal vs State Of Tamilnadu Rep. By on 3 June, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-42399","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nHasan Ammal vs State Of Tamilnadu Rep. 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