IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.09.2008 CORAM: THE HONOURABLE MR. JUSTICE K. MOHANRAM Crl.R.C.1116 of 2008 1. Gowri Mahesh 2. Rukmani ... Petitioners (Accused) Versus State rep. by Inspector of Police, Karuthambatti Police Station, Coimbatore District. ... Respondent (Cr.No.419/05) (Complainant) This Criminal Revision Case is filed under Sections 397 and 401 of Criminal Procedure Code to call for the records in C.M.P.No.1184/2008 dated 22.05.2008 in C.C.No.308/2006 on the file of the Judicial Magistrate, Avinashi and set aside the same. For Petitioners : Mr.K.R.Hariharan For Respondent : Mr.A.Saravanan, Government Advocate (Crl. Side) O R D E R The petitioners, who are accused in C.C.No.308/2006 on the file of the Judicial Magistrate, Avinashi and facing trial for the offence under Section 4(1)(aaa) TNP Act and 4(1) (A) of TNP Act, filed CMP.No.1184/2008 under Section 239 of the Cr.P.C. to discharge. The Judicial Magistrate dismissed the discharge petition and being aggrieved by that, the petitioners are before this Court. 2. The learned counsel for the petitioners submitted that the learned Judicial Magistrate has failed to see that the same police officer, who is an informant in this case, has investigated the case and another police officer has filed the charge sheet and which according to the learned counsel, is against the legal principles laid down in 1997 SCC (Criminal) 267 (Megha Singh Vs. State of Haryana) and 1985 L.W. (Crl.) 336 and 1997 (2) L.W. (Crl.) 751 (Madras). 3. Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel for the petitioners submitted that the allegation is that when the respondent searched a van bearing Registration No. TN X 4667 80 canes each containing 35 litres of arrack were found in the van and on that basis, a case in Crime No.419/2005 was registered on 27.8.2005 for the offences under TNP Act. The very same officer has investigated the case and he was transferred and some other Inspector has filed a charge sheet. The learned counsel also relied on another decision of this Court reported in 2005-1-L.W. (Crl.) 447, Kalaiselvam v. The State rep. by the Inspector of Police, Erumaipatti Police Station, Namakkal District. In the said decision, the learned Judge has observed as under : "In the above cited case, though it was argued that it was only a formal First Information Report to initiate the investigation, still, the Apex Court held that he being the complainant, should not have proceeded with the investigation of the case. Further, on going through the records, the Apex Court found that he was not only the complainant in the case, but he carried on with the investigation and examined witnesses under Section 161 Cr.P.C. Therefore, Their Lordships in the given case have held that such practice to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Similar view has already been taken by this Hon'ble Court in Singaravelu Vs. State (1985 LW (Crl) 336), Thalavoi Vs. State represented by Inspector of Police, Chernmahadevi Police Station, Cheranmahadevi (1995 (1) MWN (Cr.) and in the subsequent judgment reported in S.Chandran Vs. State, rep. by Inspector of Police, Sivakasi Town Police Station Crime No.463 of 1995, Virudhunagar District (2001-1-L.W.(Crl.)230). 7. On going through the records in this case, I find Thiru Vijayaragavan appears to be the first informant, as well as the person, who registered the First Information Report and examined all the witnesses under Section 161 Cr.P.C. Further, it could very well seen that he is a person, who has filed the charge sheet. In such circumstances and in view of the aforesaid decisions, I hold that the investigation is illegal and consequently, the entire prosecution has to be dropped. Accordingly, the order of the trial Court is set aside and the petitioner, who was arrayed as A-5 in the above said Calendar case shall stand discharged of the offences levelled against him." https://hcservices.ecourts.gov.in/hcservices/ The learned counsel submitted that the aforesaid legal principles laid down by this Court and the Apex Court have not been property appreciated by the learned Magistrate and therefore, the above Criminal Revision has to be allowed. 5. On the other hand, the learned Government Advocate (Criminal side) would contend that the aforesaid contention of the learned counsel for the petitioners is not sustainable in the light of the subsequent decision of the Supreme Court reported in 2004 SCC (Crl.) 1607. 6. I have carefully considered the submissions made on either side. 7. There is no dispute regarding the facts narrated above. The question to be decided is whether the decision reported in 1996 (11) SCC (Crl.) 267, Megha Singh v. State of Haryana can be applied to the facts of this case or the law laid down in 2004 SCC (Crl) 1607 has to be applied. 8. In 2004 Supreme Court Cases (Crl.) 1607, State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, T.N., Vs V. Jayapaul, the Apex Court has referred to the decision of the Apex Court reported in 1975 S.C.C. (Crl.) 737 = AIR 1976 SC 985 = 1976 (1) SCC 15, Bhagwan Singh v. State of Rajasthan and 1996 (11) 267 Megha Singh Vs. State of Haryana and has explained the said decisions. In 2004 SCC (Crl) 1607 after setting out the facts of Megha Singh's case in paragraph 12 of the decision, it has been held as follows: "12. At first blush, the observations quoted above might convey the impression that the Court laid down a proposition that a police officer who in the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further investigation if the FIR was recorded on the basis of the information furnished by him. On closer analysis of the decision, we do not think that any such broad proposition was laid down in that case. While appreciating the evidence of the main witness i.e. the Head Constable (PW.3), this Court referred to this additional factor, namely, the Head Constable turning out to be the investigator. In fact, there was no apparent reason why the Head Constable proceeded to investigate the case by passing the Sub-Inspector, who recorded the FIR. The fact situation in the present case is entirely different. The appellant Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before https://hcservices.ecourts.gov.in/hcservices/ he did so, he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was that of an investigator—pure and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of any witness, as was done in Megha Singh case does not arise in the instant case as the trial is yet to take place. The High Court has quashed the proceedings even before the trial commenced." 9. In Bhagwan Singh case, the following observation has been made by the Apex Court Viz " Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances, Head Constable Ram Singh could undertake investigation... This is an infirmity which is bound to reflect on the credibility of the prosecution case." 10. After explaining the earlier decisions of the Apex Court, the said observation has been noted and explained in 2004 SCC (Crl) 1607 as under: "The crime itself was directed towards the Head Constable, which made him lodge the FIR. It is well-nigh impossible to expect an objective and undetached investigation from the Head Constable who is called upon to check his own version on which the prosecution case solely rests. It was under those circumstances the Court observed that the said infirmity "is bound to reflect on the credibility of the prosecution case". There can be no doubt that the facts of the present case are entirely different and the dicta laid down therein does not fit into the facts of this case." and taking into consideration the other decisions of the Apex Court, in paragraph 6, the Apex Court has observed as under : "Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer who "lodged" the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to https://hcservices.ecourts.gov.in/hcservices/ investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack." (Underlining supplied) Ultimately, the Apex Court has held that there is no illegality in the process of investigation set in motion by the Inspector of Police. 11. Thus, the settled position of law is that even if a competent police officer happens to be the first informant in a case and he registers the case and further undertakes the investigation of the case, it will not vitiate the investigation. Therefore, on that ground, the proceedings cannot be quashed. As observed by the Honourable Apex Court, if at all such investigation could only be assailed on the ground of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and that question can be gone into only at the time of trial and not at this stage. Therefore, the contention put forth by the learned counsel for the petitioners basing reliance on Mega Singh's Case cannot be countenanced. 12. in the light of the law laid down by the Apex Court in the decision reported in 2004 SCC (Crl) 1607 referred to supra, the order of the learned Judicial Magistrate, which is sought to be revised in the above revision, cannot be said to be either erroneous or illegal and hence, no interference is called for. https://hcservices.ecourts.gov.in/hcservices/ For the reasons stated above, the revision fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsi To 1. The Judicial Magistrate, Avinashi. 2. -Do-Thru The Chief Judicial Magistrate, Coimbatore. 3. The Inspector of Police, Karuthambatti Police Station, Coimbatore District. 4. The Public Prosecutor, High Court, Madras. Crl.R.C.1116 of 2008 BV(CO) SRA(30/10/2008) https://hcservices.ecourts.gov.in/hcservices/