IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.6613 OF 2011 M.P.NOS.1 TO 4 OF 2011 Jeera Behgam .. Petitioner Versus 1.The Home Secretary The Government of Tamil Nadu Fort St. George, Chennai – 600 009. 2.The Director General of Police Mylapore, Chennai – 600 004. 3.The District Collector Chennai District Singaravelar Maligai, Chennai – 600 001. 4.The Commissioner of Police Egmore, Chennai – 600 008. 5.The Deputy Commissioner of Police R1, Mambalam Police Station, T.Nagar, Chennai – 600 017. 6.The Assistant Commissioner of Police R3, Ashok Nagar Police Station, Ashok Nagar, Chennai – 600 083. 7.The Deputy Commissioner of Police Adyar, Chennai – 600 020. https://hcservices.ecourts.gov.in/hcservices/ 8.The Assistant Commissioner of Police J1, Saidapet Police Station, Saidapet, Chennai – 600 015. 9.The Inspector of Police (Crime) J1, Saidapet Police Station, Chennai – 600 015. 10.Mr.Seetharaman Inspector of Police R10, M.G.R.Nagar Police Station, Chennai – 600 083. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to direct the respondent No.4 to take appropriate steps to register a case on the basis of the petitioner's complaint dated 28.01.2011 and transfer the same to the CBCID or some other independent investigating agencies. (Prayer amended as per order dated 30.09.2011 in M.P.No.5 of 2011 in W.P.No.6613 of 2011) For Petitioner : Mr.S.Rajanikanth For Respondents 1-9: Mr.V.Subbiah Special Government Pleader For Respondent 10 : Mr.V.Selvaraj Senior Counsel for Mr.E.Ponnappapillai O R D E R The petitioner has three sisters namely Shaheela, Jarina and Jesima and three brothers namely S.A.Jamaludin, S.A.Samsudeen and S.A.Kamarudeen. She resides at No.4, Murahari Street, Sarathi Nagar, Saidapet West, Chennai. One of her sisters namely Shaheela resides at No.29/1, First Floor, F-2 Block, Mangai Street, Jafferkhanpet, Chennai–600 083 and her husband name is S.Jainulabudin. The petitioner and her sister Shaheela reside in the same locality and the distance between the residence of the petitioner and her sister Shaheela is about 2 kms. The petitioner has two daughters namely Sarah and Safura and one son by name Ibrahim. One of her daughters namely Sarah is employed in a private company at Bengaluru. Her another daughter Safura was residing in the house of the petitioner along with her husband. According to the petitioner, she gave some jewels belonging to her and her daughters to her sister Shaheela to be kept safely in her house. 2.The aforesaid facts are not disputed by the learned counsel on either side. It is also not in dispute that the jewels of https://hcservices.ecourts.gov.in/hcservices/ Shaheela were stolen from her house, while the jewels given by the petitioner to Shaheela were not stolen. Her husband gave a complaint to R-10, M.G.R. Nagar Police Station on 24.07.2010 about the theft of the jewels weighing about 45 ½ sovereigns. As per the complaint, the jewels were kept in the bureau on 04.06.2010 and when the bureau was opened on 23.07.2010 to take the jewels, it was found that the jewels were missing. The jewels could have been stolen in between 04.06.2010 and 23.07.2010. Based on the said complaint, FIR was registered in Crime No.742/2010 under Section 380 IPC on the file of R-10, M.G.R.Nagar Police Station, Chennai, by the Sub-Inspector of Police by name Mr.Rajendran. Investigation was carried on by the tenth respondent namely Mr.V.Seetharaman, Inspector of Police (Crime) R-10, M.G.R. Nagar Police Station, Chennai. All the relatives of Shaheela and Jainulabudin were examined by the tenth respondent during the investigation. The petitioner and her family members were also examined by the tenth respondent on 23.09.2010. 3.It is also admitted that while the jewels of Shaheela were stolen, the jewels of the petitioner that were kept in the house of Shaheela were not stolen. After the incident of theft, Shaheela returned the jewels of the petitioner to the petitioner. According to the petitioner, she gave 55 sovereigns of jewels to her sister Shaheela and the same was returned after the incident of theft. But however, according to the tenth respondent, the jewels of the petitioner weighing 25 sovereigns were kept with Shaheela and the same was returned immediately after the incident of theft. 4.According to the petitioner, as she wanted to go to Bengaluru to celebrate Ramzan, she wanted to keep her jewels safely and as per the advise of her daughter Sarah, the jewels were given to Ameer Abbas, who is employed in the Chennai Branch of the same company, in which Sarah is employed. Ameer Abbas kept those jewels in the locker of his brother-in-law by name Abdul Aziz, in the State Bank of India, Vadapalani Branch, Chennai. 5.According to the petitioner, on 13.01.2011, the tenth respondent along with the Sub-Inspector of Police Mr.Rajendran and two other policemen came to the residence of the petitioner and asked the whereabouts of the jewels that were returned by Shaheela. The petitioner informed the tenth respondent that the jewels are kept in the Bank locker through Ameer Abbas. According to the petitioner, the tenth respondent wanted the bills for the purchase of those jewels and the tenth respondent took away the bills for the purchase of about 80 sovereigns of jewels. The tenth respondent was at the house of the petitioner on 13.01.2011 between 10.00 a.m. and 01.30 pm. According to the petitioner, the tenth respondent obtained the phone number of Ameer Abbas, whose marriage was to take place on 16.01.2011, at Devakottai from her and contacted him. The tenth respondent informed Ameer Abbas that he entertained suspicion on the jewels that are kept in the locker and those jewels shall be handed over to him. Ameer Abbas replied the tenth respondent that his https://hcservices.ecourts.gov.in/hcservices/ brother-in-law Abdul Aziz would contact him and would do the needful. Accordingly, Ameer Abbas gave the cell phone number of the tenth respondent to Abdul Aziz and in turn, Abdul Aziz contacted the tenth respondent. At that time, Abdul Aziz was proceeding towards Devakottai. But the tenth respondent insisted him that he should come to the State Bank of India, Vadapalani Branch, Chennai to get the jewels. Accordingly, Abdul Aziz went to the State Bank of India and the jewels were taken out from the locker. The tenth respondent and the Sub-Inspector of Police viz., Rajendran were present at the Bank. Abdul Aziz was taken to the Police Station after he took the jewels from the locker. The jewels were taken by the tenth respondent from Abdul Aziz and those jewels are not yet returned to the petitioner. In these circumstances, the petitioner's daughter Safura was taken by the tenth respondent to R-6, All Women Police Station, Ashok Nagar, Chennai and she was kept upto 01.45 a.m. and thereafter, on the assurance that she would be produced before R-10, M.G.R.Nagar Police Station on the morning at 09.30 a.m., on 14.01.2011, she was let off. According to the petitioner, her daughter Safura went to the police station as agreed and she was arrested and produced before the XXIII Metropolitan Magistrate and was remanded in the theft case registered in Crime No.742/2010 on the file of R-10, M.G.R.Nagar Police Station, Chennai. Thereafter, Safura came out on bail on 20.01.2011. 6.In the meantime, the petitioner sent a representation dated 15.01.2011 to various authorities complaining that her daughter Safura was falsely implicated in the theft case and also that the tenth respondent took away her jewels weighing about 60 sovereigns from the locker at the State Bank of India, Vadapalani Branch, Chennai. The petitioner also made representations dated 28.01.2011 and 18.02.2011 to various authorities including the respondents herein, complaining the aforesaid incident. Her daughter Safura made a representation dated 25.01.2011 to the respondents 2 and 4 complaining against the tenth respondent narrating the aforesaid facts. Safura also sent a representation dated 25.01.2011 to the Honourable Chief Minister's cell. Abdul Aziz made a representation dated 01.02.2011 to the respondents herein. All the representations were sent through Registered Post with Acknowledgement Due and the acknowledgements are enclosed in the typed set of papers and some of the acknowledgements are produced at the time of hearing. Since there was no action from the respondents about the complaint made to them that the jewels of the petitioner were taken away by the tenth respondent from the Bank locker of State Bank of India, Vadapalani Branch, Chennai, the petitioner was constrained to file the present writ petition seeking to register a case against the tenth respondent and others, on the basis of her complaint dated 28.01.2011 and to transfer the investigation to CBCID or some other independent agencies. 7.The tenth respondent filed counter affidavit. In the counter affidavit, it is stated that the counter affidavit is filed https://hcservices.ecourts.gov.in/hcservices/ on behalf of all the respondents. The tenth respondent also filed an additional counter affidavit denying the allegations made by the petitioner. In the counter affidavit, it is stated that Safura committed the theft of jewels from the house of Shaheela, the sister of the petitioner and she was fixed on the offence after thorough investigation by him. It is stated that the past conduct of Safura is bad and from the investigation, he came to know that she involved in the theft of cell phone recharge cards from the shop of her uncle Mr.Samsudeen. According to the tenth respondent, during investigation, he came to know that Safura also committed theft of some jewels from the house of Samsudeen and Jamaludin and they did not think of making a complaint as that would spoil family relations. It is also stated that during the investigation Ameer Abbas and Abdul Aziz were examined and both of them categorically stated that they did not know Safura and no jewels were received by them from the petitioner or from her daughter on any occasion. However, it is stated that the examination of those two persons were not recorded in writing as per section 161 Cr.P.C. since their statements were of no use to advance the cause of the prosecution. It is also stated that there is a wide disparity relating to the weighment of jewels as given by the petitioner at various petitions and during the investigation. It is stated that since the tenth respondent came to the conclusion that Safura committed the theft, she was arrested at the bus stop of Kasi Theatre at Jafferkhanpet and she made a confession that she committed theft and she converted the jewels as ingot and kept in her house. Based on her confession, she was taken to her house and ingot was recovered in the presence of mahazar witnesses. She was later produced before the XXIII Metropolitan Magistrate and was remanded to judicial custody. 8.The case of the tenth respondent is that he never visited the house of the petitioner on 13.01.2011 and took any jewel bills. It is denied by the tenth respondent that he went to the State Bank of India, Vadapalani Branch, Chennai. He also denied that he asked Ameer Abbas and Abdul Aziz to hand over the jewels to him as those jewels are suspected jewels. He also denied that he did not take Abdul Aziz in the Police Jeep to R-10, M.G.R.Nagar Police Station, Chennai, wherein Abdul Aziz handed over the jewels taken from the locker, to the tenth respondent. 9.Since there was no response from the respondents 1 to 9 on the complaint dated 28.01.2011 of the petitioner, this Court on 09.08.2011 directed the learned Special Government Pleader to find out the response from the respondents 1 to 9 on the said complaint. 10.While so, the learned Special Government Pleader produced a report of the Deputy Commissioner of Police, T.Nagar Range, Chennai, signed on 29.05.2011 and the same was addressed to the Joint Commissioner of Police, South Zone, Chennai. It is stated that the said report was pursuant to the complaint dated 25.01.2011 https://hcservices.ecourts.gov.in/hcservices/ of Safura made to the Honourable Chief Minister's cell. 11.This Court was not satisfied with the aforesaid report. The report does not contain the statement of any witnesses. It is not known as to how the Deputy Commissioner has made that report. Admittedly, the Deputy Commissioner, did not go to the State Bank of India, Vadapalani Branch to find out the allegations made by the petitioner. The report also does not enclose a statement from Ameer Abbas and Abdul Aziz. The Branch Manager of the State Bank of India was also not enquired. The Bank records were also not perused to find out as to whether the locker of Abdul Aziz was operated on that day and jewels were taken. 12.This Court, on 17.11.2011 passed an order directing the fourth respondent to look into the matter and file appropriate action taken report within a period of two weeks. Accordingly, the fourth respondent submitted the action taken report dated 15.12.2011. The fourth respondent also produced the report of the Additional Deputy Commissioner of Police, Central Crime Branch, Chennai, who made a detailed enquiry and recorded statement of some witnesses. The Additional Deputy Commissioner of Police came to the conclusion that the tenth respondent did not go to the house of the petitioner on 13.01.2011 and did not take away the jewels bills. The Additional Deputy Commissioner also came to the conclusion that the allegation that the tenth respondent visited the State Bank of India, Vadapalani Branch on 13.01.2011 and forced Mr.Abdul Aziz to open his locker and took 60 sovereigns of the petitioner's jewels is also baseless and not substantiated. The action taken report is based on the said report. 13.Heard both sides. 14.The learned counsel for the petitioner submits that though the petitioner's daughter was falsely implicated in the criminal case of theft, she would face the same in the Court of Law. According to the learned counsel for the petitioner, the petitioner has made a serious complaint against the tenth respondent that he had taken away 60 sovereigns of jewels from the locker of State Bank of India, Vadapalani Branch on 13.01.2011 and the same was not investigated by the respondents properly and therefore, FIR should be registered against the tenth respondent and investigation shall be handed over to an impartial agency, such as CBCID or some independent agency such as CBI. 15.The learned counsel for the petitioner has produced supportive affidavits of Ameer Abbas and Abdul Aziz dated 12.11.2011. The learned counsel for the petitioner has also brought to my notice the earliest representation made by Abdul Aziz on 01.02.2011 to all the respondents and also produced the acknowledgement for having sent the representations. It is also submitted that the petitioner made a complaint dated 15.01.2011 at the earliest point of time stating that https://hcservices.ecourts.gov.in/hcservices/ the tenth respondent had taken away her jewels from the locker of State Bank of India, Vadapalani Branch. But the same was not investigated properly, since he happens to be a police official. It is his submission that whenever a police official or an official from the Jail Department are involved in the commission of serious offences, the Honourable Supreme Court has held in more than one decision that the matter shall be entrusted for investigation by CBI, an independent agency. The learned counsel for the petitioner submits that the petitioner would be satisfied, if the matter is entrusted to CBCID for investigation and to proceed against the tenth respondent, based on the serious complaint of forcibly taking away the jewels of the petitioner, by registering FIR against the tenth respondent. 16.On the other hand, the learned Special Government Pleader submits that the fourth respondent has deputed the Additional Deputy Commissioner of Police specially to enquire into the matter and to give a report based on the order of this Court dated 17.11.2011. Accordingly, the Additional Deputy Commissioner of Police, made a detailed enquiry and recorded statements from Abdul Aziz and Ameer Abbas and also the Branch Manager of the State Bank of India. Based on the enquiry, he gave a report that the allegation made by the petitioner are baseless and not substantiated and therefore, the matter shall be closed and the petitioner could approach the appropriate Court making a private complaint against the tenth respondent, if she is still not satisfied with his report. 17.The learned Special Government Pleader submits that though the tenth respondent filed counter affidavit as if he was filing for all the respondents, he has no authority to file counter affidavit for other respondents. 18.The learned counsel for the tenth respondent submits that the petitioner has cleverly acted by putting up a defence for her daughter in the theft case that the tenth respondent had taken away the jewel bills from the house of the petitioner. The learned counsel has maintained the stand that the tenth respondent never visited the house of the petitioner on 13.01.2011 and did not visit the State Bank of India, Vadapalani Branch and he did not insist Abdul Aziz to hand over him the jewels that are kept in the State Bank of India locker. It is submitted that the petitioner could very well file private complaint against the tenth respondent before the competent Magistrate Court wherein her daughter is also facing a criminal case of theft. 19.I have considered the submissions made on either side and perused the materials available on record. 20.The aforesaid narration of events make it clear that serious allegation is levelled against the tenth respondent by the https://hcservices.ecourts.gov.in/hcservices/ petitioner that the tenth respondent had taken away her jewels on 13.01.2011 that were kept in the State Bank of India locker. 21.As stated above, the learned counsel for the petitioner submits that the daughter of the petitioner would face the criminal prosecution against her. But the tenth respondent should also be answerable for the allegation made against him particularly when the complaints are serious in nature. 22.Other than the tenth respondent, no other respondents filed counter affidavit. This Court, on various occasions, directed the fourth respondent to make enquiries and to give a report. With lot of hesitations, the fourth respondent gave a report dated 15.12.2011 along with the enquiry report of the Additional Deputy Commissioner of Police, Central Crime Branch. The Additional Deputy Commissioner of Police, Central Crime Branch examined 17 witnesses. The police officials support the version of the tenth respondent. On the other hand, the petitioner, her daughter Safura, Abdul Aziz, Ameer Abbas supported the contents of the complaint that the tenth respondent had taken away the jewels that were kept in the locker of State Bank of India on 13.01.2011. 23.I do not want to give much importance to the statement of the petitioner as well as the statement of Safura who is an accused. However, the statement of Abdul Aziz and Ameer Abbas cannot be simply brushed aside. But the Additional Deputy Commissioner of Police did not consider the statements of Abdul Aziz and Ameer Abbas in his report, while he recorded statements from them. As stated above, Abdul Aziz already made a complaint dated 01.02.2011 to the respondents through Registered Post with Acknowledgement Due, wherein also he had made allegations that he handed over the jewels to the tenth respondent on 13.01.2011 after taking the jewels from the locker in the State Bank of India and that the tenth respondent forced him to take the jewels from the locker and that the tenth respondent was present at State Bank of India, Vadapalani Branch. It is also relevant to take note of the fact that the tenth respondent filed counter affidavit stating that he examined Abdul Aziz and Ameer Abbas and according to him, they deposed during the investigation that they did not know Safura and no jewels were received by them from the petitioner or her daughter on any occasion. But it is significant to note that the tenth respondent did not deduce it to writing as per Section 161 Cr.P.C. In this regard, the relevant passage from para 9 of the counter affidavit is extracted hereunder: "9.I submit that since the version of the Amir and Abdul Azeez had not given any useful evidence for the case of Safura, hence no written statement was recorded by me as per section 161 Cr.P.C........" https://hcservices.ecourts.gov.in/hcservices/ 24.Ameer Abbas and Abdul Aziz have filed supportive affidavits dated 12.11.2011 categorically stating that the tenth respondent spoke to Ameer Abbas on 13.01.2011 stating that the jewels were suspected jewels and that the same shall be handed over to him and Ameer Abbas, in turn, contacted Abdul Aziz and gave the cell phone number of the tenth respondent and Abdul Aziz contacted the tenth respondent through cell phone and the tenth respondent directed him to get the jewels from the locker of State Bank of India, Vadapalani Branch and to hand it over to him. They categorically gave the cell phone number of the tenth respondent. 25.In the modern days, the details of conversation made in cell phone is very important for the purpose of investigation and to unravel the truth. But the Additional Deputy Commissioner of Police has not chosen to get the details of the conversation that took place between the tenth respondent and Ameer Abbas and Abdul Aziz on 13.01.2011 and that would go a long way to find out the truth. Furthermore, even according to the prosecution, 27 sovereigns of jewels were kept by the petitioner at the house of Shaheela and the same were returned by Shaheela after the incident of theft that took place between 04.06.2010 and 26.07.2010. Furthermore, the present Branch Manager, State Bank of India, Vadapalani Branch was examined on 29.11.2011. The Branch Manager, State Bank of India, Vadapalani Branch has stated from the records that Abdul Aziz has opened the locker on 13.01.2011. As per the Bank records that is produced by the Additional Deputy Commissioner of Police, the Bank locker was opened at 03.55 p.m., on 13.01.2011. Therefore, it was after the business hours for the customers. Thus, unless the police intervened and sought special permission from the then Branch Manager, the Bank would not normally allow a person to operate the locker after the office hours is over, as far as the customer is concerned. Furthermore, the then Branch Manager was not examined. Abdul Aziz had stated that at that time, when he handed over the jewels after taking it away from the locker, at R-10, M.G.R.Nagar Police Station, his brother-in-law Abdul Hakkim was present. Abdul Aziz also stated that other family members of the petitioner were present and all of them gave statements during the investigation that the jewels were handed over by Abdul Aziz to the tenth respondent. But however, in my view, a statement should be recorded from Abdul Hakkim. It was not done. 26.As rightly contended by the learned counsel for the petitioner, the Honourable Supreme Court in its judgment in SUNIL BATRA VS. DELHI ADMINISTRATION [AIR 1980 SC 1579] has held that whenever serious complaint is made against the police official or an employee from the jail department, the investigation shall be entrusted to CBI, as the regular police do not carry out the investigation properly. In this regard, the relevant passage in para 11 of the said judgment is extracted hereunder: "11........ Indeed, the potential for oblique mutual help between the police and the prison staff https://hcservices.ecourts.gov.in/hcservices/ makes jail offences by jail officials undetectable; and so, to obviate this possibility, the C.B.I may well be entrusted, as a regular practice, with such cases.........." 27.The Honourable Supreme Court in its judgments in (a) KASHMERI DEVI VS. DELHI ADMINISTRATION AND ANOTHER [1988 (SUPP) SCC 482] (b) PUNJAB AND HARYANA HIGH COURT BAR ASSOCIATION, CHANDIGARH VS. STATE OF PUNJAB AND OTHERS [1994 (1) SCC 616] and (c) RUBABBUDDIN SHEIKH VS. STATE OF GUJARAT AND OTHERS [2010 (2) SCC 200] has held that transfer of investigation to CBI could be ordered to instil confidence in the minds of general public, if there was no honest and impartial investigation and if serious accelerations are made against police officials. The relevant paras from those judgments are extracted hereunder: (a) KASHMERI DEVI VS. DELHI ADMINISTRATION AND ANOTHER [1988 (SUPP) SCC 482] "2.This is an