IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY Crl.O.P.No.9639 of 2011 Prof.K.V.Rajendran ... Petitioner Vs 1.State rep.by The Superintendent of Police, CBCID, South Zone, Chennai. 2. The Deputy Superintendent of Police CBCID Office, 2, Khajamian Street, Mannarpuram, Trichy. 3.M.Karunakaran 4.The SP, Special Crime Branch, CBI, Rajaji Bhavan, Besant Nagar, Chennai 600 090. 5.State of Tamil Nadu rep.by its Chief Secretary, Fort St. George, Chennai 600 009. ... Respondents Criminal Original Petition filed under section 482 of Criminal Procedure Code to direct the respondent police to transfer the investigation in Cr.No. 1 of 2004 on the file the CBCID , Nagapattinam from the 1st and 2nd respondents to the fourth respondent, CBI, Chennai Office and pass such suitable orders. For Petitioner : Dr.V.Suresh For R1,R2, R4 & R5 : Mr.C.Emalias, GA (Crl.Side) For Respondent-3 : Mr.M.V.Venkateswaran O R D E R The petitioner has come forward with this petition seeking a direction from this Court to transfer the further investigation in Crime No.1 of 2004 pending on the file of CBCID, Nagapattinam, from the first and second respondent herein to the file of the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. According to the petitioner, he has been working as an Associate Professor in Physics in the Presidency College, Chennai after finishing his M.Sc., and M.Phil., in Madras University. The petitioner belongs to Tharangampadi Village in Nagapattinam District where his parents and brothers were living. It is the case of the petitioner that on the date of occurrence i.e., on 26.08.1998, when he went to his Village in the late evening and at about 11.00 p.m., around ten people headed by the then RDO forcibly took him into the Government jeep and then took him to the Taluk office and enquired him as to why he gave false complaint regarding smuggling of teakwood in that area. 3. Further, it is the case of the petitioner that the then RDO and other officials treated him with utmost cruelty and caused severe injuries all over the body. They have also obtained his signature in blank papers and the same has been duly filled as dictated by the then RDO and on the next day he was handed over to the local Inspector along with the statement said to have been written by the officials concerned. On 27.08.1998 at about 10.30 a.m., the petitioner was taken along with other accused to produce before the Magistrate concerned and except this petitioner all of them were produced and the petitioner was made to produce before some other Magistrate at 2.00 p.m., and remanded to judicial custody. The petitioner during the remand has explained the entire facts to the said Magistrate concerned and had requested for medical treatment and the same was refused. 4. When the petitioner was taken to Sub Jail, Poraiyar, he was informed about the injuries sustained and requested for medical treatment and thereafter, he was treated by the jail doctor on 28.08.1998 and the jail doctor also made entries on the register about the injury sustained by the petitioner. After his release on bail, the petitioner took treatment in the private hospital and a complaint had also been lodged against the said RDO and other officials. The petitioner also gave complaints to the Chief Minister Cell, the D.G.P, concerned and other officials explaining the brutal torture which he faced at the hands of the then RDO. 5. After severe attempts, the case was entrusted with the Deputy Superintendent of Police, SBCID, Nagapattinam and a confidential report had also been forwarded to the higher officials by the said DSP. Since, no case has been registered with regard to the complaint of the petitioner, he approached this court with the prayer to register the F.I.R based on his complaint and this Court after due consideration of the facts of the case, had allowed the petition. (K.V.Rajendran vs. Inspector of Police and Others reported in 2001(2)L.W. (Crl.) 545). While ordering the above said Crl.O.P.No.19352 of 1998, this Court had arrived at the conclusion that since the confidential report of the Deputy Superintendent of https://hcservices.ecourts.gov.in/hcservices/ Police, SBCID shows that the preliminary enquiry had been conducted in a proper manner there is no necessity to transfer the investigation to CBI. 6. Thereafter, nearly after 3 ½ years, the DSP, SBCID filed an another petition in the above said disposed of application stating that there is no post of DSP, SBCID on the date of order and the same has been abolished. In the meanwhile, the petitioner also filed another petition to transfer the case to CBI and both the petitions filed by the DSP as well as the petitioner were taken up together and this Court modified the earlier order and transferred the case to CBI. Against that order, the DSP, SBCID concerned has preferred SLP before the Honourable Supreme Court and the Honourable Supreme Court had held thus: "It is needless to mention that it would be open for the respondent to make independent application under Section 482 of the Code if they find that subsequent events having been taken place, the investigation must be transferred from State Police authorities to CBI. Accordingly, we are unable to sustain the impugned order of the High Court in view of our discussions made herein above. Therefore, the impugned order is set aside. The appeal is thus allowed. We make it clear once again that if a fresh criminal petition under Section 482 of Code is filed by the respondents for transferring the investigation from State Police authorities to CBI after bringing certain subsequent events that had taken place after the disposal of the original criminal petition if there be any, it would be open for the High Court to entertain such application if it is warranted and decide the same in accordance with law for which we express no opinion on merit." Hence, the petitioner has come forward with the present petition. 7. The learned counsel appearing for the petitioner contended that for the above said reasons the investigation has to be changed to CBI and further he contended that the Hon'ble Supreme Court permitted him to move before this Court. Hence, his prayer for transfer of investigation has to be considered. 8. Learned Government Advocate (Crl. side) appearing for the State would submit that the petitioner is having the habit of giving false messages and giving threat to the officials and for the improvement of the case the petitioner has been producing the https://hcservices.ecourts.gov.in/hcservices/ documents as well as the statements made by him from time to time by making improvements which will falsify his claim. From the perusal of the documents it is seen that the petitioner has created entry register which carries the time to show that in the morning hours on the date of occurrence, he was available at Chennai College library. Hence, he prayed that the petition has to be dismissed. 9. The learned counsel appearing for the third respondent adopted the arguments of the learned Government Advocate (Crl.side) and further he would contend that even the investigation has not been properly done it cannot be a valid ground for transfer of investigation. As already the Hon'ble Supreme Court has dismissed the similar petition, he prayed that this petition also has to be dismissed. 10. From the perusal of the documents it is seen that the complainant has produced xerox copy of the entry register maintained by the Library Authorities to show that at the morning hours on date of the occurrence he was in the library. A perusal of the extract of entry register it would indicate that the complainant himself made the timing under his signature and whereas the prosecution has produced the entry register wherein on the top the time has been fixed at 12.00 Noon. Whereas under the signature of the complainant in the library register, he himself has made a note as between 2.00 p.m. and 3.30 p.m. From the perusal of the documents itself it is seen under the signature of the complainant the timing has been noted. It is pertinent to note that at what time he has left the library also made in the entry register. This type of entry is made under the complainant's signature alone. It is peculiar thing that usually in the register one will make the entry at the time of entering in to the library not at the time of leaving from the library. I find there is no such entry is available in the Register. 11. From the perusal of the documents it is seen that at the time of remand at the request of the petitioner, the jail Doctor has examined the petitioner and he has noted a contusion on the back side of the head. Whereas, after release from the prison the complainant has produced some medical certificates, O.P. Chit in which indicates hairline crack on the left hand as well as some abrasion on the testicles. From these, I am of the view that the allegation against the complainant that he has attempted to produce some documents from time to time so to improve his case stage by stage has been proved. 12. The learned counsel appearing for the third respondent contended that even if the Court comes to the conclusion that 1st respondent has made improper investigation, this will not be a ground for transferring the case from one investigating agency to another investigating agency. In support of his contention, he relied on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ Sakiri Vasu vs. State of Uttar Pradesh and Others reported in 2008(2) SCC 409 wherein it has been held thus: "As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) Cr.PC before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C., and not by filing a writ petition or a petition under Section 482 Cr.P.C." 13. In T.C.Thangaraj vs. V.E.Ngammal and Others reported in 2011 AIR SCW 4513 it has been held thus: "The decision of the two-Judge Bench of this Court in Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. (Supra) will have to be now read in the light of the principles laid down by the Constitution bench of this Court in State of West Bengal & Ors. v. Committee for Protection of Democratic Rights, West Bengal & Ors. (supra). The Constitution Bench has considered at length the power of the High Court to direct investigation by the CBI into a cognizable offence alleged to have been committed within the territorial jurisdiction of a State and while taking the view that the High Court has wide powers under Article 226 of the Constitution cautioned that the Courts must bear in mind certain self-imposed limitations." 14. Now, the short point for my consideration is whether there is any necessity or essential to change the investigating agency has to be seen by me. 15. On the submissions made by the respective counsel it is seen the allegations against the petitioner is that he has given false information over phone in the name of a fictitious person before the third respondent by claiming himself as press reporter. https://hcservices.ecourts.gov.in/hcservices/ The information is regarding smuggling of teakwood. In that context the third respondent taken him at his residence for inquiry. On suspicion the third respondent has taken the petitioner for interrogation to his office. At the office of the third respondent, the petitioner was interrogated and statement was recorded. During the interrogation, it revealed that he was the petitioner who spoke over phone in the name of someone else thereby, giving utter falsehood information to take vengeance on his relative. Later, he was arrested and produced before the nearest jurisdictional police along with a copy of the report and on the next day at 2.00 p.m. he was produced before the nearest Executive Magistrate and he who in turn remanded the petitioner. When the petitioner was remanded he did not make any complaint against anybody either against RDO or against the third respondent. After remand, when the jail Doctor examined the petitioner, he has noticed the contusion on the back side of the head and he made entry in that book. 16. Next day, the petitioner was released on bail and on getting release from the prison, the petitioner proceeded to the private doctor and obtained a certificate regarding the hairline crack on his left hand and some abrasion on the testicles. Thereafter, the petitioner approached this Court by filing a petition seeking for registration of complaint and thereafter it was allowed with a direction to register a case and accordingly, a case has been registered. At that stage, after the order of the Hon'ble Supreme Court, the petitioner has come forward with this petition for change of the investigation. Even if any shabby investigation has been made, it will not be a ground for the petitioner to change over the investigating agency. Even in this case, nothing has been established like that. After the remand, the petitioner has not made out any case for change over the investigating agency. But before this Court it was demonstrated that the petitioner has developed his case stage by stage. 17. Now, we have to see as to whether any further improvement has been made by the petitioner so as to enable this Court to order change of investigating agency. As already pointed out, the complaint of the petitioner against the third respondent has been developed stage by stage along with the injuries. Any how, after the order of the Hon'ble Supreme Court nothing has been established before this Court so as to enable this Court to order change of investigating agency to the some other investigating agency. The learned Government Advocate (Crl.side) contended that the investigation is almost over. 18. From the records it is seen that at the first instance the complainant's case has been closed as mistake of law since it is filed under Section 193 of Cr.P.C. and not on the facts of the case. The objection of the first respondent is that the allegations made by the complainant against him are baseless and he is allegedly https://hcservices.ecourts.gov.in/hcservices/ attempting to drag on the police officials in to the occurrence which was not occurred. 19. As per the submissions made by the third respondent it is seen that even if there is improper investigation it will not be a ground for the petitioner to file a petition to change over the investigating agency. In this case the investigation has been properly made by the first respondent has been established. Further it is seen from the status report filed by the second respondent that 46 witnesses were examined and number of documents have been filed and the investigating agency has come to the conclusion that the allegations leveled by the petitioner against the alleged accused have not been substantiated since there were no evidence to support the version of the petitioner. Further the other aspects have been examined by this Court on the earlier occasions and by the Hon'ble Supreme Court and finally came to the conclusion that there is no need to change in the investigating agency. After the disposal made by the Hon'ble Supreme Court the petitioner has not established under what stand the change of investigating agency is required and whether which aspect has been noticed by this Court on either occasions has not been proved by the petitioner and nothing has been placed before this Court. 20. From the perusal of the documents it is seen that the investigating agency has made investigations and the investigation is almost over and the final report yet to be filed. 21. Therefore, I am of the view that at this stage, there is no need to transfer the investigation since investigation is completed. With the above observation, this Criminal Original Petition is dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar To gr. 1.The Superintendent of Police, CBCID, South Zone, Chennai. 2. The Deputy Superintendent of Police, CBCID Office, 2, Khajamian Street, Mannarpuram, Trichy. 3. The S.P., Special Crime Branch, CBI, Rajaji Bhavan, Besant Nagar, Chennai 600 090. https://hcservices.ecourts.gov.in/hcservices/ 4. The Chief Secretary, Fort St. George, Chennai 600 009. 5.The Public Prosescutor, High Court, Madras. 1 cc to Dr.V.Suresh, Advocate, Sr.No.75494 2 cc to Mr. M.V.Venkateswaran, Advocate, Sr.No.75026 Crl.O.P.No.9639 of 2011 gr(co) pmk.16.12.2011 https://hcservices.ecourts.gov.in/hcservices/