1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.342 of 2011 and M.P.(MD) No.1 of 2011 V.Raja Pandian ... Petitioner Vs. 1.State rep. by its Director General of Police, Madras. 2.The Inspector of Police, Vadakadu Police Station, Pudukkottai District Crime No.159 of 2010 ... Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the 1st respondent to withdraw the investigation from the 2nd respondent and to entrust the investigation in crime No.159 of 2010 to any other investigating agency. For Petitioner :Mr.G.R.Edmund For Respondent :Mrs.S.Devasena, Govt. Advocate O R D E R This petition has been filed by the petitioner seeking for a direction to withdraw the investigation from the 2nd respondent in crime No.159 of 2010 and to entrust the investigation with any other investigation agency. 2.Heard Mr.G.R.Edmund, learned counsel appearing for the petitioner and Mr.L.Murugan.Devasena, learned Government Advocate (criminal side) appearing for the respondent/State. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner is the son of the deceased viz., Venkatachalam, who was a highly influential person in his area. He would further submit that he was an elected M.L.A. in general elections held in the year 1984, 1996 and 2001 and he had got much popularity in his constituency and https://hcservices.ecourts.gov.in/hcservices/ 2 he was doing panchayat and solved several disputes of many people, who approached him with high confidence. He would further submit that on 07.10.2010, the father of the petitioner Venkatachalam was murdered with some ulterior motive by three unknown persons at about 7.30 p.m., while he and his sister viz., Dhanalakshmi, who were present at their hosue, the scene of occurrence. His sister had given the complaint and a case has been registered in crime No.159 of 2010 on the file of 2nd respondent. 4.He would further submit in his argument that the 2nd respondent police had done the investigation wantonly avoiding examination of important witnesses. Even the petitioner and the defacto complainant Dhanalakshmi, Selvaraj and two other witnesses, who have attested the observation mahazer were not examined till the date of filing of the petition. 5.He would further submit that however, the test identification parade was done on 19.10.2010, in which the petitioner and his sister Dhanalakshmi and Selvaraj had identified the accused Ganesan and in yet another test identification parade conducted on 01.11.2010, they identified the accused Muthukumar and Mani @ Manikandan, who are the other accused. He would also submit that there was a conspiracy to have assassinated the father of the petitioner in between A1to A3 and the driver of the Omni vehicle, who drove the vehicle on that day with the 5th accused and the investigation agency has not collected any evidence on that aspect and had not gathered such an evidence. Similarly, he would further submit that the accused prior to the operation of the commission of murder had stayed in a Sivasakthi Lodge at Pollachi and the lodge manager was also examined as one of the witnesses. However, the 2nd respondent police had not conducted any test identification parade along with the said manager and other witnesses, who was the accused persons in the said lodge at Pollachi. 6.He would further submit that such lacunae will certainly affect the prosecution case and the ultimate sufferer would be the family of the victim and in turn the society, where such a brutal murder had happened and the culprits are left out without any punishment, for the lacunae in the investigation. He would further submit in his argument that the judgment of Hon'ble Apex Court reported in AIR 2011 SC (Criminal) 393 in between Rabindra Kumar Pal alias Dara Singh V. Republic of India for the principle that the evidence of the eye witnesses as to the identification of the accused for the first time before the trial Court generally cannot be accepted. Therefore, the investigation officer ought to have done the test identification parade prior to the examination of the witnesses before the trial Court and therefore, the said lacunae, patent on the part of the investigation has to be cured. 7.He would further submit in his argument that apart from that the deceased person being a popular personality in the area, the public had assembled largely by doing a hunger strike https://hcservices.ecourts.gov.in/hcservices/ 3 for the said cause and even after the said performance, the 2nd respondent police has not done his duty perfectly and therefore, the said case has to be transferred to the file of some other investigating agency. He would alternatively submit that if for any reason, this Court has come to a conclusion that the case cannot be transferred from the file of the 2nd respondent police to some other investigating agency, it may be ordered to be re- investigated by some other officer under the control of the Superintendent of Police concerned and do the further investigation and to file the further charge sheet. 8.The learned Government Advocate (criminal side) would submit in his argument that the claim for the transfer of investigation from the file of the 3rd respondent to the file of any other independent investigation agency is not available for the petitioner since the investigation was conducted promptly by the 2nd respondent police and the charge sheet was filed on 05.01.2011 against all the accused persons before the jurisdictional magistrate Court for the offence under Sections 120(B) and 302 I.P.C and it was also taken on file in P.R.C.No.1 of 2011 on 06.01.2011 and the case has been posted on various dates for issuing non bailable warrant to the absconding 5th accused viz., Mani @ Manikandan. 9.He would further submit in his argument that effective steps have been taken to nab the accused person by forming a special party of police. He would further submit in his argument that the investigation was done promptly by the 2nd respondent police and he had examined all the witnesses including the petitioner and had recorded their statements on various dates and the said statements under Section 161(3) Cr.P.C. were promptly despatched to the Court in time. Therefore, there is no necessity for either transfer of investigating agency or the reinvestigation of the case. 10.I have given anxious consideration to the arguments advanced on either side. 11.I could see that the 2nd respondent police was investigating the case registered in crime No.159 of 2010 for which the petitioner, the son of the victim had filed the petition seeking for transfer of investigating agency from the file of the 2nd respondent to any other investigating agency, and it was filed on 06.01.2011 before this Court. However, I can see from the status report filed by the respondents and in the documents filed by the learned Government Advocate (criminal side), the charge sheet was filed after the completion of the investigation on 05.01.2011 before the jurisdictional magistrate Court and the case was taken on file in P.R.C.No.1 of 2011 on 06.01.2011 itself. Therefore, on the date of filing of the present petition filed by the petitioner, there is no F.I.R. pending for investigation. However, this Court is entitled to proceed with the alternative chance for either ordering for re- investigation or for transfer of investigating agency in the event that the investigation done by the 2nd respondent is tainted with malafide or lacuna or necessitated to meet the ends https://hcservices.ecourts.gov.in/hcservices/ 4 of justice. Therefore, we have to see whether the investigation done by the 2nd respondent sans any malafide or lacunae. 12.I have perused the C.D. file also. No doubt, the accused persons are not belonging to a same place. They are hailing from various other places. The charge sheet has been filed against them for the offence under Sections 120(B) also. For the establishment of the said offences committed by the accused persons, it has become necessary for the investigating agency to collect evidence on that aspect. On going through the C.D. file, I could see a little evidence towards conspiracy had in between the accused. Similarly, the persons, who are said to be the Manager of the Sivasakthi lodge at Pollachi as well as the other persons, who spoke about the conspiracy at Pollachi have not been directed to participate in test identification parade in respect of the accused 3, 4 and 5. Similarly, the Manager of C.V. Lodge at Poovanam was also not directed to participate in the test identification parade to identify the 2nd accused as well as other accused, who stayed at the C.V. Lodge at Poovanam to identify the accused persons. Therefore, I could find some serious lacunae in the investigation done by the 2nd respondent despite investigation in other aspects are otherwise good. However, I cannot come to the conclusion that the investigation was done with malafide intention, but, I find some lacunae in completion of evidence so as to ensure the filing of a prompt charge sheet. Therefore, I could see that some more investigation has to be done for the perfect completion of the investigation. 13.According to the judgment of the Hon'ble Apex Court reported in 2009(7) SCC 685 in between Kishan Lal Vs. Dharmendra Bafna and another, whenever the inaction or lacunae on the part of the investigating officer, this Court is empowered to invoke the provisions of section 482 Cr.P.C. The relevant passage is as follows: "Para 12. The power of investigation is a statutory one and ordinarily and save and except some exceptional situations, no interference therewith by any court is permissible. In Naresh Kavarchand Khatri V. State of Gujarat, this Court held: (SCC p.303, para 6) "6.The power of the court to interfere with an investigation is limited. The police authorities, in terms of section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal Procedure has conferred power on the statutory authorities to direct transfer of an investigation from one police station to another in the event it is found that they do not have any jurisdiction in the matter. The court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an investigating officer who did not have https://hcservices.ecourts.gov.in/hcservices/ 5 any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction" Para 16. The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that new or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is whether in a case of this nature a direction for further investigation would be necessary. Similarly, the judgment of the Hon'ble Apex Court reported in (2004) 5 Supreme Court Cases 347 in between Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others would also lay down the principles governing the further investigation under Section 173 (8) Cr.P.C. The relevant passage for seeking further investigation would be as follows: "Para 13. In Ram Lal Narang V. State (Delhi Admn.) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case. 14.On a careful perusal of the aforesaid judgment, we could understand that the further investigation under Section 173(8) Cr.P.c. can be ordered only on three circumstances viz., when new facts come to right or when superior Courts find that the https://hcservices.ecourts.gov.in/hcservices/ 6 investigation is tainted and/or unfair or when Superior Courts find that it is required in the ends of justice. Whether the facts and circumstances of the case would show the attraction of any one of the points required for ordering further investigation is the question to be answered. 15.Now, I could see that the charge sheet was filed by the 2nd respondent police before the jurisdictional magistrate even before the filing of the present petition and hence, there is no investigation pending for effecting transfer. However, this Court can pass an order under Section 482 Cr.P.C for re-opening of the case as well for reinvestigation as reported in (2006) 3 Supreme Court Cases (Cri) 245 in between Popular Muthiah Vs. State represented by Inspector of Police, wherein, the Hon'ble Apex Court has held as follows: "Para 27. While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and/or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter. Keeping in view the intention of Parliament, while making the new law the emphasis of Parliament being "a case before the Court" in contradistinction from "a person who is arrayed as an accused before it" when the High Court is seized with the entire case although would exercise a limited jurisdiction in terms of Section 386 of the Code of Criminal Procedure, the same, in our considered view, cannot be held to limit its other powers and in particular that of Section 482 of the Code of Criminal procedure in relation to the matter which is not before it." Therefore, I could see that it is a fit case for ordering re- investigation under Section 173(8) Cr.P.C. even without asking for reinvestigation of the case for the effective dispensation of justice. 16.As regards the further re-investigation of the case is concerned, it has become necessary for directing the 2nd respondent, investigating officer to do the further investigation on the lines for conducting test identification parade regarding the witnesses, who spoke about the conspiracy had in Sivasakthi Lodge, Pollachi and C.V. Lodge at Poovanam, who also had the occasion of seeing the accused persons staying in those lodges, to identify those persons through test identification parade. There is no harm in conducting the test identification parade for the purpose of confirming the investigation already done by the police. The police can also https://hcservices.ecourts.gov.in/hcservices/ 7 do the further investigation regarding the conspiracy of committing the murder of the said Venkatachalam in a detailed manner so as to bring out the strong case under Section 120(B) I.P.C. 17.In such circumstances, this Court find on those two aspects, a further investigation shall be done by the investigation officer even though the petitioner has asked for some other investigating officer to conduct the investigation, I find that except those two lacunae, no other flaw is found from the investigation of the 2nd respondent police. Therefore, I have no hesitation to direct the 2nd respondent police to do the further investigation and to file the final report within a period of one month from the date of receipt of a copy of this order. In order to facilitate the filing of a further final report, P.R.C.No.1 of 2011 taken on file before the learned Judicial Magistrate Court is stayed till a further final report is filed. 18.With the aforesaid direction, this criminal petition is ordered. Consequently, connected miscellaneous petition is closed. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Director General of Police, Madras. 2.The Inspector of Police, Vadakadu Police Station, Pudukkottai District. 3. The Judicial Magistrate, Alangudi 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +One Cc to Mr.G.R.Edmund, Advocate, SR.No.9760 arul rl/6c – 21.3.2011 Crl.O.P.(MD)No.342 of 2011 https://hcservices.ecourts.gov.in/hcservices/