IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 14.3.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.No.32166 of 2007 Bharatiya Janatha Party, Tamil Nadu, No.19, Vaithiaraman Street, T.Nagar, Chennai 600 017. rep by C.S.C.Vadivelu State Office Secretary. Petitioner vs. 1. The Greater Chennai Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai. 2. The Inspector of Police, R-1 Mambalam Police Station, T.Nagar, Chennai 600 017. Respondents Criminal Original Petition filed under section 482 Cr.P.C. seeking to transfer the case registered in Crime No.1078 of 2007 from the file of the second respondent to any competent and independent investigating agency and to proceed further in accordance with law. For petitioner : Mr.K.S.Dinakaran for Mr.T.V.Krishnamachari For respondents: Mr.A.Saravanan, Govt. Advocate (Crl. Side) ORDER The petition is filed seeking transfer of the case in Crl.O.P.No.1078 of 2007 on the file of the second respondent to https://hcservices.ecourts.gov.in/hcservices/ any other independent investigating agency for the purpose of investigation of this case in accordance with law. 2. The petitioner representing Bharatiya Janatha Party (BJP), Tamil Nadu files this petition invoking the provision under section 482 of the Code of Criminal Procedure for the aforesaid relief. 3. One Mr.C.S.C.Vadivelu, State Office Secretary, BJP, Tamil Nadu lodged a complaint to the first respondent Mambalam Police Station, T.Nagar, Chennai alleging that DMK party men numbering about 500 including some party functionaries, armed with lethal weapons, launched attack on the party cadres inside the BJP State Head Office and caused injuries at the behest of some DMK party functionaries in the aftermath of the statement given by the Electricity Minister Shri.Arcot Veerasamy. 4. Based on the aforesaid complaint, the second respondent registered a case in Crime No.1078 of 2007 for offences punishable under sections 143, 336, 337 and 427 of the Indian Penal Code. 5. The petitioner would allege in the petition seeking transfer of investigation that Shri.Durairaj, Joint Commissioner of Police (South) and Mrs.Laxmi, Deputy Commissioner of Police, T.Nagar, who were present in front of the BJP office on the date of occurrence permitted about 100 DMK cadres to go over to the BJP Office. They, having used abusive language, pelted stones, bricks and damaged glass panes and two wheelers parked in the office premises by using iron rods. The said Joint Commissioner of Police, who was present at the spot, proclaimed that he would not describe the incident as an attack. The vandalism was led by the State Minister Parithi Ilamvazhuthi, Chennai Mayor Mr.Subramaniam, South Chennai DMK Secretary Shri.J.Anbalagan and other prominent DMK Divisional Office bearers and Councilors. Even the Chief Minister feigns ignorance of the attack launched by them on the BJP Office. Not even a single person referred to in the complaint was arrested and produced before the court. The first information report did not also include a single name mentioned in the complaint as accused. The offences referred to in the first information report were found to be bailable in nature. None of the statements of the injured witnesses or the complainant was recorded by the investigating officer. No spot inspection was done by the investigating officer. He also failed to assess the damage to the BJP office on account of vandalism. The conduct of the Police Officers at all levels has shaken the faith and confidence the petitioner had on the Tamil Nadu Police. All the visual and electronic medias had extensively covered the vandalism https://hcservices.ecourts.gov.in/hcservices/ committed by the DMK party men led by Mr.Parithi Ilamvazhuthi, the Tamil Nadu Minister and Mr.Subramaniam, Mayor of Chennai Corporation. The organised violence took place on account of the provocative statement made by Shri.N.Arcot Veerasamy, the Electricity Minister. The respondents would not investigate the above incident without fear or favour. Therefore, the investigation should be entrusted to an agency which is not under the direct control of the State Government, it is submitted. 6. The second respondent filed a counter affidavit disputing the version found in the petition seeking transfer of investigating agency. It has been submitted that the accused were arrested and remanded to judicial custody. As on date, 21 witnesses were examined and their statements have been recorded. The very fact that 11 persons were so far arrested would go to show that investigation is proceeding in the right direction. It has been submitted in the counter that the investigation is almost over and the final report is likely to be filed. Therefore, the second respondent has prayed for dismissal of the petition seeking transfer of investigating agency. 7. Learned counsel appearing for the petitioner would submit that the investigation was entrusted to a Police Officer under whose presence the attack was launched by the DMK party cadres. Further, the statement given by Mr.Durairaj, Joint Commissioner of Police reinforces the fear in the mind of the petitioner that no fair and impartial investigation would be conducted in this case. The very fact that high profile political functionaries, who participated in the occurrence, were not apprehended by the second respondent would demonstrate that the second respondent is conducting the investigation prejudicial to the interest of the de facto complainant and the BJP whose office was attacked. Therefore, he would submit that the investigation should be transferred to an independent agency which is not controlled by the State Government. 8. Shri.A.Sarvanan, learned Government Advocate (Criminal Side) would contend that there is no necessity to shift the investigation to some other investigating agency at the fag end of the investigation of the case. Further, the accused who were involved in the occurrence were arrested and produced before the court concerned. A dispassionate investigation is being conducted by the second respondent. Therefore, there is no necessity to change the investigating agency, he would contend. https://hcservices.ecourts.gov.in/hcservices/ 9. The petitioner has come out with an allegation that the real culprits were not apprehended by the second respondent. The second respondent who was a silent spectator at the time of discharging his bandobust duty at the scene of crime, should not have been permitted to investigate this case, it has been further alleged. The statements of the complainant and the other important witnesses have not been recorded, it is contended. Of course, such an allegation is seriously disputed by the respondents. 10. The court is not inclined to go into the allegations and the counter allegations levelled against each other. But, the undisputed fact is that the second respondent who was on bandobust duty at the scene of occurrence was entrusted with the investigation of this case. There is every possibility for a biased approach in the matter of investigation by an officer who witnessed the very occurrence. Therefore, the second respondent should not have been entrusted with the duty of investigation of this case. 11. The allegation is that the cadres of the ruling party committed vandalism causing damage to the properties and persons who were found in the said office. It is demonstrated by the respondents that the persons inside the office at the time of occurrence sustained simple injuries. Nothing has been produced before this court by the petitioners that persons inside the office at the time of occurrence sustained grievous injuries. Considering the nature of charges, the court is not inclined to entrust the case to the CBCID or to the CBI who are reeling under the pressure of highly sensitive and top profile cases. The court cannot also ignore the fact that a team headed by Mr.Durairaj, Joint Commissioner of Police was on bandobust duty at the time of occurrence. No police officer serving in the said team can be entrusted with the investigation of this case. 12. In view of the above, the first respondent, Commissioner of Police, Greater Chennai is directed to entrust the investigation of this case to an Assistant Commissioner of Police who did not form part of the aforesaid team headed by Shri.Durairaj, Joint Commissioner of Police for the purpose of unbiased and impartial investigation of this case. The Assistant Commissioner of Police nominated by the first respondent shall thoroughly investigate this case and file final report within two https://hcservices.ecourts.gov.in/hcservices/ months from the date of receipt of copy of this order. The petition is ordered accordingly. ssk. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Greater Chennai Commissioner of Police, Office of the Commissioner of Police, Egmore, Chennai. 2. The Inspector of Police, R-1 Mambalam Police Station, T.Nagar, Chennai 600 017. 3. The Assistant Commissioner of Police Chennai Through The Commissioner of Police, O/o. He Commissioner of Police, Greater Chennai, Chennai-8. 4. The Public Prosecutor, High Court, Madras. 2 ccs to Mr.T.V.Krishnamachari, Advocate, SR.14187 sp (co) dv/27.3. P.D. ORDER IN Crl.O.P.No.32166/2007 https://hcservices.ecourts.gov.in/hcservices/