IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19/04/2004 CORAM THE HONOURABLE MR.JUSTICE S.ASHOK KUMAR CRL OP. NO. 3443 of 2004 and CRL OP. NOS. 3444 to 3446 OF 2004 and Crl.M.P.Nos., 811 to 814 of 2004 K.Selvam @ Selavaperunthagai .. Petitioner in all Crl.O.Ps -Vs- State rep. by Inspector of Police J-5 Sastry Nagar Police Station Chennai City. .. Respondent in (Cr.No:136/03) Crl.OP.3443/04 State rep. by Inspector of Police J-6 Thiruvanmiyur Police Station Chennai City. (Cr.NO.138/03) & .. Respondent in (Cr.No:451/03) Crl.OP.3444/04 & Crl.OP.3446/04 State rep. by Inspector of Police R-4 Pondy Bazaar Police Station Chennai City. .. Respondent in (Cr.No:277/03) Crl.OP.3445/04 Criminal Original Petitions preferred praying this court to transfer the cases from the respective respondent Police Stations to the Central Bureau of Investigation, Special Crime Branch, Chennai for further investigation. For Petitioners :: Mr.K.Chandru, Senior Counsel For respondent :: Mr.I.Subramaniam, S.C., Public Prosecutor :O R D E R These Criminal Original Petitions have been filed to transfer the cases in Crime No:136/03 (J5, Sastri Nagar Police Station, Chennai), Crime Nos: 138 and 451 of 2003 (J6, Thiruvanmiyur Police Station, Chennai) and Crime No:277/03 (R-4, Pondy Bazaar Police Station, Chennai), to the Central Bureau of Investigation, Special Crime Branch, Chennai for further investigation. 2. According to the petitioner Selvam @ Selva Perunthagai, he has been implicated in the above four cases, foisted falsely by the police to cripple and paralyse his political career by a conspiracy hatched by the Chennai Police and also for the purpose of detaining him under Act 14 of 1982. According to the petitioner, various lacunas and loopholes would have made him to approach this court for quashing the FIRs of the four cases. But if the FIRs are quashed, the persons who are instrumental would escape from their liability. According to the petitioner he could very well prove his innocence and come out of the cases successfully after undergoing trial. But according to him, the persons who are instrumental of foisting false cases against the petitioner will go Scot free and escape from criminal liability. This is the reason the petitioner has filed these Criminal O.Ps with a prayer to transfer the investigation of all above four cases to CBI, Special Crime Branch, Chennai. The details of the four cases filed against the petitioner and the contention of the petitioner are as follows:- (i) Crime No:451/03 of J.6, Thiruvanmiyur Police Station, Chennai ( Crl.O.P.No:3446 of 2004) is for offences under Sections 294(b), 307, 5 06 (ii) IPC and Sec.3 of Explosive Subtances Act. According to the petitioner, on 30.4.2003 at about 11.30 p.m., he was returning from the Anna International Airport, Meenambakkam along with one Sakthivel @ Adalarasu in his car driven by his driver Palanivel, after seeing off Mr.Thirumavalavan, President of the party who flew to United States of America. The car was intercepted at the Halda Junction, Guindy by the Deputy Commissioner of Police, Adyar Ditrict, Chennai and whisked away along with his driver. The petitioner was taken to the Sastry Nagar Police Station, where he was illegally detained for the whole night. The guidelines laid down by the Supreme Court was flouted in so far as the petitioner was not informed of the grounds of arrest, he was denied any legal assistance etc., (ii) On 1.5.2003, at about 12 noon, he along with his driver Palanivel was produced before the IX Metropolitan Magistrate at his house where he came to know that a case in J.6,Thiruvanmiyur Police Station in Crime No.451 of 2003 has been registered by the Inspector of Police against him and the driver. The petitioner and Palanivel were remanded to judicial custody for 15 days under the sections mentioned earlier. The case was said to have been registered on 1.5.2003 at about 6.45 hours and the petitioner was shown arrested at 8.45 hours. This case was shown as the ground case in the grounds of detention when the petitioner was detained under Act 14 of 1982. Before arrest on 30.4.2003, the petitioner contacted his wife Smt.Umayal at about 11 .30 hours through his Cellular Phone No.31021858 and informed her that he will be back at home soon. After he was picked up by the police and kept under illegal detention, the petitioner's wife panicked by his non return was continuously calling the petitioner over his cellular phone. Since the petitioner was prevented from talking over his cellular telephone and the phone was taken away by the police, these calls have been registered as "missed calls". A perusal of the "missed calls" would show that there were 12 calls from the petitioner's wife from Phone No.24468717, residential phone number of the petitioner, and his brother in law right from 01.35 am of 1.5.2003 to 6 .42 a.m., of the same day. This cellular phone had been seized by the Inspector of Polcie, J6, Thiruvanmiyur Police Station and deposited in the IX Metropolitan Magistrate Court, Saidapet, Chennai and the same was returned only on an application for return of property. From this, it will be clear that if the petitioner had not been illegally detained by the Deputy Commissioner of Police, Adyar District, right from 12 midnight of 30.4.2003, then he would have spoken to his wife to intimate his whereabouts. In an alleged confessions of the petitioner recorded by the Inspector of Police, it has been mentioned as if the petitioner after seeing off Mr.Thirumavalavan went to Tambaram straight from the Airport. If the petitioner really had gone to Tambaram he would have intimated this fact at least to his wife. The petitioner's wife Tmt.Umayal had intimated this fact as early as 6thmay, 2003 when she submitted a representation to the Commissioner of Police, Chennai City about the illegal detention of the petitioner and foisting of false case upon him. (iii) The Same Inspector of Police also registered a case in Crime No:138 of 2003 on 5.2.2003 on the complaint of one Babu son of Rabesh. But the petitioner was not arrested till 1.5.2003. Actually, the petitioner was in Madurai on that date to attend the marriage of one Sakthivel, a party functionary and he returned to Chennai only on 6.2.2 003. While the first respondent who was the Sponsoring Authority for detaining the petitioner under Act 14 of 1982 had shown arrest of the petitioner in the above case, he has not cited the case in Crime No.136 of 2003 referred above as an adverse case in the grounds of detention. The first respondent had even cited a murder case that took place about seven years ago, as an adverse case, but had not chosen to cite the above case. It has now come to light that the alleged complainant is a stock witness of the police Station. In this case he is the complainant, whereas in the second case that was registered against the petitioner by J-5, Sastry Nagar Police Station in Cr. No.136/03, this complainant is the witness in the seizure mahazar for seizure of glass pieces, iron shrapnel, etc., from the alleged scene of crime. This case has been cleverly avoided by the 1st respondent and not shown as an averse case, because they realised the error that the defacto complainant in the first case is the mahazar witness in the second case. The grounds of detention has an index. A perusal of the index itself would have exposed the evil design of the first respondent at the earliest stage, had he cited this case as an adverse case, as the petitioner would have discovered the fact that the said Babu is the complainant in this case as well as a witness for the seizure mahazar in another case. The said defacto complainant Babu is a witness in J.5 Sastry Nagar Police Station Cr.No.5 of 2002 now pending trial before the Fast Track Court NO.5 in S.C.No.200/2003. He is also a witness in J.5 Sastry Nagar Police Station Cr.No.732 of 2001 now pending trial before the Fast Track Court No.4 in S.C.No.263 of 2 003. (iv) The first respondent would now state that the defacto complainant in J.6, Thiruvanmiyur Police Station Cr.No.138/03 had stated that the petitioner is not the person who assaulted him and hence the case has been closed as undetected. It is not known as to why the 1st respondent had not verified the identity of the petitioner before showing him arrest in this case. However, the defacto complainant has specifically stated in his complaint that the person who assaulted him had stated that he is Selvam @ Selvaperunthagai of Viduthalai Siruthaigal. In that case some one had impersonated the petitioner and had assaulted the defacto complainant. The police should add 416 IPC and further investigate the case, instead of referring it as Undetected. It would be clear that the 1st respondent has referred this case, since he realised the error that the defacto complainant is a witness in the second case, registered against the petitioner and wanted to bury this fact. (v) If the defacto complainant himself had stated that the petitioner is not the person who assaulted him one another pertinent question arises as to how the petitioner in his confession statement could have confessed to the above offence. If the petitioner is not involved in the commission of the said offence, how that he had admitted to the same. This shows the falsity of the recording of the confession by the 1st respondent to suit his convenience and comfort. The 1 st respondent had gone to the extent of recording the confession of one Palanivel, who was arrested along with the petitioner, in which he also admits that the petitioner assaulted the defacto complainant. (vi) Crime No:136 of 2003 in J.5 Sastry Nagar Police Station is for an offence punishable under Section 307 IPC and sec.3 of the Explosive Substances Act. This case was registered on 15.2.2003 on the ground that the petitioner had assaulted a Sub Inspector of Police and also used explosive substances. It is a case of attack on police as alleged in the case. The petitioner was not arrested till 1.5.2003. The witness for the alleged seizure of the glass pieces, iron shrapnel, news papers etc., is one Babu, who is a stock witness of the said police station. (vii) Crime No: 277 of 2003 of R.4 Pondy Bazaar Police Station has been registered on 15.3.2003 on the complaint of one Manikandan, a bunk shop owner. The charge against the petitioner is that he demanded a sum of Rs.500/= and damaged the property of the complainant after criminally intimidating him. The petitioner is an employee of the Reserve Bank of India, Chennai and is drawing aroundRs.15,000/= as salary. The petitioner is also an income tax assessee for the past several years and is possessing movable and immovable properties worth several lakhs and he is paying sizable amount as income-tax every year. It would be unbelievable that he had demanded a paltry sum of Rs.50 0/= from a bunk owner, that too going to a place 5 kilometers away from his residence. (viii) Even assuming for a moment that the petitioner had committed the above four crimes it is not known as to why the petitioner was not arrested even though he was very much available in the city and had not absconded. (ix) On 10.2.2003, 24.2.2003, 10.3.203, 7.4.2003 and 28.4.2003 i.e., after the registration of the first case in J.6, Thiruvanmiyur police Station Crime NO.138 of 2003 on 5.2.2003, the petitioner had been attending the Principal Sessions Court, Chennai to face the trial in S.C.No.28 of 2003. The Inspector of police, J.6, Thiruvanmiyur Police Station or the Inspector of police R.4, Pondy Bazaar Police Station could have secured him before the last case was registered i.e., on 1.5.2003. It is pertinent to note that the Sub Inspector of police, J.5 Sastri Nagar Police Station or the Inspector of Police J.5 Sastri Nagar Police Station could have secured him before the last case was registered i.e., on 1.5.2003. The Police would have come to know that the said murder case is pending trial in the Sessions Court, but it is not known as to why the second respondent had not nabbed the petitioner while he was attending the court on the above said dates. This itself would prove that the respondents were registering case after case behind the back of the petitioner and at last after illegally detaining him on 30.4.2003 registered the last and fourth case and detained him under Act 14 of 1982. (x) In Cr.No:451 of 2003 (Crl.O.P.No:3446/04) which has been registered under Section 307 IPC and Sec.3 of the Explosive Substances Act, on the complaint of one Nandakumar, the alleged defacto complainant in the case, had come forward to voluntarily give a statement before the learned VI Metropolitan Magistrate, Egmore, Chennai who had recorded the same under Section 164 Cr.P.C. On 6.6.2003, in which he had stated that the Police have forced him to give a false complaint against the petitioner with false representation and that he had not sustained any injuries as alleged. The said defacto complainant at a later point of time sent a letter to the Director of Medical Services, Chennai to the effect that he had not sustained any injury, since such an incident never took place and that he was not examined by any doctor. The first informant had even gone to the extent of offering himself to undergo any medical examination to show that there are no wounds/scars at the places mentioned in the Accident Register. This would itself prove that the whole case is fo isted against the petitioner in furtherance to the intention of detaining him after foisting 2 or 3 cases to make him qualify for detention under Act 14 of 1982. According to the petitioner the Chennai City Police have gone to the extent of obtaining false complaints from strangers against the petitioner and by using influence and pressure had also fabricated Accident Register as if the said complainant had sustained injuries. It would be of interest to note that the identification mark of the alleged victim had not been noted by the Doctor in the Accident Register which would itself prove that the alleged victim had never been examined by any doctor. The Police had even gone to the extent of enacting a drama as if some country made bombs were recovered from the scene of crime and had sent it for diffusion and chemical analysis. (xi) After registering all the four cases in a phased manner, the Police accomplished its intention of detaining the petitioner under Act 14 of 1982 by a detention order dated 12.5.2003. However, the State Advisory Board had revoked the same by its order dated 27.5.2003 accepting the contentions raised by the petitioner. (xii) Thiru Sakthivel @ Adalarasu who was illegally detained along with the petitioner and had been released later had submitted a memorandum to the State Human Rights Commission, Chennai. 3. P.Ravisekaran, Inspector of Police, (L & O) J.5, Shastry Nagar Police Station alone filed a counter in Crl.O.P.No: 3443 of 2004 and no counter has been filed in the other three Crl.O.Ps. In the said counter the Inspector of Police stated as follows:- (i) Crime No.136 of 2003 of J.5 Shastry Nagar Police Station was registered under Section 353 and 307 IPC and Sec.3 of the Explosive Substances Act, 1908, on the basis of the complaint given by K. Jayaprakash, S.I of Police of the same Police Station. In the complaint it is alleged that the complainant and one Head Constable NO.8075by name K.Samianthan of the same Police Station were on duty on 15.2.2003 evening at the junction of IV Main road, 6th Avenue, Besanth Nagar, in front of the Police booth. At that time, a vehicle (scorpion) bearing registration number TN-07 R.4361 was plying fast from Besant Nagar 6 th Avenue, Annai Velankanni Church towards north and it stopped before the speed breaker on the Eliots Beach opposite to Global Trust Bank (ATM) at about 21.05 hrs. On seeing this, the aforesaid Sub Inspector and the Head Constable went near the vehicle and asked the person in the vehicle as to why he was driving in such a rash manner. The person who was sitting near the driver was Selvaperunthagai @ Selvam, the petitioner herein, who was involved in Auditor murder case, scolded the Police officers in a filthy language and threatened them saying that he would put an end to if he switched on the computer. When the Sub Inspector of Police and the Head Constable tried to bring out the driver who drove the said vehicle the said said Selvaperunthagai, the petitioner herein took out a ball shaped material from his bag and threw it towards the Sub Inspector of Police. ON seeing this, the Sub Inspector of Police just bent down and the ball shaped material fell on the ground and exploded creating a cloud of smoke. Taking advantage of this cloud of smoke, Selvaperunthagai escaped from the scene and in spite of chase by the said Sub Inspector the said Selvaperunthagai disappeared. After giving message to control room and after instructing the Head Constable to be in the occurrence place, the Sub Inspector of Police came to Shastry Nagar Police station and gave a complaint before the Inspector of Police, narrating the incident. (ii) On the basis of the above complaint a case in J.5 Shastry Ngar P.S. Cr.No.136 of 2003 under Section 353 and 307 IPC and Sec.3 of the Explosive Substances Act, 1908 was registered against the petitioner herein. Investigation was taken up by the then Inspector of Police, Thiru A.R.Mohan. During the course of investigation he examined seven witnesses. On the same day (15.2.2003), the Inspector of Police recovered the exploded materials viz., glass pieces, grey colour torned cloth, newspapers pieces, iron pieces, small iron balls, jute pieces, sample sand etc., under mahazar at 23.15 hours attested by witnesses Babu and Saravan. The recovered materials were sent for chemical analysis through the learned Magistrate. The Assistant Chemical Examiner and Assistant Director, Explosive Forensic Sciences Department, Chennai after examining the above materials has detected sulphur, carbon, aluminum, potassium, Chlorate, Sulphate and Thio-sulphate. The constituents detected in the above items are the explosion residues of country bomb (improvised explosive device) which is a low explosive. He further opined that the country bomb when exploded, may endanger human life. The then Inspector of Police completed the investigation and requested the District Collector for according sanction under the Explosive Substances Act and in the meantime he was transferred. (iii) He joined as Inspector of Police, Shastry Nagar Police Station on 21.6.2003. The District Collector, Chennai has accorded sanction for prosecution by his proceedings in A5/63811/203, dated 5.12.2003 and the same was received on 29.12.2003.The case was charge sheeted on 2.2.2004. The Deputy Director of Prosecution approved the charge sheet on 4.2.2004 and the City Public Prosecutor approved the charge sheet on 5.2.2004 and on the same day the final report was subnmitted before the learned IX Metropolitan Magistrate, Saidapet, Chennai and it was taken on file as PRC No.19/2004. Under these circumstances, the question of transferring the case to other agency does not arise. (iv) The petitioner has raised flimsy, frivolous and vexatious allegations in para 9 of the Crl.O.P.3443/04. Since the petitioner/ accused absconded immediately after the occurrence, the Police was not able to apprehend him. But formal arrest was effected by the then Inspector of Police, on 2.5.2003 at 16.30 hours at Central Prison, Chennai while the petitioner was in remand in connection with Thiruvanmiyur Police Station Cr.No.451/2003 under Section 294(b) 307, 506 (ii) IPC and Section 3 of the Explosive Substances Act, 1908. Further, it is the discretion of the investigating officer to report the incident to the newspaper on the basis of the veracity o the case. The above case is a true case. 4. On 5.2.2004, these Criminal Original Petitions were heard and a common order was passed in the Crl.M.P.Nos.811 to 814 of 2004 by issuing notice to respondents returnable by 17.2.2004 and if the charge sheet is not filed so far the respondents were directed not to file the charge sheet. The case was periodically adjourned from 17.2.2004 to various dates viz., 24.2.2004, 1.3.2004, 3.3.2004, 10.3.2004 and 11.3.2004, on which date an affidavit was filed wherein it was mentioned that charge sheet was filed on 5.2.2004 and the IX Metropolitan Magistrate has taken the same on file as PRC.No.19 of 2004. This affidavit is alleged to have been sworn to on 16.2.2004, but was produced only on 11.3.2004 and not on the earlier dates as mentioned earlier. Having suspected some foul-play, this court passed an order directing the Registry to call for the records in PRC.No.19/2004 and also the registers showing the receipt of charge sheets maintained in that court. The Charge Sheet in Crime No.136 of 2003 for an offences Under Sections 353, 307 IPC and Section 3 of Explosive Substances Act of J.5, Shastry Nagar Police Station, and the PRC Register, Local Tabal Register AFIR Register and main PRC Registers were sent for from the IX Metropolitan Magistrate Court, Saidapet, Chennai. 5. A perusal of the documents would reveal the following facts. The charge sheet in Cr.No.136 of 2003 is purported to have been filed on 5.2.2004. In the List of Documents, at page 3, the concerned Clerk has written in red ink "memo of evidence not filed" and it is initialed by the said Clerk. But a perusal of the charge sheet would show that memo of evidence has been actually filed along with final report and the fact of filing memo of evidence is mentioned in para (,) of the final report, wherein it is mentioned that statement of witnesses recorded under Section 161(3) Cr.P.C., list of documents, and list of witnesses is enclosed. Therefore, the recording of "memo of evidence not filed" in red ink by a clerk on 5.2.2004 is not factually correct. Further, the final report along with list of documents, memo of evidence from page 3 to 13 contains the court seal dated 9.2.2004 with initials of the Magistrate. It is pertinent to note that the date seal of the court dated 5.2.2004 is not found anywhere in this final report, except the four words "memo of evidence not filed" and initialed by a clerk on 5.2.2004. In the first page i.e., docket sheet the same clerk who made endorsement on 5.2.2004 has made another endorsement "memo of evidence not filed", checked and signed on 9.2.2004 and the learned Metropolitan Magistrate has passed an order "file" and initialed on 9.2.2004. It is pertinent to note that the FIR, Plan, Mahazar, Form-95, Remand requisition, Remand Extension Reports, Requisition to send Properties to forensic laboratory and all such documents bear the same date seal of Court on the same day when documents were received or sent. But strangely, the final report does not bear the date seal of 5.2.2004, the date of alleged filing of charge sheet, and on the other hand contain the seal dated 9.2.2004, even though 5 .2.2004 and 6.2.2004 are working days. 6. Already a Manual of Notification has been issued by this Court viz., for "GUIDANCE OF MAGISTRATES IN TAMIL NADU" in the year 1993 itself. At page 6 of the said Guidance, under the Heading, "INDEXING RECORDS IN PENDING CASES" it is mentioned as follows:- "From the time the FIR is received in a Magistrate's court, papers and documents, etc., will be sent from time to time to the court by the investigating officer. On receipt of these papers, the Magistrate should ensure that they are promptly affixed with the date seal of his court. It is essential that the magistrate receiving the FIR in grave crimes and in cases of death, makes a note on the FIR under his initials, the time and the date of its receipt. This should be done notwithstanding that the FIR is received by him beyond court hours and even on a