1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:09.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.918 of 2011 Usha Vasuki ... Petitioner Vs. 1. State represented by Additional DGP, CBCID, Block No.3, 1st Floor, Sidco Electronics Complex, T.V.K.Industries Estate, Guindy, Chennai 600 032. 2. The Superintendent of Police, Block No.3, Ist Floor, CBCID, Sidco Electronics Complex, T.V.K.Industrial Estate, Guindy, Chennai-600 032. 3. The Deputy Superintendent of Police, CBCID, Madurai, Crime No.361 of 2010 of Umatchikulam Police Station, Madurai District. 4. Sathyavani Ponrani R4 is impleaded as per the order of this Court in M.P.No.2 of 2011 in Crl.O.P.No.918 of 2011 vide its order dated 01.02.2011 by VPKJ. ... Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the respondents 1 and 2 to change the investigation from respondent No.3 and to some other competent officer to take investigation in Crime No.361 of 2010 of Umatchikulam Police Station, Madurai District. For Petitioner : M/s. K.Prabhu For R1 to R3 : Mrs.S.Devasena Govt. Advocate (Crl.side) For R4 : Mr.A.John Vincent https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petition has been filed by the petitioner seeking to transfer the investigation from the file of the respondents 1 and 2 to the third respondent or some other competent officer to take investigation. 2. Heard Mr.K.Prabhu, learned counsel for the petitioner and Mrs.S.Devasena, learned Government Advocate (Crl.side) appearing for the respondents 1 to 3 and Mr.A.John Vincent, learned counsel for the fourth respondent/de-facto complainant. 3. The learned counsel for the petitioner would submit in his argument that the petitioner is ranked as one of the accused in the case which was falsely registered by the Umatchikulam Police Station in Crime No.361 of 2010, originally under Section 174 Cr.P.C. and subsequently altered into Sections 498(A) and 304 (B) I.P.C. He would further submit in his argument that the petitioner's husband and son were implicated as other accused in the case and when the Umatchikulam Inspector was conducting the investigation, the de-facto complainant filed a petition to transfer the investigation in Crl.O.P.(MD).No.6549 of 2010 and the investigation was ordered to be transfered to the third respondent. He would further submit in his argument that the third respondent police viz., Mr.Dhayalan Tamizhselvan is a close relative of the de-facto complainant and her husband Stalin Michael, who is a retired Deputy Superintendent of Police and they have got close relationship and if the investigation is continued with the third respondent police, that would certainly affect the interest of the petitioners. He would further submit in his argument that the petitioner has given a representation to the respondents 1 and 2 on 11.11.2010 and on 30.11.2010, but there was no order passed by the respondents 1 and 2. He would also submit that if the investigation is done by the third respondent himself, it would be a biased investigation and the petitioner would not get justice. Therefore, he would request the Court that the investigation be transfered to any other competent officer under the control of the third respondent and to pass necessary orders. 4. The learned Government Advocate (Crl.side) would submit in her argument that the petitioner is ranked as one of the accused and the petitioner has lodged certain complaints against the third respondent police and the petitioner being an accused cannot raise any claim for transfer of investigation from the file of third respondent to any other officer and therefore, suitable orders may be passed by this Court in the facts and circumstances of the case. 5. The learned counsel for the fourth respondent would submit in his argument that the allegations made by the petitioner is not sustainable, in view of the withdrawal of an application filed by the petitioner with the same prayer in Crl.O.P.(MD).No.15625 of 2010, on 29.12.2010. He would further submit that the accused persons have threatened and induced the https://hcservices.ecourts.gov.in/hcservices/ 3 witnesses to desist from deposing with the use of political influence and therefore, the continuance of the investigation with the third respondent alone is safe. He would further submit in his argument that the third respondent Investigation Officer Dhayalan Tamizhselvan and the husband of the fourth respondent were working in different wings in C.B.C.I.D and there is no personal affinity in conducting the case. He would further submit that the earlier investigation was shut down and therefore, it was transfered to the third respondent and there cannot be any bias. He would further submit in his argument that the petitioner is not entitled to seek for transfer of investigation, in the midst of investigation to appoint any other agency. He also cited the judgment of this Court reported in CDJ 2009 MHC 4851 for the said principles. He would also submit that the petitioner as an accused has no say in the transfer of investigation and therefore, the petition may be dismissed on that aspect. 6. I have given anxious consideration to the arguments advanced on either side. 7. Indisputably the petitioner is one of the accused person. She has filed the present petition for change of investigation from the file of present investigation officer of third respondent police to some other competent officer for continuing the investigation. The reasons put forth by the petitioner was that the fourth respondent's husband Stalin Michael and the investigation officer viz., Dhayalan Tamizhselvan were working in the same Department and after the retirement of the husband of the fourth respondent, they may influence the investigation officer and if the investigation is continued by the investigation officer, it would be a biased one. However, it was brought to the notice of this Court that on an earlier occasion, the petitioner has filed a petition in Crl.O.P.(MD).No.15625 of 2010 for the same prayer and it was withdrawn on 29.12.2010. The said fact has not been disclosed in the petition. Apart from that, the investigation is in the midst. It is the dictum of this Court reported in CDJ 2009 MHC 4851 that investigation shall not be transferred in the midst. 8. Moreover, the Honourable Apex Court laid a dictum in Central Bureau of Investigation v. Rajesh Gandhi reported in 1997 SCC (Cri) 88 that it is not prerogative right of the accused to seek for transfer of the investigation from the file of the investigation officer. The relevant passage would run as follows: "There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigate the offences he is charged with." https://hcservices.ecourts.gov.in/hcservices/ 4 9. In the wake of the said dictum that an accused cannot seek the remedy of transfer of investigation of the investigation agency nor the investigation from one officer to another officer when the investigation is pending in a crucial stage. The dictum laid down by this Court in the aforesaid judgment that transfer of investigation will adversely be affected if it is ordered to be transferred in the midst of investigation. Following the said principles this Court is not inclined to pass an order of transfer from the file of the third respondent to any other competent officer under the control of the third respondent police. Accordingly, this petition is dismissed. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To 1. Additional DGP, State Govt. of TamilNadu, CBCID, Block No.3, 1st Floor, Sidco Electronics Complex, T.V.K.Industries Estate, Guindy, Chennai 600 032. 2. The Superintendent of Police, Block No.3, Ist Floor, CBCID, Sidco Electronics Complex, T.V.K.Industrial Estate, Guindy, Chennai-600 032. 3. The Deputy Superintendent of Police, CBCID, Madurai, Crime No.361 of 2010 of Umatchikulam Police Station, Madurai District. 4. The Additional Public Prosecutor, Madurai Bench of the Madras High Court, Madurai. akv rl/5c – 9.3.2011 Crl.O.P.(MD).No.918 of 2011 09.02.2011 https://hcservices.ecourts.gov.in/hcservices/