IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29 / 10 / 2011 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.4183 OF 2011 AND M.P.NO.1 OF 2011 C.Ve.Shanmugam ... Petitioner Versus 1.The State of Tamil Nadu Rep. by the Secretary to Government Home Department Secretariat, Fort St. George, Chennai – 600 009. 2.The Deputy Superintendent of Police Kottakuppam Sub-Division Villupuram District. Tamil Nadu. (Cr.No.164/2006 registered by Rosanai P.S., Tindivanam) 3.The Director Central Bureau of Investigation New Delhi. 4.The Joint Director and Head of Zone Central Bureau of Investigation III Floor, E.V.K.Sampath Building College Road, Chennai – 600 006. 5.The Deputy Superintendent of Police Tindivanam Sub-Division Villupuram District, Tamil Nadu. 6.V.Sudhakar 7.S.Srinivasan (R6 and R7 impleaded as per order dated 14.09.2011 in M.P.Nos.2 and 3 of 2011 in W.P.No.4183 of 2011) ... Respondents https://hcservices.ecourts.gov.in/hcservices/ PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to transfer the investigation of the case in Cr.No.164/2006 in Roshanai Police Station now pending investigation on the file of the second respondent to the third respondent and direct the third respondent to thoroughly investigate the case and take action in accordance with law. For Petitioner : Mr.B.Kumar Senior Counsel for Mr.Anand David For Respondents : Mr.I.Subramanian 1, 2 and 5 Public Prosecutor Assisted by Mr.M.C.Swamy Special Government Pleader Mr.Maharajan Additional Public Prosecutor For Respondents Mr.N.Chandra Sekaran 3 and 4 : Special Public Prosecutor for CBI For Respondent 6 : Mr.S.Anantha Narayan For Respondent 7 : Mr.Ashok Kumar Senior Counsel for Mr.P.Gopiraja O R D E R The petitioner herein is now the Education Minister in the State of Tamil Nadu. His political party, namely, All India Anna Dravida Munnertra Kazhakam (shortly "AIADMK") emerged victorious when the results were declared for the Elections to the Tamil Nadu State Legislative Assembly on 13.05.2011. The petitioner was also the Minister in the State of Tamil Nadu for Education and Commercial Tax Department during the period 2001-2006. He contested in Tindivanam Constituency for the MLA Election that took place on 08.05.2006. His rival candidate, namely, Mr.N.M.Karunanidhi belongs to Pattali Makkal Katchi (shortly "PMK"). 2.The brief facts leading to the filing of the writ petition are as follows: (a) The residence of the petitioner is at No.1, Mottaiyan Street, Tindivanam, Villupuram District. On 08.05.2006 at about 09.30 p.m., the petitioner, his two brothers namely Mr.C.V.Radhakrishnan and Mr.C.V.Babu and persons belonging to his political party were https://hcservices.ecourts.gov.in/hcservices/ sitting under the shamiana that was put up in front of the petitioner's house. At that time, a group of persons came in two vehicles pelted beer bottles on the persons sitting in front of the house of the petitioner and attacked the petitioner and others with deadly weapons and also caused damages to two cars, one belongs to the petitioner and the other belongs to one of his party men, who was sitting there. In the said attack, one Mr.Muruganandham, who is the brother-in-law of the petitioner's brother Mr.C.V.Babu, succumbed to injuries. Another person by name Mr.V.V.R.Mahesh was also injured in the attack. The petitioner went beneath his car in order to save his life. Thereafter, the group fled away from the scene of occurrence through their vehicles. (b) The petitioner lodged a complaint at Rosanai Police Station, Tindivanam at about 02.00 a.m. on 09.05.2006 and the same was registered as FIR in Crime No.164/2006 under Sections 147, 148, 302, 307, 506 (ii), 324, 323, 120(B) and 427 IPC. In the FIR, it is alleged that Dr.Ramadass, Founder Leader of PMK, Mr.Srinivasan, brother of Dr.Ramadass, Dr.Anbumani Ramadass, the then Union Minister and son of Dr.Ramadass and Dr.Parasuram, son-in-law of Dr.Ramadass conspired to murder the petitioner and at their instance, the group led by Mr.N.R.Raghu and Mr.N.M.Karunanidhi attacked the petitioner and others, who were sitting in front of the house of the petitioner, leading to the death of Muruganandham. It is also alleged in the FIR that Dr.Ramadass, Founder Leader of PMK and Dr.Anbumani Ramadass, the then Union Minister and son of Dr.Ramadass, spoke during the Election Campaign that the petitioner could be finished of. As per the FIR, the attack was led by one Mr.N.R.Raghu, who belongs to PMK and who is the sister's son of Dr.Ramadass and Mr.N.M.Karunanidhi, the rival candidate, who contested against the petitioner in Tindivanam Constituency, as PMK candidate, who is also related to Dr.Ramadass, with a group of about 15 persons, with deadly weapons. It is further alleged that before the said incident, one Mr.Preethiban, grand son of Dr.Ramadass, came in a Red Colour Ford Car and on his information about the availability of the petitioner, the said group came and attacked the petitioner and others. The aforesaid seven persons, namely, Dr.Ramadass, Dr.Anbumani Ramadass, Srinivasan, Dr.Parasuraman, N.R.Raghu, N.M.Karunanidhi and Preethiban are specifically named in the FIR as accused. (c) After the attack, when others fled away from the scene of occurrence, one Mr.Kumaran @ Kumaravel, who was apprehended at the scene of occurrence, was handed over by the petitioner to the Inspector of Police, Rosanai Police Station. Kumaran was one among the persons in the group which attacked the petitioner and others. (d)The Deputy Superintendent of Police, Tindivanam completed the investigation and laid final report on 29.12.2007 before the Judicial Magistrate No.1, Tindivanam. In the final report, https://hcservices.ecourts.gov.in/hcservices/ 15 persons are shown as accused and A1 is the deceased Raghu, who died on 26.02.2007. Except the deceased N.R.Raghu, all the persons named in the FIR were deleted in the final report. The petitioner was not put on notice about the deletion of persons named in the FIR. The Judicial Magistrate No.1, Tindivanam committed the case to the Principal Sessions Court, Villupuram vide PRC No.2/2008. In turn, the Principal Sessions Judge, Villupuram made over the case to the Fast Track Court – I, Tindivanam. (e)The petitioner herein approached the Fast Track Court by filing Crl.M.P.No.108/2008 in S.C.No.103/2008 under Section 173(8) Cr.P.C., for further investigation and the same was dismissed on 28.08.2009. (f)Challenging the same, the petitioner filed revision petition in Crl.R.C.No.939/2009 before this Court. This Court, on 21.01.2010, allowed the revision petition in the following terms: "27.In view of the foregoing discussions, the revision petition is allowed in the following terms:- 1.The order of the learned Judicial Magistrate No.I, Tindivanam taking cognizance on the final report submitted by the 1st respondent police is hereby set aside; 2.The order of the learned Judicial Magistrate No.I, Tindivanam committing the case to the Court of Sessions is also set aside. 3.The impugned order of the learned Sessions Judge is set aside. 4.The matter is remitted back to the learned Judicial Magistrate No.I, Tindivanam, who shall issue notice to the petitioner, permit him to file appropriate protest petition or objections, and after sufficient opportunity to the petitioner, the FIR named accused and the respondents 2 to 15 to make their submissions and then to pass appropriate order on the final report. 5.The learned Additional Sessions Judge, Fast Track Court No.I, Tindivanam is directed to dispatch the case records forthwith to the learned Judicial Magistrate No.I, Tindivanam." https://hcservices.ecourts.gov.in/hcservices/ (g)On remand by this Court, the petitioner filed a protest petition against the investigation conducted by the Deputy Superintendent of Police, Tindivanam and another petition seeking further investigation. Both the petitions namely Crl.M.P.Nos.2118 and 2119 of 2010 were disposed of by the Judicial Magistrate No.1, Tindivanam on 09.11.2010, after hearing the 14 surviving accused in the charge sheet and all the persons named in the FIR, who were deleted in the final report. The Judicial Magistrate No.1, Tindivanam disposed the aforesaid applications with the following findings: "1.This court disagrees with the final report of the first respondent / investigation officer in Cr.No.164 of 2006 on the file of Roshanai Police Station, for the aforementioned reasons. 2.The protest petition bearing Crl.M.P.No.2118 of 2010 filed by the defacto complainant is maintainable. 3.The Petition U/s.173(8) of Cr.P.C. seeking for further investigation at the instance of defacto complainant is maintainable in law. 4.This Court hereby direct the first respondent / investigation officer to conduct further investigation in Cr.No.164 of 2006, on the file of Roshanai Police Station in accordance with law and further this Court herewith forwarding the protest petition filed by the defacto complainant bearing Cr.M.P.No.2118 of 2010 for investigation, U/s. 156(3) of Code of Criminal Procedure. 5.In view of the similar relief granted in fourth findings, stated supra, the petitioner U/s.173 (8) of Cr.P.C. filed by the defacto complainant becomes infructuous. In fine, these petitions disposed accordingly." (h)Thereafter, the Superintendent of Police, Villupuram transferred the investigation to the Deputy Superintendent of Police, Kottakuppam, for further investigation. (i)While the Deputy Superintendent of Police, Kottakuppam conducted further investigation, the petitioner has filed the present writ petition seeking transfer of investigation of the case in Crime No.164/2006 on the file of Rosanai Police Station, Villupuram District to Central Bureau of Investigation (CBI). One of the accused https://hcservices.ecourts.gov.in/hcservices/ in the charge sheet namely V.Sudhakar, got impleaded as sixth respondent. One of the persons named in the FIR namely, S.Srinivasan, got impleaded as seventh respondent in the writ petition. 3.Heard the submissions made on either side. 4.The learned Senior Counsel for the petitioner submitted as follows: (i)There was no proper investigation in this case, particularly after the third week of May 2006, as the PMK was an ally of the then Ruling Party. The family of the victim lost confidence in the investigation. (ii)When the petitioner complained in the FIR that Raghu and Karunanidhi led the group and attacked the petitioner and others, with deadly weapons, the Investigating Officer got a second statement from the eye witnesses Devanathan and Sekar @ Packiaraj to the effect that they did not see Raghu and Karunanidhi at the scene of occurrence, contradicting their earlier statements. Neither Raghu nor Karunanidhi were arrested. Though the anticipatory bail application of Raghu was dismissed, Raghu was not arrested till his unnatural death on 26.02.2007. (iii)When the petitioner complained categorically that the attack on the petitioner was at the instance of and pursuant to the conspiracy of the persons named in the FIR, there was no investigation on the conspiracy angle. (iv)At the earliest point of time, Kumaran who was apprehended at the scene of occurrence confessed that prior to reaching the scene of occurrence, the accused went to the house of Dr.Ramadass and afterwards to the Nelmandi of Srinivasan, the brother of Dr.Ramadass. He stated that Karunanidhi was also present there, but however, he was not aware what they spoke. All these aspects could give sufficient lead to the investigation towards conspiracy angle, but nothing in that direction was done by the Investigating Officer. In view of such approach, the conspiracy angle was given a go by. (v)After the death of N.R.Raghu, the investigating Officer made N.R.Raghu as the person who led the attack and made him as A1 in the final report, while investigation proceeded in a direction before his death to extricate him from the offence. (vi)Before filing final report deleting the persons named in the FIR, none of them were interrogated and no statements were recorded from them. https://hcservices.ecourts.gov.in/hcservices/ (vii)Inaction on the part of the investigation was cited as noted by this Court in the order dated 25.09.2007 in Crl.O.P.No.27746 of 2007. (viii)The important piece of evidence is collecting the details of calls made by the accused, including the persons named in the FIR, from the cell phones, to establish conspiracy, but the same was not done. (ix)He pointed out that the second respondent herein filed a counter affidavit on behalf of the prosecution and on behalf of the respondents 1 and 5 stating that collection of electronic evidence, such as video and audio cassettes of the speeches of Dr.Ramadass and Dr.Anbumani Ramadass during the campaign in relation to the election to Tamil Nadu Legislative Assembly in May 2006 ended in failure. It is not impossible to collect video and audio cassettes of speech of Dr.Ramadass and Dr.Anbumani Ramadass. (x)Likewise, when it is alleged in the FIR that Preethiban, the grand son of Dr.Ramadass and son of Dr.Parasuram came in Red Colour Ford Car, the second respondent stated that there was no Red Colour Ford Car with registration No.TN51-1155, as per the details provided by the Motor Vehicle Registering Authorities at Nagapattinam and Mayiladuthurai. Instead of getting the details of all Red Colour Ford Cars, the Investigating Officer confined investigation to Red Colour Ford Cars with registration No.TN51. The accused could come with bogus registration plate numbers and the colour of the Car is more relevant. (xi)It is not that the Investigating Officer is not aware of all these things. Due to the political pressure exerted from high level, honest and proper investigation did not take place. He brought to my notice a news item published in a Tamil Daily viz., Murasoli in this regard. (xii)When the learned Magistrate directed the Deputy Superintendent of Police, Tindivanam to conduct further investigation in the order dated 09.11.2010 in Crl.M.P.Nos.2118 and 2119 of 2010, the second respondent herein conducted further investigation and hence, the further investigation conducted by the second respondent is without authority and jurisdiction. (xiii)The investigation proceeded on the basis that the motive for attack on 08.05.2006 was some alleged incident that took place at Avvaiyarkuppam on the same day itself viz., 08.05.2006, in which, C.V.Radhakrishnan, the brother of the petitioner and other AIADMK party men attempted to assault N.R.Raghu and other PMK persons and they escapped in their Cars. According to the police, that was the motive for N.R.Raghu to organise the attack on the petitioner. According to the learned Senior Counsel, no such incident https://hcservices.ecourts.gov.in/hcservices/ took place or even if any incident took place at Avvaiyarkuppam on 08.05.2006 during the polling that could have been a trivial one, as no FIR was lodged by N.R.Raghu or anyone else on the alleged incident. (xiv)The learned Senior Counsel for the petitioner further submitted that the said incident could not have been the motive to attack the petitioner, as the attack was not directed against the brother of the petitioner C.V.Radhakrishnan, but the murderous attack was aimed at the petitioner as per the prosecution. Thus the investigation, according to the learned senior counsel for the petitioner, did not proceed in a proper direction and it was not a honest investigation. (xv)Further, it was submitted by the learned Senior Counsel for the petitioner that besides the petitioner, statements recorded from the two brothers of the petitioner namely, C.V.Radhakrishnan and C.V.Babu, who were eye witnesses, on 15.05.2006 corroborate the version of the petitioner and also the statement of Devanathan and Sekar @ Packiaraj, eye witnesses, recorded at the earliest point of time on 09.05.2006 supported the version of the petitioner. The Investigating Officer failed to proceed based on these materials. (xvi)The learned Senior Counsel for the petitioner also relied on some judgments of the Honourable Supreme Court in support of his submissions seeking transfer of investigation to CBI, on the ground that investigation including further investigation was not done properly and honestly due to political pressure and extraneous influence. (xvii)Though the prayer in the writ petition is transfer of investigation to CBI, the learned Senior Counsel for the petitioner submitted that transfer could be made either to CBI or CBCID under the State Government. 5.The learned Public Prosecutor supported the case of the petitioner. He submitted that the investigation was not an impartial one. He argued that the details of confession made by Kumaran (A2) was not investigated properly. His further submission was that there was no explanation from the Investigating Officer for examining Devanathan again after 20 days resiling from his earlier version. He pointed out that on 09.05.2006, Devanathan, an eye witness gave a statement corroborating the version of the petitioner. But he resiled from the same in another statement on 29.05.2006. No reason was given for recording such a statement again from the same person after 20 days. He also pointed out that three statements were recorded from Magesh, another eye witness, who was also injured. In the further investigation ordered by the Judicial Magistrate in the order dated 09.11.2010, the second respondent failed to investigate as to why https://hcservices.ecourts.gov.in/hcservices/ statements were recorded twice from Devanathan and thrice from Magesh. 6.The learned counsel for the sixth respondent submitted that the Public Prosecutor colluded with the petitioner instead of supporting the police and the investigation done by them. He submitted that in view of the interim order in this writ petition, the further investigation is hampered and the right to speedy trial guaranteed to the sixth respondent was violated. The learned counsel relied on PSO 141 and submitted that the Superintendent of Police has power to transfer the investigation from one officer to another officer subordinate to him. Hence, there was nothing illegal in the further investigation being conducted by the second respondent, when the second respondent did it, pursuant to the order of the Superintendent of Police, Villupuram. 7.The learned Senior Counsel for the seventh respondent submitted that since the Public Prosecutor failed to support the police, he had to support the investigation. He submitted that there was nothing wrong in recording second statements, when the Investigating Officer entertained doubt. He pointed out that in the FIR, the petitioner stated that one Mari was injured at the scene of occurrence and later it was corrected in his statement that it was not Mari and it was Magesh. Hence the second statement could have been recorded. He submitted that eye witnesses 45 – 51 in the final report spoke about the motive for the attack and the motive was the incident that took place at Avvaiyarkuppam on 08.05.2006 during the polling. The learned Senior Counsel further submitted that this Court could not interfere with the further investigation and let there be a final report based on further investigation and if the petitioner was not satisfied, he has remedy to file protest petition thereon. The learned Senior Counsel vehemently contended that transfer of investigation to CBI is not warranted, as it would amount to interfering with the further investigation that is being carried on by the second respondent. The learned Senior Counsel further submitted that nobody, including the Courts, could interfere with the investigation by the police. 8.I have considered the submissions made on either side and perused the case diary produced by the learned Public Prosecutor. 9.The question that arises for consideration is as to whether the investigation could be transferred to CBI or CBCID, at this stage. 10.The law is well settled. Investigation of crime is the domain of the Police and normally, this Court could not interfere in the matter of investigation by the Police on cognizable offence. The power of this Court under Article 226 of the Constitution of India https://hcservices.ecourts.gov.in/hcservices/ for transferring investigation to CBI is limited and the same should be exercised sparingly, cautiously and in situations, which warrant to provide credibility and instil confidence in investigations. This Court can issue directions for prompt investigation in appropriate cases, but cannot issue directions to proceed in a particular way or to submit report that is in accordance with its views. 11.The Constitution Bench of the Honourable Supreme Court, in para 44 of its judgment in STATE OF WEST BENGAL AND OTHERS VS. THE COMMITTEE FOR PROTECTION OF DEMOCRATIC RIGHTS, WEST BENGAL AND OTHERS [2010 (2) SCALE 467 : 2010 (3) SCC 571] has broadly set out the guidelines in the matter relating to transfer of investigation to CBI. The facts leading to the said judgment is that a carnage took place in a village in the State of West Bengal, wherein 11 persons belonging to one political party were killed by the assailants from other political party. The High Court held that in the background of the case, it has strong reservations about the impartiality and fairness in the investigation by the State Police and that because of the political fall out, no useful purpose would be served in continuing with the investigation by the State Investigating Agency. The High Court handed over the investigation into the said incident to CBI. The same was questioned before the Honourable Supreme Court on the ground that the order of the High Court was contrary to the constitutional provisions relating to federal structure and the separation of powers between the various organs of the State and the handing over of the investigation to CBI without the consent of the State was illegal. The Honourable Supreme Court confirmed the order of the High Court and rejected the contentions of the appellant therein. It has been held that the Supreme Court under Article 32 of the Constitution of India and the High Court under Article 226 of the Constitution of India are duty bound to exercise its power of judicial review in proper cases to protect the fundamental rights of the citizens and sustained the order of the High Court. In my view, the said judgment squarely applies to the facts of this case. Para 44 (ii) of the said judgment is relevant for this case and the same is extracted hereunder: "44.Thus, having examined the rival contentions in the context of the constitutional scheme, we conclude as follows: (i) ... (ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but https://hcservices.ecourts.gov.in/hcservices/ also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State." The note of caution issued by the Honourable Supreme Court in para 46 of the said judgment is also extracted hereunder: "46.........despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations........" 12.Therefore, the facts of this case as borne out from the records have to be looked into in the light of the aforesaid guidelines of the Honourable Supreme Court. 13.As per the case diary, the details of the investigation are as follows:- (i)Mr.Sekar, Inspector of Police, Rosanai Police Station, commenced the investigation, after registration of FIR in Crime No.164/2006 at 02.00 a.m., on 09.05.2006. On 09.05.2006, he recorded statements from the eye witnesses namely, V.S.Devanathan, who was the AIADMK Town Secretary, Tindivanam and Sekar under Section 161 Cr.P.C. Their statements corroborate the version of the petitioner in the FIR. The Inspector of Police also recorded confession statement from the accused Kumaran, who was handed over by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ (ii)On 09.05.2006, the Superintendent of Police, Villupuram District transferred the investigation to the Deputy Superintendent of Police, Kallakurichi, namely Mr.Balasubramanian. (iii)On 10.05.2006, the Deputy Superintendent of Police, Kallakurichi recorded a statement from the petitioner. He also arrested one Siva at Pondicherry, who was one among the group of persons, who attacked the petitioner and others with lethal weapons and recorded a confession statement from him. Since Siva also got injured in the incident, he was admitted in the Government Hospital, Tindivanam by the Police Personnel of