IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 16 -02-2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU CRIMINAL ORIGINAL PETITION No.27319 OF 2007 Abner Alex ... Petitioner -vs- State represented by Inspector of Police, Lawspet Police Station, Puducherry. (Crime No.338/06) ... Respondent Prayer:- Petition filed under Section 482 of the Code of Criminal Procedure praying to transfer the investigation to C.I.D, Puducherry or C.B.I, from the respondent police, in Crime No.338 of 2006. For petitioner : Mr.A.N.Rajan For respondents : Public Prosecutor, (Puduchery) O R D E R This petition has been filed praying for a direction to transfer the investigation to C.I.D, Puducherry or C.B.I from the respondent police, in Crime No.338 of 2006. 2.The factual matrix of the case goes thus:- The petitioner’s wife is one Miron Latha. They have two daughters and one son. The petitioner employed one Albert as driver. On 24.03.2006, at about 2.00 p.m, while he returned back to his house from his business place, he happened to see both his wife and the driver Albert in a compromising position and on seeing them, the driver fled away from the scene. He hauled up his wife for the immoral act, for which she replied that since he was fully engaged in his business, she could find no way except to have such intimacy with another person. He reported the matter to his mother-in-law. While he returned to his house by evening, he found 300 sovereigns of gold jewellery, cash of Rs.7/- Lakhs and other records connected to his business missing and he learnt that his wife had removed them. https://hcservices.ecourts.gov.in/hcservices/ 3.While the matter stood thus, on 20.04.2006, the driver Albert came and informed him that since his conscience was pricking, he came forward to tell the truth to him. He further stated to the petitioner that his wife asked him to arrange some hit-men to silence him, hence, he contacted one Bellix for the purpose of silencing him, who demanded Rs.5/- Lakhs and Rs.1/- Lakh as advance and to get back the balance, after he accomplished the job, that she gave one lakh to him and the same was handed over to Felix. However, the said Felix afterwards was murdered by somebody else. 4.Due to the conduct of the petitioner, on 04.07.2006, the petitioner informed the above said affairs to his brothers-in-law i.e.Miron Ravi and Miron Mohan, brothers of his wife. Next day both of them came to his house and intimidated him with dire consequences pressurising him to take apology from their sister Miron Latha. Containing the above said allegations, the FIR was lodged by the petitioner which was registered in Crime No.338 of 2006, on 10.08.2006, under Sections 120-B, 497, 506(ii) read with 34 IPC. In the mean time, the said Albert has given a confessional statement before the learned Judicial Magistrate, Puducherry on 15.09.2006 under Section 164 CR.P.C. graphically narrating the matter, which he had already informed to the petitioner. Presently, the petitioner is aggrieved with the investigation, conducted by the respondent police by stating that even though the allegations in the FIR prima facie disclosed the making out of offence under Sections 307, 506(ii), 406 and 420 read with 120-B IPC, the case had been registered for less grave offences. It is further contended that the confession statement of driver Albert, recorded by the police itself would disclose the offence under Section 307 IPC. 5.The learned Public Prosecutor Puducherry would conversely argue that the investigation is being directed in a proper direction and that there is no need to transfer the same to some other agency. 6.The learned counsel for the petitioner in support of his contention would cite the decision of the Supreme Court reported in 1992 (1) Crimes-2 SC, ( Gudalure M.J.Cherian & Others Vs. Union of India & Others) in which Their Lordships have held thus:- “7..... the investigation having been completed by the police and charge sheet submitted to the court, it is not for this Court, ordinarily, to re-open the investigation specially by entrusting the same to a specialised agency like CBI. We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless in a given situation, to do justice between the parties and to instil confidence in the public mind it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency.” The contention put forth on behalf of the petitioner is acceptable in view of the observations rendered by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 7.The learned Public Prosecutor cited the following decision to strengthen his contention reported in AIR 1958 Supreme Court 119, (Leo Roy Frey Vs. Superintendent, District Jail, Amritsar and another) in paragraph 4 of the said order, it is observed as follows:- “4..... The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences......” Further, he also relies upon a Judgement reported in AIR 1963 Supreme Court 1850, (The State of A.P. Vs. Cheemalapati Ganeswara Rao and another), in paragraph No.39, wherein it is held under:- “.....But what the amendment did was to make that conspiracy itself punishable. The idea was to prevent the commission of crimes by, so to speak, nipping them in the bud. But it does not follow that where crimes have been committed the liability to punishment already incurred under S.120-B by having entered into a criminal conspiracy is thereby wiped away. No doubt, as already stated, where offences for committing which a conspiracy was entered into have actually been committed it may not, in the particular circumstances of a case, be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. But that would be a matter ultimately within the discretion of the court before which the trial takes place.” 8.In the afore-stated decisions, the Apex Court has laid down law that even when a person is involved in the conspiracy to commit offence and thereafter, actual commission of the offence, he could be charged with provisions of both the offences. However, it would be a matter to be decided by the Court, which is trying the case. As far as the facts of this case are concerned, the matter did not stop with the conspiracy entered between Miron Latha and driver Albert. She chose Felix through Albert for the purpose of liquidating her husband and she also made payment of Rs.1/ Lakh as advance, which was received by driver Albert and handed over to Felix. As far as the present case,, we do not know about the stage of the investigation and to what extent it has obtained its progress. The present stage is premature to foresee, whether the police would include all the offences, which could be made out at the time of investigation. But, it is outcry of the petitioner that even though abundant allegations are available in the FIR, still the police have not mentioned Sections 307 and 406 IPC in the First Information Report. The contention deserves countenance. In the decision afore noted, the Supreme Court has observed that not only in a given situation in order to render justice to the parties, also to instil confidence in the public mind, the transfer of investigation to some other agency must be considered. https://hcservices.ecourts.gov.in/hcservices/ 9.Considering the entire materials available in this matter, this court is of the opinion that it is a fit case to transfer the investigation to some other agency for further investigation and to lay charge sheet. 10.In fine, the petition is allowed directing the transfer of investigation from the respondent police to the CID, Puduchery for further investigation. It is also directed that the said agency shall complete the investigation within three months and lay the charge sheet before concerned court. ssm Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Judicial Magistrate II, Puducherry. 2. -do- Thro' The Chief Judicial Magistrate, Puducherry. 3. The CID, Puducherry. 4. The Inspector of Police, Lawspet Police Station, Puducherry. VC(CO) DCP/20.2 Criminal Original Petition No.27319 OF 2007 https://hcservices.ecourts.gov.in/hcservices/