1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.1884 of 2011 Haji K.A.Mohamed Zafrullah ..Petitioner/Defacto Complainant Vs. 1.The Commissioner of Police, Trichy Town, Trichy. 2.The Inspector of Police, Uraiyur Police Station, Trichy District. in crime No.1022 of 2009 3.The Inspector of Police, CBCID Police, Trichy City. ..Respondents/Complainant PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to withdraw the investigation in crime No.1022 of 2009 from the file of 2nd respondent and entrust the same to the file of 3rd respondent with a direction to investigate into the case and file charge sheet in accordance with law. For Petitioner :Mr.M.Ajmal Khan For Respondent :Mr.L.Murugan Govt. Advocate (Crl.side) for R1 ORDER This petition has been filed by the petitioner, who is the defacto complainant seeking for the transfer of investigating agency from the file of the 2nd respondent to the file of the 3rd respondent. 2.Heard Mr.M.Ajmal Khan, learned counsel appearing for the petitioner and Mr.L.Murugan, learned Government Advocate (criminal side) appearing for the respondent/State. 3.The learned counsel appearing for the petitioner would submit in his argument that the complaint was originally given by the petitioner and since it was not registered, the petitioner had no other option except to file a petition under Section 156(3) Cr.P.C. seeking a direction to the 2nd respondent to register a complaint on the basis of the complaint lodged by the petitioner against one Akbar and his family members and it was registered accordingly in crime No.1022 of 2009 on the file of the 2nd respondent. https://hcservices.ecourts.gov.in/hcservices/ 2 4.He would further submit that the missing woman viz., Mujibunisha belongs to the family of the petitioner and she was suffering from mental illness and the accused Akbar had approached Mujibunisha after knowing her mental illness, had filed a petition to appoint him as guardian of Mujibunisha and obtained an exparte order behind the back of the petitioner's father, who is none other that the brother of the said Mujibunisha. He would further submit that the said Mujibunisha was abducted by the said Akbar and was put in illegal detention against her wishes and the petitioner has also filed a petition in H.C.P.No.630 of 2009 for seeking the presence of his Aunt Mujibunisha and the said Akbar had also filed another petition in H.C.P.No.778 of 2009 immediately after receipt of the summons in the petition filed by the petitioner and both the cases were brought before the Court for orders and this Court was pleased to direct the 2nd respondent to complete the investigation at the earliest so as to find out the said Mujibunisha. 5.He would further submit that the present case in crime No.1022 of 2009 was filed only after the filing of H.C.P.No.630 of 2009 on 08.09.2009 and the 2nd respondent had without any further investigation hurriedly closed the matter as Mistake of Fact and the RCS notice was received by the petitioner and he also stated his objection for further investigation. Therefore, he would request the Court that the investigation in crime No.1022 of 2009 on the file of the 2nd respondent may be withdrawn and be entrusted with the 3rd respondent after giving time limit for completing the investigation. 6.The learned Government Advocate (criminal side) would submit in his argument that the case was investigated by the 2nd respondent and it was closed as Mistake of Fact since it was a property dispute in between the parties concerned. He would further submit that the petitioner cannot ask for transfer of investigation, when the complaint itself was closed as to Mistake of Fact and the petitioner was given notice of RCS and he has taken action before the Court concerned for re-investigation He would therefore request the Court to dismiss the petition. However, he would also submit that the 2nd respondent is ready to obey any orders likely to be passed by this Court in the interest of justice. 7.I have given anxious consideration to the arguments advanced on either side. 8.It is not disputed that a case was registered in crime No.1022 of 2009 by the 2nd respondent police under Section 147 and 365 I.P.C. and the said case was said to have been closed as to Mistake of Fact and a refer notice was also served against the petitioner. The reason stated for closing the case as to Mistake of Fact is that it is a dispute in respect of the property of Mujibunisha. When the case has been registered for the purpose of securing the woman viz., Mujibunisha and the case has been registered against the accused https://hcservices.ecourts.gov.in/hcservices/ 3 under Section 365 I.P.C. It has not been made clear as to whether the abducted woman Mujibunisha was secured and her statement was obtained and thereafter, the case was closed as Mistake of Fact on the statement of the missing woman Mujibunisha. 9.Therefore, this Court is inclined to to pass a direction to the 1st respondent to pass suitable orders for re-opening of the case under Section 36 Cr.P.C and on such re-opening, the 2nd respondent is directed to do investigation under the supervision of the 1st respondent. On such directions, there is no necessity to transfer the investigation from the file of the 2nd respondent to the file of the 3rd respondent. 10.Accordingly, the 1st respondent is directed to pass suitable orders for re-opening the investigation in crime No.1022 of 2009 on the file of the 2nd respondent police and the 2nd respondent is directed to continue the investigation under the supervision of the 1st respondent and to file the charge sheet within a period of three months from the date of receipt of a copy of this order. With the aforesaid direction, this criminal original petition is disposed of. Sd/- Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The Commissioner of Police, Trichy Town, Trichy. 2.The Inspector of Police, Uraiyur Police Station, Trichy District. 3.The Inspector of Police, CBCID Police, Trichy City. 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to MR.M.Ajmal Khan, Advocate SR.No.8942 arul akm/08.03.11 /3p-6c/ Crl.O.P.(MD)No.1884 of 2011 15.02.2011 https://hcservices.ecourts.gov.in/hcservices/