IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 17.6.2009 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.12443 of 2007 S.Amirthanathaswamy. ... Applicant vs. 1. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 2. The Additional Superintendent of Police, Prohibition Enforcement Wing, Tirunelveli. ... Respondents Original Application No.474 of 2002 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench praying to call for the records of the second respondent in connection with the order passed by him in his proceedings PR No.218/2001 dated 19.01.2002 and quash the same. Since the Tamilnadu Administrative Tribunal was abolished, the O.A. was received by transfer and numbered as Writ Petition. For petitioner : Mr.R.Karthikeyan For respondents : Mr.T.Seenivasan, Additional Government Pleader ----- O R D E R Original Application No.474 of 2002 was filed before the Tamil Nadu Administrative Tribunal, Madras Bench praying to call for the records of the second respondent in connection with the order passed by him in his proceedings PR No.218/2001 dated 19.01.2002 and quash the same. Since the Tamilnadu Administrative Tribunal was abolished, the O.A. was received by transfer and numbered as Writ Petition. 2. The brief facts for disposal of the writ petition is as follows:- While the petitioner was working as Sub Inspector of https://hcservices.ecourts.gov.in/hcservices/ Police in Valliyoor Police Station between 16.5.1999 and 27.11.2000, one Esakkiyappan and his brother were murdered on 16.8.1999 at 7.30 hours. A case was registered by the petitioner in Crime No.351 of 1999 under Section 302 IPC on the complaint made by one Mrs.Sabitha, wife of the deceased Esakkiayappan. Petitioner conducted investigation and recorded statement from witnesses and prepared observation mahazar and rough sketch of the scene of crime. At this point of time, it appears that CBCID undertook investigation. Respondent department was of the view that since the case in crime No.351 of 1999 registered under section 302 IPC it should be investigated by an Inspector of Police and not by Sub Inspector of Police. The act of the petitioner in recording statements from witnesses and preparing mahazar and rough sketch was contrary to rules of procedure. Hence, charge memo was issued. In Annexure-II to the charge memo, the statement of allegation, the specific case of the department is as follows:- "You have also prepared an observation mahazar and rough sketch of the scene of crime, and the statements of Sabitha, w/o Esakkiappan (deceased) (2) Gurusamy, s/o Marimuthu Nadar and Suyambukaniammal, w/o Ponniah Nadar recorded by you u/s 164(3) Cr.P.C., reveals that the complete version of Sabitha reported as first information is totally corroborated with Sabitha where she has stated that she had no knowledge about the accused and at the very end of the statement, with very little place for your signature. You have added two lines stating that Rajaiah @ Rajadurai, s/o Muthiah Nadar appears to have committed this murder. In all the three statement of the witnesses, the last two lines appear blatantly to be included after the entire statement was written and signed by you. The very difference in scrounging the writing is proof of your last minute addition to the original statement of Sabitha and the two others, who during their examination by the Crime Branch CID., Tirunelveli have totally denied having stated that Rajaiah @ Rajadurai appear to have caused the double murder. This is clear indication of forceful inclusion of a motive attributed against Rajaiah @ Rajadurai. The Crime Branch CID., had detected the involvement of one Shunmuga Pandi and 4 others in this offence, who were arrested, as against your wilful perfunctory investigation." 3. In view of the above statement of allegation in the charge memo, petitioner made a request on 17.2.2002 for furnishing copies of records from the office of CBCID, Tirunelveli and such request was https://hcservices.ecourts.gov.in/hcservices/ rejected by the second respondent. The order reads as follows:- "Since the investigation case diaries and statements recorded by the C.B.C.I.D. Police in sensational cases are considered to be confidential documents, your request to either peruse those documents or to getting copy of the documents pertaining to Valliyur PS Cr.No.351/99 U/s.302 IPC regarding the investigation done by the CBCID Police, Tirunelveli is hereby rejected. I am herewith enclosing the true copies of the statements of Prosecution Witnesses 1 to 3 recorded during the oral enquiry on 19.1.2002, enabling you to cross examine them in the next hearing date on 4.2.2002 at 11.00 hrs before the undersigned at the District Police Office, Tirunelveli. At that time it is proposed to examine all the other witnesses mentioned in the charge memo. If you do not attend the oral enquiry on 4.2.2002 it will be construed that you had no cross examination and the witnesses will be examined ex parte. Acknowledge the receipt of the proceedings." In view of the rejection of petitioner's request by the respondents, to furnish copies of documents relating to the statements recorded by the CBCID, the present writ petition has been filed to set aside the order. A specific ground has been taken on this issue in grounds (e) and (h) as follows:- "e) It was informed that after CBCID Enquiry a Report was submitted and based on the Report the Charge Memo was issued. Whileso, it is fundamental right of the applicant to prove the same so that he can deny the charges, the same was requested by the applicant. But the respondent has refused to produce the Statement stating that it is confidential. Hence the above act of the respondent clearly reveals the vindictive nature to harass the applicant in one way or other and to punish the applicant for no fault of him. Therefore, the impugned order is liable to be quashed in limini." "h) It is submitted that the alleged delinquency said to have taken place on 16.8.99, neither he has registered the case nor he was https://hcservices.ecourts.gov.in/hcservices/ appointed as Investigating Officer. Whileso, based on the false complaint, basic enquiry was initiated and report was submitted. Based on the Report, a Charge Memo was issued and Enquiry was conducted. Whileso, the respondents ought not to have passed an Impugned Order. Refusing to produce the Statement of CBCID based on which the Charge Memo itself was issued and moreover in catena of Judgment of Hon'ble Apex Court, Hon'ble High Court and this Hon'ble Tribunal have categorically stated that the delinquent shall be produced with the Statement for his perusal, failing which the entire Enquiry Proceedings shall be vitiated. Hence on this ground alone the impugned order is liable to be quashed." 4. A reply affidavit has been filed by respondents and para 9 reads as follows:- "9) As regards the averments made in Grounds(h), it is submitted that all the records relevant to the charge memo have been issued to the applicant on his request. Those records which were not related to the charge memo have been rejected. Hence the contention of the applicant is a false one." (emphasis supplied) 5. On a perusal of the statement of allegations contained in the charge memo and on considering the first charge, it is clear that a specific allegation is made against the petitioner that he has falsely implicated one Rajaiah @ Rajadurai in Crime No.351 of 1999 under section 302 IPC adding the same in the statement of witness and in the inquest report. Charge No.2 also relates to false implication of one Rajaiah alias Rajadurai in the murder case. In the statement of allegation with regard to the misconduct, it is clearly stated that the petitioner has added two lines in the original statement of Sabitha and two others implicating Rajaiah alias Rajadurai as responsible for double murder. Whereas the witnesses in the examination before the CBCID, have stated that they did not state that Rajaiah alias Rajadurai is the person responsible for the double murder. Since the basis on which the charge memo has been issued is the statement recorded by the CBCID from the complainant and the two witnesses who have specifically denied that they have stated that Rajaiah alias Rajadurai is responsible for double murder, it is not clear as to on what basis this statement recorded from CBCID from Sabitha and two other witnesses should be withheld. The reason given by the authority is that it is a sensational case and the documents are considered to be confidential. No rule or provision of law has been stated as to how the authority https://hcservices.ecourts.gov.in/hcservices/ can deny the furnishing of these documents to the delinquent. 6. Further, on considering the para 9 of the reply affidavit, the stand of the department appears to be totally inconsistent and without any basis. It is specifically stated in the reply affidavit that the records which are not related to charge memo has been rejected. This statement in reply affidavit is contrary to the statement of allegations contained, viz., imputation of misconduct and misbehaviour set out in Annexure-II to the charge memo where there is very specific reference to the statement of Sabitha and two others before the CBCID. In that it is stated that they have denied the statement that Rajaiah alias Rajadurai is responsible for the double murder. 7. There are two versions, one recorded by the petitioner from the complainant and two witnesses which according to the department is incorrect and there is a different version before the CBCID. The allegations contained in the statement of allegations, viz., imputation of misconduct or misbehaviour specifically refers to the statement recorded by the CBCID. Therefore, it becomes relevant for deciding the disciplinary proceedings initiated against the petitioner. As stated earlier, no rules or provision of law has been relied upon for the purpose of denying these documents. On the contrary in the reply affidavit in para 9, it is stated that the documents which are not related to charge memo have only been rejected. This statement in reply affidavit is totally incorrect, on the face of the statement of allegation in Annexure-II to the charge memo. 8. In such circumstances, the relief sought for by the petitioner for supply of statement of witnesses recorded by CBCID is justified, as otherwise great prejudice will be caused to him in the disciplinary proceedings initiated by the respondent. The order of rejection which is under challenge in the present proceedings is totally unsustainable. Petitioner is entitled to a copy of documents requested in terms of letter dated 17.1.2002. Petitioner is willing to submit himself to further proceedings on receipt of those documents. The respondents after furnishing the documents may conclude the proceedings at an early date without much delay. The writ petition is allowed and ordered with the above direction. No order as to costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ts To 1. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 2. The Additional Superintendent of Police, Prohibition Enforcement Wing, Tirunelveli. +1 CC to M.R.R.Karthikeyan Advocate, SR-23948 +1 CC to The Government Pleader SR-24215 W.P.No.12443 of 2007 CO-TS SRA-08/07/2009 https://hcservices.ecourts.gov.in/hcservices/