IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2011 CORAM THE HONOURABLE MR. JUSTICE P. JYOTHIMANI W.P. No. 7575 of 2011 & M.P. No. 1 of 2011 S.P. Saktivelu ..Petitioner Vs. 1. State of Tamilnadu, rep. by its Secretary to Government, Home Department, Secretariat, Chennai – 600 002. 2. The Additional Director General of Police,CBCID Mylapore, Chennai 600 004. ..Respondents Prayer: Petition under Article 226 of the Constitution of India praying for issue of a Writ of Mandamus as stated therein. For Petitioner :: Mr.S. Doraisamy for Mr.S. Kumaradevan For Respondents:: Mr.P. Kumaresan, Public Prosecutor assisted by Mr.K. Balasubramanian, Special Govt. Pleader O R D E R This writ petition is filed for issue of a Writ of Mandamus directing the respondents to take appropriate steps under Section 308 Cr.P.C. against the Approver who was treated as hostile and to re- examine the hostile witnesses and mark their 164 Cr.P.C. statements and thereafter examine the petitioner as a witness in S.C. No. 94 of 2005 on the file of the Principal Sessions Judge, Puducherry. 2. Admittedly, in the Sessions Case in S.C. No. 94 of 2005, the petitioner, an Investigating Officer, being the last witness, has been slated to give evidence today. The main grievance of the petitioner appears to be, as could be seen from the affidavit, that as an Investigating Officer, though he has investigated https://hcservices.ecourts.gov.in/hcservices/ properly, yet, the trial has not been properly done and it is evidenced by the fact that many witnesses have been treated as hostile and according to the petitioner, the prosecution is not assisting the Court in a proper manner for the purpose of convicting the guilty persons. The petitioner would further state that as an Investigating Officer, he has to be given the necessary papers so as to enable him to substantiate his stand while giving evidence and inasmuch as the papers have not been given to him, it is not possible for him to give evidence at this stage. Moreover, according to the petitioner, the Approver, who has been treated as hostile, has not been properly examined and unless, he is recalled and examined, the petitioner, being the Investigating Officer, cannot be called to give evidence. 3. Mr.S. Doraisamy, learned counsel for the petitioner, heavily relied upon the judgment of the Supreme Court, popularly known as "Best Bakery Case" reported in (2006) 3 SCC 374 (Zahira Habibullah Sheikh(5) and Another V. State of Gujarat and Others) to substantiate his contention that rendering a judgment in an impartial manner and fair trial are prime aspects of justice delivery system and that has to be ensured by proper investigation and according to the learned counsel, such an investigation having been done by the petitioner as an Investigating Officer, the petitioner has got every right to approach this Court under Article 226 of the Constitution of India, when there is an apprehension that the trial is not being conducted in a proper manner, to see that the guilty is punished. Learned counsel for the petitioner also relied on Section 308(1) Cr.P.C. to contend that the discretion vested upon the Public Prosecutor has not been exercised properly as contemplated under the said Section and therefore, this Court, while exercising supervisory powers and also under Article 226 of the Constitution of India, can issue a direction to the Public Prosecutor to exercise his discretion in a proper manner. 4. On the other hand, learned Public Prosecutor, who was directed to take notice would submit that today, the matter has been posted for the examination of the petitioner as an Investigating Officer and since, the petitioner wanted certain papers, the matter stands adjourned to 5th April, 2011 and according to the Public Prosecutor, the petitioner is being supplied with all necessary papers and therefore, he cannot have any grievance at all. Further, in response to the contention of the learned counsel for the petitioner that steps were not taken, as contemplated under Section 308(1) Cr.P.C., the learned Public Prosecutor would submit , on instructions, that all necessary steps were taken at the appropriate time as well as at the time of examination of the Approver and therefore, when the trial is in progress before the Sessions Court, it may not be proper for this Court to exercise its jurisdiction to interfere with the said proceedings, which would amount to interfering with the administration of justice. Moreover, it is the https://hcservices.ecourts.gov.in/hcservices/ submission of the learned Public Prosecutor that the jurisdiction of this Court under Article 226 of the Constitution of India, when the trial is on, in a criminal case, is very restricted and in support of his contention, the learned Public Prosecutor relied upon the judgment of the Honourable Apex Court reported in (2008) 1 SCC 407 (M.C. Mehta V. Union of India and Others) 5. I have heard the learned counsel for the petitioner and the learned Public Prosecutor for the respondents and I have given my anxious thought to the issue involved in the writ petition. 6. On the face of it, it is true that the petitioner, being an Investigating Officer, has to be furnished with all necessary papers and in fact, he has been furnished with the necessary papers, as on date, when he is put in the witness box as the last witness in the case and the matter has been adjourned to 5th April, 2011. Therefore, there is no more grievance available to the petitioner. However, it is made clear that the petitioner, while giving evidence as an Investigating Officer, shall be furnished with all necessary records so as to enable him to give proper evidence in the Court at the appropriate time. As far as the other submission relating to the steps stated to have been not taken as contemplated under Section 308(1) Cr.P.C. is concerned, it is relevant to extract the said provision: "308. Trial of person not complying with conditions of pardon-(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by giving false evidence, not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered or for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence:.." A reading of the said provision makes it abundantly clear that if the Trial Court, at the time of trial, is not complying with certain conditions, then a discretion is vested upon the Public Prosecutor to certify the same and certainly, it is not for this Court to give a direction to the learned Public Prosecutor to exercise his discretion, especially, when it is the categorical statement of the learned Public Prosecutor that such discretion has already been exercised at the appropriate time and necessary applications have also been filed. When such steps have already been taken by the learned Public Prosecutor, as per Section 308 (1) Cr.P.C., it is not for this Court to find out whether such discretion has been exercised in a proper manner or not, especially, at this stage, when the trial is in progress. If really, any fault has been https://hcservices.ecourts.gov.in/hcservices/ committed in the matter of conducting the trial, it is not as if the parties are left in the lurch. After the judgment is delivered, it is always open to the individuals, who are affected by the said judgment, to challenge the same on the basis of alleged lacuna, before the Appellate Court. Even in the judgment rendered in Best Bakery case (cited supra) relied on by the learned counsel for the petitioner, wherein the Honourable Supreme Court had an occasion to decide about the correctness of the manner in which the trial was conducted by the Criminal Court. After the trial was completed and judgment was delivered, the Honourable Apex Court, referring to the examination of witnesses, had come to the conclusion that the manner in which the evidence was recorded and the manner in which the witnesses were treated was not in accordance with the established principles of law. It was in those circumstances that the Supreme Court had observed as hereunder: "33. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new changing circumstances, and exigencies of the situation—peculiar at times and related to the nature of crime, persons involved—directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system. 34. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the law of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane, J. put it: “It is desirable that the requirement of fairness be separately identified since it transcends the context of more particularised legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.” 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to https://hcservices.ecourts.gov.in/hcservices/ have an overriding duty to maintain public confidence in the administration of justice—often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial." https://hcservices.ecourts.gov.in/hcservices/ 7. The laudable object for which the criminal justice system stands is certainly to be established. There is no second opinion about that. But, the question is whether such a decision can be taken at this stage, which, in my considered view, will amount to interfering with the System of Criminal Administration. Admittedly, the Sessions Judge is seized of the matter and the trial is in progress. At this stage, any examination about the manner in which the investigation has been done and prosecution has been effected by the Prosecutor will certainly affect the judgment and it is certainly not within the scope of this Court sitting under Article 226 of the Constitution of India. As rightly submitted by the learned Public Prosecutor, the Apex Court in the judgment reported in (2008) 1 SCC 407 (cited supra), while considering the jurisdiction of this Court to issue a Writ of Mandamus, has observed as follows: "9. We have no doubt in our mind that judiciary may step in where it finds the actions on the part of the legislature or the executive are illegal or unconstitutional but the same by itself would not mean that public interest litigation, in a case of this nature, should be converted into an adversarial litigation. The jurisdiction of the Court to issue a writ of continuous mandamus is only to see that proper investigation is carried out. Once the Court satisfies itself that a proper investigation has been carried out, it would not venture to take over the functions of the Magistrate or pass any order which would interfere with his judicial functions. Constitutional scheme of this country envisages dispute resolution mechanism by an independent and impartial tribunal. No authority, save and except a superior court in the hierarchy of judiciary, can issue any direction which otherwise takes away the discretionary jurisdiction of any court of law. Once a final report has been filed in terms of sub-section (1) of Section 173 of the Code of Criminal Procedure, it is the Magistrate and Magistrate alone who can take appropriate decision in the matter one way or the other. If he errs while passing a judicial order, the same may be a subject-matter of appeal or judicial review. There may be a possibility of the prosecuting agencies not approaching the higher forum against an order passed by the learned Magistrate, but the same by itself would not confer a jurisdiction on this Court to step in. We should not entertain the application of the learned amicus curiae on such presupposition. A judicial order passed by a Magistrate may be right or wrong, but having regard to the hierarchy of the courts, the matter which would fall for consideration before the higher court should not be a subject-matter of a decision of this Bench. In an unlikely event of the interested parties in not questioning such orders before the higher forum, an https://hcservices.ecourts.gov.in/hcservices/ independent public interest litigation may be filed. Instances are not unknown where this Court has entertained public interest litigation in cases involving similar question under Article 32 of the Constitution of India. [See Rajiv Ranjan Singh ‘Lalan’ (VIII) v. Union of India4.]" 8. When once the investigation is completed and the trial is in progress, the scope of this Court to interfere is certainly limited and it is not, as if, at every stage, the Court should interfere with the performance of any alleged irregularity stated to have been committed. As stated above, it is after the judgment is delivered that the parties are entitled to question the validity of the judgment and therefore, such valuable right is available to anyone. 9. In such view of the matter, I am of the opinion that the relief sought in this writ petition cannot be granted and the writ petition is dismissed. However, it is made clear, by way of reiteration, that the petitioner, being the Investigating Officer, shall be entitled to be given the copies of the documents and he must be permitted to peruse the same before he is asked to give evidence as Investigating Officer. No costs. Connected M.P. is closed. Sd/- Deputy Registrar //true copy// Sub Asst.Registrar nv To 1. The Secretary to Government, Home Department, Secretariat, Chennai – 600 002. 2. The Additional Director General of Police,CBCID, Mylapore, Chennai 600 004. 1 cc to Government Pleader, Sr.No.20724,21104 1 cc to Mr.S.Kumara Devan, Advocate, Sr.No.20664 W.P. No. 7575 of 2011 PA {CO} TP/11.4.2011. https://hcservices.ecourts.gov.in/hcservices/