N. Sampath v. State rep. by Inspector of Police District Crime Branch Cuddalore & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.09.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.3811 of 2009N.Sampath...Petitioner/Defacto ComplainantVs.1.State rep. by Inspector of Police District Crime Branch Cuddalore (Crime No.2 of 2009)2.The Superintendent of Police Cuddalore Cuddalore District...RespondentsCriminal Original Petition filed under Section 482 of CriminalProcedure Code to direct the second respondent to withdraw theentire case diary in Cr.No.2 of 2009 from the first respondent andhand over the same to the Deputy Superintendent of Police, CBCID,Cuddalore for further and proper investigation.For Petitioner : Mr.Ilanthirayan for M/s.Sai, Bharat and IlanFor Respondent : Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl.Side)O R D E RThe present petition has been filed by the de-factocomplainant in Cr.No.2/2009 registered on the file of DistrictCrime Branch, Cuddalore praying for an order directing theSuperintendent of Police, Cuddalore, Cuddalore District (the secondrespondent herein) to withdraw the entire case diary in the abovesaid case from the Inspector of Police, District Crime Branch,Cuddalore (first respondent) and hand over the same to the DeputySuperintendent of Police, CBCID, Cuddalore for proper and furtherinvestigation of the case. 2. The facts leading to the filing of the present petition areas follows:-The petitioner herein is running a lorry broker office and heused to buy and sell used lorries and arrange finance for them. https://hcservices.ecourts.gov.in/hcservices/ One Subramanian of Koothappankudikadu in Thittakudi Taluk was alsoengaged in the very same business. Due to some misunderstanding,the relationship between the petitioner and the said Subramaniangot strained pursuant to which the said Subramanian preferred acomplaint on the file of Thittakudi police station alleging theftof his lorry. Purporting to act in furtherance of the investigationof the said case, the petitioner herein was taken by oneChinnadurai, the then Sub-Inspector of police, Thittakudi to thesaid police station on 23.11.2008 at about 22.00 hours. He hadalso seized two lorries bearing Regn.Nos.TN-72 R-5972 and TN-28 AC-5024 sold by the petitioner to Sivakumar of Potthiramangalam andDhandapani of Thittakudi respectively. The said Sub-Inspector ofpolice again took the petitioner to Namakkal on 25.11.2008 andbrought him back to the Thittakudi Taluk police station along withtwo other lorries bearing Regn.Nos.TN-46 C-1002 and TN-28 AD-4685,which had been sold by the petitioner to Shanmugam and Sakthivelrespectively. The said lorries had been previously owned by oneSelvaraj. The above said lorries seized by the Sub-Inspector ofpolice were later on parked in front of the house of the abovementioned Subramanian, who gave the complaint alleging theft of hislorry. 3. Under such circumstances, the petitioner preferred acomplaint to the Deputy Inspector General of Police, Villupuramnaming 1) Thiru.Kanniappan, the then Deputy Superintendent ofPolice, Thittakudi, 2) Thiru.Kumarabalan, the then Inspector ofPolice, Thittakudi Police Station and 3) Thiru.Chinnadurai, thethen Sub-Inspector of Police, Thittakudi police station as thenamed accused, alleging demand and receipt of bribe and misuse oftheir official capacity, besides other offences. Pursuant to adirection issued by the Deputy Inspector General of Police, a casewas registered on the file of District Crime Branch, Cuddaloreagainst the seven persons in Cr.No.2 of 2009 for the allegedoffences punishable under Sections 323, 220, 388, 347, 465, 467,468, 471 and 420 IPC. The said case was registered on 26.01.2009and the persons arraigned as accused in the said case were asfollows:- 1) Subramanian, son of Vadamalai, 2) Gopinathan, son ofSubramanian, 3) Senthil, son of Subramanian, 4) Velavan, son ofSubramanian, 5) Chinnadurai, Sub-Inspector of Police, Thittakudipolice station, 6) Kumarabalan, Inspector of Police, Thittakudipolice station and 7) Kanniappan, Deputy Superintendent of Police,Thittakudi.4. In the said complaint it had been alleged that, at thefirst instance, when the petitioner had been taken to Thittakudipolice station on 23.11.2008 along with two lorries bearingRegn.Nos.TN-72 R-5972 and TN-28 AC-5024, Mr.Kumarabalan, Inspectorof Police demanded and accepted a sum of Rs.40,000/- as bribe forreleasing the petitioner; that the Sub-Inspector of police and theDeputy Superintendent of Police, who had been arrayed as accusedNos.5 and 7 in the case concerned in this petition, demanded a sumof Rs.1,00,000/- as bribe for releasing the lorries informing the https://hcservices.ecourts.gov.in/hcservices/ wife of the petitioner that the said lorries could not be releasedfor a sum of Rs.40,000/- alone; that they received the said sum ofRs.1,00,000/-, the next day as bribe for releasing the saidlorries; that similarly all the above said officials, namely Sub-Inspector of police, Inspector of police and the DeputySuperintendent of police, who have been arrayed as accused Nos.5 to7 in Cr.No.2 of 2009 on the file of District Crime Branch,Cuddalore released those lorries only after receiving a sum ofRs.1,00,000/- from the wife of the petitioner; that the said policeofficers obtained signatures in blank stamp papers from thepetitioner, his brother Muralidharan and the above said Selvaraj,the former owner of lorries bearing Regn.Nos.TN-46 C-1002 and TN-28AD-4685 with the help of which they fabricated an agreement as ifthe said Selvaraj agreed to sell those lorries to the secondaccused Gopinathan and the third accused Senthil, both sons of theSubramanian and parked the said lorries in front of the house ofthe first accused Subramanian; that thereafter valuable parts ofthe said lorries like tyres, batteries, propeller shafts, etc. wereremoved and that the police officers, who had been arrayed asaccused Nos.5 to 7 were acting hand in glove with the accusedpersons 1 to 4 therein. It had also been alleged that thepetitioner was asked to make ready a skeletal lorry to showrecovery in the complaint given by the first accused Subramanianand received bribe for releasing two out of the four lorriesseized. 5. As the said episode was informed to the Deputy InspectorGeneral of Police, Villupuram by way of a complaint dated16.12.2008, the said Deputy Inspector General of Police directedthe inspector of Police, District Crime Branch, Cuddalore toregister a case based on the said complaint and investigate thesame. As the petitioner is not satisfied with the way in which theinvestigation was conducted by the Inspector of Police, DistrictCrime Branch, Cuddalore, who has been arrayed as the firstrespondent in the petition, he has invoked the inherent powers ofthis court under Section 482 Cr.P.C to direct the Superintendent ofPolice, Cuddalore (second respondent) to withdraw the case diaryfile from the first respondent and entrust the same to the DeputySuperintendent of Police, CBCID, Cuddalore.6. It is the contention of the petitioner that the firstrespondent, who is presently investigating the case has notproperly investigated the same, which will be seen from the factthat the first respondent has not arrested any one of the accusedpersons and that he did not recover the properties concerned inthis case so far. It is the further contention of the petitionerthat since the accused persons 5 to 7 are the officers of thepolice department and since the accused No.6 is equal in rank withthe first respondent and the accused No.7 is higher in rank thanthe first respondent, the first respondent, in addition to hisfailure to properly investigate the case, is passing on informationregarding the steps taken by the higher officials to the above said https://hcservices.ecourts.gov.in/hcservices/ accused persons and that hence the petitioner cannot expect anyimpartial investigation if the same is left in the hands of thefirst respondent.7. In the counter affidavit filed by the first respondent,excepting the contention of the petitioner that the firstrespondent is not properly conducting the investigation and is nottaking steps to arrest the accused persons and recover theproperties which are denied by the first respondent, almost allother allegations are not denied, rather admitted by the firstrespondent. On the other hand, the first respondent in the counteraffidavit has submitted that he is taking all steps to arrest theaccused persons and recover the properties.8. In the light of the above said pleadings, the point thatarises for consideration is as follows:" whether a direction for withdrawing the entirecase diary in Cr.No.2 of 2009 from the first respondentand transfer the same to the Deputy Superintendent ofPolice or any other officer of the CBCID, Cuddalore, hasto be issued?"9. The submissions made by Mr.Ilanthirayan for M/s.Sai,Bharath and Ilan, learned counsel for the petitioner and byMr.I.Paul Nobel Devakumar, learned Government Advocate (Crl.Side),representing the respondent were heard. The materials available inthe form of typed set of papers and produced in the form of CD filewere also perused.10. The de-facto complainant in Cr.No.2 of 2009 registered onthe file of District Crime Branch, Cuddalore is the petitionerherein. Complaining inaction and even collusion with the accusedpersons in the said case on the part of the investigating officer,namely the first respondent herein, the petitioner has come forwardwith the present petition under Section 482 Cr.P.C for a directionto the second respondent, namely the Superintendent of Police,Cuddalore District to withdraw and hand over the case diary filefiled in the above said case to the Deputy Superintendent ofPolice, CBCID for further and proper investigation. In support ofhis prayer, the petitioner has contended that the presentinvestigating officer cannot effectively do the investigation, asone of the accused persons is a police officer equal in rank andanother accused is a superior in rank to the investigating officer.11. It is the further contention of the petitioner that thoughthe three police officers, who have been arraigned as accused Nos.5to 7 in the case are very much available in the jurisdiction, thefirst respondent has not chosen to arrest any one of them and thatin fact he is passing on the information regarding the decisionstaken by and the moves made by the higher officials against thoseaccused persons. Admittedly, among the said accused persons, https://hcservices.ecourts.gov.in/hcservices/ namely accused Nos.5 to 7, one has retired and the other two havebeen placed under suspension. The person, who retired from servicewould have given his address for the purpose of claiming andreceiving pensionary benefits. It seems no attempt was made by thefirst respondent to trace the said accused, who has retired fromservice, at least in the address he has furnished for pensionarybenefits or at the place wherein he has to present himself forclaiming and receiving such pensionary benefits. The other twoaccused persons are admittedly under suspension and by the conductrules, they should have informed their address and they cannotchange their address without informing the disciplinary authority.That being so, it is quite surprising to hear from the firstrespondent that all the three police officials, who figure asaccused Nos.5 to 7 are absconding and hence he is not able toarrest any one of them. The other four accused persons, namelySubramanian and his sons are also not arrested. The onlyexplanation offered by the first respondent is that they areabsconding and hence he could not arrest them. However, the firstrespondent, in his counter affidavit has stated that the second andthird accused, namely Gopinathan and Senthil had filed a petitionbefore the High Court in Crl.O.P.No.3215/2009 seeking a directionagainst the first respondent not to harass them. The said factitself will show that the accused persons are freely moving hereand there and they were also able to move petitions before the HighCourt. It is not the case of the respondents that any of theaccused persons has been granted anticipatory bail. Under suchcircumstances, this court has to accept the arguments advanced bythe learned counsel for the petitioner that the first respondent isnot inclined to arrest any one of the accused persons and that hehimself would have passed on the information to the accused personsand advised those accused persons to seek necessary orders ofprotection from the High Court, as having substance in it. 12. It is also admitted by the first respondent in his counteraffidavit that the lorries bearing TN-28 AD-4685 and TN-46 C-1002are found without tyres, batteries and propeller shafts showingtheft of those material parts from the said vehicles. So far thefirst respondent has not taken effective steps either to recoverthose parts or to apprehend any one of the accused persons who areseven in number. Therefore, this court has to arrive at aconclusion that there is substance in the apprehension expressed bythe petitioner to the effect that the first respondent is noteffectively conducting investigation; that he cannot conduct aneffective investigation as three of the accused are policeofficials and that in fact the first accused seems to have acted insuch a way to make it appear that he has not only failed toproperly investigate the case but also helped the accused personsby passing on the information regarding the steps taken by thehigher officials. The said grounds are enough for directing thetransfer of the investigation of the said case to any other officerin a specialised agency like CBCID. https://hcservices.ecourts.gov.in/hcservices/

13. It is pertinent to note that three of the accused personsas on the date of registration of case were officers of the policedepartment in the ranks of Sub-Inspector of police, Inspector ofpolice and Deputy Superintendent of Police. When such is the case,one cannot expect a bold, fair and impartial investigation if thesame is to be entrusted to an officer of the police departmentbelow the rank of the 7th accused (Deputy Superintendent of Police).Therefore, the investigation at the inception itself ought to havebeen entrusted to an officer of equal or higher rank. Curiously,in this case, the investigation was entrusted to the Inspector ofpolice, who is an officer lower in rank than the 7th accused andequal in rank with the 5th accused. 14. Police Standing Order 141 sub-clause(2) reads as follows:-"in cases of alleged extortion or bribery by apolice officer, the Superintendent of Police must usehis discretion whether to hold a personal enquiry ornot, but all really serious cases of this nature shouldbe enquired into either by the Superintendent or hisAssistant or Deputy." The said clause will make it clear that cases of extortion andbribery by the police officials should be investigated by higherpolice officials. It also means that such offences allegedlycommitted by the police officials should be investigated by apolice officer who shall be equal or higher in rank to the accusedpolice officers and in all such cases, it shall be desirable tohave the investigation conducted by an officer of higher rank thanthe accused.15. In fact, Mr.I.Paul Nobel Devakumar, learned GovernmentAdvocate (Crl.Side) representing the respondents has also concededthat investigation of the case ought not to have been entrusted tothe first respondent and that the case should have beeninvestigated by a Deputy Superintendent of Police or aSuperintendent of Police. The learned Government Advocate(Crl.Side) also submitted that it shall be desirable to have thecriminal case concerned in this petition investigated by a policeofficer of the CBCID in the rank of Superintendent of Police. Thiscourt appreciates the fairness on the part of the learnedGovernment Advocate (Crl. Side) representing the respondents inmaking such a valuable suggestion and comes to the conclusion thatit is a fit case in which this court has to exercise its inherentpower under Section 482 Cr.P.C to direct the withdrawal of the casediary file from the first respondent herein and entrustment of thesame to the Superintendent of Police, CBCID for furtherinvestigation in a proper and fair manner.16. In the result, this petition is allowed and the case diaryfile in Crime No.2 of 2009 now pending on the file of the firstrespondent is directed to be withdrawn and entrusted to the https://hcservices.ecourts.gov.in/hcservices/ Superintendent of Police, CBCID, North Zone, Chennai-32, havingjurisdiction over Cuddalore District for further investigation in aproper and fair manner. The Superintendent of Police, CBCID, NorthZone, Chennai-32, having Jurisdiction over Cuddalore District isalso directed to complete the investigation as expeditiously aspossible. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar asrTo1.Inspector of Police District Crime Branch Cuddalore (Crime No.2 of 2009)2.The Superintendent of Police Cuddalore Cuddalore District3.The Superintendent of Police, CBCID, North Zone, Chennai-32.4.The Deputy Superintendent of Police, CBCID, Cuddalore.5.The Public Prosecutor High Court Madras 600 104+1 cc to Mr.Sai,Bharath & Ilan, Advocate, SR.No.46680 Order inCrl.O.P.No.3811/2009BKY {CO}TP/16.9.2009.