J.Balasubramaniam v. State by Inspector of Police Karipatti Police Station, Salem District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.07.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.OP.No.7474/2006 & 34121/2007Crl.MP.No.1/2007J.BalasubramaniamPetitioner in both Crl.OPs Vs1.State by Inspector of Police Karipatti Police Station,Salem District R1 in both Crl.OPs2.The Superintendent of PoliceSalem Rural Division, SalemR2 in Cr.OP.7474/06Prayer:- This Criminal Original Petition are filed to direct the2nd Respondent to transfer the case in Cr.No.102 of 2005 on thefile of the 1st Respondent to CBCID Salem or any other agent tocomplete the investigation in the above case in Cr.No.102/2005 andfile a final report before the concerned court within a specifiedtime and to call for the records and to quash the impugned noticedated 14.6.2007 issued by the Judicial Magistrate II, Salem inCr.No.102/2005 (On the file of the Respondent).For Petitioner:Mr.R.Mususwamy For Respondents:Mr.S.Senthil Murugan for P.PCOMMON ORDER Since these Criminal Original Petitions have been filed inrespect of the very same Cr.No.102/2005 by the Petitioner herein,they are heard together and disposed of by this common order. 2. The brief facts, which are necessary for the dispose ofthese Criminal Original Petitions are as follows:-The Petitioner/defacto complainant is possessing a validheavy motor vehicle driving licence. On coming to know that oneGunalan, who is arrayed as the accused, the Proprietor of M/s.SelviBus Services, Kichipalayam is selling his bus permit, thePetitioner approached him and purchased the bus permit from theaccused and thereafter, the Petitioner spent huge amount ofRs.1,25,000/- for the purpose of building the body of the mini busand also he purchased the vehicle through auction on 3.2.2002through one Thilagar. As the permit was in the name of the accused, https://hcservices.ecourts.gov.in/hcservices/ the vehicle was also purchased in his name, so as to get the nametransfer in his name at a future date. It is stated thatsubsequently he approached the accused Gunalan to give him the RCBook, permit etc. of the vehicle for the purpose of inspection atRTO Office. But with an intention to cheat the Petitioner, theaccused refused to hand over the said documents. Having receivedthe entire cost of the vehicle and in spite of the repeateddemands, since the accused failed to hand over the documents, herequested the accused to refund the amount. But, that was also notcomplied with. When he questioned the act of the accused, it isalleged that he threatened with dire consequences. Thisnecessitated the Petitioner to lodge a complaint before the 1stRespondent Police against the accused for the offences punishableunder Section 420 and 506(ii) of IPC on 8.3.2005. 3. Initially the 1st Respondent Police refused to registerthe FIR and only issued receipt in acknowledgement of filing of theFIR, but no action was taken for several days. Therefore, thePetitioner approached the Superintendent of Police/2nd Respondent,Salem District with a request to direct the 1st Respondent toregister a case and take appropriate action against the accused andthereafter, on the direction of the higher officials, the 1stRespondent Police registered a case in Cr.No.102/2005 on 2.4.2005.However, there was no progress in the investigation by the 1stRespondent Police, even after lapse of nearly six months.Thereafter, the Petitioner filed a petition in Cr.OP.No.24292/2005,seeking for a direction directing the Respondent therein toinvestigate into the complaint and file a report. This court byorder dated 14.9.2005 directed the 1st Respondent police toinvestigate into the complaint and to file a report, asexpeditiously as possible. But in spite of the said direction ofthis court, no action was taken by the 1st Respondent Police and itis alleged that the 1st Respondent Police colluded with the accusedand acted in a partisan manner and openly declared that he wouldnot take any action against the accused in the above case and hewould close the case. Apprehending partisan attitude on the sideof the Respondents, again the Petitioner has filed thisCrl.OP.No.7474/2006, praying for a direction to transfer the caseon the file of the 1st Respondent Police to CBCID, Salem District.4. In such circumstances, he had received the impugnednotice dated 14.6.2007 from the Court of the learned JudicialMagistrate II, Salem, calling upon him to appear before the Courton 18.7.2007 to hear him regarding the report filed by the Policeto drop the above complaint as a mistake of fact. Therefore, thisCrl.OP.No.34121/2007 has been filed to quash the said impugnednotice.5. A perusal of the FIR registered in Cr.No.102/2005 forthe offences under Sections 420 and 506(ii) of IPC shows that thereis a specific allegation made against the accused Gunalan thathaving received the entire cost of the vehicle, he refused to hand https://hcservices.ecourts.gov.in/hcservices/ over the documents relating to the vehicle and on such refusal,when the Petitioner demanded the accused to refund the amount, hefailed to respond, but he threatened with dire consequences. Theabove FIR discloses the commission of cognizable offences. Whenthe 1st Respondent Police failed to take action, the Petitioner hasapproached this court by filing Cr.OP.No.24292/2005, wherein thelearned Public Prosecutor, after getting instructions, had given anundertaking to this court that he would give suitable instructionsto the Police concerned to do proper investigation and file areport as expeditiously as possible. Based on the said undertaking,this court has passed an order dated 14.9.2005, directing theRespondent Police therein to investigate the case and file a finalreport, as expeditiously as possible. Even thereafter, no positivesteps had been taken by the 1st Respondent Police and therefore, thePetitioner has again approached this court in thisCr.OP.No.7474/2006 to direct the 2nd Respondent to transfer thecase in Cr.No.102/2005 on the file of the 1st Respondent to CBCIDSalem or any other agent to complete the investigation.6. The learned Government Advocate has taken notice on23.3.2006 in this Cr.OP.No.7474/2006 and the same was adjourned forhis response. In the mean while, the Petitioner has received theimpugned notice from the learned Judicial Magistrate II, Salem,calling upon him to appear before him and to hear him regardingthe complaint being closed as a mistake of fact.7. The impugned notice is challenged by the Petitioner onthe ground that no investigation has been done by the Respondentsand he was not examined at any point of time by the concernedPolice. He would further state that after the order passed by thiscourt, the 1st Respondent Police hastily closed the case in order towriggle out of the situation apprehending that the case may betransferred from his file to CBCID or to any other agency. 8. It is held by the Allahabad High Court in the case ofBhopal and others Vs. State of UP and another (1997-Crl.LJ.-2363)that in a case where a complainant or victim comes to the court andmakes an allegation that the local police is not investigating thecase properly or fairly, the court may issue a direction forinvestigation by any other impartial agency to ensure that thecrime is properly investigated.9. The Honourable Supreme Court in the case of Punjab andHaryana High Court Bar Association, Chandigarh through itsSecretary Vs. State of Punjab and others (AIR-1994-SC-1023) hasobserved that the investigation having been completed by the policeand charge sheet submitted to the court, it is not for the courtordinarily to reopen the investigation. However, it held on thefacts of the said case that to do complete justice in the matterand to instill confidence in the public mind, it is necessary tohave a fresh investigation in that case through a specialisedagency. https://hcservices.ecourts.gov.in/hcservices/

10. Bearing in mind the above said observations made bythe Apex Court and the High Court, in order to do complete justiceand instill confidence on the public more particularly, thePetitioner in this case, it is necessary to issue suitabledirections to the concerned Police. On a perusal of the FIR, it isabundantly clear that a cognizable offence is committed by theaccused Gunalan. The grievance of the Petitioner is that he wasnot examined nor material was gathered from him to prove his caseand without conducting any investigation, the Police had filed thereport, as "a mistake of fact".11. The Respondent Police have not produced any materialto show that the investigation was done properly and fairly and theconclusion arrived at by the Respondent Police is in accordancewith law. In such view of the matter, the impugned notice dated14.6.2007 is liable to be quashed and accordingly, it is quashed. 12. The FIR in this case does not show the case as acomplicated one or it is of public interest. Therefore, the requestof the Petitioner to transfer the case to CBCID is not required.However, to meet the ends of justice and to redress the grievanceof the Petitioner, the Superintendent of Police, Salem/the 2ndRespondent is directed to transfer the FIR in Cr.No.102/2005 fromthe file of the 1st Respondent Police, to any other officer notbelow the rank of Inspector of Police to reinvestigate the case andfile his report within a period of three months from the date ofreceipt of the copy of this order. 13. With the above directions, these Criminal OriginalPetitions are ordered accordingly. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSrcm To:1. The Public Prosecutor, High Court, Madras.2. The Inspector of Police,Kalipatti Police Station,Salem District. https://hcservices.ecourts.gov.in/hcservices/

3. The Superintendent of Police,Salem Rural Division,Salem.4. The Judicial Magistrate II,Salem.5. -do- Through The Chief Judicial Magistrate,Salem.2 cc To Mr.R.Munuswamy, Advocate, SR.30157, 30158.Crl.OP.No.7474/2006 & 34121/2007 RSI(CO)RVL 20.07.2009