THE HONOURABLE MR v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 04.12.2007CORAM:THE HONOURABLE MR.JUSTICE K.MOHAN RAMCRL.O.P.No.31855 of 2007G.Susan Rebecca ... PetitionerVs.1. State rep.by The Commissioner of Police Greater Chennai Egmore, Chennai2. The Inspector of Police (Crime) T6 Avadi Police Station Chennai 600 054.3. The Superintendent of Police Central Bureau of Investigation Chennai ... RespondentsPrayer : Criminal Original Petition filed under Section 482 of theCriminal Procedure Code to transfer the petitioner's complaintdated 28.08.2007 from the file of the second respondent to the fileof the third respondent herein, in the interests of justice,directing the third respondent to register a First InformationReport on the basis of the said complaint dated 28.08.2007,investigate the matter and file a final report within the timeframe as stipulated by this Court.For Petitioner : Dr.G.Krishnamurthy for Mr.A.ThirumaranFor Respondents : Mr.Hasan Mohamed Jinnah Government Advocate (Crl.Side) for RR1 & 2 Mr.N.Chandrasekaran Special Public Prosecutor for CBI Cases for R3O R D E RThe above petition has been filed to transfer thepetitioner's complaint dated 28.08.2007 from the file of the secondrespondent to the file of the third respondent herein, in the https://hcservices.ecourts.gov.in/hcservices/ interests of justice, directing the third respondent to register aFirst Information Report on the basis of the said complaint dated28.08.2007, investigate the matter and file a final report withinthe time frame as stipulated by this Court.2. It is the case of the petitioner that she is the ownerof the property at No.18, Kamaraj Nagar, Palaripet Village, Avadi,Chennai-71 measuring about 1960 sq.ft. The petitioner came to knowthat one Mr.Rajasekaran had purchased the property from the accusedfor a consideration of Rs.9,20,000/- and the said Rajasekarprevented the petitioner from entering the property and threatenedto kill her, if she enters the property. On further enquiries, thepetitioner came to know that the accused had created forged andfabricated documents to the effect that that the petitioner hadsold the property to the accused and thereafter the said accused incollusion and connivance with said Rajasekar, the Sub Registrar ofAvadi and other officials of Avadi Sub Registrar's office hadcreated false documents and transferred the property in the nameof Mr.Rajasekar. In respect of the above said criminal acts, thepetitioner preferred a complaint to the first respondent on28.08.2007, which was forwarded to the Deputy Commissioner ofPolice of Avadi who in turn forwarded to the Assistant Commissionerof Police, Avadi Range. The Assistant Commissioner of Police AvadiRange thereafter forwarded to the second respondent.3. According to the petitioner, the second respondenttotally disregarded the complaint of the defacto complainant asforwarded by the first respondent but he dictated a fresh complaintto the petitioner wherein the original averments contained in thecomplaint dated 28.8.2007 were omitted and when the petitionerprotested, the second respondent threatened, coerced and forced thepetitioner to write a fresh complaint and sign the same underduress and coercion. It is the further case of the petitionerthat the second respondent had registered the case on the secondcomplaint which, according to the petitioner, was forcibly obtainedfrom her.4. According to the petitioner, the second respondent hasnow registered a case in Crime No.1642 of 2007 for the allegedoffences under Sections 419, 420, 468, 469, 470 and 471 of IPC. Insuch circumstances, the petitioner has filed the above petitionseeking transfer of the investigation from the file of the secondrespondent to the file of the Superintendent of Police, CentralBureau of Investigation, the third respondent herein.5. Denying the allegations contained in the above petition,the second respondent has filed a counter statement. In thecounter statement in para 14, it is stated as follows:"14. It is submitted that the allegations of thepetitioner in paragraph Nos.9 and 10 of her petition istotally false and incorrect. I have not forced andthreatened her to give a fresh complaint, since the https://hcservices.ecourts.gov.in/hcservices/ original complaint was forwarded to the Commissioner ofPolice, Chennai. We have also recorded the 161Cr.P.C.statement of the complainant and the contentswhich was in the original complaint was also recorded inthe same statement on the same day, i.e. 18.09.2006."It is further stated in the counter affidavit that properinvestigation is being done by the second respondent and there isabsolutely no necessity to transfer the investigation from the fileof the second respondent to the file of the third respondent.6. Heard Dr.G.Krishnamurthy, learned counsel appearing forthe petitioner and Mr.Hasan Mohammed Jinnah, learned GovernmentAdvocate (Crl.side) appearing on behalf of respondents 1 and 2 andMr.N.Chandrasekaran,, learned Special Public Prosecutor for CBICases for R3.7. Learned counsel for the petitioner submitted that if, asstated in the counter affidavit by the second respondent, the freshcomplaint was given by the petitioner on her own without beingcoerced by the second respondent, the second complaint shouldcontain the same averments as are found in the original complaintsubmitted to the first respondent. But the second complaint doesnot contain the serious allegations made against the petitioner'shusband and the other accused. Learned counsel further submittedthat in the original complaint it is specifically stated that theproperty in question was purchased with her own funds, whereas inthe complaint, which was obtained by the second respondent, thesaid averments are missing. But, instead, it is stated that theproperty in question was purchased with the funds provided by herhusband. According to the learned counsel, such averments has beenincorporated in the second complaint only to help the accused.8. Learned Government Advocate (Crl.side) would submit thatwhenever a complaint is given to the first respondent and if such acomplaint is forwarded to the concerned jurisdictional policestation, it is the normal practice to call the defacto complainantand to get a fresh complaint to proceed further and afterpreliminary investigation the original complaint, which has beenreceived from the Commissioner of Police will be returned back tohim, together with a report regarding the action taken on thecomplaint. Only because such a procedure has been followed,inthis case, a second complaint was obtained from the petitioner.9. According to the learned Government Advocate (Crl.Side),an enquiry conducted by the Assistant Commissioner of Policereveals that no coercion was exercised by the second respondent toget a different complaint from the petitioner as alleged by thepetitioner. Learned Government Advocate (Crl.side) also fairlysubmits that the procedure adopted by the second respondent is notstrictly in accordance with the provisions contained in the Code ofCriminal Procedure but, however, he submits, that it is the anormal practice that is being followed by all the police stations. https://hcservices.ecourts.gov.in/hcservices/

10. I have carefully considered the said submissions madeby the learned counsel on either side.11. At the outset it is to be pointed out that theprocedure adopted by the second respondent in getting a secondcomplaint from the petitioner is against the provisions containedin the Code of Criminal Procedure. When a written complaint issubmitted by the defacto complainant to higher police officials andwhen the same is forwarded to the jurisdictional police station fortaking appropriate action on such complaint, it is un-understandable as to why a second complaint has to be obtained fromthe defacto complainant. When such a complaint is forwarded by ahigher police official, if the concerned Officer, who is entrustedwith the registration of the case on the compliant, on a perusal ofthe complaint finds that commission of cognizable offence is madeout from the allegations contained in the complaint, it ismandatory on its part as contemplated under Section 154 ofCr.P.C.to register a case and proceed with the investigation ascontemplated in the Code of Criminal Procedure. In the course ofsuch investigation, the Investigating Officer is entitled toexamine the defacto complainant and other witnesses and recordtheir statements. But, no where in the Code of Criminal Procedureit is provided for getting a second complaint from the defactocomplaint.12. It may be true that, as submitted by the learnedGovernment Advocate (Crl.side), whenever a complaint is forwardedby the higher police official to the jurisdictional police station,a second complaint is obtained from the defacto complainant, butsuch second complaint should be in consonance with the firstcomplaint given by the defacto complainant to the higher policeofficial and it cannot be in variance with the first complaint. Inthis case, the specific allegation of the petitioner is that thesecond complaint was obtained from the petitioner by the secondrespondent by exercising coercion and according to the learnedcounsel for the petitioner but for the coercion exercised by thesecond respondent, the petitioner would not have given the secondcomplaint in question. 13. It is pertinent to point out that though a detailedcounter statement has been filed by the second respondent, nowherein the counter, it is stated that the second complaint contains thesame averment as found in the first complaint given by thepetitioner to the 1st respondent. It is also not explained as towhy the second complaint contains the averments which are invariance with the averments contained in the first complaint.Therefore, this Court is of the considered view that there is forcein the contention of the learned counsel for the petitioner. Inthe light of the specific allegation made by the petitioner, theapprehension entertained by the petitioner that she will not getreal justice if the investigation is carried on by the second https://hcservices.ecourts.gov.in/hcservices/ respondent cannot be said to be baseless. Further, when seriousallegation has been made against the second respondent, it is notproper for the second respondent to continue with the investigationin the case. 14. Therefore, in the interest of justice, this Court is ofthe considered view that the complaint should be transferred fromthe file of the second respondent . But however, this Court is ofthe view that complaint need not be transferred to the file of thethird respondent. But interest of justice will be served, if theinvestigation is transferred to the file of the CBCID.Accordingly, the following order is passed:"The entire files relating to Crime No.1642 of2007 pending on the file of the second respondent shallbe transferred by the second respondent to theSuperintendent of Police, CBCID, Government Estate, MountRoad, Chennai within one week from the date of receipt ofa copy of this order. The Superintendent of Police,CBCID on receipt of the files from the second respondentshall entrust the matter for fresh investigation to acompetent officer in the rank of Deputy Superintendent ofPolice within two weeks therefrom and such investigationshall be completed within a period of six months,thereafter and final report shall be filed."15. With the above direction, this Criminal OriginalPetition is disposed of.vj2Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Commissioner of Police Greater Chennai Egmore, Chennai2. The Inspector of Police (Crime) T6 Avadi Police Station Chennai 600 054.3. The Superintendent of Police Central Bureau of Investigation Chennai https://hcservices.ecourts.gov.in/hcservices/

4. The Superintendent of Police, CBCID, Government Estate, Mount Road, Chennai.5. The Public Prosecutor, High Court, Madras.+ 1 cc to Mr. J. B. Solomon peter kamaldoss, Advocate SR No.71452/07Crl.O.P.No.31855 of 2007TM(CO)SR/17.12.2007