M. Nageswaran v. The Deputy Superintendent of Police Organised Crime Unit IICrime Branch CID

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:05.10.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.12837 of 2009M.Nageswaran...PetitionerVs.The Deputy Superintendent of PoliceOrganised Crime Unit IICrime Branch CIDGuindy, Chennai 600 032...RespondentThis Criminal Original Petition has been filed under Section482 Cr.P.C to give a suitable direction to the respondent not to harass and threaten the petitioner to support the prosecution case as approver and further petitioner may be permitted to appear before the court on receipt of summons. For Petitioner: Mr.M.PrabhakaranFor Respondent : Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl. Side)

O R D E RThe second accused in Cr.No.1/2009 originally registered on the file of CBCID, Pudukottai, then re-registered and now pending on the file of CBCID (Organised Crime Unit II), Alandur, Guindy, Chennai as Cr.No.1/2009 has filed this petition under Section 482Cr.P.C praying for an order directing the respondent, namely the Deputy Superintendent of Police, Organised Crime Unit II, CrimeBranch CID, Guindy, Chennai not to harass or threaten in the course of investigating the above said case and for relaxation of the conditions imposed by this court in its order dated 03.04.2009granting anticipatory bail in Crl.O.P.No.4839/2009.

The submissions made by Mr.M.Prabhakaran, learned counselfor the petitioner and by Mr.I.Paul Nobel Devakumar, learnedGovernment Advocate (Crl. Side) representing the respondent were heard. The petition, affidavit filed in support of the petition, counter affidavit, typed set of papers and the documents produced by the respondent in the form of case diary file were also perused.

Based on the complaint of Thiru. Surjit K.Chaudhary, I.A.S.,the then Agricultural Production Commissioner and PrincipalSecretary to Government dated 31.12.2008, Thiru.N.Sugumar, Inspector of Police, CBCID, Pudukottai registered a case on the https://hcservices.ecourts.gov.in/hcservices/ file of CBCID, Pudukottai in Cr.No.1/2009 for alleged offences punishable under Sections 406 and 420 IPC along with an offence punishable under Section 7 r/w Section 3 of the EssentialCommodities Act, 1955 r/w Clause 3 of Fertilizer (Movement Control)Order 1973 and Clause 25 of the Fertilizer (Control) Order 1985.The said case was registered against five named accused and others.1) Thiru.A.Natarajan, a wholesale fertilizer dealer having his business at Pudukottai, 2) Thiru. Nageswaran, owner of Srikanth &Nagesh firm, Chennai (the petitioner herein), 3) Thiru. KishoreNagarur, owner of Sri Chemicals, Anna Nagar, Chennai, 4) JointDirector of Agriculture, Pudukottai and 5) Assistant Director of Agriculture (QC), Pudukottai, were the named accused persons. Apart from the said five named accused persons, the case has been registered against others also without specifying the number of such persons.

Initially investigation of the case was conducted byMr.A.G.A.Rozario, Deputy Superintendent of Police, CBCID, Trichy. Subsequently, the same came to be transferred to the file of CBCID(Organised Crime Unit-II), Alandur, Guindy, Chennai. Thus the matter is at present being investigated by the DeputySuperintendent of Police, CBCID, Organized Crime Unit-II, Guindy, Chennai.

The petitioner, who figures as accused No.2 in the said case, moved a petition under Section 438 of Cr.P.C on the file of this court for anticipatory bail. This court, by an order dated03.04.2009 granted him the said relief with a condition for hisappearance before the Investigating Officer at all times reasonably required by such Investigating Officer for interrogation. Admittedly, the petitioner, after obtaining the said order of anticipatory bail, appeared before the concerned MetropolitanMagistrate and executed the necessary bail bond. It is also not in dispute that thereafter the petitioner made himself available before the present Investigating Officer as and when his presence was required. Under such circumstances, the petitioner has come forward with the present petition seeking a direction to the respondent (present Investigating Officer) not to harass the petitioner in order to coerce him to become an approver in the said case. The case is under investigation and the charge-sheet is yet to be filed.

It is the contention of the petitioner that taking advantage of the condition imposed by this court while granting anticipatory bail making it obligatory on the part of the petitioner to appear before the Investigating Officer at all times required by the latter for interrogation, the petitioner was unnecessarily harassed by summoning to the office of the Investigating Officer on various dates and making him remain therein the office from 10.00 a.m to 6.00 p.m without any enquiry. Itis the further contention of the petitioner that the said method was used by the Investigating Officer to show the petitioner that he had to undergo such ordeal if he did not come forward to give his consent for being an approver witness to depose against the https://hcservices.ecourts.gov.in/hcservices/ other accused persons; that on 20.06.2009, the InvestigatingOfficer, over phone coerced him to support the prosecution case by turning as an approver; that on 23.06.2009, the InvestigatingOfficer contacted the petitioner over phone and asked him to appear before him on 27.06.2009 with a positive decision to support the prosecution case as an approver with a threat that his image in the society would be tarnished by publishing his photographs in the media, if he did not support the case of the prosecution and that the said illegal act on the part of the Investigating Officershould be checked by relaxing the conditions imposed by this court while granting anticipatory bail and restraining the InvestigatingOfficer from harassing or threatening the petitioner to become anapprover in the above said case.

In the counter affidavit filed by the respondent, the petition allegations have been denied to be false and motivated. No doubt the allegation made by the petitioner that the Investigating Officer contacted the petitioner over phone and asked him to become an approver and threatened to tarnish his image in the society by publishing his photographs in case he would refuse to become an approver, has been denied by the respondent in the counter affidavit. However, the respondent has admitted having contacted the petitioner over phone and directed him to appear before him in connection with the investigation of the case on afew occasions. What are those few occasions? - have not been elaborated. Out of several dates mentioned in the affidavit filed in support of the petition as the dates on which the petitioner was allegedly summoned to the office of the Investigating Officer andmade to sit there from 10.00 a.m to 6.00 p.m, the respondent has admitted such appearance of the petitioner before the InvestigatingOfficer on four dates, namely 21.04.2009, 22.04.2009, 23.04.2009and 02.05.2009. What transpired on those dates have not been elaborated. It appears though the court has directed the petitioner to make himself available before the Investigating Officer at all times reasonably required by him for interrogation, the Investigating Officer (respondent herein) directed the petitioner to appear before him without issuing summons and without having any record in writing showing the dates on which and the purpose for which the petitioner was required by the respondent to appear before him and the result of interrogation made on those occasions. It is quite obvious that the respondent, instead of making a recordin writing of the dates on which appearance of the petitioner was needed for interrogation, simply asked him over phone to appear on the dates selected by the respondent.

Therefore, this court is of the view that the petition allegations that the petitioner appeared before the respondent(Investigating Officer) for interrogation on 16.03.2009,17.03.2009, 07.04.2009, 08.04.2009, 11.04.2009, 21.04.2009,15.04.2009, 22.04.2009, 23.04.2009 and 02.05.2009, cannot be rejected as false. Similarly, the further allegation made by the petitioner that on 16.03.2009 at about 10.00 a.m, he was taken by the respondent to be released on 17.03.2009 at about 3.00 p.m after making a detailed search in the shop, godown and the residence of https://hcservices.ecourts.gov.in/hcservices/ the petitioner, also cannot be rejected as untenable.

The contention of the petitioner that he was harassed by the respondent by making him sit in the office of the respondent on several days from 10.00 a.m to 6.00 p.m and sent back after 6.00p.m without any enquiry is also quite probable. The contention of the petitioner that the respondent did so in order to coerce him to become an approver, is also quite probable. The said view is strengthened by the fact that the respondent himself has admitted in the counter affidavit that he contacted the petitioner over phone and required him to appear for examination in connection with the investigation of the case on a few occasions, without elaborating and explaining what are those few occasions. Thepetitioner has come forward with a clear plea that therespondent/Investigating Officer has formed an opinion that without the evidence of one of the accused persons as approver, the allegations against the other accused could not be substantiated and that the same is the reason for intimidating the petitioner to become an approver. These allegations are made by the petitioner not for taking any disciplinary action against or prosecuting the Investigating Officer for his alleged acts of misdeeds. The said allegations have been made in support of his prayer for relaxation of the condition and also for an order directing the respondent not to harass him by coercing him to become an approver. When such is the case, it is not necessary that the allegations should be proved beyond reasonable doubt. On the other hand, if a prima facie case is made out and the court is satisfied with the probability of the allegations being true, then the petitioner has to be granted the relief sought for in the petition. For the grant of such adirection not to harass the petitioner and for relaxing the condition, it shall be enough that there is a reasonable apprehension that the petitioner may be harassed as alleged in the petition, if he has to appear before the respondent/InvestigatingOfficer.

For all the reasons stated above, this court comes to the conclusion that the relief sought for in the petition has to be granted.