Prof.K.V.Rajendran v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.12.2011CORAMTHE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMYCrl.O.P.No.9639 of 2011Prof.K.V.Rajendran...PetitionerVs1.State rep.by The Superintendent of Police, CBCID, South Zone, Chennai.2. The Deputy Superintendent of Police CBCID Office, 2, Khajamian Street, Mannarpuram, Trichy.3.M.Karunakaran4.The SP, Special Crime Branch, CBI, Rajaji Bhavan, Besant Nagar, Chennai 600 090.5.State of Tamil Nadu rep.by its Chief Secretary, Fort St. George, Chennai 600 009.... RespondentsCriminal Original Petition filed under section 482 of CriminalProcedure Code to direct the respondent police to transfer theinvestigation in Cr.No. 1 of 2004 on the file the CBCID ,Nagapattinam from the 1st and 2nd respondents to the fourth respondent,CBI, Chennai Office and pass such suitable orders.For Petitioner : Dr.V.SureshFor R1,R2, R4 & R5 : Mr.C.Emalias, GA (Crl.Side)For Respondent-3 : Mr.M.V.VenkateswaranO R D E R The petitioner has come forward with this petition seeking adirection from this Court to transfer the further investigation inCrime No.1 of 2004 pending on the file of CBCID, Nagapattinam, fromthe first and second respondent herein to the file of the fourthrespondent. https://hcservices.ecourts.gov.in/hcservices/

2. According to the petitioner, he has been working as anAssociate Professor in Physics in the Presidency College, Chennaiafter finishing his M.Sc., and M.Phil., in Madras University. Thepetitioner belongs to Tharangampadi Village in Nagapattinam Districtwhere his parents and brothers were living. It is the case of thepetitioner that on the date of occurrence i.e., on 26.08.1998, whenhe went to his Village in the late evening and at about 11.00 p.m.,around ten people headed by the then RDO forcibly took him into theGovernment jeep and then took him to the Taluk office and enquiredhim as to why he gave false complaint regarding smuggling of teakwoodin that area.3. Further, it is the case of the petitioner that the thenRDO and other officials treated him with utmost cruelty and causedsevere injuries all over the body. They have also obtained hissignature in blank papers and the same has been duly filled asdictated by the then RDO and on the next day he was handed over tothe local Inspector along with the statement said to have beenwritten by the officials concerned. On 27.08.1998 at about 10.30a.m., the petitioner was taken along with other accused to producebefore the Magistrate concerned and except this petitioner all ofthem were produced and the petitioner was made to produce before someother Magistrate at 2.00 p.m., and remanded to judicial custody. Thepetitioner during the remand has explained the entire facts to thesaid Magistrate concerned and had requested for medical treatment andthe same was refused.4. When the petitioner was taken to Sub Jail, Poraiyar, hewas informed about the injuries sustained and requested for medicaltreatment and thereafter, he was treated by the jail doctor on28.08.1998 and the jail doctor also made entries on the registerabout the injury sustained by the petitioner. After his release onbail, the petitioner took treatment in the private hospital and acomplaint had also been lodged against the said RDO and otherofficials. The petitioner also gave complaints to the Chief MinisterCell, the D.G.P, concerned and other officials explaining the brutaltorture which he faced at the hands of the then RDO.5. After severe attempts, the case was entrusted with theDeputy Superintendent of Police, SBCID, Nagapattinam and aconfidential report had also been forwarded to the higher officialsby the said DSP. Since, no case has been registered with regard tothe complaint of the petitioner, he approached this court with theprayer to register the F.I.R based on his complaint and this Courtafter due consideration of the facts of the case, had allowed thepetition. (K.V.Rajendran vs. Inspector of Police and Others reportedin 2001(2)L.W. (Crl.) 545). While ordering the above saidCrl.O.P.No.19352 of 1998, this Court had arrived at the conclusionthat since the confidential report of the Deputy Superintendent of https://hcservices.ecourts.gov.in/hcservices/ Police, SBCID shows that the preliminary enquiry had been conductedin a proper manner there is no necessity to transfer theinvestigation to CBI. 6. Thereafter, nearly after 3 ½ years, the DSP, SBCID filed ananother petition in the above said disposed of application statingthat there is no post of DSP, SBCID on the date of order and the samehas been abolished. In the meanwhile, the petitioner also filedanother petition to transfer the case to CBI and both the petitionsfiled by the DSP as well as the petitioner were taken up together andthis Court modified the earlier order and transferred the case toCBI. Against that order, the DSP, SBCID concerned has preferred SLPbefore the Honourable Supreme Court and the Honourable Supreme Courthad held thus:"It is needless to mention that it would beopen for the respondent to make independentapplication under Section 482 of the Code if theyfind that subsequent events having been takenplace, the investigation must be transferred fromState Police authorities to CBI. Accordingly, weare unable to sustain the impugned order of theHigh Court in view of our discussions made hereinabove. Therefore, the impugned order is setaside. The appeal is thus allowed.We make it clear once again that if a freshcriminal petition under Section 482 of Code isfiled by the respondents for transferring theinvestigation from State Police authorities to CBIafter bringing certain subsequent events that hadtaken place after the disposal of the originalcriminal petition if there be any, it would beopen for the High Court to entertain suchapplication if it is warranted and decide the samein accordance with law for which we express noopinion on merit."Hence, the petitioner has come forward with the present petition.7. The learned counsel appearing for the petitioner contendedthat for the above said reasons the investigation has to be changedto CBI and further he contended that the Hon'ble Supreme Courtpermitted him to move before this Court. Hence, his prayer fortransfer of investigation has to be considered. 8. Learned Government Advocate (Crl. side) appearing for theState would submit that the petitioner is having the habit of givingfalse messages and giving threat to the officials and for theimprovement of the case the petitioner has been producing the https://hcservices.ecourts.gov.in/hcservices/ documents as well as the statements made by him from time to time bymaking improvements which will falsify his claim. From the perusal ofthe documents it is seen that the petitioner has created entryregister which carries the time to show that in the morning hours onthe date of occurrence, he was available at Chennai College library.Hence, he prayed that the petition has to be dismissed. 9. The learned counsel appearing for the third respondentadopted the arguments of the learned Government Advocate (Crl.side)and further he would contend that even the investigation has not beenproperly done it cannot be a valid ground for transfer ofinvestigation. As already the Hon'ble Supreme Court has dismissedthe similar petition, he prayed that this petition also has to bedismissed. 10. From the perusal of the documents it is seen that thecomplainant has produced xerox copy of the entry register maintainedby the Library Authorities to show that at the morning hours on dateof the occurrence he was in the library. A perusal of the extractof entry register it would indicate that the complainant himself madethe timing under his signature and whereas the prosecution hasproduced the entry register wherein on the top the time has beenfixed at 12.00 Noon. Whereas under the signature of the complainantin the library register, he himself has made a note as between 2.00p.m. and 3.30 p.m. From the perusal of the documents itself it isseen under the signature of the complainant the timing has beennoted. It is pertinent to note that at what time he has left thelibrary also made in the entry register. This type of entry is madeunder the complainant's signature alone. It is peculiar thing thatusually in the register one will make the entry at the time ofentering in to the library not at the time of leaving from thelibrary. I find there is no such entry is available in the Register. 11. From the perusal of the documents it is seen that at thetime of remand at the request of the petitioner, the jail Doctor hasexamined the petitioner and he has noted a contusion on the back sideof the head. Whereas, after release from the prison the complainanthas produced some medical certificates, O.P. Chit in which indicateshairline crack on the left hand as well as some abrasion on thetesticles. From these, I am of the view that the allegation againstthe complainant that he has attempted to produce some documents fromtime to time so to improve his case stage by stage has been proved. 12. The learned counsel appearing for the third respondentcontended that even if the Court comes to the conclusion that 1strespondent has made improper investigation, this will not be a groundfor transferring the case from one investigating agency to anotherinvestigating agency. In support of his contention, he relied on thefollowing decisions: https://hcservices.ecourts.gov.in/hcservices/ Sakiri Vasu vs. State of Uttar Pradesh and Others reported in 2008(2)SCC 409 wherein it has been held thus:"As we have already observed above, theMagistrate has very wide powers to directregistration of an FIR and to ensure a properinvestigation and for this purpose he can monitor theinvestigation to ensure that the investigation isdone properly (though he cannot investigate himself).The High Court should discourage the practice offiling a writ petition or petition under Section 482Cr.P.C. simply because a person has a grievance thathis FIR has not been registered by the police, orafter being registered, proper investigation has notbeen done by the police. For this grievance, theremedy lies under Sections 36 and 154(3) before thepolice officers concerned, and if that is of noavail, under Section 156(3) Cr.PC before theMagistrate or by filing a criminal complaint underSection 200 Cr.P.C., and not by filing a writpetition or a petition under Section 482 Cr.P.C."13. In T.C.Thangaraj vs. V.E.Ngammal and Others reported in2011 AIR SCW 4513 it has been held thus:"The decision of the two-Judge Bench ofthis Court in Ramesh Kumari v. State (N.C.T. ofDelhi) & Ors. (Supra) will have to be now read inthe light of the principles laid down by theConstitution bench of this Court in State of WestBengal & Ors. v. Committee for Protection ofDemocratic Rights, West Bengal & Ors. (supra).The Constitution Bench has considered at lengththe power of the High Court to directinvestigation by the CBI into a cognizable offencealleged to have been committed within theterritorial jurisdiction of a State and whiletaking the view that the High Court has widepowers under Article 226 of the Constitutioncautioned that the Courts must bear in mindcertain self-imposed limitations."14. Now, the short point for my consideration is whetherthere is any necessity or essential to change the investigatingagency has to be seen by me. 15. On the submissions made by the respective counsel it isseen the allegations against the petitioner is that he has givenfalse information over phone in the name of a fictitious personbefore the third respondent by claiming himself as press reporter. https://hcservices.ecourts.gov.in/hcservices/ The information is regarding smuggling of teakwood. In that contextthe third respondent taken him at his residence for inquiry. Onsuspicion the third respondent has taken the petitioner forinterrogation to his office. At the office of the third respondent,the petitioner was interrogated and statement was recorded. Duringthe interrogation, it revealed that he was the petitioner who spokeover phone in the name of someone else thereby, giving utterfalsehood information to take vengeance on his relative. Later, hewas arrested and produced before the nearest jurisdictional policealong with a copy of the report and on the next day at 2.00 p.m. hewas produced before the nearest Executive Magistrate and he who inturn remanded the petitioner. When the petitioner was remanded hedid not make any complaint against anybody either against RDO oragainst the third respondent. After remand, when the jail Doctorexamined the petitioner, he has noticed the contusion on the backside of the head and he made entry in that book. 16. Next day, the petitioner was released on bail and ongetting release from the prison, the petitioner proceeded to theprivate doctor and obtained a certificate regarding the hairlinecrack on his left hand and some abrasion on the testicles.Thereafter, the petitioner approached this Court by filing a petitionseeking for registration of complaint and thereafter it was allowedwith a direction to register a case and accordingly, a case has beenregistered. At that stage, after the order of the Hon'ble SupremeCourt, the petitioner has come forward with this petition for changeof the investigation. Even if any shabby investigation has beenmade, it will not be a ground for the petitioner to change over theinvestigating agency. Even in this case, nothing has beenestablished like that. After the remand, the petitioner has not madeout any case for change over the investigating agency. But beforethis Court it was demonstrated that the petitioner has developed hiscase stage by stage. 17. Now, we have to see as to whether any further improvementhas been made by the petitioner so as to enable this Court to orderchange of investigating agency. As already pointed out, thecomplaint of the petitioner against the third respondent has beendeveloped stage by stage along with the injuries. Any how, after theorder of the Hon'ble Supreme Court nothing has been establishedbefore this Court so as to enable this Court to order change ofinvestigating agency to the some other investigating agency. Thelearned Government Advocate (Crl.side) contended that theinvestigation is almost over. 18. From the records it is seen that at the first instancethe complainant's case has been closed as mistake of law since it isfiled under Section 193 of Cr.P.C. and not on the facts of the case.The objection of the first respondent is that the allegations madeby the complainant against him are baseless and he is allegedly https://hcservices.ecourts.gov.in/hcservices/ attempting to drag on the police officials in to the occurrence whichwas not occurred. 19. As per the submissions made by the third respondent itis seen that even if there is improper investigation it will not be aground for the petitioner to file a petition to change over theinvestigating agency. In this case the investigation has beenproperly made by the first respondent has been established. Furtherit is seen from the status report filed by the second respondent that46 witnesses were examined and number of documents have been filedand the investigating agency has come to the conclusion that theallegations leveled by the petitioner against the alleged accusedhave not been substantiated since there were no evidence to supportthe version of the petitioner. Further the other aspects have beenexamined by this Court on the earlier occasions and by the Hon'bleSupreme Court and finally came to the conclusion that there is noneed to change in the investigating agency. After the disposal madeby the Hon'ble Supreme Court the petitioner has not established underwhat stand the change of investigating agency is required and whetherwhich aspect has been noticed by this Court on either occasions hasnot been proved by the petitioner and nothing has been placed beforethis Court.20. From the perusal of the documents it is seen that theinvestigating agency has made investigations and the investigation isalmost over and the final report yet to be filed. 21. Therefore, I am of the view that at this stage, there isno need to transfer the investigation since investigation iscompleted. With the above observation, this Criminal Original Petition isdismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarTogr. 1.The Superintendent of Police, CBCID, South Zone, Chennai.2. The Deputy Superintendent of Police, CBCID Office, 2, Khajamian Street, Mannarpuram, Trichy.3. The S.P., Special Crime Branch, CBI, Rajaji Bhavan, Besant Nagar, Chennai 600 090. https://hcservices.ecourts.gov.in/hcservices/

4. The Chief Secretary, Fort St. George, Chennai 600 009.5.The Public Prosescutor, High Court, Madras.1 cc to Dr.V.Suresh, Advocate, Sr.No.754942 cc to Mr. M.V.Venkateswaran, Advocate, Sr.No.75026Crl.O.P.No.9639 of 2011gr(co)pmk.16.12.2011