S. Amirthanathaswamy v. The Deputy Inspector General of Police, Tirunelveli Range & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 17.6.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARWrit Petition No.12443 of 2007S.Amirthanathaswamy. ... Applicant vs.1. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli.2. The Additional Superintendent of Police, Prohibition Enforcement Wing, Tirunelveli. ... RespondentsOriginal Application No.474 of 2002 was filed before the TamilNadu Administrative Tribunal, Madras Bench praying to call for therecords of the second respondent in connection with the order passedby him in his proceedings PR No.218/2001 dated 19.01.2002 and quashthe same. Since the Tamilnadu Administrative Tribunal wasabolished, the O.A. was received by transfer and numbered as WritPetition. For petitioner : Mr.R.KarthikeyanFor respondents : Mr.T.Seenivasan, Additional Government Pleader ----- O R D E ROriginal Application No.474 of 2002 was filed before the TamilNadu Administrative Tribunal, Madras Bench praying to call for therecords of the second respondent in connection with the order passedby him in his proceedings PR No.218/2001 dated 19.01.2002 and quashthe same. Since the Tamilnadu Administrative Tribunal wasabolished, the O.A. was received by transfer and numbered as WritPetition. 2. The brief facts for disposal of the writ petition is asfollows:- While the petitioner was working as Sub Inspector of https://hcservices.ecourts.gov.in/hcservices/ Police in Valliyoor Police Station between 16.5.1999 and 27.11.2000,one Esakkiyappan and his brother were murdered on 16.8.1999 at 7.30hours. A case was registered by the petitioner in Crime No.351 of1999 under Section 302 IPC on the complaint made by one Mrs.Sabitha,wife of the deceased Esakkiayappan. Petitioner conductedinvestigation and recorded statement from witnesses and preparedobservation mahazar and rough sketch of the scene of crime. At thispoint of time, it appears that CBCID undertook investigation.Respondent department was of the view that since the case in crimeNo.351 of 1999 registered under section 302 IPC it should beinvestigated by an Inspector of Police and not by Sub Inspector ofPolice. The act of the petitioner in recording statements fromwitnesses and preparing mahazar and rough sketch was contrary torules of procedure. Hence, charge memo was issued. In Annexure-IIto the charge memo, the statement of allegation, the specific caseof the department is as follows:-"You have also prepared an observationmahazar and rough sketch of the scene of crime,and the statements of Sabitha, w/o Esakkiappan(deceased) (2) Gurusamy, s/o Marimuthu Nadar andSuyambukaniammal, w/o Ponniah Nadar recorded byyou u/s 164(3) Cr.P.C., reveals that the completeversion of Sabitha reported as first informationis totally corroborated with Sabitha where she hasstated that she had no knowledge about the accusedand at the very end of the statement, with verylittle place for your signature. You have addedtwo lines stating that Rajaiah @ Rajadurai, s/oMuthiah Nadar appears to have committed thismurder. In all the three statement of thewitnesses, the last two lines appear blatantly tobe included after the entire statement was writtenand signed by you. The very difference inscrounging the writing is proof of your lastminute addition to the original statement ofSabitha and the two others, who during theirexamination by the Crime Branch CID., Tirunelvelihave totally denied having stated that Rajaiah @Rajadurai appear to have caused the doublemurder. This is clear indication of forcefulinclusion of a motive attributed against Rajaiah @Rajadurai. The Crime Branch CID., had detectedthe involvement of one Shunmuga Pandi and 4 othersin this offence, who were arrested, as againstyour wilful perfunctory investigation."3. In view of the above statement of allegation in the chargememo, petitioner made a request on 17.2.2002 for furnishing copiesof records from the office of CBCID, Tirunelveli and such request was https://hcservices.ecourts.gov.in/hcservices/ rejected by the second respondent. The order reads as follows:-"Since the investigation case diaries andstatements recorded by the C.B.C.I.D. Police insensational cases are considered to beconfidential documents, your request to eitherperuse those documents or to getting copy of thedocuments pertaining to Valliyur PS Cr.No.351/99U/s.302 IPC regarding the investigation done bythe CBCID Police, Tirunelveli is hereby rejected.I am herewith enclosing the true copies ofthe statements of Prosecution Witnesses 1 to 3recorded during the oral enquiry on 19.1.2002,enabling you to cross examine them in the nexthearing date on 4.2.2002 at 11.00 hrs before theundersigned at the District Police Office,Tirunelveli. At that time it is proposed toexamine all the other witnesses mentioned in thecharge memo. If you do not attend the oralenquiry on 4.2.2002 it will be construed that youhad no cross examination and the witnesses will beexamined ex parte.Acknowledge the receipt of theproceedings." In view of the rejection of petitioner's request by the respondents,to furnish copies of documents relating to the statements recorded bythe CBCID, the present writ petition has been filed to set aside theorder. A specific ground has been taken on this issue in grounds (e)and (h) as follows:-"e) It was informed that after CBCIDEnquiry a Report was submitted and based on theReport the Charge Memo was issued. Whileso, it isfundamental right of the applicant to prove thesame so that he can deny the charges, the samewas requested by the applicant. But therespondent has refused to produce the Statementstating that it is confidential. Hence the aboveact of the respondent clearly reveals thevindictive nature to harass the applicant in oneway or other and to punish the applicant for nofault of him. Therefore, the impugned order isliable to be quashed in limini.""h) It is submitted that the allegeddelinquency said to have taken place on 16.8.99,neither he has registered the case nor he was https://hcservices.ecourts.gov.in/hcservices/ appointed as Investigating Officer. Whileso,based on the false complaint, basic enquiry wasinitiated and report was submitted. Based on theReport, a Charge Memo was issued and Enquiry wasconducted. Whileso, the respondents ought not tohave passed an Impugned Order. Refusing toproduce the Statement of CBCID based on which theCharge Memo itself was issued and moreover incatena of Judgment of Hon'ble Apex Court, Hon'bleHigh Court and this Hon'ble Tribunal havecategorically stated that the delinquent shall beproduced with the Statement for his perusal,failing which the entire Enquiry Proceedings shallbe vitiated. Hence on this ground alone theimpugned order is liable to be quashed."4. A reply affidavit has been filed by respondents and para 9reads as follows:-"9) As regards the averments made inGrounds(h), it is submitted that all the recordsrelevant to the charge memo have been issued tothe applicant on his request. Those recordswhich were not related to the charge memo havebeen rejected. Hence the contention of theapplicant is a false one."(emphasis supplied)5. On a perusal of the statement of allegations contained inthe charge memo and on considering the first charge, it is clear thata specific allegation is made against the petitioner that he hasfalsely implicated one Rajaiah @ Rajadurai in Crime No.351 of 1999under section 302 IPC adding the same in the statement of witness andin the inquest report. Charge No.2 also relates to falseimplication of one Rajaiah alias Rajadurai in the murder case. Inthe statement of allegation with regard to the misconduct, it isclearly stated that the petitioner has added two lines in theoriginal statement of Sabitha and two others implicating Rajaiahalias Rajadurai as responsible for double murder. Whereas thewitnesses in the examination before the CBCID, have stated that theydid not state that Rajaiah alias Rajadurai is the person responsiblefor the double murder. Since the basis on which the charge memo hasbeen issued is the statement recorded by the CBCID from thecomplainant and the two witnesses who have specifically denied thatthey have stated that Rajaiah alias Rajadurai is responsible fordouble murder, it is not clear as to on what basis this statementrecorded from CBCID from Sabitha and two other witnesses should bewithheld. The reason given by the authority is that it is asensational case and the documents are considered to be confidential.No rule or provision of law has been stated as to how the authority https://hcservices.ecourts.gov.in/hcservices/ can deny the furnishing of these documents to the delinquent. 6. Further, on considering the para 9 of the reply affidavit,the stand of the department appears to be totally inconsistent andwithout any basis. It is specifically stated in the reply affidavitthat the records which are not related to charge memo has beenrejected. This statement in reply affidavit is contrary to thestatement of allegations contained, viz., imputation of misconductand misbehaviour set out in Annexure-II to the charge memo wherethere is very specific reference to the statement of Sabitha and twoothers before the CBCID. In that it is stated that they have deniedthe statement that Rajaiah alias Rajadurai is responsible for thedouble murder. 7. There are two versions, one recorded by the petitionerfrom the complainant and two witnesses which according to thedepartment is incorrect and there is a different version before theCBCID. The allegations contained in the statement of allegations,viz., imputation of misconduct or misbehaviour specifically refers tothe statement recorded by the CBCID. Therefore, it becomes relevantfor deciding the disciplinary proceedings initiated against thepetitioner. As stated earlier, no rules or provision of law hasbeen relied upon for the purpose of denying these documents. On thecontrary in the reply affidavit in para 9, it is stated that thedocuments which are not related to charge memo have only beenrejected. This statement in reply affidavit is totally incorrect, onthe face of the statement of allegation in Annexure-II to the chargememo. 8. In such circumstances, the relief sought for by thepetitioner for supply of statement of witnesses recorded by CBCIDis justified, as otherwise great prejudice will be caused to him inthe disciplinary proceedings initiated by the respondent. The orderof rejection which is under challenge in the present proceedings istotally unsustainable. Petitioner is entitled to a copy ofdocuments requested in terms of letter dated 17.1.2002. Petitioneris willing to submit himself to further proceedings on receipt ofthose documents. The respondents after furnishing the documents mayconclude the proceedings at an early date without much delay. Thewrit petition is allowed and ordered with the above direction. Noorder as to costs. Sd/Assistant Registrar/True Copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ ts To1. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli.2. The Additional Superintendent of Police, Prohibition Enforcement Wing, Tirunelveli.+1 CC to M.R.R.Karthikeyan Advocate, SR-23948+1 CC to The Government Pleader SR-24215W.P.No.12443 of 2007CO-TSSRA-08/07/2009