M.Shankar v. 1.State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 11-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL O.P.No.24949 OF 2007M.Shankar...Petitioner-vs-1.State of Tamil Nadu, rep.by District Crime Branch, Dharmapuri District at Dharmapuri.

Chakravarthi...RespondentsPetition under Section 482 of the Code of Criminal Procedure forthe relief as stated therein. For petitioner : Mr.N.S.SivakumarFor respondent 1 : Mr.A.Saravanan, Government Advocate (Crl. Side).

O R D E RThis petition has been filed for a direction to the firstrespondent to conduct re-investigation in Crime No.4 of 2003 in C.C.No.263of 2003 on the file of Judicial Magistrate No.2, Dharmapuri, and file afinal report in accordance with law.2. The case of the petitioner is that he is the grandson of oneVenkatachala Chetty, who gave a representation, dated 03.03.2003, to the District Collector, Dharmapuri, stating that the second respondent/accusedpromised to secure a job to the petitioner in Kalpakkam Thermal PowerStation and collected a sum of Rs.1,00,000/- and he also fabricated thedocuments as if the Tamil Nadu Electricity Board has given appointmentorder to the Employees Union; the accused also hoodwinked one Pachiappanand collected a sum of Rs.1,00,000/- from his father; the DistrictCollector forwarded the said representation to the Superintendent of Police, Dharmapuri, who, in turn, directed the District Crime Branch, Dharmapuri, to register a case against the second respondent, whichresulted in registration of Crime No.4 of 2003 in C.C.No.263 of 2003, forthe offences under Sections 420 and 468 read with 471 IPC (2 counts); https://hcservices.ecourts.gov.in/hcservices/ charge sheet was laid on 30.04.2003 and the trial was completed byexamination of the witnesses and the case is pending before the JudicialMagistrate, Dharmapuri.

The main grievance of the petitioner is that theinvestigation was slipshod, as transpired from the oral account of theinvestigating officer, namely, P.W.6 before the said Court, who wasserving as Inspector of Police and has retired by now.

Learned counsel for the petitioner very much relies upon thetestimony of the investigating officer, wherein, in cross-examination, according to the petitioner, there is a lapse on the part of theinvestigating officer to investigate the case in a proper manner. It isalso submitted by the learned counsel that the Inspector, though is vestedwith sufficient powers to examine necessary witnesses by summoning themand enter into any place and get the leads, had woefully failed to do so, which resulted in failure on the part of the prosecution to place all thecards before the Court. In the cross-examination, the said Inspector of Police deposed that while he was examining Senthil Kumar and Sankar,P.W.4, (petitioner herein), they informed him that they were staying in alodge at Chennai; he had not examined the persons, who were managing thelodge; he had not enquired them since they had given bogus address andstayed there; it was not reflected in the statement recorded under Section161 Cr.P.C; he went to Kalpakkam Thermal Power Station and enquired the Watchman and other persons, but, they refused entry and that he had notissued summons to any officials in Kalpakkam Thermal Power Station.

Learned counsel for the petitioner states that failure on thepart of the investigating officer to examine the custodians of the lodgeand the authorities in Kalpakkam Thermal Power Station is a serious lapse.

This Court could not now focus its attention for appreciationof oral evidence on record and render any finding thereon. If thepetitioner is aggrieved, he may request his grandfather, namely, de factocomplainant to take steps to assist the prosecution before the trial Courtand it is for the said Court to entertain the said request, if it is made. If any lacuna appears in any part of oral evidence, there cannot not beany direction for further investigation or re-investigation in the matter, in order to fill up the same, which may prejudice the rights of theaccused. Further, any aggrieved person may raise against the oralevidence tendered by the official witnesses or an investigating officerbefore a criminal Court, if he finds anything adverse to him that gotentry in the record. If any requests for further investigation or re-investigation are entertained, there would be no end at all and the caseswould not see their quietus.

Learned counsel for the petitioner relies upon a decision ofthe Hon'ble Supreme Court in Union Public Service Commission v. S.Papaiahand Others, 1997 (7) Supreme Court Cases 614, which was rendered with https://hcservices.ecourts.gov.in/hcservices/ regard to Section 173 Cr.P.C. The operative portion of the said judgmentgoes thus :"12. The appellant had communicated to the Director, CBI, certain defects in the investigation on23-1-1995 and had pointed out as many as sixshortcomings necessitating reinvestigation but the CBIdid not bring that fact to the notice of the VMetropolitan Magistrate while submitting the finalreport on 24-2-1995 before the Magistrate decided toaccept the final report submitted by the CBI and closedthe file on 16-3-1995. It was, to say the least, improper on the part of the investigating officer ofthe CBI to have withheld a vital document dated 23-1-1995, addressed to the Director, CBI whichcommunication in our view was in the nature of a"protest petition", from the learned Magistrate whileresubmitting the report on 24-2-1995. In all fairness, the investigating agency should have brought thatcommunication to the notice of the learned MetropolitanMagistrate before resubmitting the final report for itsacceptance...."

The position of law is well settled under Section 173 (8)Cr.P.C., which provides that if anything was brought to the knowledge ofthe officer in charge of the police station or if he obtains furtherevidence oral or documentary, he shall forward the same to the Magistrateand prefer a further report. It is not the case here. In this case, theinvestigating officer did not get any further lead in the investigationafter laying charge sheet and only during the cross-examination, he cameout with certain circumstances, in which he was precluded from proceedingfurther, which is not at all a further information obtained by him at thetime of investigation or after laying of the charge sheet. There is nosuch request before the Judicial Magistrate, in this regard.