K.C. Palanisamy v. Additional Superintendent of Police & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:- 30.07.2009Coram:-The Hon'ble Mr. Justice R.REGUPATHICrl.O.P. No.17191 of 2008& M.P. No.1 of 2009K.C.Palanisamy,Managing Director,M/s.Cheran Holdings Private Ltd andM/s. KCP Associates HoldingsPrivate Ltd having itsOffice at No.19, Kothari Road,Nungambakkam, Chennai 600 034.... Petitionervs.1. The Additional Superintendentof Police,Economic Offences Wing No.II, Chennai.2. The Deputy Superintendentof Police,Economic Offences Wing No.II,Chennai 600 002.... RespondentsMP.No.1 of 2009 in Crl.O.P.No.17191/08:Mr.Siddartha Ray.. Petitioner/IntervenerVs.1.K.C.Palanisamy2.Additional Superintendent of Police,Economic Offence Wing-IIChennai.3.Deputy Superintendent of PoliceEconomic Offence Wing-II,Chennai(Crime No.23 of 2005).. RespondentsPetition under Section 482 of the Code of Criminal Procedure for therelief as stated therein. For Petitioner: Mr. S.Ananthanaryanan https://hcservices.ecourts.gov.in/hcservices/ For respondents: Mr.J.C.Durairaj, Govt. Advocate.For intervener: Mr.Ashok Kumar, Sr. Counselfor Mr.C.D.Johnson.O R D E RThe petitioner has come up with the present Petition seeking todirect further investigation of the case in Cr. No.23 of 2005 on thefile of the 2nd respondent through the Inspector of Police, theCentral Bureau of Investigation, Shastiri Bhavan, Chennai. 2. For better appreciation of the issue having regard to theprayer sought for, the factual aspects involved are projected belowin a compact manner. Based on a complaint dated 19.03.2005, preferred by thepetitioner with the second respondent herein, a case in Crime No.23of 2005 was registered on 26.04.2005 as against one Siddartha Rayand 13 others, for offences under Sections-120(b) read with 420, 465,468, 471 and 478 IPC. and pending investigation therein, thepetitioner was arrested on 31.01.2008 with reference to CrimeNos.776/07 and 54/08 on the file of C.C.B., Chennai. While so, byorder dated 10.03.2008 passed by the Additional Chief MetropolitanMagistrate, Egmore, Chennai, in M.P. Nos.677 and 678 of 2008, thepetitioner was granted bail with one of the conditions that he shouldstay at Nagercoil, and report before the Chief Judicial Magistrate,Nagercoil, daily at 10 A.M. until further orders and later, duringMay, 2008, the condition to stay at Nageroil was modified and thepetitioner was directed to stay at Dindigul and appear before theChief Judicial Magistrate, Dindigul. On 20.05.2008, the DeputySuperintendent of Police, E.O.W.II, Chennai, issued summons forappearance of the petitioner before him on the same day at 12 Noon inrespect of Cr.No.23 of 2005 and it was replied that the petitionercould not appear on account of the condition imposed by the court tostay at Dindigul and appear before the CJM daily and that he wouldappear as soon as the condition was relaxed. Subsequently, anothersummon was issued by the very same officer on 29.05.2008 forappearance of the petitioner within five days from the date of thesummons. The petitioner sent a telegram, dated 02.06.2008, statingthat since he was complying with the conditional order passed by thecourt, he could not make personal appearance before the officer andthat the case should not be concluded without affording reasonableopportunity to him. However, the Deputy Superintendent of Policeproceeded with the enquiry and filed final report on 13.06.2008,referring the case as civil in nature.3. Learned counsel appearing for the petitioner, by adverting toa common order passed by this court on 22.02.2007 in Crl.O.P.No.31375 of 2006 and two other petitions, whereby, after consideringthe plea of the petitioner seeking transfer of investigation to theCBI from the file of the Economic Offences Wing No.II and rejecting https://hcservices.ecourts.gov.in/hcservices/ the same, a direction was issued to respondent No.4 therein, shownas 1st respondent in the present case viz., the AdditionalSuperintendent of Police, EOW-II, Chennai, to proceed with theinvestigation and file final report within a period of six monthsfrom the date of receipt of copy of the order; would submit that, inspite of such specific direction, investigation was not taken up bythe Additional Superintendent of police (ADSP) but by an officerbelow such rank ie., Deputy Superintendent of Police (DSP), whothroughout the course, pursued the investigation with a bias andpartisan attitude towards the petitioner, denying the opportunity toproject the case and present the documentary materials in support ofhis claim. According to the learned counsel, the way in whichsummons came to be served upon the petitioner in respect of thecomplaint lodged by him while he was complying with the conditionimposed by the court, confining his movements with a particularplace, and the haste with which final report came to be filed wouldgo to show the unfair approach of the Investigating Officer towardshim and further, the specific direction of this court forinvestigation by the ADSP has been purposely flouted; hence, this isa fit case for ordering further investigation preferably to CBI.4. Per contra, learned Government Advocate, by pointing out thatthe post of Additional Superintendent of Police was scrapped asearly as on 12.06.2007, would submit that since the time-frame fixedfor completion of investigation by order dated 22.02.2007 was alreadyover, a Miscellaneous Petition in M.P. No.1 of 2008 in Crl.O.P.No.31375 of 2006 was filed for extension of time and, by order dated17.04.2008, time was extended by two months after hearing both sides.According to him, the petitioner was not co-operative throughout,therefore, investigation of the case was concluded after properenquiry with the available materials and final report came to befiled on 13.06.2008, referring the case as dispute of civil natureand such report was also served on the petitioner on 16.06.2008;under such circumstances, there is no valid reason for furtherinvestigation into the matter and, if the petitioner still feelsaggrieved, he may resort to the other mode available by filingprivate complaint before the Magistrate concerned to prosecute theaccused in accordance with law. 5. The proposed accused, by filing a petition to intervene inthe matter, seeks permission to get impleaded and make submissionsand the counsel appearing for the petitioner strongly objected to thesame by stating that it is for the court to decide and entrust thetask of further investigation to a particular Agency and the proposedaccused need not be heard as they have no right of audience. 6. I have meticulously examined the materials available onrecord having regard to the rival submissions made on either side. In a way, the present petition for further investigation is thesecond round of litigation, for, in the previous course, the plea ofthe petitioner was for transfer of investigation to the CBI. Similar https://hcservices.ecourts.gov.in/hcservices/ contentions were raised in the said case in Crl.O.P. No.31375 of 2006and, on a close perusal of the common order passed, it could be seenthat investigation was taken up by the ADSP, E.O. Wing-II, Chennai,and allegations have been levelled against the said Officer. Afterrecording the submission made on instructions by the learnedGovernment Advocate to the effect that the allegations against theofficer are baseless, the learned Judge, while refusing to accede tothe request of the petitioner, by observing, "It is also pertinent to note that the fourthrespondent is a superior police official viz.,Additional Superintendent of Police of EconomicOffences Wing, and as such he is a competent policeofficial to investigate a case like the instantcase.", concluded as follows,"However, considering that the petitioner hascome forward with certain apprehension, this Courtis of the view that in the interest of justice todirect the Investigating Agency, viz., fourthrespondent herein to expedite the investigation andto complete the same and file the final reportwithin a period of six months from the date ofreceipt of copy of the Order of this Court".Thus, in the light of the conclusion reached by the learned Judge andthe observations made in the course of the order, it is quite obviousthat a clear and explicit direction was issued to the ADSP toinvestigate and file final report within the time-frame stipulated.It appears that, subsequently, the post of ADSP has been scrapped byorder dated 12.06.2007 and investigation was pursued by the DSP.Though it is contended by the counsel for the petitioner that theInvestigating Officer was bias throughout and he purposely issuedsummons while movements of the petitioner was confined with aparticular place on account of the condition imposed while grantingbail, so as to deprive him of the reasonable opportunity of hearingand establishing his case, this Court is not able to appreciate suchcontention. However, since a specific direction was issued by thiscourt for investigation of the case by an officer not below the rankof Additional Superintendent of Police and such post was in themeantime scrapped, while seeking for extension of time, theprosecution should have obtained clarification with reference to theranking of the officer undertaking the task of investigation. On aperusal of the orders passed for extension of time, it seems that nosuch clarification was sought for at the instance of the respondent-police. Inasmuch as investigation has been pursued and concluded byan officer below the rank of the one actually directed by this Courtby way of earlier orders passed in Crl.O.P. No.31375 of 2006 andpresently, the post of ADSP is non-existent, I am of the consideredview that instead of ordering transfer of investigation, an officer https://hcservices.ecourts.gov.in/hcservices/ not below the rank of Superintendent Police in the same Agency viz.,Economic Offences Wing-II, Chennai, be directed to re-openinvestigation of the case in Crime No.23 of 2005. Accordingly, the Superintendent of Police attached to EconomicOffences Wing-II, Chennai, is directed to investigate into the caseregistered as Crime No.23 of 2005 with the assistance of hissubordinates and file final report in due compliance with theprocedure involved, within a period of three months from the date ofreceipt of copy of this Corder. The petitioner is directed to co-operate with the investigation by appearing before theSuperintendent of Police, E.O.W.II, Chennai, on summons and he mayadduce oral and documentary evidence before the officer in support ofhis claim. 7. With the above direction, the Criminal Original Petition isdisposed of. Miscellaneous Petition is closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarJI.To.1.The Additional Superintendent of Police,Economic Offence Wing No.II, Chennai-2.2.The Deputy Superintendent of Police,Economic Offence Wing No.II,3.The Public Prosecutor, High Court, Madras.4.The Section Officer, Criminal Section,High Court, Madras.Copy to : The Superintendent of Police,Economic Offences Wing No.II,Chennai.+ 2 CC to Mr.Anantha Narayan,Advocate,SR.33518+ 1 CC to Mr.Ananda Raman,Advocate,SR.33931+ 1 cc to Mr.C.D.Johnson,Advocate,SR.33566Crl.O.P. No.17191/08.RSM(CO)EM/17.8.09