Abner Alex v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 16 -02-2008CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.27319 OF 2007Abner Alex...Petitioner-vs-State represented by Inspector of Police,Lawspet Police Station,Puducherry.(Crime No.338/06)...RespondentPrayer:- Petition filed under Section 482 of the Code of CriminalProcedure praying to transfer the investigation to C.I.D, Puducherry orC.B.I, from the respondent police, in Crime No.338 of 2006. For petitioner : Mr.A.N.Rajan For respondents : Public Prosecutor, (Puduchery)O R D E RThis petition has been filed praying for a direction to transferthe investigation to C.I.D, Puducherry or C.B.I from the respondentpolice, in Crime No.338 of 2006.2.The factual matrix of the case goes thus:-The petitioner’s wife is one Miron Latha. They have twodaughters and one son. The petitioner employed one Albert as driver.On 24.03.2006, at about 2.00 p.m, while he returned back to his housefrom his business place, he happened to see both his wife and the driverAlbert in a compromising position and on seeing them, the driver fledaway from the scene. He hauled up his wife for the immoral act, forwhich she replied that since he was fully engaged in his business, shecould find no way except to have such intimacy with another person. Hereported the matter to his mother-in-law. While he returned to hishouse by evening, he found 300 sovereigns of gold jewellery, cash ofRs.7/- Lakhs and other records connected to his business missing and helearnt that his wife had removed them. https://hcservices.ecourts.gov.in/hcservices/

3.While the matter stood thus, on 20.04.2006, the driver Albertcame and informed him that since his conscience was pricking, he cameforward to tell the truth to him. He further stated to the petitionerthat his wife asked him to arrange some hit-men to silence him, hence,he contacted one Bellix for the purpose of silencing him, who demandedRs.5/- Lakhs and Rs.1/- Lakh as advance and to get back the balance,after he accomplished the job, that she gave one lakh to him and thesame was handed over to Felix. However, the said Felix afterwards wasmurdered by somebody else. 4.Due to the conduct of the petitioner, on 04.07.2006, thepetitioner informed the above said affairs to his brothers-in-lawi.e.Miron Ravi and Miron Mohan, brothers of his wife. Next day both ofthem came to his house and intimidated him with dire consequencespressurising him to take apology from their sister Miron Latha.Containing the above said allegations, the FIR was lodged by thepetitioner which was registered in Crime No.338 of 2006, on 10.08.2006,under Sections 120-B, 497, 506(ii) read with 34 IPC. In the mean time,the said Albert has given a confessional statement before the learnedJudicial Magistrate, Puducherry on 15.09.2006 under Section 164 CR.P.C.graphically narrating the matter, which he had already informed to thepetitioner. Presently, the petitioner is aggrieved with theinvestigation, conducted by the respondent police by stating that eventhough the allegations in the FIR prima facie disclosed the making outof offence under Sections 307, 506(ii), 406 and 420 read with 120-B IPC,the case had been registered for less grave offences. It is furthercontended that the confession statement of driver Albert, recorded bythe police itself would disclose the offence under Section 307 IPC.5.The learned Public Prosecutor Puducherry would conversely arguethat the investigation is being directed in a proper direction and thatthere is no need to transfer the same to some other agency. 6.The learned counsel for the petitioner in support of hiscontention would cite the decision of the Supreme Court reported in 1992(1) Crimes-2 SC, ( Gudalure M.J.Cherian & Others Vs. Union of India &Others) in which Their Lordships have held thus:- “7..... the investigation having been completed by the policeand charge sheet submitted to the court, it is not for thisCourt, ordinarily, to re-open the investigation specially byentrusting the same to a specialised agency like CBI. We arealso conscious that of late the demand for CBI investigationeven in police cases is on the increase. Nevertheless in agiven situation, to do justice between the parties and toinstil confidence in the public mind it may become necessaryto ask the CBI to investigate a crime. It only shows theefficiency and the independence of the agency.”The contention put forth on behalf of the petitioner isacceptable in view of the observations rendered by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

7.The learned Public Prosecutor cited the following decision tostrengthen his contention reported in AIR 1958 Supreme Court 119, (LeoRoy Frey Vs. Superintendent, District Jail, Amritsar and another) inparagraph 4 of the said order, it is observed as follows:- “4..... The offence of a conspiracy to commit a crime is adifferent offence from the crime that is the object of theconspiracy because the conspiracy precedes the commission of thecrime and is complete before the crime is attempted or completed,equally the crime attempted or completed does not require theelement of conspiracy as one of its ingredients. They are,therefore, quite separate offences......”Further, he also relies upon a Judgement reported in AIR 1963Supreme Court 1850, (The State of A.P. Vs. Cheemalapati Ganeswara Raoand another), in paragraph No.39, wherein it is held under:-“.....But what the amendment did was to make that conspiracyitself punishable. The idea was to prevent the commission ofcrimes by, so to speak, nipping them in the bud. But it does notfollow that where crimes have been committed the liability topunishment already incurred under S.120-B by having entered intoa criminal conspiracy is thereby wiped away. No doubt, asalready stated, where offences for committing which a conspiracywas entered into have actually been committed it may not, in theparticular circumstances of a case, be desirable to charge theoffender both with the conspiracy and the offences committed inpursuance of that conspiracy. But that would be a matterultimately within the discretion of the court before which thetrial takes place.”8.In the afore-stated decisions, the Apex Court has laid down lawthat even when a person is involved in the conspiracy to commit offenceand thereafter, actual commission of the offence, he could be chargedwith provisions of both the offences. However, it would be a matter tobe decided by the Court, which is trying the case. As far as the factsof this case are concerned, the matter did not stop with the conspiracyentered between Miron Latha and driver Albert. She chose Felix throughAlbert for the purpose of liquidating her husband and she also madepayment of Rs.1/ Lakh as advance, which was received by driver Albertand handed over to Felix. As far as the present case,, we do not knowabout the stage of the investigation and to what extent it has obtainedits progress. The present stage is premature to foresee, whether thepolice would include all the offences, which could be made out at thetime of investigation. But, it is outcry of the petitioner that eventhough abundant allegations are available in the FIR, still the policehave not mentioned Sections 307 and 406 IPC in the First InformationReport. The contention deserves countenance. In the decision aforenoted, the Supreme Court has observed that not only in a given situationin order to render justice to the parties, also to instil confidence inthe public mind, the transfer of investigation to some other agency mustbe considered. https://hcservices.ecourts.gov.in/hcservices/

9.Considering the entire materials available in this matter, thiscourt is of the opinion that it is a fit case to transfer theinvestigation to some other agency for further investigation and to laycharge sheet.10.In fine, the petition is allowed directing the transfer ofinvestigation from the respondent police to the CID, Puduchery forfurther investigation. It is also directed that the said agency shallcomplete the investigation within three months and lay the charge sheetbefore concerned court.ssmSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Judicial Magistrate II, Puducherry.2. -do- Thro' The Chief Judicial Magistrate, Puducherry.3. The CID, Puducherry.4. The Inspector of Police, Lawspet Police Station, Puducherry.VC(CO)DCP/20.2 Criminal Original Petition No.27319 OF 2007