Nakkheerangopal @ R.R.Gopal v. Govt.Estates

For respondents : Mr.A.L.Somayaji, Additional Advocate General, assisted by Mr.C.Manishankar, Special Public Prosecutor.O R D E RM.KARPAGAVINAYAGAM,J.This Writ Petition has been filed by Nakkheerangopal @R.R.Gopal, Editor, Printer and Publisher, Nakkheeran Publications,Chennai, making the following prayer :"Wherefore, it is humbly prayed that thisHon'ble Court may be pleased to issue a writ ofmandamus or any other order in the nature of writof mandamus directing the first respondent totransfer the investigation of POTA Crime No.5 of2003 on the file of CBCID, Coimbatore, Camp atChennai, to CBI and consequently direct the fifthrespondent CBI to investigate (i) thecircumstances under which a fresh case in CrimeNo.414 of 2001 was registered in theSathyamangalam Police Station and confession ofone Manickkam @ Kumar was obtained; thereafter,(ii) the circumstance under which the petitionerwas arrested; (iii) the mode of arrest of thepetitioner; (iv) the alleged recovery of arms anda pamphlet in an alleged bag; (v) thecircumstance under which a fresh case in CrimeNo.1 of 2003 of CBCID, Chennai, was registered;(vi) the circumstance under which the said crimewas altered to POTA Crime No.5 of 2003 of CBCID,Coimbatore, Camp at Chennai; (vii) thecircumstance under which fresh recoveries arealleged to have been made in the forest duringthe police custody after registration of POTAcase and (viii) the torture, harassment and humanright violations inflicted on the petitioner bythe CBCID police officials and the jailauthorities."2. The case of the petitioner, as narrated in hisaffidavit, is as follows :"(i) Petitioner is the popular investigative journalist,who has been publishing the Tamil Political bi-weekly Nakkheeran forthe past 16 years. Nakkheeran has been boldly exposing the corruptpractices and misdeeds of the Government, the officials and thepolice authorities. (ii) Due to impartial unbiased well founded publications,Nakkheeran has become a very widely read magazine. The petitioner https://hcservices.ecourts.gov.in/hcservices/ and his reporters are put to harassment and victimisation by theState authorities, including the police officials. The policeauthorities have falsely implicated the petitioner and his reportersin various criminal cases. (iii) Petitioner faces half a dozen murder and abductioncases relating to the notorious forest brigand Veerappan. In somecases, the petitioner already filed writ petitions before thisCourt, praying for transfer of investigation to the CBI, on theground of mala fide investigation and they are pending. Now, thepetitioner has come before this Court with the similar prayer in thelatest case, foisted against him by the CBCID Police Wing of TamilNadu. (iv) The Tamil Nadu Police and the STF, that is theSpecial Task Force constituted to nab Veerappan by Tamil Nadu andKarnataka Governments, bore animosity against the petitioner,because of his publications in the past, exposing the atrocities ofthe STF and the police. (v) During the abduction of Kannada Cine ActorDr.Rajkumar, the petitioner and his team were requested by the StateGovernment to play a role of State emissary. At that time, MadamJayalalithaa kept on criticising the petitioner for his beingselected as the State emissary. She made press statements,criticising the petitioner. Therefore, the petitioner filed a suitin C.S.No.634 of 2000 on the file of this Court and obtained aninterim order. (vi) On 20.11.2001, one Mr.Sivasubramaniam, NakkheeranReporter, was abducted by Karnataka STF and false cases were foistedagainst him. The said Sivasubramaniam was compelled to give falsestatements against the petitioner, but he refused. To this effect,he filed an affidavit before this Court and also the Supreme Court.(vii) Apprehending arrest on false accusation, thepetitioner filed an anticipatory bail petition before this HighCourt in Crime No.90 of 2000 of Thalavadi Police Station, inrelation to the abduction of Cine Actor Dr.Rajkumar.Anticipatorybail was granted to him by this Court on 10.12.2001. He wasinterrogated between 20.06.2002 and 29.06.2002. He was tortured byCBCID officials. (viii) Two cases were registered against him in CrimeNo.676 of 1998 of Anthiyur Police Station regarding the murder ofKandavelu and Crime No.1500 of 1998 of B-1 Bazaar Police Station,Coimbatore, regarding the murder of Bakthavatsalam. But,ultimately, a final report was filed as undetected report.Thereafter, on the instructions of the State Government, the caseswere reopened. Therefore, he filed two applications for anticipatorybail and the same was granted on 05.03.2003. https://hcservices.ecourts.gov.in/hcservices/ (ix) Against the orders of anticipatory bail in CriminalO.P.Nos.4254 and 4255 of 2003, the CBCID preferred a Special LeavePetition before the Supreme Court, on the ground that the petitionerwas wanted for custodial interrogation. However, the Supreme Courtdeclined to stay the order of anticipatory bail and ordered merenotice. (x) In this background, the Rajamani murder case,registered in Crime No.414 of 2001, was reopened. A statement wasobtained from one Sampath Kumar as if the petitioner was abettingVeerappan to commit murder of Rajamani. The said statement wasrecorded on 10.04.2003. On that basis, the Superintendent of Policeinstructed the Inspector of Police to arrest the petitioner in CrimeNo.414 of 2001. (xi) On 11.04.2003, the petitioner attended his office andleft the same in his jeep, proceeding towards his home at about08.00 p.m. At 08.40 p.m., he was surrounded by the police officersand was immediately taken to the CBCID Headquarters. Documents wereprepared as if a search was conducted on him and a country maderevolver was seized from him along with a black hand bag, containingpamphlets, supporting some Tamil Secessionist group. When thepetitioner was asked for putting his signature, he refused. (xii) Apart from Crime No.414 of 2001, since a countrymade pistol, ammunition and pamphlets supporting TNLA, a bannedorganisation, in a black hand bag were found in the possession ofthe petitioner, a fresh case was registered against him in CrimeNo.1 of 2003 of CBCID for the offences under Section 25 (1-B) ofArms Act and Section 124-A of IPC. The grounds of arrest were notall informed to him. (xiii) The next day i.e., on 12.04.2003, the petitionerwas produced before the VI Metropolitan Magistrate, Saidapet,Chennai. He was not allowed to make any complaint before theMagistrate. In the meantime, an alteration report was prepared byDSP, CBCID, invoking the provisions of Section 4 (a) of Preventionof Terrorism Act (POTA) against the petitioner. Consequently, thematter was transferred to the Special Court for POTA at Poonamallee,Chennai. (xiv) On 17.04.2003, the POTA Special Court remanded thepetitioner and passed an order, directing the investigating officerto produce the petitioner before the Court on 21.04.2003. In themeantime, on 17.04.2003, the petitioner was taken from CentralPrison, Madras, and produced before the Judicial Magistrate,Sathyamangalam, for the purpose of remand in Crime No.414 of 2001.At that time, the petitioner complained to the Judicial Magistrate,Sathyamangalam, about the mental and physical torture inflicted onhim by the CBCID Police. https://hcservices.ecourts.gov.in/hcservices/ (xv) On 21.04.2003, the petitioner was produced before POTASpecial Court at Poonamallee. There also, he filed a writtencomplaint, denying the allegations of CBCID.(xvi) On 22.04.2003, CBCID filed a petition for policecustody of the petitioner. Accordingly, in spite of the objectionraised by the petitioner, police custody was granted for seven days.During the seven days, he was tortured, taken into the deep jungleunder a gun threat. A statement was recorded as if the petitionerwas having explosive items in the forest.(xvii) On 28.04.2003, the petitioner was produced beforethe POTA Special Court, Poonamallee. At that time also, he filed awritten complaint about the torture inflicted on him by the police.(xviii) Petitioner filed W.P.No.56 of 2003 before theSupreme Court, challenging the provisions of POTA. In the same writpetition, he filed a petition, praying for an interim order fortransfer of investigation POTA (FIR) Crime No.5 of 2003 to CBI. Hefiled another Writ Petition No.106 of 2003 before the Supreme Court,praying for CBI enquiry. (xix) On 14.08.2003, the Supreme Court heard the matterand observed that such a prayer can be sought before the High Court.Hence, the petitioner withdrew the writ petition. (xx) In the meantime, on 19.09.2003, this High Courtgranted bail to the petitioner. But, in the SLP, the Supreme Courtset aside the bail order. However, on 19.12.2003, the High Courtgranted bail to the petitioner in H.C.P. The State preferred an SLPagainst the said order, but the Supreme Court declined to stay theoperation of the said order.(xxi) Petitioner filed a quash petition to quash thecharges against him in Crime No.414 of 2001. Since charge sheet wasfiled, the trial was stayed.(xxii) In this case, charge sheet was not filed as per theorders of the Supreme Court. The Central POTA Review Committee isin seisin of the matter. (xxiii) Petitioner apprehends that the respondent policeofficials may rush to lay a charge sheet and put him to undue trial.Hence, he has filed this Writ Petition under Article 226 of theConstitution for transfer of investigation to CBI."3. The Writ Petition was admitted by this Court and noticeordered. After appearance was entered into by the counsel for therespondents, the matter was periodically adjourned for finaldisposal. At that stage, during the pendency of the writ petition,one another development took place i.e., the respondents filed apetition before this Court on 16.09.2005, seeking for permission to https://hcservices.ecourts.gov.in/hcservices/ file charge sheet against the petitioner in the POTA case, on theground that already investigation was over and one year period, ascontemplated in the Ordinance No.1 of 2004, dated 21.09.2004, whichbecame an Act as Prevention of Terrorism Act,2002, would expire on20.09.2005. 4. It was brought to the notice of this Court that undersub-section (2) of the Ordinance No.1 of 2004, final report, takingcognizance, shall be filed within a period of one year from the dateof commencement of the Ordinance i.e., 21.09.2004.5. The said move by the State was opposed byMr.R.Shanmugasundaram, learned Senior Counsel appearing for thepetitioner, stating that already the Review Committee had initiatedthe proceedings and the said proceedings were stayed in the SLP, atthe instance of the respondents/State. 6. Then, the learned counsel for the State submitted thatthe State was prepared to withdraw the petition, challenging thereview proceedings, so that there would not be any hurdle for theReview Committee to go on with the case and, in the meantime, theState might be permitted to file charge sheet; for which course,both the parties agreed.7. Both the parties were directed to file affidavits tothat effect and, accordingly, they filed their affidavits. On thebasis of the said affidavits, this Court passed an order on16.09.2005, granting permission to the investigating officer to filecharge sheet against the petitioner before the Special Court on orbefore 20.09.2005; recording the undertaking given by the counselfor the State to take appropriate steps to withdraw the appealbefore the Supreme Court, challenging the POTA Review Committeeproceedings, and also permitting the petitioner to argue for themain prayer, namely, transfer of investigation to CBI, despite thefiling of charge sheet. Thereupon, it was reported to this Courtthat charge sheet was filed and the same was taken on file for theoffence under Section 4 (b) of Prevention of Terrorism Act and thatthe Criminal Appeal No.1224 of 2004, which was filed before theCourt by the State against the Review Committee proceedings, hasalso been withdrawn, to enable the Committee to review the case ofthe petitioner, after hearing the case of the prosecution.8. In the above factual situation, the matter has come upfor final disposal before this Court.9. We have heard Mr.R.Shanmugasundaram, learned SeniorCounsel for the petitioner, and Mr.A.L.Somayaji, learned AdditionalAdvocate General, representing the State.10. Learned counsel for the for the petitioner would pointout various irregularities committed by the investigating agency, inorder to establish that the investigation is mala fide and, as such,the case has to be transferred to CBI. https://hcservices.ecourts.gov.in/hcservices/

11. Refuting the allegations made by the learned counselfor the petitioner, Mr.A.L.Somayaji, learned Additional AdvocateGeneral, would submit that the investigation is bona fide and, aftercollecting the materials, the investigating officer has placed theentire records before the Special Court, which took cognizance ofthe matter and, as such, a fresh investigation by the CBI is notwarranted.12. Before dealing with various points raised by thelearned counsel for the parties, it would be appropriate to refer tothe decisions rendered by the Supreme Court, giving guidelines, fortransferring investigation to CBI.13. On behalf of the petitioner, the following decisionsare cited :(i) 1988 SUPREME COURT CASES (CRI.) 864 (Kashmeri Devi v.Delhi Administration and another) :"6.....Prima facie, the police has acted inpartisan manner to shield the real culprits andthe investigation of the case has not been donein a proper and objective manner. We aretherefore of the opinion that in the interest ofjustice it is necessary to get a freshinvestigation made through an independentauthority so that truth may be known."(ii) 1992 (2) SUPREME COURT CASES 397 (GudalureM.J.Cherian and Others v. Union of India) :"7...... The investigation having beencompleted by the police and charge-sheetsubmitted to the Court, it is not for this Court,ordinarily, to reopen the investigation speciallyby entrusting the same to a specialised agencylike CBI. We are also conscious that of late thedemand for CBI investigation even in police casesis on the increase. Nevertheless – in a givensituation, to do justice to the parties and toinstil confidence in the public mind – it maybecome necessary to ask the CBI to investigate acrime. It only shows the efficiency and theindependence of the agency."(iii) AIR 1994 SUPREME COURT 38 (R.S.Sodhi v. State ofU.P.) :"2.... We think that since the accusationsare directed against the local police personnel,it would be desirable to entrust theinvestigation to an independent agency like theCentral Bureau of Investigation so that all https://hcservices.ecourts.gov.in/hcservices/ concerned including the relatives of thedeceased may feel assured that an independentagency is looking into the matter and that wouldlend the final outcome of the investigationcredibility."(iv) 2002 (4) SUPREME 91 (Secretary, Minor Irrigation &Rural Engg.Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr.) :"6..... Therefore, it is clear that adecision to direct an inquiry by the CBIagainst a person can only be done if the HighCourt after considering the material on recordcomes to a conclusion that such material doesdisclose a prima facie case calling for aninvestigation by the CBI or any other similaragency, and the same cannot be done as a matterof routine or merely because a party makes somesuch allegations. In the instant case, we seethat the High Court without coming to a definiteconclusion that there is a prima facie caseestablished to direct an inquiry has proceededon the basis of 'ifs' and 'buts' and thought itappropriate that the inquiry should be made bythe CBI. With respect, we think that this is notwhat is required by the law...." 14. On behalf of the respondents, the following decisionsare cited :(i) 1985 (1) SUPREME COURT CASES 317 (State of West Bengaland Others v. Sampat Lal and Others) :"26.....The Court has to be alive to thefact that the scheme of the law is that theinvestigation has been entrusted to the policeand it is ordinarily not subject to the normalsupervisory power of the Court. We areinclined, on the facts of the case as placedbefore us, to take the view that the materialsplaced before the Court did not justify anexception to be made to the rule indicated bythis Court and the appointment of a SpecialOfficer was not called for at this stage."(ii) AIR 1991 SUPREME COURT 1260 (State of Bihar andanother v. Shri P.P.Sharma and another) :"50....The determination of a plea of malafide involves two questions, namely (i) whetherthere is a personal bias or an oblique motive;and (ii) whether the administrative action iscontrary to the objects, requirements and https://hcservices.ecourts.gov.in/hcservices/ conditions of a valid exercise of administrativepower.51.The action taken must, therefore, beproved to have been made mala fide for suchconsiderations. Mere assertion or a vague orbald statement is not sufficient. It must bedemonstrated either by admitted or proved factsand circumstances obtainable in a given case.If it is established that the action has beentaken mala fide for any such considerations orby fraud on power or colourable exercise ofpower, it cannot be allowed to stand.55.....Moreover, the Investigating Officerwould be available to cross-examination at thetrial of the case and it would be open to theaccused to elicit from the Investigating Officernecessary circumstances or grounds to throwdoubt on the impartiality of the InvestigatingOfficer and must establish its effect on theprosecution evidence adduced at the trial. Itis for the Court to consider how far it hasaffected materially the result of the trial.The evidence collected during investigationwould be subject to proof as per Evidence Actand tested by cross-examination. The reasoningof the Courts below that if an authority doesnot act impartially or in good faith then areasonable mind can definitely infer the biasfor reason best known to the authorities is toowide a statement of law in the context ofpolice/Investigating Officer.57.....The omission to investigate intothose aspects, by no stretch of imagination,would be inferred to be a mala fide act. It maybe a bona fide opinion.... Before countenancingsuch allegations of mala fides or bias it issalutary and an onerous duty and responsibilityof the Court, not only to insist upon makingspecific and definite allegations of personalanimosity against the Investigating Officer atthe start of the investigation but also mustinsist to establish and prove them from thefacts and circumstances to the satisfaction ofthe Court."(iii) AIR 1997 SUPREME COURT 93 (Central Bureau ofInvestigation and another v. Rajesh Gandhi and another) :"8.... The decision to investigate or thedecision on the agency which should investigate https://hcservices.ecourts.gov.in/hcservices/ does not attract principles of natural justice.The accused cannot have a say in who shouldinvestigate the offences he is chargedwith....."(iv) 2001 (10) SUPREME COURT CASES 759 (Rajesh and Othersv. Ramdeo and Others) :"2.... The High Court has taken an unusualstep of forming a panel and directing them toexamine the matter, and on the basis of the saidpanel report, the High Court has directed afurther investigation by an agency other than thelocal police to be headed by the Superintendentof Police. Since the investigation agency hasalready filed the charge-sheet on the basis ofwhich the accused persons are being proceededagainst, if any further materials are available,the Court may alter the charge framed. In thecircumstances, we have no hesitation to come tothe conclusion that the High Court hasoverstepped its jurisdiction in issuing theimpugned direction calling upon furtherinvestigation into the matter, which in ourconsidered opinion, would be an abuse of theprocess of the court...."(v) 2004 (8) SUPREME COURT CASES 788 (M.P.Special PoliceEstablishment v. State of M.P.and others) :"25....in the absence of any materialbrought on record, it may not be possible to holdthat the action on the part of the Council ofMinisters was actuated by any malice. So far asthe plea of malice is concerned, the same must beattributed personally against the personconcerned and not collectively. Even in such acase the persons against whom malice on fact isalleged must be impleaded as parties." 15. The principles laid down by the Supreme Court fortransferring investigation to CBI, as laid down by the SupremeCourt, in gist, are given below :(1) The decision to direct an inquiry by theCBI against a person can only be taken if theHigh Court, after considering the material onrecord, comes to a conclusion that such materialdiscloses a prima facie case calling for aninvestigation by the CBI and the same cannot bedone as a matter of routine or merely because aparty makes some allegations. https://hcservices.ecourts.gov.in/hcservices/ (2) The investigation having been completedby the police and charge-sheet submitted beforethe Court, it is not for the Court, ordinarily,to reinvestigate the matter, especially byentrusting the same to a specialised agency likeCBI.(3) The decision to investigate or thedecision on the agency which should investigatedoes not attract the principles of naturaljustice. The accused cannot have a say as to whoshould investigate into the offences, with whichhe is charged. (4) The determination of a plea of mala fideinvolves two questions, namely (i) whether thereis a personal bias or an oblique motive; and (ii)whether the administrative action is contrary tothe objects, requirements and conditions of avalid exercise of administrative power. (5) The action taken by the police must beproved to have been made mala fide for someconsiderations. Mere assertion or a vague orbald statement is not sufficient. It must bedemonstrated either by admitted or proved factsand circumstances obtainable in a given case, toprove mala fide. (6) By no stretch of imagination, the merefact that the investigating agency omitted toinvestigate into some aspects would be inferredto be a mala fide act. It may be a bona fideopinion. Before countenancing such allegationsof mala fides, it is the responsibility of theCourt not only to insist upon making specific anddefinite allegations of personal animosityagainst the investigating officer on the side ofthe investigation but also must insist toestablish and prove them from the facts andcircumstances to the satisfaction of the Court.(7) So far as the plea of malice isconcerned, the same must be attributed personallyagainst the person concerned and notcollectively. Even in such a case, the persons,against whom malice on fact is alleged, must beimpleaded as parties. https://hcservices.ecourts.gov.in/hcservices/

16. In the light of the above guidelines laid down by theSupreme Court, let us now deal with the points raised by the learnedSenior Counsel appearing for the petitioner, seeking fortransferring the investigation to CBI, one by one :POINT No.1 : (i) The petitioner has been boldly exposing the corruptpractices and the misdeeds of the police officials and theGovernment, through his journal 'Nakkeeran'. Therefore, three falsecases were foisted against him. They are : (i) murder of Kandaveluby the forest brigand Veerappan, at the instigation of thepetitioner, in Crime No.676 of 1998 on the file of Anthiyur PoliceStation; (ii) murder of Bakthavatchalam by Veerappan, at theinstigation of the petitioner, in Crime No.1500 of 1998 on the fileof B-1 Bazaar Police Station, Coimbatore; and (iii) abduction ofKannada Cine Actor Dr.Rajkumar by Veerappan, assisted by thepetitioner, in Crime No.90 of 2000 on the file of Thalavady PoliceStation.(ii) In all the above cases, the petitioner obtainedanticipatory bail. Though the State preferred SLP to stay the saidanticipatory bail orders, the Supreme Court declined to grant stay.Therefore, in order to arrest the petitioner somehow or other insome case or other, Rajamani murder case, registered in Crime No.414of 2001, which was closed earlier, was reopened and the petitionerwas implicated in that case, on the strength of a statement, statedto have been given by one Sampath Kumar @ Manickkam on 10.04.2003.On that basis, the petitioner was arrested on 11.04.2003 in thatcase. The statement made by the police in the counter that astatement has been obtained from Sampath implicating the petitioneron 10.04.2003 is false. The 161 Cr.P.C.Statement would show that itwas recorded on 13.04.2003 and the same reached the Court on16.04.2003. So, the arrest was made even before the allegedstatement was recorded.(iii) Mr.R.Shanmugasundaram, learned Senior Counsel forthe petitioner, while elaborating this point, would submit that theaction of the police in arresting the petitioner on 11.04.2003 inCrime No.414 of 2001, which was closed earlier, after having failedto get the stay order in the Supreme Court as against theanticipatory bail orders of this High Court, is not a bona fide one,since the statement, implicating the petitioner, was recorded fromSampath Kumar only on 13.04.2003, as per the records.(iv) While refuting the said allegation, Mr.A.L.Somayaji,learned Additional Advocate General, would submit that the statementof Sampath was actually recorded on 10.04.2003 in Hassanur PoliceStation in Crime No.22 of 2002 by one Mr.Munirathinam, Inspector ofPolice, Sathyamangalam, who was holding additional charge ofHassanur Police Station, and, on the orders of the JudicialMagistrate, Sathyamangalam, on 10.04.2003, police custody wasobtained and, on the very same day, the statement was recorded. Thedocument referred to by the petitioner is the 161 Cr.P.C.Statement https://hcservices.ecourts.gov.in/hcservices/ of Sampath, recorded in Crime No.414 of 2001 on 13.04.2003, and onlyon the basis of the statement in Crime No.22 of 2002 recorded on10.04.2003, Crime No.414 of 2001 was reopened and a separatestatement was recorded in Crime No.414 of 2001 on 13.04.2003 and,therefore, the contention of the petitioner that he was arrestedwithout any statement of Sampath is not correct.POINT No.2 : (i) Petitioner was not informed of the grounds of arrest.The Inspector of Police, Munirathinam, who was the InvestigatingOfficer in Crime No.414 of 2001, in which the petitioner wasarrested, did not make arrest, but it was some other officer by nameMr.C.Kanagaraj, Inspector of Police, that arrested the petitioner.There is no proper reason for the change of officer and, during thesearch, Section 100 Cr.P.C. has not been followed.(ii) The reply given by the State is as follows :"(a) Mr.C.Kanagaraj, Inspector of Police, was deputed toarrest the petitioner as per the orders of the Superintendent ofPolice, CBCID, as Mr.Munirathinam, Inspector of Police, was notavailable at Chennai on 11.04.2003. (b) Petitioner was arrested on 11.04.2003 near his officeand he was brought to CBCID Headquarters and a search was conductedin the presence of two responsible witnesses. The petitioner wasinformed of the grounds of arrest and there was no irregularity. (c) Telegrams, intimating arrest, were sent topetitioner's father, wife, manager and advocate. Thereafter, thepetitioner was produced before the VI Metropolitan Magistrate on12.04.2003 and he never made any complaints against the police."POINT No.3 : (i) Petitioner was implicated in various cases.There is no material as against him. Therefore, in all those cases,he was granted anticipatory bail by this High Court and bail by theSessions Court. As the Hon'ble Supreme Court declined to grant stayof all the orders of bail, the respondent police wantonly reopenedthe case in Crime No.414 of 2001 (Rajamani murder case) andpurposely arrested the petitioner with oblique motive.(ii) The following is the reply given by the State forthis point :"(a) Petitioner involved in six criminal cases. They are :(i) Crime No.676 of 1998, Anthiyur Police Station – Kandavelu murdercase; (ii) Crime No.1500 of 1998, B-1 Bazaar Police Station,Coimbatore – Bakthavatsalam murder case; (iii) Crime No.227 of 1998,Sathyamangalam Police Station – Professor Krishnasamy NettrikkanReporter's abduction case; (iv) Crime No.414 of 2001, SathyamangalamPolice Station – Rajamani murder case ; (v) Crime No.90 of 2000,Thalavady Police Station – Dr.Rajkumar abduction case and (vi) CrimeNo.1 of 2003, registered under the Arms Act, which, ultimately,resulted in registration of Crime No.5 of 2003 on the file of CBCID, https://hcservices.ecourts.gov.in/hcservices/ under POTA. The statements available in all these cases wouldclearly indicate the involvement of the petitioner in the saidcases. (b) When Veerappan abducted the Cine Actor Dr.Rajkumar, hemade several unreasonable demands. One of the victims, namely,Abdul Kareem moved the Supreme Court, restraining the Government ofKarnataka from succumbing to the illegal demands of Veerappan.Accordingly, the Supreme Court set aside the orders passed by theSpecial Court for TADA, permitting the prosecution to withdraw thecomplaints and directing the State to take appropriate action asagainst Veerappan and others. As such, the cases, which requiredfurther investigation, were reopened. Kandavelu murder case inCrime No.676 of 1998 on the file of Anthiyur Police Station ispending trial before the Fast Track Court, Gobichettipalayam.Bakthavatchalam murder case in Crime No.1500 of 1998 on the file ofB-1 Bazaar Police Station, Coimbatore, is pending trial before thePrincipal Sessions Judge, Coimbatore. The petitioner was arrestedin Rajamani murder case in Crime No.414 of 2001 on 11.04.2003. Whenhe was in police custody, arms were recovered and, consequently,Crime No.1 of 2003 was registered under POTA. Therefore, itcannot be said that there is no material as against the petitionerand he is arrested in a false case." Point No.4 :(i) In the election manifesto, the Chief MinisterJayalalithaa had announced that she would take steps to arrest thepetitioner in Dr.Rajkumar's abduction case, as she bore animosityagainst the petitioner, due to his writing against her in hisjournal. The reopening of the cases, which were closed earlier, andputting up a new case falsely against him are at the instance ofJayalalithaa, the Chief Minister.(ii) Reply by the State is as follows :"(a) Action sought to be taken by the Government asagainst the forest brigand Veerappan, who committed heinous crimesand was absconding for long number of years, would be the collectivedecision, proposed to be made by the Cabinet, to fulfil the wishesof the people. The announcement that her Government would takesteps to take action against the forest brigand Veerappan and hisassociates would not be a ground to hold that there is a mala fideinvestigation at the instance of Jayalalithaa. (b) Even according to the petitioner, due to the malafides of the Tamil Nadu Police officials, irrespective of whicheverparty was in power, the case relating to the forest bringandVeerappan was reopened, with a view to implicate him. When such isthe statement, the petitioner cannot accuse the present ChiefMinister Jayalalithaa, that she alone was responsible for the malafide investigation, especially when she is not made a party in thisWrit Petition." https://hcservices.ecourts.gov.in/hcservices/ POINT No.5 :(i) Notification issued under Section 4 (a) of POTA wasstruck down by this High Court. When the matter was argued beforethis High Court, it was not brought to the notice that the caseunder Section 4 (b) of the Act was registered. After Section 4 (a)was struck down, charge sheet has been filed under Section 4 (b) ofthe Act, to bring the case under POTA.(ii) Reply by the State for this point is as under : "(a) According to the prosecution, when the petitioner wasarrested on 11.04.2003, he was found in unauthorised possession ofarms and ammunition. (b) It is true that notification under Section 4 (a) ofPOTA has been quashed by this Court. There was no necessity for theinvestigating agency to inform this Court that a case under Section4 (b) also was registered, since Section 4 (b) does not requirenotification. This Court was only concerned with the notificationunder Section 4 (a). Even before the disposal of the writ petition,requisition was sent for obtaining sanction not only for 4 (a) butalso for 4 (b) and sanction was granted for the same on 07.10.2003itself."17. We have carefully considered all the points raised aswell as the reply given by the counsel for the parties.18. While discussing these points, we have to remindourselves about our power to transfer the investigation, on theground of mala fides. 19. The Supreme Court, in State of Haryana v. Bhajan Lal,1992 CRI.L.J.527, would caution the Courts in the matter ofinterfering with the investigation for the purpose of transferringthe same to some other agency. The investigation of an offence isthe field exclusively reserved for the police officers whose powersin that field are unfettered so long as the power to investigateinto the cognizable offences is legitimately exercised. The Courtsare not justified in obliterating the track of investigation, whenthe investigating agencies are well within their legal bounds.Indeed, a noticeable feature of the scheme under Chapter XIV of theCode is that a Court is kept in the picture at all stages of thepolice investigation but it is not authorised to interfere with theactual investigation or to direct the police how the investigationis to be conducted. 20. It is of the utmost importance that the judiciaryshould not interfere with the police in matters which are withintheir province and into which the law imposes upon them a duty ofenquiry. The functions of the judiciary and the police arecomplementary not overlapping and the combination of individualliberty with a due observance of law and order is only to beobtained by leaving each to exercise its own function, of course, https://hcservices.ecourts.gov.in/hcservices/ subject to the right of the Court to intervene in an appropriatecase.21. In other words, if a police officer transgresses thecircumscribed limits and improperly and illegally exercises hisinvestigatory powers in breach of any statutory provision causingserious prejudice to the personal liberty and also property of acitizen, then the Court, on being approached by the person aggrievedfor the redress of any grievance, has to consider the nature andextent of the breach and pass appropriate orders as may be calledfor without leaving the citizens to the mercy of police echelons,since human dignity is a dear value of our Constitution. 22. Justice Bhagwathi, CJ, in Sheonandan Paswan v. Stateof Bhiar, 1987 CRI. L.J. 793, on behalf of the Supreme Court, wouldmake the following observation :" It is a well established proposition oflaw that a criminal prosecution, if otherwise,justifiable and based upon adequate evidence,does not become vitiated on account of mala fidesor political vendetta."23. But, however, the authorities referred to above onvarious occasions would uniformly hold that if the High Court, afterconsidering the material on record, comes to the conclusion thatthere are materials which disclose a prima facie case calling forinvestigation by the independent agency like CBI, it can order forthe same, only if it is established that the action by the policehas been taken mala fide for some considerations or by fraud orcolourable exercise of power. In other words, the action taken bythe investigating agency must be demonstrably proved to have beenmade mala fide for such consideration or fraud. Mere assertion or avague or bald statement is not sufficient. 24. If the above principles are applied to the facts ofthe present case, we do not think that the action of the respondentshas been demonstrably proved to be mala fide. 25. In regard to the first point, namely, the statement ofSampath Kumar, implicating the petitioner, was recorded only on13.04.2003 and the petitioner was arrested on 11.04.2003 as if thepolice obtained a statement from the said Sampath on 10.04.2003, ifwe go through the written submissions and the reply filed by therespondents, it is noticed that a stand has been taken by therespondents that the said statement was recorded from Sampath Kumar,implicating the petitioner, on 10.04.2003 and they can prove thesame, by producing the relevant records before the Court. Thus, ithas become a question of fact.26. In regard to the second point, namely, the arrest ofthe petitioner by one C.Kanagaraj, Inspector of Police, who is notthe investigating officer in Crime No.414 of 2001, it is contended https://hcservices.ecourts.gov.in/hcservices/ by the learned Additional Advocate General for the respondents thatthe Superintendent of Police, CBCID, directed the said Kanagaraj toarrest the petitioner, by issuing a written order, dated 10.04.2003,as Munirathinam, the investigating officer, was not available atthat time and, consequently, the petitioner was arrested by the saidKanagaraj and a search was conducted by the CBCID. 27. In view of the said reply, we are not able to holdthat the officer, who arrested the petitioner, is not a competentofficer and the procedures contemplated in Cr.P.C. have not beenfollowed. 28. In regard to the third point, namely, there is nomaterial as against the petitioner in all the cases, in which he ismade an accused, it is strenuously contended by the learnedAdditional Advocate General that the materials have been collectedin all the cases against the petitioner and charge sheets filed inall those cases.29. Such being the case, it would not be appropriate forthis Court to hold that there is no material against the petitionerin all those cases, merely because he obtained anticipatory bail andbail in the said cases. 30. In regard to the next point, namely, false cases havebeen foisted against the petitioner at the instance of Jayalalithaa,Chief Minister, this Court would not accept the same, merely on thebasis of allegation through the affidavit, making personalaccusation against Jayalalithaa, Chief Minister, even withoutimpleading her as one of the parties in the Writ Petition. 31. In addition, it has to be pointed that counter hasbeen filed by the respondents, police agency, that the cases againstthe petitioner have been reopened only on the basis of the materialavailable against him and also on the basis of recovery of arms andammunition from him, in pursuance of his confession. 32. In regard to the fifth point, it is contended by thelearned Senior Counsel for the petitioner that the notificationissued under Section 4 (a) of POTA was sought to be quashed in theWrit Petition and the same was quashed by this High Court and theregistration of case under Section 4 (b) was not brought to thenotice of the Court.33. In reply, it is pointed out by the learned AdditionalAdvocate General that the notification sought to be quashed was notwith reference to Section 4 (b) and it was only with reference toSection 4 (a). Moreover, in respect of Section 4 (b) of the Act,sanction has been obtained from the competent authority as early ason 07.10.2003. 34. In the light of the above reply, we cannot concludethat there was any misrepresentation before this High Court, in https://hcservices.ecourts.gov.in/hcservices/ which Section 4 (a) notification was the subject matter of the WritPetition. 35. In this context, one more aspect that could be noticedis that the prayer made in this Writ Petition is for a mandamus,directing the first respondent, namely, State, to transfer theinvestigation of POTA in Crime No.5 of 2003, since the investigationdone by CBCID would suffer from mala fides. Strangely, the prayerdoes not end with that. In the very same prayer, the petitionerseeks for a direction to CBI to investigate into the circumstancesunder which a fresh case in Crime No.414 of 2001 was registeredagainst him; under what circumstances, he was arrested and how hewas arrested; under what circumstances, a fresh case was registeredin Crime No.1 of 2003; under what circumstances, the said crime wasaltered into POTA Crime No.5 of 2003; under what circumstances,fresh recoveries were alleged to have been made in the forest andalso under what circumstances, he was tortured and harassed by theCBCID Police. 36. Thus, it is clear that the petitioner seeks not onlyfor transfer of investigation to CBI, but also wants a directionfrom this Court to CBI as to how it has to investigate and what arethe aspects to be investigated into and how the earlier cases havebeen foisted against him. This comprehensive prayer, in our view,is beyond the scope of this Writ Petition, as the Supreme Courtwould categorically hold in State of Haryana v. Bhajan Lal, 1992CRI.L.J.527, that this Court cannot direct the police as to how theinvestigation has to be conducted. In short, as indicated above,none of the points raised by the learned Senior Counsel for thepetitioner, in our view, would be sufficient to hold that there is aprima facie case for transfer of investigation to CBI.37. Further, the proceedings before the POTA ReviewCommittee have to be commenced and the trial would be only subjectto the decision taken by the Review Committee. If the ReviewCommittee ultimately comes to the conclusion that there arematerials for trial of the case, then, the trial shall go on; inwhich event, it would be open to the petitioner to crossexamine theInvestigating Officer and elicit from the Investigating Officer thenecessary circumstances or grounds to throw doubt on theimpartiality of the Investigating Officer. If such a thing isestablished, naturally, the trial Court may consider those things,in order to find out whether the investigation and the evidencecollected in the said investigation by the investigating agencywould suffer from mala fides and the said investigation would affectmaterially the result of the trial. 38. Therefore, we do not find any ground to order freshinvestigation by the Central Bureau of Investigation. To make itclear, we have not given any finding with reference to the variousgrounds, raised by the learned Senior Counsel for the petitioner,seeking for transfer of the investigation. Therefore, the trialCourt, subject to the orders of the Review Committee, can allow both https://hcservices.ecourts.gov.in/hcservices/ the parties to adduce their evidence to establish their respectivepleas; in which event, the trial Court may consider those materialplaced before it and decide the case, uninfluenced by any of theobservations made by this Court in this order.39. Writ Petition is dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitTo1.The Home Secretary to Government, State of Tamil Nadu, Fort St.George, Chennai.2.The Inspector of Police, Sathyamangalam Police Station, Erode, Tamil Nadu.3.The Inspector of Police, Special Investigation Cell, CBCID Hqrs., Govt.Estates, Chennai – 600 002.4.The Dy.Superintendent of Police, Special Investigation Cell, CBCID, Coimbatore (Camp at Chennai).5.The Regional Director, CBI, Shastri Bhavan, Chennai.1 cc to Mr.P.T. Perumal, Advocate, Sr. 184381 cc to Mr.C. Manishankar, Spl. Public Prosecutor, Sr. 18565W.P.No.25138 OF 2004JE (CO)kk 19/4