IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on: 21.03.2017 Delivered on: 24.03.2017 CORAM THE HON’BLE Mrs.JUSTICE S.NAGAMUTHU And THE HON’BLE DR JUSTICE ANITA SUMANTH W.A.Nos.2006, 2064, 1590 and 1579 of 2005 and W.A.M.P.Nos.3678, 3783, 2958, 3654, 2936 and 3601 of 2005 K.Asaithambi ... Appellant in W.A.No.2006 of 2005 P.Asokan ... Appellant in W.A.No.2064 of 2005 A.G.Ponn.Manickavel ... Appellant in W.A.No.1590 of 2005
1. The State of Tamil Nadu, rep.by its Chief Secretary, Fort St.George, Chennai-9
2. The Home Secretary, Fort St.George, Chennai-9.
3. The District Collector, Salem District, Salem.
4. The Revenue Divisional Officer, Mettur, Salem District.
5. The Director General of Police, Mylapore, Chennai-4
6. The Superintendent of Police, Salem. ... Appellants in W.P.No.1579 of 2005 Vs.
1. Chettiammal
2. The State of Tamil Nadu, rep.by its Chieef Secretary, Fort St.George, Chennai-9
3. The Home Secretary, Fort St.George, Chennai-9.
4. The Collector, Salem District, Salem.
5. The Revenue Divisional Officer, Mettur, Salem District.
6. The Director General of Police, Mylapore, Chennai-4
7. The Director, Central Bureau of Investigation, New Delhi.
8. The Superintendent of Police, Salem. ... Respondents in W.A.Nos.2006, 2064 and 1590 of 2005
1. Tmt.Chettiammal
2. The Director, Central Bureau of Investigation, New Delhi.
3.T.R.Siddhayan ... Respondents in W.A.No.1579 of 2005 R3 impleaded as party respondents vide order of Court dt.16.2.2012, made in W.A.M.P.3599 of 2005 Writ Appeals preferred under Clause 15 of the Letters Patent against the order dated 09.08.2005 made in W.P.No.25678 of 2004.
For Appellants :Mr.Vijay Narayan,Sr.counsel for Mr.R.Parthiban in W.A.Nos.2006, 2064 and 1590 of 2005 Mr.K.Venkatramani,A.A.G.VII Assisted by Mr.A.N.Thambidurai Special Government Pleader in W.A.No.1579 of 2005 For Respondents :Mr.A.Aravindan for M/s.Arul Selvam Associates for R1 in all W.As.
Mr.K.Venkatramani,A.A.G.VII Assisted by Mr.A.N.Thambidurai Special G.P. for the respondents 2 to 6 and 8 in W.A.
Nos.2006, 2064 and 1590 of 2005 COMMON JUDGMENT (Judgment of the Court was delivered by S.NAGAMUTHU,J) All these writ appeals are directed against the order of the writ Court made in W.P.No.25678 of 2004, dated 9.8.2005. The said writ petition came to be filed by the first respondent Mrs.Chettyammal in the following circumstances.
2. The first respondent Mrs.Chettiammal was a resident of Nainakaundanur Village, Mettur Taluk in Salem District. Her husband was one Mr.Kannan. According to the first respondent/writ petitioner, on 30.11.2003, around 10.00 a.m., Mr.Kannan entered into a brawl with another person in a wine shop. This resulted in a complaint with police. The then Sub-Inspector of Police one Mr.Satheesh and Head Constable Mr.Thangavel came to the wine shop and tried to apprehend Mr.Kannan. This resulted in an altercation between the police and Mr.Kannan. It is further alleged that thereafter, Mr.Kannan was taken into police custody, kept in the Police Station, manhandled, injured and finally he was produced before the Judicial Magistrate at Omalur. He was remanded to the judicial custody. On 25.2.2004, the accused was taken from the Central Prison, Salem, to the Court of Judicial Magistrate at Omalur. After the extension of remand order was passed by the learned Magistrate, the deceased was escorted from the Court to the Central Prison, Salem, in a police jeep bearing Registration No.TN-27 G-1278. According to the first respondent/writ petitioner, on their way, around 4.30 p.m., the Inspector of Police Mr.Asaithambi, the Sub-Inspector of Police Mr.Asokan and the driver of the jeep Thangavel manhandled the deceased and the Inspector of Police shot him with his pistol, which killed Mr.Kannan. According to the first respondent/writ petitioner, it was a planned murder committed by the police.
3. In respect of the said incident, on the report of the police, a case was registered in Cr.No.117/04. It was alleged in the F.I.R that when the deceased was escorted from Court to the Central Prison, Salem, in the police jeep bearing Registration No.TN-24-G- 1278, at the place of occurrence, Mr.Kannan wanted to attend the nature's call. When the vehicle was stopped, Mr.Kannan (hereinafter referred to as the 'deceased') got down from the jeep and started defecating. While so, suddenly he removed the revolver from the Sub- Inspector-Mr.Asogan and pulled the trigger. The Sub-Inspector escaped by falling down on the ground. The deceased tried to escape and while so doing, he turned towards the back and pulled the trigger towards the Inspector Mr.Asaithambi. The Inspector Mr.Asaithambi fired three rounds from his pistol, killing the deceased. He died of the bullet injuries. The occurrence, according to the police, took place at 6.30 p.m.
4. After the registration of the case, the case was referred to the Revenue Divisional Officer for holding enquiry under Section 176 Cr.P.C. Accordingly, the Revenue Divisional Officer-cum-the Sub Divisional Executive Magistrate, Mettur, by his proceedings in RC.No.1514/04/D, dated 26.2.2004, submitted a report to the District Collector that the Inspector of Police Mr.Asaithambi used firearm on 25.2.2004 at about 6.30 p.m. only to prevent the deceased from escaping from the police custody and from shooting down the Inspector of Police. The said report was submitted to the Government and the Government, by letter No.2348/(L&O-A), accepted the said report and dropped further proceedings in this regard.
5. When the Executive Magistrate/Revenue Divisional Officer was holding enquiry under Sub Section (1) of Section 176 Cr.P.C. and the relevant Police Standing Order, the first respondent herein filed W.P.No.25678 of 2004, making allegations against the police and seeking transfer of investigation to C.B.I. on the ground that her husband Mr.Kannan was brutally murdered in a planned manner by the police. A learned single Judge of this Court, by order dated 9.8.2005, allowed the writ petition and transferred the investigation of the case to the C.B.I. That has been challenged in all these writ appeals.
6. While admitting all these writ appeals, a Division Bench of this Court granted interim stay of the order of the learned Single Judge. Thus, in view of the said stay order, there has been no investigation done by the C.B.I. at all in this matter. These writ appeals have been ordered to be listed before the Criminal Bench by the then Hon'ble Chief Justice, by order dated 30.09.2015. That is how they are before this Bench for disposal.
7. We have heard the learned counsel for the appellants and the learned counsel appearing for the first respondent/writ petitioner-Mrs.Chettiammal and we have also perused the records carefully.
8. As we have already pointed out, Mr.Kannan died in the occurrence, which took place on 25.2.2004. The learned counsel appearing for the first respondent-Mrs.Chettiammal, would submit that since the officer who shot the deceased to death was an Inspector of Police, as per the judgment of the Hon'ble Supreme Court in Sodhi R.S. vs. State of U.P. 1994 SCC (Cri) 248, there should have been an investigation by an independent agency, that too, by an officer above the rank of the police officer, who was involved in the episode.
9. We have no quarrel over the said legal position. But in the instant case, enquiry was done by the Executive Magistrate, as provided in Sub-Section (1) of Section 176 of Cr.P.C. As per the said provision, until it was amended with effect from 23.06.2006, the enquiry by an Executive Magistrate was either instead of, or in addition to the investigation held by the police. In the instant case, the enquiry by the Executive Magistrate/Revenue Divisional Officer was held instead of investigation. This is in tune with the relevant Police Standing Order also. The purpose of directing investigation by an independent agency is to instill confidence in the mind of the family members of the victim encountered and the society that there was impartial investigation to find out the truth. The said object has been achieved in the instant case, because, the enquiry was held by an independent agency, namely, the Revenue Divisional Officer/Executive Magistrate. It is not the case of the first respondent that the Executive Magistrate, who held enquiry under Section 176 Cr.P.C., was either biased or influenced by any one. Undoubtedly, the Executive Magistrate is a superior officer then the Inspector of Police and also an independent officer. The Executive Magistrate, after having conducted a thorough enquiry, submitted a report to the District Collector and the District Collector, along with the recommendation, submitted a report to the Government and the Government, having considered all the materials, including the report of the Executive Magistrate, has accepted the same, thereby concurring with the findings of the Executive Magistrate that the Inspector of Police shot the deceased only in exercise of right of preventive defence. The said Government order has not been challenged by any one and the same has become final. In view of the said decision, in our considered view, there is no scope to re-open the investigation and to transfer the same to the CBI.
10. It is true that the writ petition was filed in the year 2004 and the same was disposed of by order dated 9.8.2005. Shortly thereafter, these writ appeals were filed and interim order was passed. Though these writ appeals have been pending from the year 2005 onwards, for some reason or the other, the same could not be disposed of for 12 years. In the meanwhile, the Government has passed order, accepting the report of the Executive Magistrate and thereby dropping all further proceedings. As we have already pointed out, the order of the Government also is not under challenge. In such view of the matter, at this length of time, assuming that an investigation by police could be ordered, it would not serve any purpose. Thus, looking at the case from any angle, we find no ground to sustain the order of the learned single Judge, ordering for investigation by C.B.I. Thus, the order of the learned single Judge deserves to be interfered with.
11. In the result, the writ appeals are allowed. The order of the learned single Judge made in W.P.No.25678 of 2004 is set aside. The Writ Petition No.25678 of 2004 shall stand dismissed. No costs. Connected miscellaneous petitions are closed.
(S.N..J.) (A.S.M.J.) msk 24.03.2017 Index:Yes/No To
1. The Chief Secretary, Fort St.George, Chennai-9
2. The Home Secretary, Fort St.George, Chennai-9.
3. The District Collector, Salem District, Salem.
4. The Revenue Divisional Officer, Mettur, Salem District.
5. The Director General of Police, Mylapore, Chennai-4
6. The Superintendent of Police, Salem.
7. The Director, Central Bureau of Investigation, New Delhi.
S.NAGAMUTHU,J.
and ANITA SUMANTH,J.
msk W.A.Nos.2006, 2064, 1590 and 1579 of 2005 24.03.2017 http://www.judis.nic.in