Gowri Mahesh and Rukmani vs State

K. Mohanram, J.—The petitioners, who are accused in C.C.No.308/2006 on the file of the Judicial Magistrate, Avinashi and facing trial for

the offence u/s 4(1)(aaa) TNP Act and 4(1) (A) of TNP Act, filed CMP.No.1184/2008 u/s 239 of the Cr.P.C. to discharge. The Judicial

Magistrate dismissed the discharge petition and being aggrieved by that, the petitioners are before this Court.

The learned Counsel for the petitioners submitted that the learned Judicial Magistrate has failed to see that the same police officer, who is an

informant in this case, has investigated the case and Anr. police officer has filed the charge sheet and which according to the learned Counsel, is

against the legal principles laid down in 1997 SCC (Cri) 267 (Megha Singh v. State of Haryana) and 1985 L.W. (Cri.) 336 and 1997 (2) L.W.

(Cri.) 751 .

Heard both sides.

The learned Counsel for the petitioners submitted that the allegation is that when the respondent searched a van bearing Registration No. TN X

4667 80 canes each containing 35 litres of arrack were found in the van and on that basis, a case in Crime No. 419/2005 was registered on

27.8.2005 for the offences under TNP Act. The very same officer has investigated the case and he was transferred and some other Inspector has

filed a charge sheet. The learned Counsel also relied on another decision of this Court reported in 2005 1 L.W. (Cri.) 447, Kalaiselvam v. The

State rep. by the Inspector of Police, Erumaipatti Police Station, Namakkal District. In the said decision, the learned Judge has observed as under

:

In the above cited case, though it was argued that it was only a formal First Information Report to initiate the investigation, still, the Apex Court

held that he being the complainant, should not have proceeded with the investigation of the case. Further, on going through the records, the Apex

Court found that he was not only the complainant in the case, but he carried on with the investigation and examined witnesses u/s 161 Cr.P.C.

Therefore, Their Lordships in the given case have held that such practice to say the least, should not be resorted to so that there may not be any

occasion to suspect fair and impartial investigation. Similar view has already been taken by this Hon''ble Court in Singaravelu v. State 1985 LW

(Cri) 336, Thalavoi v. State represented by Inspector of Police, Chernmahadevi Police Station, Cheranmahadevi 1995 (1) MWN (Cr.) and in the

subsequent judgment reported in S.Chandran v. State, rep. by Inspector of Police, Sivakasi Town Police tation Crime No. 463 of 1995,

Virudhunagar District 2001 1 L.W.(Cri.)230.

7.On going through the records in this case, I find Thiru Vijayaragavan appears to be the first informant, as well as the person, who registered the

First Information Report and examined all the witnesses u/s 161 Cr.P.C. Further, it could very well seen that he is a person, who has filed the

charge sheet. In such circumstances and in view of the aforesaid decisions, I hold that the investigation is illegal and consequently, the entire

prosecution has to be dropped. Accordingly, the order of the trial Court is set aside and the petitioner, who was arrayed as A-5 in the above said

Calendar case shall stand discharged of the offences levelled against him.

The learned Counsel submitted that the aforesaid legal principles laid down by this Court and the Apex Court have not been property appreciated

by the learned Magistrate and therefore, the above Criminal Revision has to be allowed.

On the other hand, the learned Government Advocate (Criminal side) would contend that the aforesaid contention of the learned Counsel for the

petitioners is not sustainable in the light of the subsequent decision of the Supreme Court reported in 2004 SCC (Crl.) 1607.

I have carefully considered the submissions made on either side.

There is no dispute regarding the facts narrated above. The question to be decided is whether the decision reported in 1996 (11) SCC (Cri.)

267, Megha Singh v. State of Haryana can be applied to the facts of this case or the law laid down in 2004 SCC (Cri) 1607 has to be applied.

In 2004 S CC(Cri.) 1607 , State rep. by Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, T.N., Vs V. Jayapaul, the Apex

Court has referred to the decision of the Apex Court reported in Bhagwan Singh Vs. The State of Rajasthan, and 1996 (11) 267 Megha Singh v.

State of Haryana ani has explained the said decisions. In 2004 SCC (Cri) 1607 after setting out the facts of Megha Singh''s case in paragraph 12

of the decision, it has been held as follows:

At first blush, the observations quoted above might convey the impression that the Court laid down a proposition that a police officer who in

the course of discharge of his duties finds certain incriminating material to connect a person to the crime, shall not undertake further investigation if

the FIR was recorded on the basis of the information furnished by him. On closer analysis of the decision, we do not think that any such broad

proposition was laid down in that case. While appreciating the evidence of the main witness i.e. the Head Constable (PW.3), this Court referred to

this additional factor, namely, the Head Constable turning out to be the investigator. In fact, there was no apparent reason why the Head Constable

proceeded to investigate the case by passing the Sub-Inspector, who recorded the FIR. The fact situation in the present case is entirely different.

The appellant Inspector of Police, after receiving information from some sources, proceeded to investigate and unearth the crime. Before he did so,

he did not have personal knowledge of the suspected offences nor did he participate in any operations connected with the offences. His role was

that of an investigator​pure and simple. That is the obvious distinction in this case. That apart, the question of testing the veracity of the evidence of

any witness, as was done in Megha Singh case does not arise in the instant case as the trial is yet to take place. The High Court has quashed the

proceedings even before the trial commenced.

9.In Bhagwan Singh case, the following observation has been made by the Apex Court Viz

Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant

or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these

circumstances, Head Constable Ram Singh could undertake investigation... This is an infirmity which is bound to reflect on the credibility of the

prosecution case.

10.After explaining the earlier decisions of the Apex Court, the said observation has been noted and explained in 2004 SCC (Cri) 1607 as under:

The crime itself was directed towards the Head Constable, which made him lodge the FIR. It is well-nigh impossible to expect an objective and

undetached investigation from the Head Constable who is called upon to check his own version on which the prosecution case solely rests. It was

under those circumstances the Court observed that the said infirmity ""is bound to reflect on the credibility of the prosecution case"". There can be no

doubt that the facts of the present case are entirely different and the dicta laid down therein does not fit into the facts of this case.

and taking into consideration the other decisions of the Apex Court, in paragraph 6, the Apex Court has observed as under :

Though there is no such statutory bar, the premise on which the High Court quashed the proceedings was that the investigation by the same officer

who ""lodged"" the FIR would prejudice the accused inasmuch as the investigating officer cannot be expected to act fairly and objectively. We find

no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR

incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or

real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it

is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police

officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased. In the present case, the

police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore made up his mind to

investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission

of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on

the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of

investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in

the normal course of discharge of their official duties will then be vulnerable to attack.

Ultimately, the Apex Court has held that there is no illegality in the process of investigation set in motion by the Inspector of Police.

Thus, the settled position of law is that even if a competent police officer happens to be the first informant in a case and he registers the case

and further undertakes the investigation of the case, it will not vitiate the investigation. Therefore, on that ground, the proceedings cannot be

quashed. As observed by the Honourable Apex Court, if at all such investigation could only be assailed on the ground of bias on the part of the

investigating officer. The question of bias would depend on the facts and circumstances of each case and that question can be gone into only at the

time of trial and not at this stage. Therefore, the contention put forth by the learned Counsel for the petitioners basing reliance on Mega Singh''s

Case cannot be countenanced.

in the light of the law laid down by the Apex Court in the decision reported in 2004 SCC (Cri) 1607 referred to supra, the order of the learned

Judicial Magistrate, which is sought to be revised in the above revision, cannot be said to be either erroneous or illegal and hence, no interference is

called for.

For the reasons stated above, the revision fails and the same is dismissed.