Hasan Ammal vs State of Tamilnadu

V. Periya Karuppiah, J.—This petition has been filed by the Petitioner seeking a direction to be issued to the Respondents 1 and 2 to

constitute a team headed by an I.P.S. Officer to conduct further investigation in crime No. 391 of 2006 on the file of the Inspector of Police,

Kadayanallur Police Station, Tirunelveli District, which is pending at the stage of P.R.c. No. 58 of 2009 on the file of the learned Judicial

Magistrate, Tenkasi.

Heard Mr. Rathinam, learned Counsel appearing for the Petitioner and Mr. L. Murugan, learned Counsel appearing for the Government

Advocate and Mr. Siva Ayyappan, counsel for the intervenor/A6 and Mr. C. Emalias, learned Counsel for A2 and A3 and Mr. R. Anand, learned

Counsel for A4 and A5 in P.R.C. No. 58 of 2009 pending on the file of the learned Judicial Magistrate, Tenkasi

The learned Counsel appearing for the Petitioner would submit in his argument that the Petitioner is the wife of one Mohammed Mazooth, who

was murdered by the police personnel in custody and hence, she filed the present petition seeking for a direction against the Respondents 1 and 2

to constitute a team headed by an I.P.S. Officer, to conduct further investigation in crime No. 391 of 2006 on the file of the Inspector of Police,

kadayanallur Police Station, which is now pending in P.R.C. No. 58 of 2009 on the file of the learned Judicial Magistrate, Tenkasi and also to

direct the 1st Respondent to pay a just and reasonable amount not below a sum of Rs. 10 lakhs as compensation for the murder of the said

Mohammed Mazooth by the police personnel to the family of the deceased and also to provide suitable rehabilitation measures towards the

financial assistance and for the education of the children of the deceased and for other reliefs. He would further submit in his argument that the

investigation was carried on by the 3rd Respondent for completing the investigation, who created sufficient loop holes in the charge sheet in order

to aid and support the accused police personnel. He would further submit that the accused 1 to 3 are enjoying the State powers as A.D.S.P. and

D.S.P.

respectively and they were permitted even though they are charge sheeted for a custodial murder of the Petitioner''s husband. He would further

submit in his argument that the 3rd Respondent police has not bothered about the arrest of the offenders, who are in police uniform and the

accused 1 to 3 are happily continuing in their jobs even though they have committed the custodial death of the husband of the Petitioner.

He would further submit in his argument that the investigation was concluded by the 3rd Respondent without gathering proper evidence

regarding the location of the throwing of the body of the deceased Mohammed Mazooth when the accused were taking the dead body of

Mohammed Mazooth from the said lockup and the said lacuna may be bloomed large to show the prosecution case has not been proved. He

would therefore, request the Court that the investigation done by the 3rd Respondent police has not been promptly done by 3rd Respondent and it

should have been ordered for re-investigation for finding out the place of throwing the body of Mohammed Mazooth in order to corroborate the

other consequences of the case and it has been wantonly left by the 3rd Respondent for the benefit of its Officers, who were arrayed as accused 1

to 3.

He would further submit that the duty of the investigating officer is to gather evidence for each and every circumstance of the case until it is

completely proving against the accused and it cannot be said that the other circumstances will go to show that the custodial death was done against

the husband of the Petitioner and would prove the location of the place where the body has been thrown and it need not be investigated. He would

further submit in his argument that the Court may think during the time of trial, when the place of disposal has not been spoken, it may come to a

conclusion that the death of Mohammed Mazooth which had taken place at the lockup was not corroborated and therefore the investigation done

by the 3rd Respondent is not upto the mark. He would further request the Court to direct the Respondents 1 and 2 to constitute a team headed by

an I.P.S. Officer to conduct further investigation in crime No. 391 of 2006 on the file of the 3rd Respondent police and additional report may also

be directed to be filed before the jurisdictional Magistrate Court, where the P.R.C.58 of 2009 is pending on the file of the charge sheet earlier. He

would therefore request the Court to order the petition accordingly.

The learned Government Advocate (criminal side) would submit in his argument that the investigation was completed and charge sheet has been

filed before the jurisdictional magistrate and it was taken on file by the jurisdictional magistrate and it is pending in P.R.C.58 of 2009 and summons

were issued to the all the accused 6 and they are also appearing before the said Court. He would further submit that the location of the throwing

the body of the deceased is not at all required for the proof of the offence, which took place in the custody of police need not be proved, by the

way of proving the place of throwing the body and since there was no evidence available on that aspect, it has not been gathered as to the location

of throwing the body and it would not be fatal to the investigation of the 3rd Respondent. He would further submit that the Petitioner has on an

earlier occasion filed a direction petition to transfer the investigation from the file of the 3rd Respondent to the file of C.B.I in Crl.O.P. No7487 of

2008 along with Crlo.O.P.(MD) Nos. 11684 of 2007 and 12376 of 2007 and the same were dismissed by this Court in its order dated

03.06.2009. The present petition filed on the same lines is therefore not maintainable and accordingly, the prayers mentioned in the petition seeking

for constitution of a team under the leadership of an I.P.S. Officer to do further investigation is not at all sustainable. He would further submit that

the other reliefs in the same petition may not also be available to the Petitioner. He would further submit in his argument that the petition filed by the

Petitioner is not maintainable.

The learned Counsel for the Intervenor would submit in his argument that the Petitioner cannot ask for any further investigation, especially when

the accused persons were charge sheeted and the case was also taken on file in P.R.C. No. 58 of 2009 and it is pending before the learned

Judicial Magistrate, Tenkasi and the committal proceedings are also pending. He relied upon the judgment of Hon''ble Apex Court reported in

2007(2) Crimes 118 in between Sasi Thomas v. State and Ors. for the said proposition of law. He would further draw the attention of this Court

in yet another judgment of Apex Court reported in Rajesh and Ors. v. SHO Ist Town, Kadappa, 2001 (10) SCC 759 . and yet another judgment

in Union of India and Others Vs. Sushil Kumar Modi and Others, for the same proposition of law and would submit that the request of the

Petitioner to constitute a team under the head of an I.P.S. Officer to investigate the matter further u/s 173(8) Code of Criminal Procedure is not at

all permissible. He would therefore request the Court to dismiss the petition.

The learned Counsel appearing for A2 and A3 and the counsel for A4 and A5 in P.R.C. No. 58 of 2009 pending on the file of the learned

Judicial Magistrate, Tenkasi would submit in their argument that the request of the Petitioner is too late and the investigation was also completed

and the charge sheet has also been filed and the case was taken on file by the learned Judicial Magistrate, Tenkasi in P.R.C. No. 58 of 2009 and it

is pending for committal. They would further request the Court for the dismissal of the request of the Petitioner.

I have given anxious consideration to the arguments advanced on either side.

This Court, on an earlier occasion had disposed a petition in Crl.M.P.(MD) No. 7487 of 2008 along with other Crl.O.P.(MD) Nos. 11684

and 12376 of 2007, petitions filed by the Petitioner herein seeking for the withdrawal of the investigation from the Inspector of Police, C.B.C.I.D.

and to entrust the same to C.B.I, who were impleaded as Respondents 3 and 4 in the said petition and the said request of the Petitioner was

dismissed and the investigation was not disturbed at the hands of the Inspector of Police, C.B.C.I.D., Tirunelveli. The investigating Officer has

conducted the investigation and filed the charge sheet before the learned Judicial Magistrate, Tenkasi and the same was taken on file in P.R.C. No.

58 of 2009 and it is pending for committal. At this stage, the Petitioner has come forward with this application seeking for further investigation u/s

173(8) Code of Criminal Procedure by issuing a direction to the Respondents 1 and 2 to constitute a team headed by an I.P.S.

Officer to do the said further investigation in crime No. 391 of 2006 9 on the file of the Inspector of Police, Kadayanallur Police Station.

The reasons alleged by the Petitioner was to the effect that the place of disposal of the body of the deceased Mohammed Mazooth was not

investigated and the evidence concerned was not collected so as to corroborate the custodial death of the said deceased at lockup of the said

police station.

No doubt, it is true that the investigating agency viz., the Inspector of Police, c.B.C.I.D., who investigated the case in crime No. 391 of 2006

had filed the charge sheet and in the said charge sheet, the evidence to the effect that the death was caused at the lock up and the accused 1 to 3

are involved in the said commission of crime or offence.

The Petitioner''s request for further investigation u/s 173(8) Code of Criminal Procedure by constituting a team under the head of an I.P.S.

Officer has been dealt with in series of judgments of Hon''ble Apex Court. The relevant portion of the Hon''ble Apex court''s judgment reported in

2007(2) Crimes 118 in between Sasi Thomas v. State and Ors. would run thus:

The High Court or this Court in exercise of the said power is entitled to reach injustice wherever it is found. But, it is not a case where

cognizance had not been taken. It is not even a case where a direction under Sub-section (8) of Section 173 of the Code of Criminal Procedure

can be issued at this stage. It is also not a case, in our opinion, to interfere with the trial of the case

The relevant portion of the Hon''ble Apex Court''s judgment reported in Rajesh and Ors. v. SHO Ist Town, Kadappa, 2001 (10) SCC 759 would

run as follows:

Since the investigation agency has already filed the charge sheet on the basis of which the accused persons are being proceeded against, if any

further materials are available, the Court may alter the charge framed. In the circumstances, we have no hesitation to come to the conclusion that

the High Court has overstepped its jurisdiction in issuing the impugned direction calling upon further investigation into the matter, which in our

considered opinion, would be an abuse of the process of the Court. We, therefore, set aside the impugned order of the High Court dated

09.03.2000. The appeal is disposed of accordingly. Needless to mention, power of the investigating agency to have any further investigation

exercised u/s 173(8) Cr.P.c. is not being taken away by this order.

The relevant portion of the judgment of the Hon''ble Apex Court reported in (1998) 8 Supreme Court Cases 661 in between Union of Indian and

Ors. v. Sushil Kumar Modi and ors., is as follows:

Once a charge sheet is filed in the competent court after completion of the investigation, the process of monitoring by the monitoring Court for the

purpose of making the CBI and other investigative agencies concerned perform their function of investigating into the offences concerned comes to

an end; and thereafter it is only the Court in which the charge sheet is filed which is to deal with all matters relating to the trial of the accused,

including matters falling within the scope of Section 173(8) of the Code of Criminal Procedure.

On a careful perusal and understanding of the dicta laid down in the aforesaid judgments, We could see that the jurisdiction vested u/s 482

Cr.P.C for ordering further investigation when the investigating agency has already filed the charge sheet in the basis of which the accused persons

are being proceeded against cannot be sustained since the further materials if available, the Court which seized of the matter can frame or alter the

charge already framed. The further investigation ordered was discouraged by the judgment of Hon''ble Apex Court since trial Court has got every

power to record evidence during the trial and admit evidence even u/s 311 Code of Criminal Procedure As far as this case is concerned, the

transfer of investigation as sought for by the Petitioner in the earlier proceedings was disallowed by this Court and the investigating agency had

investigated the case and filed the charge sheet. If for any reason, the request of the Petitioner is acceded, it would be amounting to not only the

further investigation but also the transfer of investigation already rejected by the Court.

The location of the disposal of the body of the deceased Mohammed Mazooth can be adduced in evidence at the time of the trial by the

witnesses, who are competent to speak the same and the trial Court is also empowered to alter the charges, if necessary on the basis of the said

evidence. The judgment of Hon''ble Apex Court would go to the extent of saying that it can be achieved by adducing evidence under the

provisions of Section 311 Code of Criminal Procedure The offence is said to have been committed in the year 2005 and the crime number is of the

year 2006 viz., 391 of 2006. If further investigation is ordered as per the request of the Petitioner, it would cause further delay in the case, which is

pending for a long period.

Therefore, this Court is not inclined to pass an order of further investigation as requested by the Petitioner in the light of the afore said

judgments of the Hon''ble Apex Court and this petition filed by the Petitioner requesting for a direction against the Respondents 1 and 2 to

constitute a team headed by an I.P.S. Officer to conduct further investigation in crime No. 391 of 2006 on the file of the Inspector of Police,

Kadayanallur Police Station, Tirunelveli District, which is pending in P.R.C. No. 58 of 2009 before the Judicial Magistrate Court, Thenkasi,

Tirunelveli District is not at all maintainable and accordingly, the same is dismissed.

Consequently, connected miscellaneous petition is closed.