Hasan Ammal vs State of Tamilnadu

Honourable Mr. Justice K. Chandru

The writ petition is filed by the petitioner seeking for a direction to the first respondent State of Tamilnadu to appoint Mr.C.M.Arumugam,

practicing Advocate at Madurai, as Special Public Prosecutor in P.R.C. No. 58 of 2009 pending before the Judicial Magistrate, Tenkasi in Crime

No. 391 of 2006 investigated by the second respondent Deputy Superintendent of Police.

Notice was issued to the respondents on 19.01.2011. On notice from this Court, the second respondent has filed a counter affidavit dated

08.11.2011, to which the petitioner has filed a reply affidavit dated 15.11.2011. Taking exception to some of the averments made in the reply

affidavit, the Special Government Pleader filed a memo objecting to those averments and seeks for withdrawal of those averments.

The case of the petitioner was that her husband Mohamed Massod was murdered by the personnel belonging to Police. Her husband was doing

chit business and incurred heavy loss. Since he was unable to pay the chit amount to the depositors, it invited several civil and criminal proceedings

against her husband. On 27.11.2005, her husband and one Kalyani took a car owned by one Kudib Meera Hussain for rent and it was driven by

one Krishnamoorthy. They picked up three persons at Edaikal and they dropped her husband and another one and proceeded to Nagercoil and

they picked up another two persons. While they were proceeding to Trivandrum, on the way, they stopped the vehicle near one bungalow at

Nedumangadu village and they went into the bungalow along with the driver. The four persons tied the driver Krishnamoorthi with a rope. Then the

three persons taken the rented vehicle somewhere else and returned back after six hours. They untied the rope, released the driver and gave Rs.

15,000/- to him. Immediately, the driver informed his owner Kudib Meera Hussain, who lodged a complaint before the Kadaiyanallur Police

Station. Upon his complaint, a team led by Ravichandran, Inspector went to Nedumangadu and brought the driver Krishnamoorthy and the car to

Kadayanallur.

It was further stated that on 28.11.2005, while her husband was at home, the Inspectors of Aralvaimozhi and Kadayanallur Police Station along

with their team took her husband to Kadayanallur Police Station along with her brother Sahib Sulaiman, her sister''s husband and herself to the

Police Station. Thereafter, they were sent to the Aralvaimozhi Police Station and a statement was obtained forcibly against her husband from them.

On 29.11.2005, all of them were sent back and when she enquired about her husband, they told he will be sent back safely, but he was not

released from the illegal custody.

On 31.11.2005, when the petitioner went to Aralvoimozhi police station to look for her husband, instead of giving information about his

whereabouts they directed her to approach the Kadayanallur Police Station. Then she was misled by the police personnel of both the stations

several times. Since there was no proper reply from them, she filed H.C.P. No. 223 of 2006 before this Court. It was closed by this Court on the

basis of the submission made by the Inspector of Police, Kadayanallur that he had registered a Man Missing case in Cr. No. 391 of 2006. But the

Inspector of Police, Ravi did not file any case with the above said crime number but a false statement was made before this Court.

The petitioner sent representation to higher officials about the illegal custody of her husband including the Director General of Police. The case

was transferred to C.B.C.I.D for investigation. The C.B.C.I.D investigated the case and they examined 12 witnesses and got their statement

recorded u/s 164 of Criminal Procedure Code by the Judicial Magistrate, Senkottai. From their statements, it was found that her husband was

tortured and murdered by M/s. Pratapsingh, Chandrapaul, Eswaran, the Deputy Superintendents of Police, Lakshmanan and Murugan, the

Inspector of Police, Madasamy, Sub-Inspector of Police, Constables Anthony, Murugan, Kingston, Mohamed Ali, Stephen, Michael, Chandran

and Muthu.

Thereafter, she filed Crl.O.P. No. 12376 of 2007 for transferring the investigation to the CBI and that was disposed of on 12.12.2007. This

Court directed the Revenue Divisional Officer of Padmanabapuram to conduct an enquiry and to submit his report. The Revenue Divisional Officer

submitted his report on 23.04.2008 and stated in his report that accused 1 to 10 were responsible for causing death of her husband. However,

respondents 1 and 2 did not take any action against the accused. The C.B.C.I.D filed final report in P.R.C. No. 58 of 2009 before the Judicial

Magistrate Court, Tenkasi in Crime No. 391 of 2006. In that final report, 12 police personnel were shown as accused. The petitioner also filed

Crl.O.P. No. 458 of 2010 for further investigation since the CBCID police filed charge sheet without completing the investigation and there was

sufficient holes in the charge sheet only to aid and support the accused police personnel. This Court granted an interim stay of further proceedings.

The Public Prosecutor did not make any objection when the accused filed Anticipatory Bail application in the said Crime No. 391 of 2006 before

the Judicial Magistrate Court, Tenkasi and the District Sessions Court, Tirunelveli. The accused are higher police officials and till date they are

working in the department. Therefore, the petitioner expressed her lack of faith in the present public prosecutor to conduct the case.

The petitioner sent a detailed representation to the first respondent to appoint a Special Public Prosecutor by name Arumugam, who is a

practising Advocate at Madurai and also obtained his consent letter. Section 24(8) of the Cr.P.C. provides for appointment of Special Public

Prosecutor.

The learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in Sunil Kumar Pal Vs. Phota Sheikh and Others,

and relied upon the following passages found in paragraphs 9 and 10:-

9......We have no doubt that under these circumstances the trial could not be regarded as fair and just so far as the prosecution was concerned.

The entire course of events shows that the conduct of the trial was heavily loaded in favour of Respondents 1 to 9. The trial must in the

circumstances be held to be vitiated and the acquittal of Respondents 1 to 9 as a result of such trial must be set aside. It is imperative that in order

that people may not lose faith in the administration of criminal justice, no one should be allowed to subvert the legal process. No citizen should go

away with the feeling that he could not get justice from the court because the other side was socially, economically or politically powerful and could

manipulate the legal process. That would be subversive of the rule of law.

10....It is necessary in the interest of justice that the trial should not be conducted in Krishna Nagar because the atmosphere there appears to be

surcharged against the appellant and the complainant and we would accordingly direct that the sessions case shall stand transferred to the City Civil

and Sessions Court, Calcutta and it shall be tried by a City Civil and Sessions Judge to be appointed by the Chief Judge of the City Civil and

Sessions Court. We would also direct that in order that there should be fair yet effective prosecution, the State Government should appoint a

senior advocate practising on the criminal side in the City Civil and Sessions Court, Calcutta as Special Public Prosecutor in consultation with the

appellant and the complainant and any suggestions made by the appellant or the complainant shall be taken into consideration in making such

appointment.....

Mr.P.Rathinam, learned counsel for the petitioner also referred to the judgment of the Supreme Court reported in M/s. J.K. International Vs.

State, Govt of NCT of Delhi and Others, for contending a private person''s role in prosecution is very limited and therefore, it is imperative that a

Special Public Prosecutor should be appointed.

However, in the counter affidavit filed by the second respondent, in paragraphs 10 and 11, it was averred as follows:-

I submit that the Public Prosecutor Tr. V. Ponnambalanathan who appeared for prosecution in this case before the Principal District Sessions

Court, Tirunelveli raised strong objection for granting bail to the accused but instead of the same bail was granted. Moreover, the Addl. Public

Prosecutor Tr. Selvaraj on whom the petitioner raised suspicion has completed his office tenure and Tr. N. Sivalingamuthu is now appointed as

new Addl. Public Prosecutor for the 1st Addl. Sessions Court, Tirunelveli in which the case is pending trial in S.C. No. 195/2011.

I most respectfully submit that the Addl. Public Prosecutor Tr. Selvaraj on whom the petitioner raised suspicion has completed his office tenure

and Tr. N. Sivalingamuthu is now appointed as new Addl. Public Prosecutor for the 1st Addl. Sessions Court, Tirunelveli in which the case is

pending trial in S.C. No. 195/2011 and I submit that there is no specific allegation by the petitioner against him.

In the reply affidavit filed by the petitioner, it was stated as follows:-

3....My entire effort is that the serving Law Officers working under the Government are not capable of functioning independently as all the accused

are members of the police force under the State Government.

I am further advised to state that the present Additional Public Prosecutor Mr. Sivalingamuthu is a practitioner in Civil Side till his appointment

as Additional Public Prosecutor.

In the light of these averments, it is just and necessary that the first respondent herein should be directed to appoint a Special Public Prosecutor

and they should take note of the suggestion made by the petitioner to appoint one C.M. Arumugam, a practising Advocate at Madurai as a Special

Public Prosecutor in P.R.C. No. 58 of 2009 pending before the Judicial Magistrate, Tenkasi in Crime No. 391 of 2006. The first respondent is

hereby directed to take decision in this regard within a period of eight weeks from the date of receipt of a copy of this order and communicate the

result to the petitioner.

The writ petition is disposed of accordingly. No costs.