K. Kalaikumar vs The State of Tamil Nadu and Others

V. Periya Karuppiah, J.—This petition has been filed by the petitioner/defacto complainant, seeking for the transfer of investigation from the file of 5th respondent police, to the file of either 6th respondent or 7th respondent in crime No. 139 of 2011 on file of 5th respondent police. The brief facts, which are mentioned in the petition are as follows;

(i) The petitioner is working as Headmaster of Sri Arulmigu Pragadhambal Government Higher Secondary School, Pudukkottai and his wife is also working as Teacher in Sandhaipettai Girls Higher Secondary School, Pudukkottai. The petitioner''s second daughter viz., Abarna, deceased aged about 15 years was studying in 10th standard. On 09.03.2011, the petitioner and his wife had gone to their school and their daughter Aparna and son Nishanth were at the home. On the same day, the petitioner received a phone call from his neighbour and rushed to his home, where they found that his daughter Aparna was killed by someone and she was found stabbed with sharp weapons both on her head and stomach and her body was hanged in fan by using the saree of the petitioner''s wife.

(ii) When they enquired the same to their son Nishanth, who was sitting trembling in the house, he stated that somebody entered home and attacked Aparna and after she become unconscious, she was taken to the bedroom and was hanged in the fan. Further they found that one person viz., Saminathan, delivery boy of Indane Gas Agency has seen the dead body at about 12.00 noon and immediately, he has alerted the neighbour. They also found that the offenders, after committing the murder, have taken away 25 sovereigns of jewels and other silver ornaments from the house.

(iii) The petitioner immediately filed a complaint before the 5th respondent police and the same has been registered in crime No. 1`39 of 2011 for the offence under Sections 302 and 380 I.P.C. After the registration of the complaint, there were agitations by public organisations as well as the Teacher''s Association.

(iv) The grievance of the petitioner is, though the 5th respondent has conducted the investigation, they have not shown any improvement in the investigation and so far no one has apprehended or arrested. The petitioner and his family members have extended their fullest co-operation for the proper investigation. The petitioner also made representation to the respondents, but, no steps have been taken so far. Hence, the petitioner has come forward with the present petition.

The objection raised by the 5th respondent in the counter as follows:

(i) The case has been registered in crime No. 139 of 2011 for the offence under Sections 302 and 380 I.P.C. on the basis of the complaint given by the petitioner, the father of the deceased Aparna. After registration of the case, they enquired the people of that locality and formed a team and conducted the investigation in a proper manner.

(ii) In this case, so far, 117 persons were examined as witnesses and pamphlets were printed and circulated all over Tamil Nadu requesting the people to inform the suspected persons with details of looted gold articles with images and published the same so as to reach all the people. The result of viscera is yet to be received and the final opinion of the doctor, who performed autopsy is not yet received.

(iii) It is not correct that the respondent has not shown any improvement in the investigation and it is not correct that the valuable information given by the petitioner and others have not been taken into account for the reasons best known to the 5th respondent. It is true all the effective steps have been taken to fix the culprits under the effective supervision and monitoring of Superintendent of Police, Pudukkottai, but evasive reply of the defacto complainant and his family members are the real reason to the investigation team to travel in the right direct direction to reach the object. the team of investigation is doing their best without any whims and fancies and proceeding in the rightful direction to nab the culprits without any external pressure and no strong evidence and clue have been received against anybody so far.

No counter has been filed by the 6th respondent or the 7th respondent.

Heard Mr. F. Deepak, the learned counsel appearing for the petitioner and Mr. P. Kannithevan, learned Government Advocate (Crl. Side) appearing for R1 to R6 and Mr. Rozario Sundarraj, Special Public Prosecutor for CBI Cases appearing for R7.

The learned counsel appearing for the petitioner would submit in his argument that the complaint was given by the petitioner/defacto complainant to the 5th respondent police on 09.03.2011 on hearing the cruel murder of his daughter viz., Abarna, during the day time at his house. He would further submit that the murder was followed by the theft of jewels and money from the house of the petitioner and the 5th respondent police had registered the case in crime No. 139 of 2011 with the 5th respondent police and had commenced the investigation, but so far the accused involved in the said crime was not apprehended or arrested.

He would further submit that the gruesome murder sent serious message to the society and therefore, the public organisations like teachers associations and other political parties have staged demonstrations condemning the said murder and still the 5th respondent police is not getting any break through or recover the jewels after arresting the culprits.

He would also submit in his argument that the petitioner suspects some relatives of the V.I.Ps. had committed the said crime and therefore, the police are not interested in bringing the real accused to the light and they are misdirecting the investigation and are passing time without any progress so as to dilute the matter. He would further submit in his argument that the petitioner has informed about the real murderers, who committed murder of his daughter viz., Abarna and caused the theft of jewels, who happened to be the sons of Ex. M.L.A Mr. Kavithai Pithan and another person by name, Velichi @ Vellu @ Vicky S/o. Jegannathan, working as Special Police Sub Inspector in District Crime Branch, at the office of the Superintendent of Police, Pudukkottai and another one by name Chinnaraj @ Chinraj, Pudukkottai, but the police have not taken any action since the persons involved in the crime are belonging to V.I.Ps. family. He would further submit that the petitioner has lost his confidence over the investigation done by the 5th respondent police and therefore, it has to be transferred to the file of either CBI or CBCID for rendering justice and to bring the real murderers of his daughter Abarna to book. He would also submit that the present case is very serious in nature and the area was tensed and the public felt very much annoyed with the day time murder and theft of jewels and money and this incident had sent a serious message to the safety of the public and therefore, it requires some extra ordinary supervision, so as to bring the culprits to books and thereby to uphold the safety and security and complete justice to the public.

He would bring it to the notice of this Court a judgment of the Honourable Apex Court reported in (2010) 2 Supreme Court Cases (Cri) 401 = (2010) 3 Supreme Court Cases 571 (State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others), in support of his argument. He would further submit that the 5th respondent police cannot make any breakthrough and they have no tendency to obey the order of this Court to appear before this Court and to furnish particulars and therefore, there is no purpose to continue the service of the 5th respondent police to investigate the case and to get a breakthrough. He would therefore request the Court to transfer the investigation from the file of the 5th respondent police to the file of either the 6th respondent or 7th respondent as the Court deems it fit.

The learned Government Advocate (criminal side) would submit in his argument that the 5th respondent police is taking serious steps to find out the truth in the case and to bring the correct accused persons to the book. He would further submit that the finger print lifted at the scene of occurrence are not suited with any suspected persons and the petitioner''s apprehension is baseless and it is nothing but illusion. He would further submit in his argument that the 5th respondent police has taken all the steps for furnishing the investigation by publishing pamphlets among the public for giving clue regarding the crime and about 117 persons were examined as witnesses, and however no fruitful result was reached. He would further submit that a status report was filed by the 5th respondent before this Court on 14.09.2011.

He would further submit that one Periyasami, a suspected accused has been taken into custody of the police to recover the jewels and to tally with the evidence of the inmates of the petitioner''s house about his identity and accordingly, the said Periyasamy was arrested and the petitioner did not cooperate for the same. He would further submit that the 5th respondent police will earnestly pursue the investigation and will get a breakthrough soon and arrest those persons, actually involved in the offence. He would therefore submit that the apprehension in the mind of the petitioner are not sustainable and merely because the petitioner suspected some persons, who are innocent cannot be immediately arrested and put in custody, when they did not actually participate in the crime. He would therefore request the Court to grant some more time for completing the investigation, for arresting the real accused and after securing the jewels and stolen money and to complete the investigation. He would submit that there is no necessity of transfer of investigation from 5th respondent police to any of the respondents 6 and 7.

The learned Special Public Prosecutor for CBI cases appearing for the 7th respondent would submit in his argument that there is no national importance or investigation to be done in a quality of international ramification and the 5th respondent or the 6th respondent could proceed with the investigation and get a breakthrough and there is no necessity for approaching the service of the 7th respondent. He would also submit that the 7th respondent will obey the orders of this Court.

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

The petitioner is the defacto complainant, on whose complaint, the case has been registered by the 5th respondent police in crime No. 139 of 2011 on 09.03.2011. In the said occurrence, the minor daughter of the defacto complainant was murdered at her house during day time when the defacto complainant and his wife were away with their duty. Their son, who is younger to the deceased daughter was also present at the time of incident and in the said occurrence, there was a looting of jewels and money from the house of the defacto complainant by the culprits who fled away from the scene of occurrence and the said incident was known to one delivery boy of Indane gas who had visited the house at about 12.00 noon on that day. The investigation is being carried out by the 5th respondent police and no person has been arrested, nor jewels and money stolen from the said house were recovered. One person, who was arrested in some other case viz., one Periyasamy was about to be interrogated and the 5th respondent police had sought for assistance from the defacto complainant. It is submitted by the learned Government Advocate (criminal side) that the defacto complainant did not co-operate for the same.

No doubt, the case has been investigated and the status report was filed by the 5th respondent police which would reveal that the Investigating Officer has taken serious steps to get a breakthrough by examining 117 witnesses and issued pamphlets to give a clue and so far, no clue was got nor any person has been arrested in this case.

The stand of the defacto complainant is that the culprits are the persons, who are none other than the sons of the former M.L.A. Mr. Kavithai Pithan and one son of Special Sub Inspector of Police and yet another person, whose name has been stated in the additional affidavit.

The further grievance of the defacto complainant is that the police is not doing the investigation properly knowing full well that the involved persons are from V.I.P. families.

For the purpose of ascertaining the progress of investigation, this Court has directed the investigating officer to appear along with the C.D. file on 09.11.2011 by its order dated 03.11.2011. But, on 09.11.2011, the investigating officer did not appear before the Court in obedience to the order passed by this Court. The Sub Inspector of Police of the respondent police station was present and nothing turned out from the Sub Inspector of Police, regarding the case. Neither the C.D. file was produced on 12.11.2011 nor the case was argued and therefore, this Court has posted the case on 18.11.2011 for filing a status report and no status report was seen as filed on that day.

The earlier status report dated 14.09.2011 would reveal that the investigation is not in an appreciable stage. The facts of the case would reveal that an innocent female child viz., Abarna was murdered for no fault of her in a day time that too after wrongful entry into the house and jewels and money were stolen, after the commission of murder of the said female child Abarna. Certainly, it is a warning to the society and it ought to have been taken much care by the 5th respondent police for getting break through. However, they are not even obeying the orders of this Court to appear before this Court for appraisal the progress of the case and for the production of necessary records.

In the said circumstances, I do not find any point to continue the investigation with the 5th respondent police and it has to be necessarily be transferred to the file of other agencies.

As regards, the points of the for ordering CBCID or CBI, I could see that the judgment of the Honourable Apex Court has to be followed. According to the judgment of the Honourable Apex Court reported in Honourable Apex Court reported in (2010) 2 Supreme Court Cases (Cri) 401 = (2010) 3 Supreme Court Cases 571 (State of West Bengal and Others Vs. Committee for Protection of Democratic Rights, West Bengal and Others), it has been laid as follows:

In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impigne upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law. Being the protectors of civil liberties of the citizens, this Court and the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights, guaranteed by Part III in general and under Article 21 of the Constitution in particular, zealously and vigilantly.

Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. this extraordinary power must be exercised sparingly, cautiously and in exceptional situation where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.

On a careful analysis of the dictum laid down by the Hon''ble Apex Court, I could see that the power to transfer the investigation to CBI has top be exercised with much care and it has to be done sparingly. The investigation by C.B.C.I.D., which is also under the control of the State can be entrusted, because they did investigation efficiently in various cases by getting breakthroughs. Therefore, I am of the considered view that the investigation can be entrusted with CBCID to continue further investigation and to file a final report, after nabing the correct accused and recover the jewels and money from them.

For the foregoing discussions, I am of the considered view that the investigation shall be transferred from the file of the 5th respondent to the file of CBCID police, Tanjore District for continuing the investigation and to file a final report, after getting necessary breakthroughs in the case and the 1st respondent is directed to pass necessary transfer orders in consonance with the direction of the Court in 15 days from the date of receipt of the copy of this order. With the above direction, this petition is ordered.