Karuppaswamy vs The Director General of Police, Chennai, The Superintendent of Police, Coimbatore (Rural) Coimbatore and The Inspector of Police, Palladam Police Station, Palladam

A. Raman, J.—This is an application filed by the petitioner praying to order change of investigation of the case from the Inspector of police, Pal-ladam police Station, Coimbatore to C.B.I.

A complaint was given by Maravathy Gounder on 30.11.1997, at about 8.30 a.m., which was registered u/s 363, 307 and 109 of the Indian Penal Code. The allegations are to the following effect:- There was a feud between Kadukkayyan and Dhamodarasamy, over the sale and purchase of "Manal Thottam''. The said Kadukkayyan approached former M.L.A., V.S. Palanisamy to help him to enjoy the said property without any interference from Dharmo-drasamy Naicker. He paid Rs.50 lakhs for the same. He also gave a jeep to him. The henchmen of Dhamodarasamy Naicker indulged in acts of rioting. The said occurrence had resulted in the registering of a case in ''Avinasi-palayam Police Station. Later a lease deed was obtained ''Benami'' in the name of one Thanga-muthu Gounder, a nominee of former M.L.A. VS. Palanisamy. The said lease deed was later cancelled. The former M.L.A. N.S. Palanisamy has been making frequent demands upon Kadukkayyan. Kadukkayyan refused to make any further payment to him. Therefore, the former M.L.A. V.S. Palaniswamy joined hands with Dhamodarasamy Naicker and was threatening Kadukkayyan. Hence, an injunction was obtained in Civil Court against Dhamodarasamy Naicker and others restraining them from interfering with the possession and enjoyment of the property by Kadukkayyan. While so, on 29.11.1997, at about 10:A.M., in the said field, the complainant and others were carrying on agricultural operations. At that time, Sembalayam, Govin-daswamy, his relative Muthukrishnan, Mayilsamy, the sons of Dhamodarasamy Naicker viz., Ramakrishnan and Rajendran, and Thangamuthu Gounder with 20 rowdy elements came there, with a view to cause disturbance and rioting. The police, who came there on information, sent them away. On 30.11.1997, at about 8 AM., Kadukkayyan''s son Muthusamy, the son of the complainant Chandrasekaran complainant were proceeding to Palladam to see the advocate. Muthusamy was going by a motor-cycle, while Thambu. the complainant and his son Chandrasekar followed him in a car. When they were nearing Muthukumarasamy temple on Kangeyam Road, the jeep belonging to Govindasamy bearing Reg.No.TN-39-H-3548 went past the car. It was driven by Muthukrishnan. Govin-dasamy was sitting in the front while there were others sitting in the rear seat. Near Pal-ladam-Panappalai, the jeep driven by Muthukrishnan knocked down the motor-cycle. Muthusamy, who was driving the motor-cycle fell down. Then Govindasamy, the driver of the jeep, Muthukrishnan, Mayilsamy, advocate Ramakrishnan, Rajendran, lessee Thangamuthu Gounder and two other persons got down from the jeep. The complainant and his son got down from the car. Govindasamy was having an aruval in his hand saying ''Kaduk-kan-payyd'' (Son of Kadukkan) ''only if you are done away with, Naicker will get the field'', wielded the aruval and attempted to cut Muthusamy. Muthusamy evaded the blow and ran, and at that time, advocate Ramarkrishnan beat him with a stick and Muthusamy fell down. Mayilsamy stated ''take this fellow in the jeep. Let us go to our leader V.S.S. Palanisamy and finish the job there''. It was 8:30 A.M. then. The jeep turned back on Tharapu-ram Road. The complainant and his son chased the jeep for about 3 kms. But they could not catch up with the same. Then they went back to the place of occurrence. The motor-cycle driven by Muthusamy was lying damaged.. The former, M.L.A. V.S. Palanisamy, his men especially Govindasamy and Mayilsamy were frequently threatening Kadukkayyan stating that he must surrender to Dhamodrasamy Naicker and otherwise, his family will be done away with. It is at the instigation and instructions of the former M.L.A. Palanisamy, Muthusamy was abducted in the jeep.

The complaint thus make mention of the names of the persons involved, the motive for the occurrence, and vividly describes the occurrence. According to the petitioner, they have money and muscle power and have the support of the Ministers of the Government of Tamil Nadu and the police are not taking proper steps. It is further alleged that they are threatening the witnesses, but the police are saying that they cannot take any action. The petitioner is aged 70 years. The petitioner is not able to recover from the shock of the loss of his son. The investigation is not done by the 3rd respondent properly. Hence, it should be transferred.

Learned Government Advocate took notice of the same. No written counter is filed. Learned Government Advocate submitted that investigation has been done and that final report has been filed before the Judicial Magistrate, Palladam against 9 persons under sections 147, 148, 302, 307, 364, 309, 109 and 149 of I.P.C., and therefore, the allegation made by the complainant that the respondents are not interested in pursuing the investigation of this case is not correct. It appears that of the 9 accused, the 4th accused Advocate Ramak-rishnan and the 9th accused V.S.Palanisamy have not been so far touched by the police. The 4th accused is said to be a lawyer and the 9th accused is the former M.L.A. It is stated that they are absconding.

These two persons filed applications for anticipatory bail and those applications were dismissed by this Court. It is rather surprising that the police is treating these two accused with some leniency. It appears as though they are hesitant to arrest the two accused despite the gravity of the offence alleged. The charge sheet is to the effect that on 30.11.1997, at about 8:30 A.M., the accused 1 to 8 formed themselves into an unlawful assembly and the 2nd accused, who had driven the jeep bearing Reg.No.TN-39H-3548 hit the motorcycle driven by Muthusamy and that when he fell down, the 1st accused Govin-dasamy cut with aruval and the 4th accused beat him with thick stick and thereafter accused 1 to 8 forcibly abducted Muthusamy in the jeep to the house of the former M.L.A. N.S.Palanisamy and committed the murder of Muthusamy. The further accusation is that they had thrown the body into the river ''Ama-ravathy''.

The professions of an advocate is a noble one of which there is no doubt. But the lawyers are not above law. It is the duty of a lawyer to see that the law of the land is properly enforced and administrated. It is strange that a person, who is accused of heinous offence of abduction and murder being a lawyer, should choose to abscond. In this case, final report has been filed, which is indicative of the fact that the police had confirmed the allegations made in the complaint after investigation. Therefore, it is not merely a stage of accusation. But, it is a case where the police had confirmed the truth of the allegations made in the complaint, after investigation, by filing a final report against all accused including Ramakrishnan, who is the 4th accused. Thus, the 4th accused is concerned in a cognizable offence. A complaint has been made against him and that complaint has been taken up and investigated and a final report has also been submitted, wherein, it is clearly stated that the 4th accused participated in the crime. Inspite of all these facts, it is rather unfortunate that the police have failed to arrest the said accused. It is of course open to the police to arrest or not to arrest the persons. But that would arise only in case where there is just a complaint and there is no basis to proceed against the person. But, here is a case, where not only specific allegations have been made in the complaint but investigation also revealed sufficient grounds to proceed against the 4th accused and consequently, charge sheet has been laid against the accused as well. Therefore, it is a fit case, where the police must act u/s 41 of the Cr.P.C. To say that he had been absconding, is a hard pill to swallow. A smoke screen of "absence" is thus conveniently woven. No reasonable explanation is forthcoming as to, why he could not be arrested. Even assuring that he had been absconding, the police are not in a position to place before the court any materials to show that any serious attempts were made to arrest him or to show that any special police party was deputed to arrest him and inspite of it, he could not be traced out. It is also to be pointed out that no step has been taken, as contemplated under the provisions of Cr.P.C., especially for issuance of proclamation of the absconding accused u/s 82 or for attachment of the property of the person absconding u/s 83 of Cr.P.C.

Now coming to the case of AS, it is all the more hurting to learn that the respondents are not keen in arresting him. A desire to protect him is evident. The entire thing has been done at the instigation of A9. The: final report also reveals that A9 joined hands with A4 and A5 and assisted them in their attempt to acquire the possession of the lands. A 2 was working as the car driver of A9. A6 is stated. to be the Benamidar for A9 in respect of the lease of the property. The allegation the common object and intention of the accused is to do away with Mudiusamy and that on the date of occurrence, Al to A3 took Muthusamy to the farm house of the accused, and the murder of Muthusamy took place in that consequence.

In this case, also, excepting to state that the 9th accused had been absconding, we do not find any materials placed before the court to substantiate this submission. No attempt was made to secure him. It is not the report that any special party was formed to arrest him. Nor the provisions of Cr.P.C.viz., sections 82 and 83 were resorted to. This is yet another classic example of the police shying away from discharging their duties. They want to give a special treatment to the 9th accused and treat him with kid-gloves. It is unfortunate that the former M.L.A. should resort to the game of hide and seek. He was once a law maker and now he has become a law breaker. In a vibrant democracy like ours, the court cannot close its eyes to such happenings. Nobody is above law. The respondents are only trying to protect the 9th accused. The influence the 9th accused has is, thus obvious. It sticks out like sore thumb. The provisions of Sections 82 and 83 of Cr.P.C. are there in the statute book to meet such contingencies. The respondent agency cannot claim to be oblivious of the same. Section 41 of Cr.P.C. clearly lays down that if credible information is received, or if a reasonable suspicion exists, of a person having been concerned, in any cognizable offense, any police officer, may without obtaining any order from the Magistrate and without a warrant arrest him. This provision is there to be exercised by the police. The police cannot pick and choose to exercise their discretion.

Normally, in other cases where the accused have no influence are just ordinary citizens, the police does not hesitate to spring into action with the shield provided by section 41 of Cr.P.C. But, in this case they have deliberately not chosen to do so, which will only undermine the confidence, the people may have in the system. In such circumstances, though this court normally will hesitate to issue any direction to the police to arrest any person, in the circumstance of the case. I am convinced mat there is a deliberate disinclination on the part of the police to arrest the accused. The anxiety to help and protect them is discernible. I hope the police will make amends by triggering the mechanism atleast now.

As the final report has been filed against the accused 1 to 9 under various provisions of the Indian Penal code., it becomes unnecessary to order transfer of the case to C.B.I, for investigation. But, it has become imperative to issue direction to the 1st respondent vis''., Director General of Police, Chennai to take immediate and necessary steps to apprehend the 4th accused viz. Ramakrishnan, s/o Dhamodarasamy Naidu, Manal Thottam, N.N.Padur viz., Pongalur, and the 9th accused viz, V.S.Palanisamy, s/o Samiappa Gounder, Ex.M.L.A. Nethegoundampalayam, Palladam Taluk, by appointing a special police party, if it so becomes necessary, and shall submit a report of compliance within a month of this order.

This application is disposed of accordingly.