Murugan, Radha, Rajasekaran, Murugadhas @ Mathikumar and Sundar vs State of Tamil Nadu

A.K. Rajan, J.—The prayer in the Criminal Revision Case is to transfer the investigation to C.B.I.

The prayer in the writ petition is for issuance of a writ of mandamus, directing the respondents 1 to 5 to investigate the case relating to the

murder of late Thangakrishnan on the basis of the confessional statement given by Vincent and Suresh in Crime No.293 of 1998 on the file of the

fifth respondent.

The petitioners herein are accused in Crime No.40 of 1996 on the file of the fourth respondent of an offence u/s 302 I.P.C. The case relates to

the death of one Thangakrishnan of Kannattuvilai, Neyoor Post, Kanyakumari District. Late Thangakrishnan was a tourist taxi driver. The owner

of the tourist taxi bearing registration No. TN-74/2979 is the sixth respondent.

The body of Late Thangakrishnan was found within the police limits of the fourth respondent and the taxi was found abandoned at a place called

Krishnarayapuram, Palayamkottai, Tirunelveli District on 12.02.1996.

The first petitioner''s native place is Kannattuvilai. Late Thangakrishnan was his neighbour. On 7.2.1996, the first petitioner''s cousin by name

Raghu, Advocate, Eranial, Kanyakumari District, filed a complaint against the deceased Thangakrishnan for the offence of eveteasing, in which it

was alleged that the said Thangakrishnan made menacing remarks against the first petitioner''s daughter and on the basis of the complaint, the said

Thangakrishnan was called to Eranial Police Station and he was warned by the Inspector of Police. After a few days, the body of Thangakrishnan

was found near Cheranmadevi.

At the instance of respondents 6 and 7, the petitioners were implicated by the fourth respondent on the suspicion that the first petitioner would

have caused the murder of late Thangakrishnan. The second petitioner is the first petitioner''s brother-in-law. The third petitioner is his nephew.

Petitioners 4 and 5 are friends of the third petitioner.

The fourth respondent did not investigate the case properly. Only a farce of the investigation was conducted and all the petitioners were charge-

sheeted for an offence u/s 301 I.P.C. The case is now pending for trial before the II Additional Sessions Judge, Tirunelvel, as S.C.No.268 of

1998.

The first petitioner and his wife sent several petitions to the District Collector, Kanyakumari and others complaining that the petitioners have

been falsely implicated in the case. He has also filed a petition before the first respondent on 8.10.1996, requesting him to transfer the case for an

impartial investigation by the C.B.C.I.D. All the petitioners jointly presented a petition before the first respondent with a request that the case be

transferred to C.B.I. for impartial investigation.

On an earlier occasion, the first petitioner filed another W.P.No.13754 of 1996 seeking for issuance of a writ of mandamus, directing the

Government to entrust the investigation of the case to CBCID. The said writ petition was dismissed as premature, on 3.9.1996.

The petitioners submitted that they have been falsely and maliciously implicated in the case in order to help the real accused involved in the

murder and to help them to escape from punishment. The petitioners also submitted that during the investigation of the case in Crime No.293 of

1998 on the file of the fifth respondent, the fifth respondent had recorded the confessional statement of two persons namely, 1. Vincent and 2.

Suresh. Both of them have confessed to the fifth respondent that the murder of Thangakrishnan was committed by Richard, son of

Arumainayagam, Mohan Son of Kolappan, Mani, Suresh, Gopalakrishnan, Rajan and one Raja. According to the confessional statement of

Vincent and Suresh the above named persons were engaged to commit the murder of Thangakrishnan for monetary consideration. The

confessional statement given by Vincent and Suresh had been brought to the notice of the Second and third respondents by the fifth respondent but

no further investigation has been conducted to find out the truth or otherwise of the confessional statement. The Seventh respondent, who also

belongs to Kannattuvilai, has been enemical to the petitioners for a long time. Therefore, he joined with sixth respondent to implicate the petitioners

in the above case.

The petitioners have reason to suspect that the said Thangakrishnan was killed by hired hooligans, engaged by the sixth respondent. The

seventh respondent had helped the sixth respondent to falsely implicate the petitioners in the case. The fourth respondent, for the reasons best

known to him, did not investigate the case properly but falsely implicated these petitioners.

Crl.M.P.428 of 1998 was filed by the petitioners before the II Additional Sessions Judge, Tirunelveli, seeking further investigation of the case.

That petition was dismissed on 16.2.2001. Therefore, Criminal Revision Case No.314 of 2001 against that order has been filed. When the

Criminal Revision Case came up for orders before this Court, it was represented that the remedy is only by way of writ under Article 226 of the

Constitution of India.

In the above circumstances, the present writ petition has been filed before this Court, seeking for issuance of a writ of mandamus or any other

appropriate writ, directing the respondents 1 to 5 to investigate the case relating to the murder of Thangakrishnan on the basis of the confessional

statement given by Vincent and Suresh in Crime No.293 of 1998 on the file of the fifth respondent and for other reliefs.

Counter affidavit has been filed by the respondents 1 to 4 with respect to the averment that a false case has been filed against the petitioners.

The respondents state that it was only based upon the materials collected during investigation, the charge-sheet was filed. They further deny that

they have falsely implicated the petitioners at the instance of sixth respondent. The petitioner and the members of the family sent several petitions,

making allegations against the police for a long period. They also demanded C.B.C.I.D. and C.B.I. enquiry but all them were rejected. The

petitioners have stopped the trial by filing this writ petition. Hence, the allegations made against the police are baseless. The confession statements

by the accused in Thiruvattar Police Station in Cr.No.33/98, 293 /98 and 346/98 were made only to safeguard the first petitioner, who is the main

accused in this case. The first petitioner had never lodged any complaint against the police before this Court and he did not disclose any enmity

between himself and the seventh respondent. Therefore, the petition is to be dismissed.

Counter affidavit has also been filed by the fifth respondent, wherein it is stated that on 9.4.1998 at 3.30 p.m. one Francis, son of Chellakkan,

Kannaanore came to Thiruvattar Police Station and preferred a complaint against one Vincent and 20 others, stating that on 9.4.1998 at about

2.30 p.m., they formed themselves into an unlawful assembly armed with deadly weapons and with an intention to murder the complainant Francis

by cutting him with a chopper on his head and also cut witness No.2 Stellabai with the chopper on her right fore-arm, and witness No.3

Marimuthu on his head and witness No.4 Devadoss on his left shoulder and witness No.5 Rosemary on her right hand and committed theft of 3

sovereigns of jewels from the witness Jenni.

On the basis of the complaint, the Sub Inspector of Police Thangaraj, registered a case in Thiruvattar Police Station in Crime No.293/98 under

Sections 147, 148, 452, 324, 307 and 379 I.P.C. During the course of investigation, he arrested Vincent on 8.5.1998 at Kaliakkavilai Bus Stand.

The said Vincent has not confessed anything regarding the occurrence in crime No.40/96 of Cheranmahadevi Police Station. But one Suresh

confessed that ""jp'';fs;re;ij hpr;rh;L bry!;od;. uh$d;. kzp. Rnu&;. nfhghyfpU&;zd; vd;w jiyahl;o nfhghyfpU&;zd;. nkhfd;. Mfpath;fs; jp;'';fs;re;ij

fz;zhl;otpis j'';ffpU&;zd;. vd;w fhh; oiutiu 1996 k; tUlk; gpg;uthp khjk; nrud;;khnjtpapy; itj;J bfhiy bra;J tpl;L khl;lhky; jg;gp epw;gth;fs; vd;Wk;

bjhpa tUfpwJ@

This statement is hit by the provisions of the Evidence Act. As it is given to the Police Officer and since it has not resulted in recovery of any

material object, some of the accused were arrested in that case. Vincent has not confessed anything regarding the crime No.40/96. Therefore there

is no basis for this writ petition.

The petitioners filed the certified copies of the statement recorded by the investigating officers in the Thiruvattar case along with their typed set.

Learned counsel pointed out that the first petitioner was implicated as an accused by the Cheranmadevi Police Station only on the statement

given by the sixth respondent Vargheese Ackniraj and another person, who was the driver of the said Vargheese Ackniraj. This Vargheese

Ackniraj, was a friend of A7. The deceased Thangakrishnan had some relationship with the wife of Vargheese Ackniraj and that was the reason

for his death. Therefore, in order to save himself, the sixth respondent herein, with the help of seventh respondent has made these petitioners as

accused in that case. Immediately when these petitioners were arrested, the wife of first petitioner sent number of petitions to various authorities is

proved by typed set filed along with this writ petition. Complaint was also given to the Inspector of Police, Cheranmadevi Police Station. Since the

petitioners were not involved in the case, they have repeatedly sent petitions to save themselves. During investigation of Crime No.203/98 in

Kanniyakumari District, Thiruvattar Police Inspector did not have any idea about this particular case. While he was examining the suspected

accused, two persons one Suresh and another Vincent have given statements, confessing that Thangakrishnan was murdered by mercenaries,

employed by the sixth respondent. Vincent, in his statement, has stated as follows:

fhl;lhj;Jiw ma;ag;gd; Mfhhp kfd; kzpfz;ld; Mrhh. kUJhh;Fwpr;rp fz;zd;. fz;Dhh; uh$nfhghy; vd;w bfhf;F fz;Dhh; bt!;yp. ,th;fsplk; Ml;fis Vw;ghL

gz;z brhd;djpy; jp'';fs;re;ij fz;zhl;otpis j'';ffpU&;zd; vd;w fhh; oiutiu 1996 k; tUlk; bgg;utup khjk; nrud;kfhnjtpapy; itj;J bfhiy bra;Jtpl;L khl;lky; jg;tp

epw;gth;fSk;. gy nf!;fspy; jg;gp epw;gth;fSk; Typf;F mojof;F nghFk; Typg;giliar; nrh;e;jth;fshd jp'';fs;re;ij mUikehafk; kfd; hpr;rh;L vd;w hpr;rhL

bry!;od;. Jp'';fs;re;ij btlLf;fhl;Ltpis nfhyg;gd; kfd; nkhfd;. kzp Rnu&; nfhghyfpU&;zd; vd;w jiyahl;onfhghyfpU&;zd;. mHfd;ghiw uh$d;.

g{rh!;jhd;tpis uh$h ,th;fis Vw;ghL bra;ayhk; vd;W brhy;ypg; nghdjpy; tutpy;iy vd;W brhy;ypa[s;shh;fs;@

Another person Suresh has also given similar confession.

Learned counsel appearing for the petitioners submitted that this statement was given by one of the suspects, who were arrested during

investigation in another crime. This statement reveals that the said Thangakrishnan was murdered by mercenaries but they were not called.

Therefore, this would prove that the petitioners are not involved in the murder case, for which they are charged; but some other persons.

Therefore, the police are duty bound to investigate whether the confession made by these two persons is true or not. At the end of investigation, if

their statement is found to be true, the petitioners would be cleared of all the charges. In the circumstances, they need not face the trial. Therefore,

they have approached this Court with the prayer that the respondents be directed to investigate into this matter in order to find out the real

accused.

Learned counsel for the petitioners further submitted that the respondents are duty bound to conduct further investigation when such an

information has come to their knowledge. The learned counsel relied upon the judgment of the Hon''ble Supreme Court in S.N. Sharma Vs. Bipen

Kumar Tiwari and Others, , wherein the Supreme Court held that:

It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that

a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High

Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised

by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers

He also relied upon another decision in Ram Lal Narang Vs. State (Delhi Administration), , wherein it has been held that:

Notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted u/s 173 of the 1898 Code, the right of the

police to further investigation is not exhausted and the police can exercise such right as often as necessary when fresh information comes to light.

There was no provision in the Code of Criminal Procedure (1898) which, expressly or by necessary implication barred the right of the police to

further investigate after cognizance of the case had been taken by the Magistrate. Neither S.173 nor S.190 lead to say that the power of the police

to further investigate was exhausted by the Magistrate taking cognizance of the offence. Practice, convenience and preponderance of authority,

permits repeated investigations on discovery of fresh facts.

He also relied upon the decision in STATE OF BIHAR AND ANOTHER VS. A.C.SALDANNA AND OTHERS (1980 SC 326), which reads

as follows:

As pointed out above, if the Chief Secretary as the highest executive officer at the State level exercising power of superintendence over the

police of the State posted in general police district would have powers to suggest change of investigating machinery in the circumstances disclosed

in the letter dated May 11, 1977, of the D.I.G. Railway, the report of the Commissioner of South Chhotanagpur Division, and the complaint of

MLAs/MLCs., his action could not be said to be without power or authority. In our opinion, if he had acted otherwise, a charge of inaction or

failure or default in performance of his duty as the highest chief executive officer would be squarely laid at his door. He acted in the best tradition of

the chief executive officer in public interest and for vindication of truth and in an honest and un-biased manner.

He also referred the judgment of this Court in DURAISAMY S/O.MUTHUSWAMY GOUNDER AND OTHERS VS. THE INSPECTOR OF

POLICE, KODUMUDI POLICE STATION, KODUMUDI, PERIYAR DISTRICT AND OTHERS (1983) LW 244, which reads as follows:

The effect of S.173(8), introduced in 1974, is that notwithstanding the fact that a report has already been forwarded to the Magistrate under sub-

S.(2) of S.173, Crl.P.C., it will be open to the Police Officer to make further investigation in respect of an offence if circumstances so warrant. As

and when such investigation is made and further evidence, oral or documentary, is obtained, the Police Officer is under a duty to forward to the

Magistrate a further report or reports regarding such evidence in the form prescribed. The provisions of sub-Ss(2) to (6) shall, as far as may be,

apply in relation to such report or reports in the manner they are applicable to a report forwarded under sub-S.(2) of S.173. This section is based

on the necessity to confer express power on the police to make further investigation and submit supplemental reports. Whenever fresh facts occur

to the Police resulting in further investigation, it is the duty of the police to send a supplemental report based on such materials to the Magistrate in

terms of S.173(8) and this statutory duty cannot be lightly dealt with"".

Relying upon these judgments, the learned counsel submitted that it is imperative on the part of the respondents to enquire and satisfy themselves

whether the confession made by the accused is true or not. All that the petitioners want is to conduct an investigation to ascertain the truth of the

confession made by the accused.

Learned counsel appearing for the respondents on the other hand submitted that in this case charge-sheet has already been filed and the trial

date has also been fixed and hence further investigation is not necessary.

It is true that in this case charge-sheet has already been filed and the case is ready for trial; but at the same time, if the investigating officer gets

any information about the case in which final report had already been filed, the officer can investigate the matter further and there is no bar for

further investigation and ultimately if the officer comes to the conclusion that the persons already charged are not the real accused and some other

persons are found to be the real accused, then, the Police Officers are entitled to file a fresh charge-sheet. But, that is a power vested with

Investigating Officer. If the investigating officer is satisfied that any material has been received by him, which requires him to investigate the matter,

he can investigate further and file a fresh report. But, in this case, the two statements, which are called confessions by the learned counsel for the

petitioners, are given by two of the persons arrested in another Criminal case. A perusal of that statement reveals the fact that it is exculpatory in

nature, it is not a confession given by them. In that statement they have not stated that they committed the murder of Thangakrishnan and that they

were employed by some persons to commit the murder of Thangakrishnan. All that they say is, they wanted to employ the persons who murdered

the said Thangakrishnan. Under such circumstances, the Police Officer would have definitely taken note of that and proceeded further according to

law and filed a final report, whereby these persons also would have been shown as accused. However, the said statement does not amount to

confession of the accused and also does not absolve the petitioners, if taken as true in its entirety. Further, if such a statement is taken as to have a

bearing on an earlier investigation, then in any other case, any person can make such a statement. With the result, no case can see any progress. At

the same time, the statement given by these persons cannot be ignored by the authorities. The authorities are expected to satisfy themselves

whether there is any truth in those statements. Normally, a Police Officer, when such a statement is made by any of the suspected accused, is duty

bound to ascertain the veracity of the same. Therefore, the authorities may ascertain whether the statement made by those persons is true or not.

But, for that, a direction cannot be issued by way of writ of mandamus not to proceed with the trial of this case, pending such an enquiry made by

the Police Officers. Therefore, the prayer in the writ petition cannot be allowed. Hence, the writ petition is to be dismissed. At the same time, this

Court expects the second respondent to consider the statement made by Vincent and Suresh and find out whether there is any truth in it. If he finds

any truth in it, he can proceed with further investigation in the matter and take action according to law. But, as stated above, no writ can be issued

to enforce such a direction. Hence, the writ petition is dismissed.

The Criminal Revision Case is to transfer the matter to C.B.I. That has also become infructuous, in view of the fact that no one has appeared in

this petition.

With the result, both the Writ Petition and the Criminal Revision Case are dismissed. No costs. Consequently, connected W.M.P. and

Crl.M.Ps are dismissed.