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Selvamani and ors. Vs. the Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCrl.O.P.Nos.6877, 6878, 6879, 6880, 6881, 6882, 6883, 6884, 6885, 6886, 6887, 6888 and 6889 of 2012
Judge
ActsIndian Penal Code(IPC) - Sections 420, 406; Code of Criminal Procedure(CrPC) - Section 161(3), 482, 173(8);
AppellantSelvamani and ors.
RespondentThe Commissioner of Police and ors.
Appellant AdvocateMr.D.Vijaya Babu, Adv.
Respondent AdvocateMr.C.Iyyapa Raj, Adv.
Excerpt:
.....under section 173(8) cr.p.c., even transferring the investigation to an independent agency, rather than directing a reinvestigation. scheme of investigation, particularly, section 173(8) cr.p.c., provides for further investigation and not reinvestigation. where non-interference of the court would ultimately result in failure of justice, the court must interfere......report by the third respondent. the conduct of the third respondent would certainly facilitate the accused persons to wriggle out of the clutches of the charges.19. he had also added that the third respondent had conducted an unfair and partial investigation.20. on the other hand, mr.c.iyyapparaj, learned government advocate (criminal side), has submitted that during the course of investigation, the officer, who conducted the investigation, had investigated and enquired more than 50 witnesses and recorded their respective statements. all the witnesses, in their statements, had stated about the cheating committed by the accused 1 and 2 by way of collecting money from the aggrieved persons and they did not offer job or return the money and the officer had also collected the records.....
Judgment:

Prayer:(in all Crl.O.Ps) Petitions are filed under Section 482 Cr.P.C, praying to direct the third respondent to conduct further investigation and to file further report in Crime No.247 of 2009 and to examine all the affected persons and collect the documents and evidences and to direct the third respondent to file the same in the case in C.C.No.345 of 2012 pending on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai.

C O M M O N O R D E R

1. With the petitioners in all the criminal original petitions are seeking the same relief against the respondents and the case in C.C.B X Crime No.247 of 2009 seems to have been registered under Section 420 I.P.C., on 14.06.2009, based on the complaint lodged by one Mr.S.Ramesh on behalf all the aggrieved persons, including the petitioners herein and the respondents in all the petitions are one and the same all the petitions have been clubbed together, heard and disposed of in this common order.

2. The facts germane for the disposal of all the criminal original petitions in brief as under:

2.1. One Mr.Subramani, who is the first accused in the above said case, is the director of a Software Company under the name and style of M/s.Ripple Infolink Pvt., Ltd., Kodambakkam, Chennai and the nature of the business of the company is to train the persons and to get them a job in the software companies and as such the complainants and the other aggrieved persons had joined in the training programme of Mr.Subramani by paying a sum of Rs.50,000/-.

2.2. He provided only partial training. But, he was not able to secure a job for the complainant and other aggrieved persons. So far, the respondents Police have received 139 complaints similar in nature against the first accused Mr.S.Subramani and the second accused Mr.S.G.P.Raj @ Guruprasannaraj.

2.3. It is alleged in the complaint that Mr.Subramani and his associates one Mr.S.G.P.Raj @ Guruprasannaraj had promised the students to offer job in the I.T.Companies. But, as assured by them, they did not offer job to those aggrieved persons. It is also alleged that the first accused Mr.Subramani and the second accused Mr.S.G.P.Raj @ Guruprasannaraj had collected approximately a sum of Rs.75,00,000/- from those 139 aggrieved persons. Neither they had secured job to the aggrieved persons nor had they returned the money received from them. Hence, all the aggrieved persons, who had paid money to the accused 1 and 2, had lodged complaints before the third respondent Police.

3. Heard Mr.D.Vijaya Babu, learned counsel appearing for the petitioners and Mr.C.Iyyapparaj, learned Government Advocate (Criminal Side) appearing for the respondents.

4. Mr.D.Vijaya Babu, learned counsel appearing for the petitioners has adverted to that the Company, under the name and style of M/s.Ripples Infolink Pvt., Ltd., situated at No.12/1, 4th Cross Street, United India Colony, Kodambakkam, Chennai-600 024, had advertised to offer six months software training and to provide placement of jobs on condition that every aspirant should pay a sum of Rs.45,000/- as a refundable caution deposit.

5. Accordingly, the petitioners had agreed for the condition imposed by the first accused Mr.Subramani, Director of M/s.Ripples Infolink Pvt., Ltd., along with Mr.S.G.P.Raj @ Guruprasannaraj and they had paid a sum of Rs.45,000/- each by way of demand draft and after receiving the demand draft, the said Mr.Subramani gave them appointment letters, receipts and identity cards duly signed by him. Thereafter, he did not give any training to the petitioners. When they contacted Mr.Subramani and Mr.S.G.P.Raj @ Guruprasannaraj, they had been giving evasive answer.

6. He has also submitted that during the period of January 2009, Mr.Subramani and Mr.S.G.P.Raj @ Guruprasannaraj had closed the said company. Then only, the petitioners understood that the said Mr.Subramani and Mr.S.G.P.Raj @ Guruprasannaraj had not only cheated them, but also had cheated more than 300 students in various Districts of Tamil Nadu and other states.

7. In this connection, around 139 aggrieved persons had decided to lodge a complaint against the said Mr.Subramani and Mr.S.G.P.Raj @ Guruprasannaraj and their henchmens before the first respondent Commissioner of Police, Egmore, Chennai.

8. The first respondent, Commissioner of Police, Egmore, Chennai, had forwarded their complaints to the Central Crime Branch and the third respondent Inspector of Police on 14.06.2009 had registered all the 139 complaints in one single case, in the name of Mr.Ramesh as the complainant, in Crime No.247 of 2009, under Section 420 I.P.C., against Mr.Subramani and Mr.S.G.P.Raj @ Guruprasannaraj as accused 1 and 2.

9. Mr.D.Vijaya Babu, learned counsel appearing for the petitioners has submitted further that the first accused Mr.Subramani even after getting anticipatory bail from this Court, as early as on 12.08.2009, in Crl.O.P.No.15940 of 2009, he had not even chosen to comply with the conditions imposed by this Court for more than 18 months. Thereafter, petitions were filed to cancel the anticipatory bail granted in favour of the first accused Mr.Subramani and accordingly this Court on 23.03.2011 had cancelled the Order of anticipatory bail.

10. Once again, Mr.Subramani had moved this Court for anticipatory bail and on his behalf a representation was made before this Court saying that he undertook to pay a sum of Rs.30,000/- to five aggrieved persons and for the other aggrieved persons he would settle the amount before the mediation centre.

11. Considering the welfare of the aggrieved persons, this Court had once again granted anticipatory bail with the stringent condition that he shall furnish security of immovable property for the value of Rs.50,00,000/- among other conditions.

12. Since the first accused Mr.Subramani had not complied with the conditions imposed against him, for the second time, this Court on 23.01.2012 had passed an Order in the second petition for the cancellation of bail against the first accused and directed the first accused Mr.Subramani to appear before the learned XI Metropolitan Magistrate, Saidapet, Chennai, within a period of ten days and to execute the Order dated 19.04.2011.

13. Instead of complying with the conditions imposed by this Court, he had moved a petition for extension of time before this Court. This Court had also granted a further period of one week for furnishing sureties in pursuant to the Order dated 10.02.2012 and made in Crl.O.P.No.8887 of 2011. However, the first accused had deliberately not obeyed the Order of this Court for more than three years.

14. Similarly, the second accused Mr.S.G.P.Raj @ Guruprasannaraj was ordered to be released on bail on 18.09.2009 in Crl.O.P.No.16338 of 2009. He had also not complied with the Orders of this Court for more than 18 months. As in the case of the first accused Mr.Subramani, all the aggrieved persons had filed a petition for cancellation of bail granted in favour of the second accused Mr.S.G.P.Raj @ Guruprasannaraj. At that time, he had voluntarily come forward to pay a sum of Rs.25,000/- to each of the aggrieved persons on 28.04.2011.

15. However, the second accused Mr.S.G.P.Raj @ Guruprasannaraj had also voluntarily not complied with the conditions and subsequently the bail granted in favour of the second accused was cancelled by this Court on 29.08.2011.

16. Mr.D.Vijaya Babu, learned counsel appearing for the petitioners has submitted further that the third respondent Police had not properly examined the aggrieved persons and their statements were not recorded and adequate documentary evidences were also not collected during the course of investigation so as to strengthen the case of prosecution.

17. The learned counsel has also submitted that the accused 1 and 2 had indulged in a serious and grave nature of crime of cheating and misappropriation, which are punishable under Sections 406 and 420 I.P.C. Even though a charge sheet was filed before the learned XI Metropolitan Magistrate, Saidapet, Chennai by the respondents Police, it did not contain adequate materials to support the case of prosecution.

18. He would submit further that in the final report, the third respondent had shown uniform statement of all the 139 aggrieved persons including the petitioners. But, the statements in the final report, along with the list of documents, did not contain the aggrieved persons' statements under Sections 161(3) Cr.P.C., and that the documents relating to the petitioners and other aggrieved persons were not collected and tagged along with the final report by the third respondent. The conduct of the third respondent would certainly facilitate the accused persons to wriggle out of the clutches of the charges.

19. He had also added that the third respondent had conducted an unfair and partial investigation.

20. On the other hand, Mr.C.Iyyapparaj, learned Government Advocate (criminal side), has submitted that during the course of investigation, the Officer, who conducted the investigation, had investigated and enquired more than 50 witnesses and recorded their respective statements. All the witnesses, in their statements, had stated about the cheating committed by the accused 1 and 2 by way of collecting money from the aggrieved persons and they did not offer job or return the money and the officer had also collected the records pertaining to the case from various levels and the investigating officer had also filed a petition for the cancellation of bail orders as the accused persons failed to comply with the directions of this Court.

21. He would submit further that there was no latches much less inefficiency on the part of the third respondent while conducting investigation and that the third respondent Police had conducted the investigation in a proper and impartial manner in accordance with law and that the petitions filed by the petitioners did not express any merits and therefore he has urged to dismiss all the criminal original petitions as no such directions, which are sought by the petitioners, are required.

22. Mr.D.Vijaya Babu, learned counsel appearing for the petitioners, while advancing his arguments, has placed reliance upon the decision in Sidhartha Vashisht alias Manu Sharma vs. State (NCT of Delhi), reported in (2010) 6 SCC 1.

23. In this case, while penning down the Judgment on behalf of the Division Bench of the Hon'ble Supreme Court of India, His Lordship Hon'ble Mr.JUSTICE P.SATHASIVAM has observed in paragraph Nos.199 and 201 as under:

199. It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that investigation is fair and does not in any way hamper the freedom of an individual except in accordance with law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency not to conduct an investigation in tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to law as nobody stands above law dehors his position and influence in the society.

201.Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in proper direction in consonance with the ingredients of the offence and not in haphazard manner. In some cases besides investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled to definite benefit in accordance with law. The investigation should be conducted in a manner so as to draw a just balance between citizen's right under Articles 19 and 21 and expansive power of the police to make investigation."

24. Besides this, he has also placed reliance upon the decision in Sasi Thomas vs. State and Others, reported in (2006) 12 SCC 421. In this case also the same principle has been laid down by the Division Bench of the Apex Court as under:

"Proper and fair investigation on the part of the investigating officer is to make investigation in right direction. The investigation must be in consonance with the ingredients of the offence. It cannot be haphazard or unmethodical...."

25. Besides this, in order to fortify his contention, he has also placed reliance upon the following decisions:

i. Rampal Pithwa Rahidas and others vs. State of Maharashtra, reported in 1994 Supp (2) SCC 73;

ii. State of Punjab vs. Central Bureau of Investigation and others, reported in (2011) 9 SCC 182;

iii. Kishan Lal vs. Dharmendra Bafna and another, reported in (2009) 7 SCC 685; and

iv. Babubhai vs. State of Gujarat and others, reported in (2010) 12 SCC 254.

26. In the first case viz., Rampal Pithwa Rahidas and others vs. State of Maharashtra, reported in 1994 Supp (2) SCC 73, the Division Bench of the Apex Court has held that:

"The quality of a nation's civilisation, it is said, 'can be largely measured by the methods it uses in the enforcement of criminal law'. In every civilised society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means. Otherwise it would be an invitation to anarchy."

27. In the second case viz., State of Punjab vs. Central Bureau of Investigation and others, reported in (2011) 9 SCC 182, the Division Bench of the Apex Court in paragraph No.22 has held as under:

"22.Section 482 Cr.P.C., however, states that nothing in Cr.P.C., shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under Cr.P.C., or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of Cr.P.C., do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 Cr.P.C., therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 Cr.P.C., for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice."

 28. In the third case viz., Kishan Lal vs. Dharmendra Bafna and another, reported in (2009) 7 SCC 685 also the Apex Court has held that the inherent jurisdiction of the High Court under Section 482 Cr.P.C., can be pressed into service to invoke Section 173(8) Cr.P.C., when the superior courts find that the investigation is tainted and/or unfair.

29. In this case, the Division Bench of the Apex Court in paragraph No.16 has held as under:

"16.The investigating officer may exercise his statutory power of further investigation in several situations as, for example, when new facts come to his notice; when certain aspects of the matter had not been considered by him and he found that further investigation is necessary to be carried out from a different angle(s) keeping in view the fact that or further materials came to his notice. Apart from the aforementioned grounds, the learned Magistrate or the superior courts can direct further investigation, if the investigation is found to be tainted and/or otherwise unfair or is otherwise necessary in the ends of justice."

30. In the fourth case viz., Babubhai vs. State of Gujarat and others, reported in (2010) 12 SCC 254, the Division Bench of the Apex Court has held as under:

"Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer 'is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth'.

Where the court comes to the conclusion that there was a serious irregularity in the investigation that had taken place, the court may direct a further investigation under Section 173(8) Cr.P.C., even transferring the investigation to an independent agency, rather than directing a reinvestigation. Scheme of investigation, particularly, Section 173(8) Cr.P.C., provides for further investigation and not reinvestigation. Therefore, if the court comes to the conclusion that the investigation has been done in a manner with an object of helping a party, the court may direct for further investigation and ordinarily not for reinvestigation. The expression 'ordinarily' means normally and it is used where there can be an exception. It means in the large majority of cases but not invariably. 'Ordinarily' excludes 'extraordinary' or 'special circumstances'. Therefore, unless an extraordinary case of gross abuse of power is made out by those in charge of the investigation, the court should be quite loathe to interfere with the investigation, a field of activity reserved for the police and the executive. In exceptional circumstances, the court in order to prevent the miscarriage of criminal justice, if considers necessary, may direct for investigation de novo wherein the case presents exceptional circumstances. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation. Thus, in case of a malafide exercise of power by a police officer the court may interfere."

31. With regard to the inherent power of the High Court under Section 482 Cr.P.C., this Court wishes to place it on record that Section 482 Cr.P.C., envisages the following three circumstances, under which, the Court exercise the inherent jurisdiction under the Code:

i. To give effect to an order under the Code,

ii. To prevent abuse of the process of Court, and

iii. To otherwise secure the ends of justice.

32. The powers possessed by the High Court under Section 482 Cr.P.C., are very wide and the very plenitude of the powers requires great caution in its exercise Court must be careful to see that its decision in exercise of this power is based on sound principles. Inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in them true perspective without sufficient material. However, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extra-ordinary jurisdiction of quashing the proceedings at any stage. This principle is laid down by the Apex Court in State of A.P., Vs. Golconda Linga Swamy, reported in AIR 2004 SC 3967.

33. On coming to the instant case on hand, on a cursory perusal of the materials available on record it would go to establish the fact that adequate evidences, which includes the documentary evidences, have not been collected by the investigating authority.

34. As rightly argued by Mr.D.Vijaya Babu, learned counsel appearing for the petitioners, to secure the ends of justice, this Court finds that it may be better to issue a direction to the third respondent viz., the Inspector of Police, Team-IX, Central Crime Branch, to conduct further investigation and to file further report pertaining to the case in Crime No.247 of 2009 and to examine all the affected persons and collect the documents and evidences and file the same before the learned XI Metropolitan Magistrate, Saidapet, Chennai, on whose file the case in C.C.No.345 of 2012 is pending.

35. In the result, these criminal original petitions are allowed. The third respondent viz., the Inspector of Police, Team-IX, Central Crime Branch, is directed to conduct further investigation, to examine all the affected persons and collect necessary documents and evidences, which may support the case of prosecution and he is also directed to file the same before the learned XI Metropolitan Magistrate, Saidapet, Chennai,on whose file the case in C.C.No.345 of 2012 is pending.

36. It is further directed that the second respondent viz., the Deputy Commissioner of Police, Central Crime Branch, Egmore, Chennai, shall keep keen watch to ascertain that the directions of this Court are scruplessly complied with by the third respondent Inspector of Police attached to Team-IX, Central Crime Branch. After completion of further investigation, the report shall be filed within a period of four weeks from the date of receipt of a copy of this Order.


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