T.C.Thangaraj vs V.Engammal & Ors

T. C. Thangaraj ...... Appellant

Versus

V. Engammal & Ors. ......

Respondents

WITH

CRIMINAL APPEAL No.1505 of 2011

(Arising out of S.L.P. (Crl.) No. 1589 of 2008)

P. Suganthi & Anr. ...... Appellants

Versus

V. Engammal & Ors. ......

Respondents

J U D G M E N T

A. K. PATNAIK, J.

Delay condoned in S.L.P. (Crl.) No.1589 of 2008.

2. Leave granted.

3. These are two appeals against the order dated

26.10.2007 of the Madras High Court, Madurai Bench, in

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Criminal Original Petition No.10987 of 2007 directing that

investigation into the case registered as Crime No.14 of

2006 with the District Crime Branch (DCB), Virudunagar,

be entrusted to the Central Bureau of Investigation,

Chennai (for short `the CBI').

4. The facts briefly are that on 04.08.2006 a complaint

was submitted by V. Engammal, who has been impleaded

as a respondent in both the appeals (hereinafter referred to

as `the complainant'), to the Superintendent of Police,

Virudunagar District, Tamil Nadu. The complainant made

following allegations in the complaint: P. Kalaikathiravan,

appellant no.2 in criminal appeal arising out of SLP (Crl.)

No. 1589 of 2008, who was the then S.I. of Town Police

Station, told her and her husband that he was going to do

the business of real estate and that they should become

partners in the business but they told him that the

business will not work and thereafter he asked them to give

a loan of Rs.3 lakh and they handed over Rs.3 lakh to his

wife P. Suganthi, appellant no.1 in criminal appeal arising

out of SLP (Crl.) No. 1589 of 2008. P. Kalaikathiravan then

introduced T.C. Thangaraj, the appellant in criminal appeal

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arising out of SLP (Crl.) No. 1585 of 2008, and one

Nagendran who were doing real estate business. When P.

Kalaikathiravan was transferred to Sethur Krishnapuram,

the complainant and her husband demanded repayment of

Rs.3 lakh, but P. Kalaikathiravan asked them to collect the

money from T.C. Thangaraj. T.C. Thangaraj accepted the

liability and gave two cheques dated 30.01.2004 and

04.02.2004 each of Rs.50,000/-, but the cheques were

returned with remarks from the bank that there were no

sufficient funds in the accounts. After P. Kalaikathiravan

came back to Virudunagar on promotion as Inspector, her

husband went to him many times and demanded money but

he refused to pay the same and sent him away. In the

complaint, the complainant requested the Superintendent of

Police to initiate action against the Inspector, P.

Kalaikathiravan, his wife P. Suganthi and T.C. Thangaraj,

who had cheated the complainant and her husband. The

Superintendent of Police sent the complaint to the Office In-

charge of DCB, Police Station Virudunagar, on 04.08.2006

and the complaint was registered as Crime No.14 of 2006

under Sections 409, 420, 471 read with Section 34 of the

4 Indian Penal Code, 1860 (for short `the IPC').

5. When there was no progress in the investigation on the

complaint, the complainant filed Crl. O.P. No.8782 of 2006

under Section 482 of the Criminal Procedure Code, 1973

(for short `the Cr.P.C.') before the Madras High Court,

Madurai Bench, with a prayer to entrust the case to the CBI

for proper investigation. The High Court in its order dated

13.04.2007 noticed that the case is against a police officer

and the grievance of the complainant was that the police

department was not taking interest in pursuing the matter.

The High Court, however, found that the matter was before

the Judicial Magistrate and disposed of the petition giving

liberty to the complainant to appear before the Judicial

Magistrate concerned and file, if necessary, a protest

petition if the case has been treated as a mistake of fact.

The High Court further directed that the Judicial Magistrate

shall consider the protest petition of the respondent keeping

in mind the seriousness of the allegations made in the

complaint as well as in the affidavit filed before the High

Court.

5 6. Thereafter, the complainant filed Crl. O.P. No.10987 of

2007 under Section 482 of Cr.P.C. before the Madras High

Court, Madurai Bench, reiterating her prayer to entrust

Crime No.14 of 2006 to the CBI for proper investigation.

The High Court in the impugned order dated 16.10.2007

took note of the fact that the complainant had received back

the sum of Rs.3 lakh in question and given a receipt dated

05.08.2006 but she had a grievance that her complaint had

not been properly investigated and the investigating agency

should file a final report in accordance with law. However,

the High Court after perusing the entire case diary found

that some witnesses have been examined but the

investigation had been stopped suddenly on the ground that

the complainant had received back the sum of Rs.3 lakh on

05.08.2006. The High Court held in the impugned order

that even though the amount in question had been received

back by the complainant, the investigating agency ought to

have conducted proper investigation and filed a final report

in accordance with law, but the investigating agency had

failed to do it. The High Court further held that as the

accused No.1 was an Inspector of Police, the investigating

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agency has not done its duty properly and under the

circumstances, relief claimed by the complainant should be

granted and accordingly ordered that Crime No.14 of 2006

be entrusted to the CBI for investigation.

7. Learned counsel for the appellants submitted that the

reasons given by the High Court in the impugned order that

the accused No.1 was an Inspector of Police and therefore

the investigating agency has not done its duty properly,

have not been held to be good reasons for entrusting the

investigation to the CBI by the Constitution Bench of this

Court in State of West Bengal & Ors. v. Committee for

Protection of Democratic Rights, West Bengal & Ors. [(2010) 3

SCC 571].

8. Learned counsel for the complainant, on the other

hand, cited a decision of two-Judge Bench of this Court in

Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. reported in

(2006) 2 SCC 677, in which this Court directed the CBI to

register a case and investigate into the complaint of the

appellant because the complaint was against the police

officer and the Court was of the view that the interest of

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justice would be better served if the case is registered and

investigated by an independent agency like the CBI.

9. The decision of the two-Judge Bench of this Court in

Ramesh Kumari v. State (N.C.T. of Delhi) & Ors. (supra) will

have to be now read in the light of the principles laid down

by the Constitution Bench of this Court in State of West

Bengal & Ors. v. Committee for Protection of Democratic

Rights, West Bengal & Ors. (supra). The Constitution Bench

has considered at length the power of the High Court to

direct investigation by the CBI into a cognizable offence

alleged to have been committed within the territorial

jurisdiction of a State and while taking the view that the

High Court has wide powers under Article 226 of the

Constitution cautioned that the Courts must bear in mind

certain self-imposed limitations. Para 70 of the opinion of

the Constitution Bench in State of West Bengal & Ors. v.

Committee for Protection of Democratic Rights, West Bengal &

Ors. (supra) is extracted hereinbelow :

"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

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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 situations 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."

[Emphasis supplied]

10. It will be clear from the opinion of the Constitution

Bench quoted above that the power of the High Court

under Article 226 of the Constitution to direct

investigation by the CBI is to be exercised only

sparingly, cautiously and in exceptional situations

and an order directing to CBI is not to be passed as a

matter of routine or merely because a party has

levelled some allegations against the local police. In

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the impugned order, the High Court has not exercised

its constitutional powers under Article 226 of the

Constitution and directed the CBI to investigate into

the complaint with a view to protect her personal

liberty under Article 21 of the Constitution or to

enforce her fundamental right guaranteed by Part-III

of the Constitution. The High Court has exercised its

power under Section 482 Cr.P.C. on a grievance made

by the complainant that her complaint that she was

cheated in a loan transaction of Rs.3 lakh by the three

accused persons, was not being investigated properly

because one of the accused persons is an Inspector of

Police. In our considered view, this was not one of

those exceptional situations calling for exercise of

extra-ordinary power of the High Court to direct

investigation into the complaint by the CBI. If the

High Court found that the investigation was not being

completed because P. Kalaikathiravan, an Inspector of

Police, was one of the accused persons, the High

Court should have directed the Superintendent of

Police to entrust the investigation to an officer senior

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in rank to the Inspector of Police under Section 154(3)

Cr.P.C. and not to the CBI. It should also be noted

that Section 156(3) of the Code of Criminal Procedure

provides for a check by the Magistrate on the police

performing their duties and where the Magistrate

finds that the police have not done their duty or not

investigated satisfactorily, he can direct the Police to

carry out the investigation properly, and can monitor

the same. (see Sakiri Vasu v. State of U.P. & Ors. -

(2008) 2 SCC 409).

11. For these reasons, we quash the impugned order of

the High Court and direct that the Superintend of

Police, Virudunagar District, Tamil Nadu, will entrust

the investigation of Crime No. 14 of 2006 to a police

officer senior in rank to P. Kalaikathiravan. The

appeals are accordingly allowed.

..........................J.

(R.V.

Raveendran)

..........................J.

(A. K.

Patnaik)

New Delhi,

July 29, 2011.

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