Mr.R.Ramanlaal v. Inspector Of Police
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.07.2020 PRONOUNCED ON : 24.07.2020
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.O.P.No.27237 of 2015 1.R.Ramanlaal 2.J.Mukilan 3.S.Kumar ... Petitioners Vs.
The Inspector of Police, Town Police Station, ... Respondent PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to transfer the investigation in respect of Crime No.282 of 2014 on the file of the respondent to the CBCID Police Thiruvannamalai and complete the investigation and file charge sheet against the accused.
For Petitioners:
Mr.V.K.Sathiyamoorthy For Respondent :
Mr.C.Iyyappa Raj, Additional Public Prosecutor *****
ORDER
This Criminal Original Petition has been filed to transfer the investigation in Crime No.282 of 2014 from the file of the respondent to the file of CBCID Police, Thiruvannamalai.
2.The case of the prosecution is that the defacto complainant, who is a practising Advocate and claiming to be a President of Hohm Sahaj Trust, Tiruvannamalai, lodged a complaint to the respondent on 24.01.2014 against one Bret Carlson, on the allegations that on 18.01.2014, the accused, Bret Carlson residing in Tiruvannamalai along with 7 others entered Hohm Sahaj Trust, at No.95, Chengam Road, 4th Road, Tiruvannamalai with a duplicate key, trespassed into the premises, threatened the staffs of the trust. The said Bret Carlson and others armed with deadly weapons forcibly detained the inmates there. Thereafter, using duplicate key opened the safe kept in the ground floor and stole the following original documents (i)Will dated 05.05.2020 registered as document No.43 of 2000 (ii)Parents documents, sale deed regarding the property registered on 13.03.1995, document No.253/1995 (iii)
Sale deed dated 03.05.1995 document No.534 of 1995 (iv) Original Power of Attorney dated 03.05.2000 executed in favour of Raman Laal.
3.The said Bret Carlson was looking after the trust till the year 2002, after he was asked to leave the trust, since he was indulging in activities, which was unbecoming of a member of the trust. Using duplicate key with intention to grab the trust property with seven others, had entered into the trust premises and committed the offence. Further, Bret Carlson claimed that he is an American citizen, nobody can prevent him and no Indian law would be applicable to him. Since the respondent failed to take any action on the complaint of the petitioners, they had moved a petition in Crl.O.P.No.15091 of 2014 before this Court and sought direction to register an FIR on the compliant dated 24.01.2014 and investigate the case. This Court by order dated 24.06.2014, recorded the submissions of the learned Additional Public Prosecutor that on the complaint dated 24.01.2014, FIR was registered in Crime No.282 of 2014 for offence under Section 147, 148, 448, 294(b), 379, 506(ii) IPC and dismissed the petition. Now, the present petition is for transfer of investigation in Crime No.282 of 2014.
4.The learned counsel for the petitioners submitted that since accused is well connected, influenced the respondent Police, the respondent police failed to conduct investigation in the manner known to law. Hence, he is constrained to seek transfer of investigation.
5.The learned counsel for the petitioners submitted that it is shocking to know that FIR in Crime No.282 of 2014 is closed as "Mistake of Fact", no notice was issued by the concerned Magistrate to the petitioners before accepting the Refer Charge sheet. Further, the Magistrate had violated the guidelines of the Hon'ble Apex Court in the case of the "Union Public Service Commission Versus S.Papaiah and others reported in (1997) 7 SCC 614" in which it is held as follows:- "Bhagwant Singh Versus Commissioner of Police & Anr., reported in (1985) 2 SCC 537, the issuance of a notice by the Magistrate to the informant at the time of consideration of the final report is a "must". This binding precedent which is the law of the land, has not been followed by the Magistrate." 6.
The learned Additional Public Prosecutor appearing for the respondent filed a status report and submitted that in this case on the direction of this Court, FIR was registered in Crime No.282 of 2014 on 21.06.2014. Thereafter, the respondent visited the scene of occurrence, prepared rough sketch, observation mahazar in presence of witnesses namely Srinivasan, Subramaniam and recorded their statements. Further, the statement of the defacto complainants, R.
Laal, J.Muhilan and S.Kumar, the President of the trust and others were recorded, photostat copies of documents were collected. Thereafter, the neighbours namely Rajaram and Swami Amsanandha examined and their statements were recorded. On completion of investigation based on the materials, the case was referred as 'Mistake of Fact' on 06.10.2014. This fact was informed to the petitioners/defacto complainants by notice in R.C.S.No.53 of 2014, dated 06.10.2014. The said RCS notice was refused to be received and hence, it was pasted on the wall of the trust at No.95 Chengam Road, 4th Street, Tiruvannamalai in presence of witnesses namely Manokar and Mani. The said Manokaran is a VAO and he produced a certificate to that effect. The pasting of RCS notice was resisted by the petitioners.
Following the procedures, final report was filed before the learned Judicial Magistrate No.I, 7.The learned Additional Public Prosecutor further submitted that the investigation was conducted in a fair and proper manner and on conclusion of same, the case was referred as 'Mistake of Fact'. The statutory provisions were followed. Since the case has been closed as 'Mistake of Fact' and RCS notice served, there is no reason to transfer the investigation in Crime No.282 of 2014.
8.Considering the rival submissions and on perusal of the materials and from the status report, filed as early as on 05.11.2015, it is seen in this case the investigation was conducted, witnesses were examined and statements recorded on both sides. Based on the materials, the respondent Police referred the matter as 'Mistake of Fact', served notice in R.C.S.No.53 of 2014, dated 06.10.2014. When the respondent Police attempted to serve the RCS notice to the petitioners, they refused to receive the same. Thereafter, RCS notice pasted on the wall of the trust, which is the address given in the complaint dated 24.01.2014 of the petitioner. The pasting of the notice was in the presence of VAO, Manokaran and report is also obtained to that effect. Thereafter, final report came to be filed before the learned Judicial Magistrate No.I, 9.
The Hon'ble Apex Court in the case of "Bhagwant Singh Versus Commissioner of Police & Anr., reported in (1985) 2 SCC 537" had issued guidelines to the learned Magistrate to follow while accepting the final report. It would be beneficial to extract the same:- "While dealing with a situation arising out of the report being forwarded by an officer-in- charge of a police station to the Magistrate under subsection 2(i) of Section 173, stating the no offence appears to have been committed, opined that on receipt of such a report the Magistrate can adopt one of the three courses i.e.
disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or
(3) he may direct further investigation to be made by the police under sub-section 3 of Section 156. The bench, dealing with the first option of dropping the proceedings went on to say:
"There can, therefore, be no doubt that when, on a consideration of the report made by he officer-in- charge of a police station under sub-section (2) (i) of Section 173, the Magistrate is and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the office and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides no to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report."
10.Following the case in "Bhagwant Singh Versus Commissioner of Police & Anr., reported in (1985) 2 SCC 537", the Hon'ble Apex Court in the case of the "Union Public Service Commission Versus S.Papaiah and others reported in (1997) 7 SCC 614" has held as follows:- "Learned Magistrate could not in any event 'delegate' to the investigating agency its function of issuing notice. Moreover, when law requires a particular thing to be done in a particular manner, it must be done in that manner and in no other manner."
11.In view of the submissions made and on the guidelines given by the Hon'ble Apex Court, the petitioners to be given an opportunity to file a protest petition, if the Magistrate had not issued notice, prior to accepting the Refer Charge Sheet. The petitioner to file a protest petition, if he so desires before the concerned Magistrate and the learned Magistrate shall consider the same in accordance with law. The petition is, accordingly, dismissed.
Sd/- Assistant Registrar(CS) //True Copy// Sub Assistant Registrar vv2
To The Inspector of Police, Town Police Station,
2. The Public Prosecutor, High Court, Madras - 104. Crl.O.P.No.27237 of 2015 A.SK(24/09/2020)