Thomas Mahendran v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 21.09.2015

CORAM

THE HONOURABLE MR.JUSTICE A.SELVAM Crl.O.P Nos.9516, 12469, 25795, 25844 of 2014 & M.P.Nos.1 of 2014 in Crl.O.P.Nos.9516, 12469, 25795 of 2014 & M.P.Nos.1 and 2 of 2014 in Crl.O.P.No.25844 of 2014

1. Thomas Mahendran .. Petitioner in Crl.O.P.No.9516/2014/A7

1. J.Arul Raj

2. C.Munusamy

3. S.Pothiraj ..Petitioners in Crl.O.P.No.12469/2014/(A1 to A3)

1. Chakkarvarthy Daniel .. Petitioner in Crl.O.P.No.25795/2014/A4 Sulochana C.Daniel ..Petitioner in Crl.O.P.No.25844/2014/A5 Vs.

State rep.by Deputy Superintendent of Police Vigilance and Anti Corruption Chennai City- V Detachment Chennai 35 .. Respondent in Crl.O.P.Nos.9516, 25795 and 25844/2014/Complainant State by Deputy Inspector of Police Vigilance and Anti Corruption Chennai- 28 .. Respondent in Crl.O.P.12469/2014 Prayer in Crl.O.P.No.9516/2014 :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for records and quash the cognizance of offence and issuance of summons against the

petitioner/accused - 7 in C.C.No.183 of 2013 for an offence under section of IPC by the learned Judicial Magistrate - II, Ponneri. Prayer in Crl.O.P.No.12469/2014 :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for entire records pending in C.C.No.24 of 2013 on the file of Special Court for Prevention of Corruption Act Cases at Chennai and quash the same as against the petitioners/accused A.1 to A.3.

Prayer in Crl.O.P.No.25795/2014 :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for records and quash the cognizance of offence against the petitioner/A.4 in C.C.No.183 of 2013 by the learned Judicial Magistrate - II, Ponneri. Prayer in Crl.O.P.No.25844/2014 :- Criminal Original Petition filed under Section 482 Cr.P.C., to call for records and quash the cognizance of offence against the petitioner/A.5 in C.C.No.183 of 2013 by the learned Judicial Magistrate - II, Ponneri. For Petitioner in Crl.O.P.No.9516/2014 : Mr.K.S.Ramakrishnan for Mr.T.Thangamani For petitioners in Crl.O.P.No.12469/2014 : Mr.S.Xavier Felix For petitioner in Crl.O.P.Nos.25795 & 25844 of 2014 : Mr.K.S.Ramakrishnan For Respondent in all Crl.O.Ps :Mr.P.Govindarajan Addl.

Public Prosecutor COMMON ORDER These Criminal Original Petitions have been filed praying to call for records relating to Calendar Case No.24 of 2013, pending on the file of Special Court for Prevention of Corruption Act cases at Chennai and also relating to C.C.No.183 of 2013 pending on the file of Judicial Magistrate Court No.2, Ponneri and quash the same and thereby set the petitioners at liberty.

2. In all the petitions, it is averred that a case has been registered in Crime No.2/Ac/2010/CCV under sections 120(B), 167, 147, 148, 342, 506(ii) of Indian Penal Code and also under sections 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. Further it is averred in all the petitions that the Investigating Agency, after making thorough investigation, has laid a referred final report on the file of Principal Sessions cum Special Judge, Chennai and the same has been recorded. Further it is averred in all the

petitions that after filing a referred charge sheet and the same has been recorded, the prosecuting agency has no locus standi to conduct re-investigation in respect of any one of the offences mentioned in Crime No.2/Ac/2010/CCV. Under the said circumstances, these petitions have been filed for getting the relief sought therein.

3. The learned counsel appearing for the petitioners have sparingly and also uniformly contended that a the referred charge sheet filed in respect of Crime No.2/Ac/2010/CCV on the file of Principal Sessions cum Special Judge, Chennai has been accepted by the said Court and without setting aside the order passed by the Court below, a de novo or fresh investigation cannot be done, but in the instant case, the prosecuting agency has done reinvestigation and subsequently filed a final report and the same is not permissible under law and therefore, the entire proceedings initiated in C.C.Nos.24 of 2013 and 183 of 2013 are liable to be quashed.

4. The learned Additional Public Prosecutor has contended that with regard to Indian Penal Code offences and also offences under the Prevention of Corruption Act, an oral direction has been given by the High Court. Under the said circumstances, a fresh investigation has been done and accordingly a final report has been filed and the same has been taken on file in C.C.Nos.24 of 2013 and 183 of 2013 and therefore, the relief sought for in the petitions cannot be granted.

5. The learned counsel appearing for the petitioners have befittingly drawn the attention of the Court to the decision reported in 2015 (2) MLJ (Crl) 257 (K.K.S.S.Ramachandran vs. State), wherein the Division Bench of this Court (Madurai Bench) has dealt with the similar issue and ultimately found that after a referred charge sheet has been filed and the same has been accepted by a competent court, without setting aside the same by the competent forum, a de novo or reinvestigation cannot be done.

6. In the instant case, it is an admitted fact that the case registered in Crime No.2/AC/2010/CCV has been thorughly investigated and a final report has been filed on 12.9.2011 and the same has been accepted by the competent court on 15.9.2011.

7. The only issue which has to be decided in all the petitions is as to whether without setting aside the referred charge sheet, a de novo investigation can be done?

8. It has already been pointed out that the Division Bench of this Court (Madurai Bench) has decided to the effect that without setting aside the referred charge sheet, no reinvestigation or denovo investigation can be done. In the instant case, as rightly pointed out on the side of the petitioners, a referred charge sheet filed in Crime No.2/Ac/2010/CCV and accepted by the competent

court has not at all been set aside. Under the said circumstances, the subsequent action alleged to have been done by the Investigating Agency is not permissible under law and therefore, the Courts below have done a stupendous mistake in taking final report as C.C.No.24 of 2013 as well as in C.C.No.183 of 2013. In the light of the discussions made earlier, this Court is of the view that the relief sought by the petitioners can easily be granted.

In fine, all these Criminal Original Petitions are allowed. The proceedings relating to Calendar Case No.24 of 2013 on the file of Special Court for Prevention of Corruption Act cases at Chennai and C.C.No.183 of 2013 on the file of Judicial Magistrate Court No.2, Ponneri, are quashed. Consequently, all the Miscellaneous Petitions are closed.

-Sd/- Assistant Registrar //True copy// Sub Assistant Registrar ajr To

1. Judicial Magistrate - II, Ponneri.

2. Special Court for Prevention of Corruption Act Cases at Chennai

3. Deputy Superintendent of Police Vigilance and Anti Corruption Chennai City- V Detachment Chennai -35

4. Deputy Inspector of Police Vigilance and Anti Corruption Chennai- 28

5. The Public Prosecutor, High Court, Madras.

+2 cc to Mr.K.S. Ramakrishnan,Advocate(sr.51431 &51432) +3 cc to Public Prosecutor (sr.51506,51512,51513) +1cc to Ms.T.Thangamani,Advocate(sr.51433) +1 cc to Mr.S.XavierFelix,Advocate(sr.51170) Crl.O.P Nos.9516, 12469, 25795, 25844 of 2014 RV(co) cp 08/10/2015