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Madras High CourtCRL OP(MD)/2259/2017dismissed

M.Gopalakrishnan, v. The Superintendent Of Police,

2017-06-22Honourable Mr Justice P. N. Prakash7 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.06.2017

CORAM

THE HONOURABLE MR.JUSTICE P.N.PRAKASH CRL.O.P.(MD)No.2259, 2328 and 6150 of 2017 and Crl.M.P.Nos.4111, 4112, 1784 and 1830 /2017 Crl.O.P(MD) No.2259/2017 M.Gopalakrishnan : Petitioner Vs.

1.The Superintendent of Police, Madurai District Madurai.

2.The State rep. by its Sub Inspector of Police, Melavalavu Police Station, Melur Taluk, Madurai District 3.Pasumpon Muthuramalingam : Respondents (R3 has been impleaded as respondent vide order of this Court dated 12.06.2017 in Crl.M.P.No.4736/2017) Prayer:Criminal Original Petition is filed under Section 482 of Cr.P.C., praying to transfer the investigation of the case in Cr.No.288/2016 on the file of the Melavalavu Police Station to any other investigating agency or officer for effective investigation and filing of final report under the supervision of the 1st respondent police in accordance with the procedure prescribed for investigation of cross cases along with Cr.No.238 of 2016. For Petitioner : Mr.N.Dilipkumar For Respondents : Mr.K.Anbarasan for R1 & R2 Government Advocate (Crl. side) Mr.V.Kathirvelu senior counsel for Mr.B.Anandan Crl.O.P(MD) No.2328/2017 M.Gopalakrishnan : Petitioner Vs.

1.The Superintendent of Police, Madurai District, Madurai.

2.The State rep. by its Sub Inspector of Police, Melavalavu Police Station,

Melur Taluk,Madurai District 3.Pasumpon Muthuramalingam : Respondents (R3 has been impleaded as respondent vide order of this Court dated 13.06.2017 in Crl.M.P.No.4760/2017) Prayer:Criminal Original Petition is filed under Section 482 of Cr.P.C., praying to transfer the investigation of the case in Cr.No.238/2016 on the file of the Melavalavu Police Station to any other investigating agency or officer for effective investigation and filing of final report under the supervision of the 1st respondent police in accordance with the procedure prescribed for investigation of cross cases along with Cr.No.288 of 2016. For Petitioner : Mr.N.Dilipkumar For Respondents : Mr.K.Anbarasan for R1 & R2 Government Advocate (Crl. side) Mr.V.Kathirvelu senior counsel for Mr.B.Anandan Crl.O.P.(MD) No.6150/2017 1.M.Gopalakrishnan 2.M.Karmegam 3.K.Selvi : Petitioners Vs.

1.State rep. by The Inspector of Police Melavalavu Police Station, Melavalavu, Madurai District 2.K.Pasumpon Muthuramalingam : Respondents Prayer:Criminal Original Petition is filed under Section 482 of Cr.P.C., praying to call for the records in PRC No.19/2017 on the file of the learned Judicial Magistrate Court, Melur, Madurai District and quash the same.

For Petitioners : Mr.Niranjan S.Kumar For Respondent : Mr.K.Anbarasan for R1 Government Advocate (Crl. side) Mr.V.Kathirvelu senior counsel for Mr.B.Anandan for R2 COMMON ORDER For the sake of convenience, the parties will be referred to by their names.

2. The factual matrix of the case, as could be culled out from the available records, is as under:

Mr.Gopalakrishnan claims himself to be a social activist and it is his case that he has been fighting against the illegal mining barrens. In support of his contention, attention of this Court was drawn to some writ petitions and criminal cases filed by Mr.Gopalakrishnan. However, the learned Government Advocate submitted that Mr.Gopalakrishnan is a History Sheeter No.86/2013, as he was found to be involved in several cases of extortion including cases relating to Women Harassment Act.

3. Be that as it may, on 10.07.2016, around 11.30 a.m., Mr.Gopalakrishnan and his group brutally attacked one Mr.Pasumpon Muthuramalingam in connection with the dispute over a land between them, in which, Mr.Pasumpon Muthuramalingam suffered very serious injuries and was admitted to the Government Hospital, Melur, on 10.07.2016 at 12.30 noon. On intimation from the hospital, police went and recorded the statement of Mr.Pasumpon Muthuramalingam and based on the statement, registered a case in Crime No.238/2016 on 10.07.2016 under Sections 323, 324 and 506(ii) IPC. Sensing trouble, Mr.Gopalakrishnan admitted himself into the Apollo hospital on 11.07.2016 (next day) alleging that he was assaulted by some persons.

His case was registered as medico legal case by the Apollo Hospital and the Accident Register shows that a laceration in the left ear and tenderness. Apart from this, there is no other injury noted in the Accident Register. Since Mr.Pasumpon Muthuramalingam suffered very serious injuries including loss of four teeth and right arm fracture, the case was altered into one under Section 307 IPC and subsequently, Section 326 IPC was added by the police. Mr.Gopalakrishnan was arrested by the police on 22.07.2016 and was released on bail on 17.08.2016. Mr.Gopalakrishnan submitted a memorial to the Superintendent of Police stating that he was actually attacked by Mr.

Pasumpon Muthuramalingam and that the police did not take any action on his complaint and therefore, he requested the Superintendent of Police to direct the Station House Officer to take action on his complaint. The Superintendent of Police by order dated 29.08.2016 referred the representation of Mr.Gopalakrishnan to the Inspector of Police with a direction to follow the law laid down in Lalitha Kumari vs. Govt. of U.P & others [2013 (4) Crimes 243 (SC).

4. Pursuant to the directions of the Superintendent of Police, the Inspector of Police, Melavalavu Police Station registered a case in Crime No.288/2016 on 05.09.2016 for offences under Sections 294(b), 324, 506(ii) IPC against Mr.Pasumpon Muthuramalingam and his family members in respect of the occurrence that is said to have taken place on 10.07.2016.

5. It is the grievance of Mr.Gopalakrishnan that the incident that took place on 10.07.2016 was a case and counter case and therefore, the police should have registered two FIRs in accordance with the old PSO 588(A) (Now 566). It is also his submission that the investigation in Crime Nos.238/2016 and 288/2016 should have been conducted by the same police in terms of the aforesaid Police Standing Orders and therefore, he sought for transfer of investigation in Crime Nos.238 and 288/2016. Thus, Mr.Gopalakrishnan has filed Crl.O.P.No.2259/2017 for transferring Crime No.288/2016 and Crl.O.P.(MD) No.2328/2017 for transferring Crime No.238/2016 to be investigated by one Police Officer. In the meantime, the Inspector of Police, Melavalavu Police Station proceeded with the investigation in Crime NO.

238/2016 and completed the investigation and filed the chargesheet before the Judicial Magistrate, Melur, on 20.10.2016, and the same was taken on file on 20.03.2017 and has been assigned PRC No.19/2017. In PRC No.19/2017, Mr.Gopalakrishnan and his group are the accused for offences under Sections 323, 326, 307 read with 34 IPC. Challenging the prosecution in PRC No.19/2017, Mr.Gopalakrishnan group have filed Crl.O.P.(MD) No.6150/2017.

6. Heard Mr.N.Dilipkumar, learned counsel for the petitioner in Crl.O.P.(MD) Nos.2259 and 2328/2017, Mr.Niranjan S.Kumar, learned counsel for the petitioners in Crl.O.P(MD) No.6150/2017, Mr.V.Kathirvelu, learned Senior counsel for the respondent de-facto complainant/3rd respondent and Mr.K.Anbarasan, learned Government Advocate (Crl. side) for the respondent police.

7. Mr.N.Dilipkumar submitted that on 10.07.2016 itself, Mr.Gopalakrishnan has given a complaint for the alleged incident to the police, but the police had failed to take the complaint on file and therefore, it became necessary for Mr.Gopalakrishnan to approach the Superintendent of Police for remedy. He also submitted that when once the Superintendent of Police has directed the Inspector of Police to register an FIR on his complaint, the Station House Officer should have treated the case in Crime No.288/2016 as the counter case for Crime No.238/2016 and should have investigated it in accordance with PSO 588(A).

8. This Court carefully perused the communication dated 29.08.2016 sent by the Superintendent of Police to the Station House Officer that has been filed by Mr.Gopalakrishnan in Page No.60 of the typed set of papers.

9. At the outset, it is not known how Gopalakrishnan has got a copy of this communication, which the Superintendent of Police has sent to the SHO. This communication should form part of the Case Diary, but it has come into the hands of Mr.Gopalakrishnan and he has also filed the same in the typed set of papers. This itself shows that Mr.Gopalakrishnan's reach is indeed very deep into the Police Department. That apart, on a

reading of the communication dated 29.08.2016 sent by the Superintendent of Police, he had not directed the SHO to register an FIR, but had directed the SHO to follow the law laid down in Lalita Kumari's case. This instruction has been considered as a direction to the SHO to register an FIR and therefore, the SHO registered a case in Crime No.288/2016 on the complaint of Mr.Gopalakrishnan against Mr.Pasumpon Muthuramalingam.

10. The learned counsel for Mr.Gopalakrishnan submitted that there is another communication from the Superintendent of Police directing the Deputy Superintendent of Police to conduct investigation both in Crime Nos.238/2016 and 288/2016.

11. This Court called for the Case Diary and found that the Superintendent of Police, Madurai District, has sent a communication dated 02.03.2017 to the Inspector of Police, Melur, asking him to hand over the records in Crime Nos.238/2016 and 288/2016 to the Deputy Superintendent of Police, Melur Sub Division, for further investigation.

12. It is seen that the Inspector of Police had completed the investigation in Crime No.238/2016 as early as 20.10.2016 and the chargesheet has also been filed before the Judicial Magistrate, Melur on that date.

13. The Superintendent of Police, Madurai, was not even aware of the fact that the investigation in Crime No.238/2016 has been completed and chargesheet has been filed before the Judicial Magistrate, Melur and without even being aware of it, he has issued the communication dated 02.03.2017 directing transfer of investigation to the Deputy Superintendent of Police for further investigation.

14. Mr.N.Dilipkumar submitted that though the police had filed the chargesheet before the Judicial Magistrate, Melur on 20.10.2016, the chargesheet was returned for several compliance and ultimately cognizance of the offences were taken by the Judicial Magistrate, Melur only on 20.03.2017.

15. In Sarah Mathew v. Institute of Cardio Vascular Diseases by its Director Dr.K.M.Cherian and others, (2014) 2 SCC 62, the Constitution Bench of the Supreme Court has held that the date of cognizance is irrelevant, but what is relevant is the date of filing before the Court. In this case, admittedly, the Magistrate Court seal shows that the police have presented the chargesheet as early as 20.10.2016 and the delay in taking of cognizance by the Magistrate cannot be a good reason to order further investigation. On a reading of the FIR registered in Crime No.288/2016, it is alleged by Mr.Gopalakrishnan that Mr.Pasumpon Muthuramalingam and his family members attacked him with sticks

and rod and alleged that in the same breath, he has also stated they showed him knives and intimidated him. Had he been attacked with sticks and rods, he would have suffered injuries, especially, contusion. On the contrary, the Apollo Hospital Accident Register shows that there is a laceration in the left ear with soft skin. Thus, the injuries noted in the body of Mr.Gopalakrishnan by the Apollo Hospital authorities on 11.07.2016 belies his assertion that he was indiscriminately attacked by Mr.Pasumpon Muthuramalingam group on 10.07.2016.

16. Beyond this, this Court does not want to say anything, because the said case in Crime No.288/2017 is still under investigation. Therefore, the plea of Gopalakrishnan for transferring Crime Nos.238/2016 and 288/2016 for investigation to another officer of the agency lacks merit and accordingly, Crl.O.P.(MD)Nos.2259 and 2328 of 2017 stand dismissed.

17. Coming to Crl.O.P.(MD) No.6150/2017, in which, Mr.Gopalakrishnan has sought for quashing the chargesheet in PRC No.19/2017, this Court perused the chargesheet and 161(3) Cr.P.C. statement of witnesses.

18. It is seen that Pasumpon Muthuramalingam was admitted in the Government Hospital, immediately after the incident with very serious injuries. The FIR itself has been registered after getting a statement from Mr.Pasumpon Muthuramalingam at the hospital. The statement of Dr.Yoga, Dr.Maheswaran and Dr.Anitha and Dr.Kalaiselvi, who are all Government Doctors, who have treated Mr.Pasumpon Muthuramalingam, shows that his hand has been severed in the incident. Thus, when there are prima facie materials in PRC No.19/2017, the same cannot be quashed at the threshold.

19. In the result, Crl.O.P.(MD) No.6150/2017 is dismissed, with liberty to the accused to raise all their defence before the trial Court. But the trial Court shall proceed with the trial in PRC No.19/2017 in Crime No.238/2016 without in any manner being influenced by what is stated above. Similarly, the police shall conduct the investigation in Crime No.288/2016 without in any manner being influenced by what is stated above. Consequently connected Miscellaneous Petitions are closed. Sd/- ASSISTANT REGISTRAR /TRUE COPY/ SUB ASSISTANT REGISTRAR To 1.The Judicial Magistrate, Melur.

2.The Superintendent of Police, Madurai District, Madurai. 3.The Inspector of Police, Melavalavu Police Station, Madurai District 4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1 CC TO MR.NIRANJAN S.KUMAR, ADVOCATE,SR NO.61519 +1 CC TO MR.B.ANANDAN, ADVOCATE, SR NO.61703 +1 CC TO MR.N.DILIPKUMAR, ADVOCATE, SR NO.61539 RR MAS/SKN-RSK/SAR3:06.07.2017:7P-8C Order made in CRL.O.P.(MD)No.2259, 2328 and 6150 of 2017 and Crl.M.P.Nos.4111, 4112, 1784 and 1830 /2017 22.06.2017