Balamurugan v. The Inspector Of Police

BAIL SLIP Balamurugan, S/o.Ramar, Male, aged 27 years/2015, was released on bail vide Court order dated 02.03.2015 made in MP(MD) No.1 of 2015 in Crl A(MD)No.39 of 2015 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Appellate Jurisdiction) Friday, the Sixth day of November, Two Thousand and Twenty PRESENT THE HONOURABLE MR.JUSTICE B.PUGALENDHI Balamurugan ... Appellant/Accused Vs.

1.State represented by The Inspector of Police, Thirupachethi Police Station, Sivagangai District.

[Crime No.62 of 2010]

2. The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

3. The Director General of Police,No.601, Dr.Radhakrishnan Salai, Mylapore, Chennai- 600 004. 4.The Director General of Police (Training), Police Training College, No.2, Natesan Salai, Ashok Nagar, Chennai.

5.N.Muthukumar, S/o V.R.Nagalingam, Formerly Inspector of Police, Thirupachethi Police Station, Sivagangai District. (In 2010) Now Inspector of Police,CCIW CID, Pudukottai,Pudukkottai District. 6.S.Poun, S/o Samikannu, Formerly Inspector of Police, Thirupachethi Police Station, Sivagangai District.(In 2010) Now Retd. and Residing At D.No.3/209, 4th Street Sowbakianagar, Thirunagar, Madurai. 7.V.Kannan S/o Vellaisamy, Formerly Deputy Superintendent of Police, (07.09.2010) Sivagangai, Sivagangai District.

Now Retd. and Residing At,1/277, D3 Narmada Street, Anbunagar, Thirupalai, Madurai-14 ... Respondent/Complainant Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code to call for the records in S.C.No.85 of 2011 dated 21.11.2014 on the file of the District and Sessions Judge, Sivagangai, set aside the same, and acquit the appellate/accused herein.

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ORDER: Criminal Appeal coming up for hearing on Thursday, the first day of October, Two Thousand and Twenty (1.10.2020) and upon perusing the grounds of appeal and the Judgment of the lower Court and upon hearing the arguments of Mr.N.Mohaideen Bahsa, Advocate for the appellant, Mr.A.Robinson, Government Advocate(Criminal Side) on behalf of the Respondents No.1 to 4, Mr.G.R.Sathish, Advocate for the 5th Respondent, Mr.Veerakathiravan, Senior Counsel for M/s.Veera Associates, Advocate for the sixth respondent and of Mr.R.J.Karthick, Advocate for the seventh Respondent, this Court made the following order:

This Court, by judgment dated 08.09.2020, allowed the Criminal Appeal and set aside the conviction and sentence imposed by the learned District and Sessions Judge, Sivagangai, in S.C.No.85 of 2011, dated 21.11.2014. While allowing the Criminal Appeal, this Court has suo-motu impleaded the respondents 2 to 7 as party respondents and raised a series of queries to be answered by them.

2. In response to the same, an affidavit was filed by Thiru R.Thirunavukkarasu, I.P.S., Assistant Inspector General of Police, Law & Order, Chennai, on behalf of the third respondent / Director General of Police, Chennai and the fourth respondent / Director General of Police (Training), Police Training College, Chennai.

3. According to the respondents 3 & 4, necessary instructions are already in vogue in the Police Standing Orders and the Circulars issued then and there and necessary actions are also taken for perfunctory investigation. It is further stated that disciplinary proceedings were initiated as against 201 police personnel throughout the State between 2016 and 2020. Daily DSR is given to the range Deputy Inspector General of Police and Zonal Inspector General of Police and the respective Superintendents of Police are also conducting monthly crime meetings. It is also stated that steps are being taken to separate police station into two different wings, i.e., Law and Order Wing and Investigation Wing and also for a nomination of a Detective (Crime) Sub-Inspector as 'Missing Person Liaison Officer' (MPLO), vide G.O.Ms.No.640, dated 26.04.2007; G.O.Ms.No.59, dated 21.01.2011 and by a Memorandum of the Director General of Police, dated 23.03.2019.

4. For ensuring the quality of investigation based on the decisions of the Hon'ble Supreme Court in State of Gujarat v. Kishanbhai and Others, reported in (2014) 5 SCC 108, the Union Ministry of Home Affairs has sent a letter dated 24.03.2014 to the Home Department of all States and accordingly, a Memorandum was issued by the Director General of Police on 04.04.2014. A District / City Level Standing Committee for each District / City consisting of Officers from the Police Department as well as from the Prosecution Department has been constituted as follows:

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District / Special Units Cities 1.Superintendent of Police.

1.Commissioner of Police.

2.Additional Superintendent of Police (Hqrs).

2.Deputy Commissioner of Police (Crime).

3.Assistant Director / Deputy Director of Prosecution.

3.Assistant Director / Deputy Director of Prosecution.

5. It is further stated in the affidavit that a letter has been addressed to the Government by the Director General of Police on 21.09.2020 for recording the statements of the witnesses and for the implementation of the amendments to Sections 161, 164 & 275 Cr.P.C., with the guidelines of the Hon'ble Supreme Court in Shafhi Mohammad v. State of Himachal Pradesh.

6. The affidavit further reads that for non-compliance of the Circulars issued by the Director General of Police relating to investigation, disciplinary proceedings were initiated as against 304 police personnel throughout the State from 2016 to 15.09.2020.

7. That apart, to update current knowledge and expertise, Tamil Nadu Police Academy is imparting various refresher courses and standard operating procedures for investigation, check-list for important cases, guidelines issued by various Courts of Law are also taught to the police personnel periodically and a 'Handbook of Investigation' is also provided to the training police officers to enhance their investigation skills by imbibing the nuances of investigation of various types of crimes. A Standard Operating Procedure prepared by CBCID on investigation has also been circulated to all police officers to enhance their investigation skills.

8. It is further stated that ten best Inspectors of Police are identified every year, depending upon their investigating ability, zeal and capacity for hard work and they were awarded with 'Tamil Nadu Chief Minister's Police Medal for Excellence in Investigation' from the year 2002 and so far, 175 police officers were awarded with this medal. Similarly, the Government of India has also instituted 'Union Home Minister's Medal for Excellence in Investigation' from the year 2018 and 18 police officers were awarded with this medal from the State. Apart from this, cash awards are also sanctioned by the respective Unit Officers, as per PSO-58. The Rajasthan Model of Grading Police Stations is also followed and three police stations in the year 2018 and one police station in the year 2019 were adjudged as best police stations by the Union Ministry of Home Affairs.

9. The response affidavit filed by the respondents 3 & 4 3/12

is, of course, laudable and this Court places it's appreciation for the efforts taken by the Department to show the steps / measures taken by them to improve the quality of investigation; to preserve and improve the zeal among the police officers. But, they should not loose sight of the fact that a crime free society can be ensured only if the orders / circulars / instructions are implemented in its stricto senso.

10. It is the duty of the State to ensure that all the citizens are living under a legal system wherein their rights are protected and preserved. Rule of Law can be achieved only by implementing the same strictly, without any deviation. Though the respondents 3 & 4 claim that the issues raised by this Court were already addressed and necessary instructions were also issued and that disciplinary proceedings were initiated as against the erring officials for perfunctory investigation, the fact remains that dayin and day-out we are witnessing the filing of several petitions seeking transfer of investigation; for compensation as against the police officials; and a handful of petitions under Section 156(3) Cr.P.C., for registering the complaints even though a Constitution Bench of the Hon'ble Supreme Court in Lalitha Kumari v.

Government of Uttar Pradesh [(2014) 2 SCC 1] has elaborately dealt with the same and has also issued a slew of directions. That apart, the volume of cases quashed after the final report; the volume of cases where the accused were discharged after the final report was filed; and the volume of cases where the accused are acquitted speak otherwise. We are also witnessing several unwarranted arrests by police personnel unmindful of the decision of the Hon'ble Supreme Court in Arnesh Kumar v. State of Bihar and another [(2014) 8 SCC 273].

11. In Lalita Kumari's case (supra), the Hon'ble Supreme Court has issued the following directions:

"120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action 4/12

must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes (b) Commercial offences (c) Medical negligence cases (d) Corruption cases (e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."

12. In this regard, the third respondent / Director General of Police, Chennai, pursuant to the orders of this Court in Crl.OP. (MD)Nos.6493 of 2018 & 17119 of 2017, dated 19.07.2018, has also issued a Circular in Rc.No.226313/Crime.4(3)/2013, dated 26.07.2018.

13. In Arnesh Kumar's case (supra), the Hon'ble Supreme Court has held as follows:

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above 5/12

flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."

14. With regard to the arrest of a person and issuance of a notice, the third respondent / Director General of Police, Chennai, pursuant to the orders of this Court in Crl.OP.No.26888 of 2018, dated 07.01.2019, has also issued a Circular in RC.No.000252/Crime 4 (2)/2019, dated 30.01.2019.

15. If the Orders / Instructions / Rules / Circulars are strictly adhered to, the common man would not loose faith in the system; the Department would not loose their pride; and the conviction rate would also not be below 50%.

16. Witnesses may lie, but not the circumstances. Even the witnesses may turn hostile, but if the investigation officer collects necessary materials linking the chain of circumstances, the Court can decide the case on the available circumstantial evidence. The main object of investigation is to bring out the truth and only a fair and impartial investigation can attain the same, which would bring confidence on the minds of a common man. 6/12

17. Thiru N.Muthukumar / fifth respondent, who is the first investigation officer, in his response, has stated that on the next day itself, ie., on 08.05.2010, he attempted to arrest the named accused, but, they were absconding. He has recorded the statement from one Senthilkumar, S/o.Ramachandran, then Vice President of Puthukulam Panchayat that the first named accused, Karupasamy, was working under the 100 days employment scheme on 07.05.2010. Similarly, he has also recorded the statement from one Selvaraj, Deputy Manager in M/s.Sakthi Sugars for the availability of the fourth named accused, Sabarimalai, as a contract labour in the said company and obtained a statement from one Thangavel, Road Inspector, Highways Department, who has stated that the third named accused, Jeyaraman, was working as a Road Worker.

18. According to the fifth respondent, when he attempted to arrest the accused, they were absconding and therefore, he has recorded the statements from the employees. He has also filed the said statements dated 08.05.2010 in his typed set of papers. But, according to Thiru Poun / sixth respondent [PW9], the subsequent investigation officer, these witnesses for alibi were examined on 25.09.2010. The statements dated 08.05.2010 recorded by the fifth respondent / first investigation officer, Muthukumar, is not available in the CD file. The subsequent investigation officer / sixth respondent has not recorded the statements on 25.09.2010 as further statements. Even according to them, the third accused absconded from 08.05.2010 and both the investigation officers have not taken any steps to ascertain the whereabouts of the named accused on 06.05.2010. Though a request was made for collecting the call details of the named accused, no steps were taken by either of the investigation officers to collect the same.

19. In fact, the respondents 5 to 7 in their response affidavits have shifted the blame from one to another. According to the second investigation officer, though the materials were available, the then investigation officer and the Public Prosecutor have not produced the materials before the trial Court and it is a lapse on their part and for that, he cannot be held responsible. Similarly, the seventh respondent / then Deputy Superintendent of Police has claimed that he is not the concerned Deputy Superintendent of Police. However, he admits the receipt of the orders of this Court dated 07.09.2010 in Crl.OP.(MD)No.6538 of 2010. When he claims that he is not the jurisdictional Deputy Superintendent of Police, he neither informed the same before this Court for a clarification nor informed the same to the concerned Deputy Superintendent of Police.

20. Be that as it may, in view of the specific stand taken by the respondents 3 & 4 that necessary instructions are already in vogue to deal with perfunctory investigation and upon their undertaking that necessary disciplinary proceedings would be 7/12

initiated in this case, this Court is not inclined to probe any further, but, deems it fit to direct the third respondent to order for an enquiry to ascertain the officials responsible for the perfunctory investigation and to take appropriate action as contemplated under the memorandums and circulars.

21. This is a clear case where the State has failed to nab the real culprits and to prosecute them. No purpose would be achieved even if a denova investigation is ordered, as ten years has lapsed since the occurrence. Therefore, this Court feels that the victim of the crime, namely, Annalakshmi [PW1] / the complainant, who suffered a loss due to the crime, is entitled for a compensation of Rs.3,00,000/- [Rupees Three Lakh only] under the Victim Compensation Scheme.

22. Since this is a clear case of miscarriage of justice, this Court feels it appropriate to refer to certain provisions of law in this regard.

23. In the Indian Penal Code and in the Code of Criminal Procedure, a remedy for wrongful prosecution and for miscarriage of justice are laid down. Chapter IX of the Indian Penal Code deals with the offence by or relating to public servants. Section 166 IPC criminalises willful departure from the direction of the law by a public servant with an intent to cause injury to any person and that any disobedience of the directions of law is liable for a prosecution.

24. Public servant disobeying the direction under law is an offence under Section 166A IPC. The kinds of dereliction of law by a public servant can be categorised as follows: a) knowingly disobeys any direction of law prohibiting him from requiring attendance at any place of any person for the purpose of investigation into an offence or any other matter; b) knowingly disobeys, to the prejudice of any person, any direction of law regulating the manner in which he is to conduct such investigation; and c) fails to record FIR in relation to offence under certain Sections specified therein.

25. If a public officer abuses his office either by commission or omission and that results in an injury to any individual, an action may be maintained for an offence under Section 166(A) IPC.

26. A public servant knowingly framed or translated a document with the intent or with the knowledge that he would thereby cause injury is an offence under Section 167 IPC. The intention to cause injury to any person by perversion of official duty is a requirement under this Section.

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27. In addition to the above provisions in Chapter IX, Sections 218 to 220 under Chapter XI also deal with disobedience on the part of public servants in respect of official duty.

28. Section 218 IPC, on the same line as that of Section 167 IPC, criminalises intentional preparation of a false / incorrect record by a public servant with an intent to cause or knowing it to be likely to cause loss or injury to any person.

29. Section 219 IPC deals with corrupt or malicious exercise of power by public servants engaged in the discharge of judicial function; criminalising corrupt or malicious making or pronouncing of any report, order, verdict etc., by a public servant in a judicial proceeding knowing it to be contrary to law. While Section 219 IPC is specific in application, extending only to judicial officers, its following Section, ie., Section 220 IPC is more general and applies to any person in an office which gives him the legal authority to commit persons for trial or to confinement, such as a Magistrate or a Police Officer. This Section criminalises corrupt or malicious commitment for trial or confinement of any person by such an officer knowing that in so doing he is acting contrary to law. But, for the purpose of Section 220 IPC, unlawful commitment to confinement will not by itself warrant the legal interference of malice, it needs to be alleged and proved that the concerned officer corruptly and maliciously confined a person wrongfully.

30. In the case of Perumal v. Janaki [(2014) 5 SCC 377], the Hon'ble Supreme Court, has prima facie observed that the investigation officer, despite the knowledge that a fact has not taken place, chosen to rely the same on the charge sheet, though it was not medically proved and the Court below, while condemning the case on wrongful prosecution, ought to have directed the investigation officer to be prosecuted under Section 211 IPC, instead of Section 193 IPC.

31. The Director General of Police and other higher officials have to sensitize the investigation officers on the available penal provisions and the consequences of a perfunctory investigation. Everybody has to discharge the duty in accordance with law and it is the duty of the higher officials to ensure the same. Despite the availability of the aforesaid penal provisions, it appears, the same has not been invoked as against the erring officials. If the higher officials, who are expected to take action, are not acting upon, then they must also be made accountable for such dereliction.

32. A corruption free transparent administration alone can give confidence on the minds of a common citizen. In achieving this object, the Government of Tamil Nadu, vide Government Order in G.O.Ms.No.65, Personnel and Administrative Reforms (AR-I) 9/12

Department, dated 09.03.2007, constituted an Administrative Reforms Committee under the Chairmanship of Dr.Justice A.K.Rajan, Retired Judge of Madras High Court to ensure corruption free and transparent administration. The Committee has also submitted its first report as early as on 25.04.2008 and the Government, after examining the recommendations of the Administrative Reforms Committee, has taken a policy decision to accept certain recommendations and has also passed a Government Order in G.O.Ms.No.24, Personnel and Administrative Reforms (AR-I) Department, dated 17.02.2010, in this regard.

33. Though in the said Government Order, the Government has took decision in as many as 50 subjects, this Court is inclined to refer to the following decisions taken by the Government: Paragraph No.

Recommendation of the Administrative Reforms Committee Decision of the Government 04.02 The existing rules and Government Orders shall be followed and enforced strictly, in letter and spirit, by all the employees. (By that 70% to 90% of the delay will be reduced.) This recommendation is accepted.

All Departments of Secretariat are requested to issue necessary instructions to follow existing rules and Government Orders.

04.06 Decision making process should be decentralized.

Powers and responsibilities should be delegated to various Hierarchical Officers.

This recommendation is accepted.

All Secretaries to Government are requested to issue orders indicating the powers and responsibilities at various level of officers both in Secretariat and Heads of Departments and below, within three months.

09.01 Accountability shall be fixed on every Government Servant, at every stage and at every level.

This recommendation is accepted.

All Departments of Secretariat are requested to issue necessary orders to this effect while issuing orders on delegation.

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09.01 Supervisory Officers should not hesitate to take action, as provided by the rules, against erring staff, failing which action shall be initiated against the Supervisory Officer.

This recommendation is accepted.

All Departments of Secretariat are requested to issue suitable orders in this regard.

10.01 When the Supervisory Officer initiates action against the subordinate for not responding to his directions, the action should not be hampered, by the higher ups.

This recommendation is accepted.

All Departments of Secretariat are requested to issue necessary orders to that effect.

34. If this Government Order is implemented strictly, the object of corruption free transparent administration can be achieved. In this Government Order, the Government has accepted certain recommendations made by the Administrative Reforms Committee and has also issued directions to the Heads of the Departments / Secretaries to the Government to issue necessary orders in compliance of the same. But, from the available website, this Court is not able to collect those instructions / orders / circulars issued either by the Secretary to the Government, Home Department / second respondent or by the Director General of Police / third respondent on the implementation of the same.

35. This Court hopes that the respondents 2 & 3 will look into this issue and pass necessary orders in this regard. This Court feels that it is also the responsibility of the higher officials to educate their subordinates as to the available provisions of law fixing accountability, consequences of perfunctory investigation, besides the Circulars / Memorandums / Orders. In the response affidavit filed by the respondents 3 & 4, it is stated that the Circulars / Memorandums issued already were readily available in every stations manually, however, they are not available in a common platform like website. This Court hopes and trust that they would take every action to create a dedicated portal (web-portal), where each and every Circulars / Memorandums issued by them, besides the important decisions of the Courts of law, as to the manner of investigation, to improve the quality of investigation, etc., are available so as to educate the common people, particularly, the victims, who are at the mercy of the investigation agencies.

36. The respondents 2 & 3 are directed to take necessary steps to disburse the compensation amount of Rs.3,00,000/- [Rupees Three Lakh only] to the complainant, namely, Annalakshmi [PW1]. Upon completion of the departmental proceedings and after fixing the official responsible for the perfunctory investigation, it is for them to recover this compensation amount 11/12

from the delinquent official, if they so advised, apart from other departmental action, if any.

37. With the above observations and directions, this Criminal Appeal stands closed.

Sd/- Assistant Registrar (CS III) // True Copy // / /2020 Sub Assistant Registrar(CS) To 1.The District and Sessions Judge, Sivagangai.

2.The Chief Judicial Magistrate, Sivagangai.

3.The Judicial Magistrate, Manamadurai.

4. The Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Chennai-600 009.

5. The Director General of Police,No.601, Dr.Radhakrishnan Salai, Mylapore, Chennai- 600 004. 6.The Director General of Police (Training), Police Training College, No.2, Natesan Salai, Ashok Nagar, Chennai.

7.The Inspector of Police, Thirupachethi Police Station, Sivagangai District.

8.The Superintendent, Central Prison, Madurai.

9.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.G.R.SATISH, Advocate ( SR-21521[F]) +1 CC to M/s.VEERA ASSOCIATES, Advocate ( SR-21669[F]) 08.09.2020 ns(CO) KK(04.12.2020) 12P 12C 12/12