IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2008
CORAM:
THE HON'BLE MRS.JUSTICE PRABHA SRIDEVAN
AND
THE HON'BLE MR.JUSTICE V.PERIYAKARUPPIAH
H.C.P. Nos.1092 and 1114 of 2008
1. N.Elangovan .. Petitioner in HCP.1092 of 2008
2. Er.N.Subramani .. Petitioner in HCP.1114 of 2008
vs.
1. State: rep. By the Inspector
of Police,
Perundurai Police Station
Perundurai, Erode.
2. The Superintendent of Police,
Erode District.
3. N.K.K.P. Raja
4. D.Sampathkumar .. R1 to R4 in both HCPs.
5. P.A.Sundararajan
6. M.Sundaram
7. Gopinath
8. O.C.Viswanathan .. R5 to R8 in HCP.1092/2008
9. Chinnappan
10.K.P.Samy
11.Gopinath
12.O.C.Viswanathan .. R5 to R8 in HCP.1114/2008
PRAYER : Petitions filed under Article 226 of the Constitution of India praying for the reliefs stated therein.
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For petitioners: Mr.K.M.Vijayan,
Senior Counsel
For respondents: Mr.P.Kumaresan, APP for R1 & R2
Mr.S.A.Ashok Kumar,
Senior Counsel for
Mr.N.Manokaran for R3.
Mr.V.Raghavachari for R4 to R6
Mr.V.Gopinath,
Senior Counsel for
Mr.R.Johnsathyan for R7 & R8.
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COMMON ORDER
(Order of the Court was delivered by PRABHA SRIDEVAN, J.)
These two habeas corpus petitions have been filed alleging that respondents 3 to 8 (among whom, respondents 7 and 8 in both petitions are one and the same, and respondents 5 and 6 in each of the petitions are different persons) have illegally detained the detenus mentioned in each of the habeas corpus petitions and their properties have been illegally destroyed with the help of bulldozers and rowdy elements.
2. As far as H.C.P.No.1092 of 2008 is concerned, the prayer is to direct respondents 1 and 2 to produce the detenus viz., (i) P.C.Palanisamy, s/o. P.S.Chinnasamy, (ii) Malarvizhi, w/o.P.C.Palanisamy and (iii) P.Sivabalan, s/o.P.C.Palanisamy bodily before this Court and set them at liberty.
3. As far as H.C.P.No.1114 of 2008 is concerned, the prayer is to direct respondents 1 and 2 to produce the detenu viz., P.C.Gugamani, S/o.Chinnasamy Gounder bodily before this Court and set him at liberty from the illegal custody of respondents 3 to 8.
4. As seen from the affidavit filed in support of HCP No.1092 of 2008, the detenus own approximately 10 acres of property in Perundurai village and there is a claim for title over the said property by one Gnanamuthu. According to the affidavit, respondents 5, 6 and 7 claimed that the aforesaid person had executed the sale deed in their favour. There is some property dispute between the alleged detenus and respondents 5 to 7. It is stated that respondents 3 and 8 also forced the detenu in HCP No.1114 of 2008 to participate in the panchayat. It is alleged that a 'kattapanchayat' was also held. It is further alleged that on 22.7.2008, two hundred goondas headed by respondents 4 to 7 entered into the property of the detenus, destroyed their dwelling house and coconut trees and had also abducted them. In these circumstances, since respondents 1 and 2 allegedly did not take any action on the complaint, HCP No.1092 of 2008 was filed.
5. As far as HCP No.1114 of 2008 is concerned, the preliminary facts stated therein and the facts stated in HCP No.1092 of 2008 are almost similar. In addition to that, in the affidavit filed in HCP NO.1114 of 2008, there is a reference to the admission of the filing of the earlier petition in HCP No.1092 of 2008. There is also a reference to the alleged instruction of the third respondent to demolish the property of the detenus. The petitioner in HCP No.1114 of 2008 is the brother-in-law of the alleged detenu. According to him, soon after the occurrence, he immediately called the second respondent on the cell phone, but the entire State machinery remained mute. In paragraph 8 of the affidavit, it is stated that the detenu himself had given a complaint before the Inspector of Police.
6. All the three detenus in HCP No.1092 of 2008 were produced before the Court on 29.7.2008 and a detailed order has been passed on that day, which we will extract later. Since the first and second detenus expressed an apprehension regarding their lives, they were permitted to stay at Chennai in a relative's house.
7. On 26.8.2008, the detenu in HCP No.1114 of 2008 was present before the Court. Though he made a reference to the suffering undergone by him and all that had transpired, he claimed that the Minister's (the 3rd respondent herein) men were responsible for such acts and that when he came out from the place where he was staying, the Police brought him to the Court. He was highly emotional and appeared to be in a state of extreme stress. Therefore, as on date, all the four persons are not illegally detained.
8. Learned Senior Counsel appearing for the petitioners would submit that though it would appear that the detenus are free to move, but in actual fact, their lives are being endangered. Therefore, it cannot be said that they are free to move and are really at liberty. It is also submitted that the parents of the first detenu and the parents-in-law of the second detenu in HCP No.1092 of 2008 are aged and therefore, the detenus expressed their desire to go back to Perundurai village. Learned Senior Counsel also submitted that the third respondent has been removed from the Cabinet since it was found that there is a prima facie material against him. But the first respondent, in his counter affidavit, had stated that 'the investigation reveals that the third respondent has no involvement in the said occurrence', which according to the learned Senior Counsel would indicate that the investigation will not go on fairly and freely and there would be pressure from else where.
9. Learned Senior Counsel appearing for the petitioners would further submit that if time is given, they would produce the documents from the Village, which they could not, fearing safety for their lives and therefore, they do not have all the documents in their possession. Learned Senior Counsel further submitted that the petitioners would have filed appropriate application for change of the investigation agency but for paucity of time. Learned Senior Counsel submitted that it is not the petitioners' prayer that the investigation should be monitored continuously, but that the investigation should be done in a manner that would infuse confidence in the minds of the persons aggrieved.
10. Learned Senior Counsel appearing for the petitioners submitted that the stand taken by the Police that the detenu in HCP. 1114 of 2008 was free and was at liberty to do whatever he wanted is not correct and threatening calls are being made from cell phones belonging to the third respondent and if time and opportunity is given, it would be possible for the petitioners to demonstrate the involvement of the said respondent.
11. An affidavit was also filed by detenus 1 and 2 dated 29.7.2008, wherein they have given the details as to how they were taken away and how they were forced to sign certain documents and under what circumstances they were released.
12. When the matters were taken up this morning, the learned Senior Counsel appearing for the petitioners prayed for time till 2.30 p.m. to file a reply affidavit to the counters filed by the Police. However, the learned Senior Counsel has now filed an application for extension of time for production of documents, which we are not inclined to consider to be necessary at this stage and hence the said request is rejected.
13. The third respondent has filed a counter affidavit denying all the averments and stating that the habeas corpus petitions themselves are motivated. According to the learned Senior Counsel appearing for the third respondent, the third respondent has no involvement either with regard to the civil dispute or with regard to any of the alleged illegal acts. According to respondents 4 to 6, who have filed their common counter affidavit, there is actually a civil dispute with regard to the property and these habeas corpus petitions themselves are a ruse to settle those civil disputes by this oblique method. Respondents 7 and 8 have filed a common counter affidavit denying all the allegations and have stated that there is nothing to show that respondents 5 to 8 have abducted the petitioners.
14. The first respondent has filed a counter affidavit stating that a special team had been constituted to find out the detenu, viz., P.C.Gugamani, in HCP No.1114 of 2008 and that they have registered two cases in respect of the occurrences dated 22.7.2008 and 25.7.2008 and that it is not correct to state that the investigation process is not going on as such it should. Paragraph 3 of the said counter affidavit is extracted hereunder:-
"3. I submit that the allegations in para. Nos.4 to 13 of the affidavit are hereby stoutly denied as not correct. In fact, there was a complaint at the instance of one Gugamni and that a case in Crime No.650 of 2008 had been registered for the offences under Sec.147, 148, 448, 427 and 363 IPC. The said complaint was received by post on 24.7.2008 and the investigation is pending. During the course of the investigation in Crime No.650 of 2008, I have examined 40 persons and recorded their statements. Subsequently, the petitioner in HCP No.1114 of 2008 has given a complaint dated 26.7.2008 and it has been registered as crime No.671 of 2008 on 28.7.2008 for the offences under Sections 147, 148, 447 448, 427, 363, 506(ii) and 379 (NP) IPC against O.C.Viswanathan, K.P.Swamy, Gobinath, Chinnappan and others. As per the allegation in the complaint, on 25.7.2008 the respondents 4 to 8 and others committed trespass by damaging the properties of the above said Gugamani and that the investigation in Crime No.671 of 2008 is in progress."
15. It is also stated that the investigation in both the cases are in progress and that respondents 5 to 7 have obtained anticipatory bail before this Court. They have denied the allegation that the Police failed to register a case. They have also stated that the entire matter is under thorough investigation by the Police. A status report is also filed by the first respondent with regard to the complaint received at 10 a.m. on 24.7.2008, the registration of the case, proceeding to the scene of occurrence and examination of five persons at that stage. It is further stated that a rough sketch and an observation mahazar have been prepared at 11.30 a.m. on the same day itself. It is on 25.7.2008 the first respondent received information about the filing of HCP No.1092 of 2008 before this Court and thereafter, on the basis of the statement of Sivabalan, the offences were altered. On 28.7.2008 at 11.30 a.m., the first respondent received a complaint from the petitioner in HCP No.1114 of 2008 and immediately, a case was registered in Crime No.671 of 2008. The status report refers to the recording of the statements of the witnesses and that the household utensils and tractors were recovered and the properties of the first respondent and his family members have also been recovered allegedly in pursuance of confessions given by A.28.
16. The status report filed in HCP No.1114 of 2008 also refers to the steps taken by the first respondent to trace the tower location with regard to the mobile phones of the alleged detenu, the examination of witnesses and also examination of the Post Master to ascertain the origin of the letter said to have been written by Guhamani from Perundurai. It also refers to the seizure of three vehicles under mahazar which were allegedly involved in Crime Nos.650 and 671 of 2008 and there is also reference to the production of Guhamani on 26.8.2008. Further, there is a reference to the arrest of three persons on 24.8.2008 and also to the effect that Guhamani was secured from one hotel at Periyamedu, Chennai.
17. Learned counsel appearing for respondents 3 to 8 submitted that the habeas corpus petitions cannot be used to fish out evidence to support the case of the petitioners. It is also contended that after having executed certain documents, this habeas corpus petitions are filed as an abuse of process of law to get away from the obligations of the petitioners under the documents validly executed by them. It was also submitted that the detenus themselves are powerful persons.
18. As far as we are concerned, Courts have to protect rights of all. If even a powerful person finds himself in this hapless situation, what about the weak and the powerless?
19. Learned Additional Public Prosecutor would submit that there is nothing to show that the police has not acted promptly or that the Police has acted without diligence. On the other hand, the complaint has been registered immediately and properties have been recovered, statements have been recorded without any delay and it was also submitted that the transfer of investigation agency cannot be done for the asking and for this purpose, the following decisions are relied upon and the relevant paragraphs therein are extracted hereunder:
(i) 2003 SCC (Cri.) 1314 (Union of India v. Prakash P.Hinduj),
"20.Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.
(ii) AIR 2008 SC 1614 (Divine Retreat Centre vs. State of Kerala),
"33. The sum and substance of the above deliberation and analysis of the law cited leads us to an irresistible conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. However, we may hasten to add that unfettered discretion does not mean any unaccountable or unlimited discretion and act according to one's own choice. The power to investigate must be exercised strictly on the condition of which that power is granted by the Code itself.
34. In our view, the High Court in exercise of its inherent jurisdiction cannot change the Investigating Officer in the midstream and appoint any agency of its own choice to investigate into a crime on whatsoever basis and more particularly on the basis of complaints or anonymous petitions addressed to a named Judge. Such communications cannot be converted into suo motu proceedings for setting the law in motion. Neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested."
20. The allegations made by the petitioners are very serious in nature, as noticed by the Division Bench in the order dated 29.7.2008 and the relevant portion of the said order has been extracted hereunder:-
"3. We enquired Mr.P.C. Palanisamy, the detenu. He has narrated the incident in detail. According to him, he is the owner of an extent of 10 Acres of land in the above said Survey Numbers and he has got a house, where he, his wife, son and aged parents are living. He is doing agriculture apart from maintaining some cattle. Respondents 5 to 7 forced him to execute sale deed in their favour, which was not accepted by him. On 22.07.2008 at about 8.00 p.m. P.C. Palanisamy, his wife-second detenu and his son- third detenu were forcibly taken in a car with the assistance of number of henchmen of respondents 5 to 7 and they were forced to sign certain documents and for the said purpose they were tortured. Thereafter they were taken to one Bharat Mill building and were kept in confinement. He was forced by the third respondent to sign the blank papers and he refused, he was threatened with dire consequences. As he could not tolerate the harassment and torture, he has signed some blank papers. Thereafter one Registrar and Document writer were brought along with documents in which they were forced to sign and thereafter only he and his wife were let off on 27.07.2008, that too they were taken out in a car and thrown out in an unknown place.
4. When he came to know of the petition filed by his son-in-law before this Court, he contacted him and appears before the Court through his advocate. He has also stated that the house in which he and his family members were living was completely damaged and in addition nearly 1000 200 coconut trees were also uprooted by 200 men employed by the respondents. He has left with no property except the clothes which he is wearing, and as he has no place to live in his village namely Perunthurai and there is no safety and security for himself and his family members' life, he is not inclined to go back to his village. He has sought for a direction from this Court not only for a safe place to live but also protection for his life and his family members.
5. We also enquired the second detenu viz., Malarvizhi, wife of the first detenu. She also narrated the entire incident. Her statement also reflects exactly what the first detenu has stated before us. She also has expressed her apprehension of threat the life of herself and family members and she pleaded for accommodation and protection for her life.
6. We enquired third detenu by name Sivabalan. He claims that on 20.7.2008 he left the village to Mookambigai Temple and he came back only on 27.07.2008 and on coming to know through one of his friends that a case has been registered, he went to the Police Station, who produced him before this Court. When we asked a specific question as to whether he has visited his house at Perunthurai, he has stated that he has not visited the house and he does not know what happened to the house. However, with great reluctance he has stated that he is not prepared to tell all that had happened."
Personal safety of the detenus:
The habeas corpus petitions were filed for production of the detenus and the detenus are present in Court and they also want to go back to their home town. There is prima facie material to show from the order dated 29.7.2008 extracted above that these persons had to leave their home town and they have no place to live in their village and there is no safety and security for themselves. Learned Additional Public Prosecutor submits that when they go back to their home town, there will be sufficient protection. We have recorded the statement made by the learned Additional Public Prosecutor to allay the fear of the detenus.
The detenus' property:
Paragraph No.9 of the counter affidavit filed by the first respondent reads as follows:-
9. I submit that the averment of the petition in Paragraph No.11 that the respondents 1 and 2 are acting on the direction of the 3rd respondent is false and defamatory. The other averment that several complaint were sent to respondents 1 and 2 by the family members of P.C.Palanisamy is denied as incorrect. It is true that the house property and the coconut tree grove of P.C.Palanisamy have been destroyed by the said accused including respondents 4 to 8, but the investigation reveals that the third respondent has no involvement in the said occurrence."
It was submitted by the opposing counsel that the right to the property cannot be decided in a habeas corpus petition. But, even as per the counter affidavit filed by the Police, it is the property of the detenus that were destroyed on the particular day. As to the allegations regarding who destroyed the property, they will be decided in a manner known to law and any right claimed by the respondents with regard to property will also be decided in a manner known to law. But, as on date, even as per the Police statement, it was the petitioners' property which was destroyed, as seen from the above. This status shall continue. The learned Additional Public Prosecutor would further submit that even with regard to the property, there will be sufficient protection against illegal encroachments. This statement is recorded to allay the fear of the detenus.
Role of the Police:
At this juncture, we only want to point out one thing. Learned Senior Counsel appearing for the petitioners repeatedly said that the averments in paragraph 9 of the counter affidavit filed in HCP No.1114 of 2008 would indicate that the Police has already pre-judged the issue. Learned Additional Public Prosecutor has denied it was so and he also submitted that the investigation is going on without any external influence and in a fair manner. But we would only like to point out that when counters are prepared, more caution should be exercised since the Police is always neutral and it cannot take a stand either in favour of the complainant or the so-called accused. The Police is there to see that investigation is done properly and the law is enforced. The Police should take care that their counters are not filed as though they are adversaries to the litigation. Neutrality should be maintained especially in view of the particular sentence pointed out by the learned Senior Counsel appearing for the petitioners regarding the involvement or non-involvement of the third respondent. The Police should take care that they are not referred to as mute spectators when something untoward has happened.
21. We are not inclined to order transfer of investigation machinery at this stage, in view of the judgments cited by the learned Additional Public Prosecutor, we would just like to refer to paragraph 12 of the judgment of the Supreme Court reported in (2006) 8 SCC 1(Prakash Singh v. Union of India) so that the investigation team would act in a manner that will not in any way take away the faith and confidence of the complainants and the public:
"12. The commitment, devotion and accountability of the police has to be only to the rule of law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be service oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action taken without any delay."
22. Learned Senior Counsel for the petitioners has prayed for extension of time to produce certain documents. The investigation of the case is in progress and at the appropriate time, it will always be open to the petitioners to produce whatever documents that are in their possession to support the case of the prosecution. The rejection of the request for extension of time herein will not bar their right to produce the documents.
23. Any observations made by us either in this order or in the open court cannot be construed as any opinion formed by us or finding given by us so as to influence any Civil Court dealing with the dispute between the parties or any Criminal Court dealing with the trial of the case that will follow after the investigation is completed. Any observation made by us was only to elucidate the matter and clarify certain doubts. They are not to be construed as findings.
24. So far as the the habeas corpus petitions are concerned, the grievance was that certain persons were kept in illegal detention. Now, they are produced before the Court and they themselves desire to go back to their village. In view of the statements given by the learned Additional Public Prosecutor with regard to the safety of the person and the property, we think that no further orders are necessary in the habeas corpus petitions and they are accordingly closed. It is always open to the parties/detenus, if they are aggrieved, at any time in future, to move proper applications before the civil forum and the criminal forum, including claims for compensation and this order will not stand in their way from doing so. All the four alleged detenus are present in Court and their desire is to go to their home town, Perundurai, which they are free to do.
gs. (P.S.D., J.) (V.P.K., J.)
27th, August 2008.
Index:Yes/No.
Internet:yes.
To
1. The Inspector of Police, Perundurai Police Station
Perundurai, Erode.
2. The Superintendent of Police, Erode District.
3. The Assistant Commissioner of Police, Adyar, Chennai.
4. The Public Prosecutor, High Court, Madras.
Note to office: Issue on 29.8.2008.
gs.
PRABHA SRIDEVAN, J.
And
V.PERIYAKARUPPIAH, J.
H.C.P. Nos.1092 and 1114 of 2008
27th, August 2008
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