Madras High Court
S.Kumaresan vs The Deputy Inspector Of General Of ... on 7 January, 2022
W.P.(MD).No.6011 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.01.2022
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.P.(MD).No.6011 of 2019
and
W.M.P(MD).No.4817 of 2019
S.kumaresan
S/o.A.S.V.Subbiah Nadar : Petitioner
Vs.
1.The Deputy Inspector of General of Police,
Palayamkottai,
Tirunelveli-2.
2.The Superintendent of Police,
Tirunelveli District,
Trirunelveli.
3.The Assistant Superintendent of Police,
Valliyoor Circle,
Valliyoor, Tirunelveli Disrict.
4.The Inspector of Police,
Thisaiyanvilai Police Station,
Tirunelveli District.
5.Rani
Inspector of Police,
Sivanthipatti Police Station,
Sivanthipatti,
Tirunelveli District. : Respondents
1/14
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W.P.(MD).No.6011 of 2019
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Mandamus, to direct the respondents 1 to 3
particularly the second respondent to initiate appropriate action as
against the 4th and 5th respondents who have filed a false Status Report
before this Court as against the petitioner without any basic foundation
or relevant particulars in relation to arriving at a conclusion of my
location at Madurai on the date of occurrence in Crime No.404 of 2018
on the file of the Inspector of Police, Thisaiyanvilai Police Station in
pursuance of petitioner's representation dated 26.01.2019 forthwith.
For Petitioner : Mr.S.Palani Velayutham
For R1 to R5 : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
ORDER
This Writ Petition is filed seeking Mandamus, to direct the
respondents 1 to 3 to initiate appropriate action against the respondents
4 and 5 who filed a false status report before this Court against this
petitioner without any basic information of the petitioner's location at
Madurai on the date of occurrence in Crime No.404 of 2018 on the file of
the Inspector of Police, Thisaiyanvilai Police Station in pursuance of the
petitioner's representation dated 26.01.2019.
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W.P.(MD).No.6011 of 2019
2.The fact of this case is that on 23.12.2018, the case was
registered in Crime No.404 of 2018 for the offences under Sections 448,
324, 506(ii) of IPC and Section 3 of Tamil Nadu Public Property
( Prevention of Damage & Loss) Act, 1992 by the Thisaiyanvilai Police
Station, Tirunelveli District, based on the compliant given by the one
Lingathai against the three persons namely Kumarandi, Ramamoorthy
and Senthil alleging that her shop was damaged by the accused persons
and a sum of Rs.25,000/- was taken away from her shop. The police, on
receipt of the complaint, had registered a case in Crime No.404 of 2018
for the offences punishable under Sections 448, 324, 506(ii) of IPC and
Section 3 of Tamil Nadu Public Property ( Prevention of Damage &
Loss) Act, 1992.
3.The petitioner who is a stranger claims that he is involved social
service activities and he was present in the scene of occurrence on that
date and he was an eye witness to the offence. Therefore, as a witness to
the occurrence, for the incident which took place at about 11.00 p.m on
22.12.2018, he went to the police station to inform about the occurrence.
However, the police ignore his valuable information and evidence and
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W.P.(MD).No.6011 of 2019
not recorded the statement. This was also brought to the notice of this
Court in the earlier proceedings. His contention in the writ petition is that
one of the accused involved in the said crime, is the Additional Public
Prosecutor of Tirunelveli District and therefore, the fifth respondent in
order to save him, has not taken any appropriate action to investigate the
case in a fair manner and kept the investigation pending and he has
destroyed all the available evidence. Hence Crl.O.P(MD).No.1450 of
2019 was filed by the defacto complainant to withdraw the investigation
in Crime No.404 of 2018 and transfer the same to CBCID.
4.The Fifth respondent has filed the status report saying that the
petitioner herein voluntarily went to the police station as witness and
made representation in this regard claiming himself as eye-witness to the
occurrence. However, his cell phone location reveals that at the time of
occurrence, he was in Madurai and no where near the scene of
occurrence. However, the grievance of the petitioner is that the said
statement of the police is false and it is a biased statement. He is the
genuine witness in the case. The true fact will came out only by way of
proper investigation by the police in Crime No.404 of 2018.
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W.P.(MD).No.6011 of 2019
5.The learned Additional Public Prosecutor would submit that the
petitioner who claims to be social activists, informed the police that he
was the eye-witness to the occurrence and implicated the Additional
Public Prosecutor, Thirunelveli and others in the said offence. When the
petitioner was examined it was found that his statement is not credit
worthy and hence, the police did not consider him as a witness to the
occurrence/prosecution. Since the petitioner has filed this petition and
the same is pending for the past two years, no progress would be made in
the investigation.
6.Arraying a person as an accused in a criminal case by the
Investigating Officer is a very sensitive and responsible issue. Similarly
it is the prerogative of the prosecution, whose is predominant function to
bring the culprit on record and proceed against him, to choose the best
evidence and place before this Court. If the Investigating Officer feels
that any witness may be a reliable or credit worthy witness he will add
him as witness for prosecution. If the victim is aggrieved by the non
inclusion of any credit worthy witness, it is always open to the victim to
bring to the notice of the Investigating Officer or to the Court, at the later
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W.P.(MD).No.6011 of 2019
point of time, during the course of the trial to seek for further
investigation.
7.The Investigating Officer states that the petitioner is not at all
present at the time of the occurrence, Court cannot force the
Investigating Officer to add or delete witnesses in the course of
investigation. Therefore, this Court is of the view that the writ petition is
ill conceived.
8.In the scheme of investigating a criminal case, Chapter XII of the
Code of Criminal Procedure deals about information and investigation.
9.Under Section 154 of the Code, the Police in charge of the
Station is obliged to receive every information to the commission of
cognizable offence. If he has reasons to suspect the information received
or otherwise discloses commission of cognizable offence, he should enter
the substance of the information about the cognizable offence in the book
to be kept by such officer in such form as prescribed by the State. The
information thus entered in the register is called First Information Report
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W.P.(MD).No.6011 of 2019
(FIR) and the informant is the defacto complainant. All other persons
who provide any information of evidenciary value, they are taken as
witnesses for prosecution.
10.In the course of investigation, the Police Officer who hold
investigation under section 160 of the Code shall by order in writing
require the attendance before him any person appears to be acquainted
with the facts and circumstances of the case. Under Section 161 Cr.P.C
the Police Officer making investigation may examine orally any person
supposed to be acquainted with the facts and circumstance of the case.
Such person is bound to answer truly. However he can exercise right of
silence to questions which are self incriminating in nature. Based on the
evidenciary value of the information and relevancy, the Investigating
officer finalise the list of witnesses for prosecution. The array of
witnesses and examination of witnesses is the prerogative of the
prosecution.
11.The petitioner herein claims himself an eyewitness to the
occurrence which is subject matter of Cr. No. 404/2018, on the file of the
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W.P.(MD).No.6011 of 2019
Inspector of Police, Thisaiyanvilai Police Station, Thisaiyanvilai,
Tirunelveli District. He had himself come forward to give statement
implicating few more persons whom the defacto complainant had not
mentioned. The police officer who interrogated the petitioner, on
verification of his cell phone tower location found his claim that he was
present at the scene of crime at the time of occurrence not substantiated.
While the defacto complainant / first informant and other witnesses speak
about the occurrence in tune with the first information regarding the
occurrence, the IO had reasons to disbelieve the version of the petitioner
herein which suffers embellishment targeting certain persons who were
not really present at the crime site or privy to the crime and not
mentioned in the complaint. Hence the IO had decided that the petitioner
is not a worthy witness for the prosecution case.
12. If there was any omission in arraying the real culprits, the
defacto complainant or any other person affected would have taken legal
recourse in accordance with law. In this case, no such complaint has
arisen from the defacto complainant. Whereas the petitioner a third party
– stranger claiming as witness to the occurrence cannot tamper the
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W.P.(MD).No.6011 of 2019
investigation. The scheme of criminal procedure give no room to such
interference to the investigation by a rank stranger.
13.The Hon’ble Supreme Court in Jogendra Nahak and others –
vs- State of Orissa (AIR 1999 SC 2565) has extensively dealt a case of
similar nature and has held that a stranger to case has no right to get his
statement recorded by the Magistrate under section 164 Cr.P.C without
the sponsoring of the Investigating Officer.
14.In the above said case cited supra, 4 individuals who are
strangers to the criminal case alleging that the investigating officer
interrogated them but not kept their statement recorded under Section
161 Cr.P.C in the case dairy. They filed writ petition before the High
Court for directing he investigating officer to record their statements
under Section 161 of the Code and for a further direction to the Judicial
Magistrate concern to record their statements under section 164 of
Cr.P.C. The Hon’ble High Court initially issued a positive direction, but
later resiled and revoked the order. That apart also mulcted costs on the
petitioners. When the order of the High Court assailed before the
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W.P.(MD).No.6011 of 2019
Supreme Court, the Supreme Court upheld the High Court order and
confirmed the costs imposed on the petitioners. In the said judgment the
Apex Court observing it as a strange motion, held that :-
“Section 165 to 173, the Code, prescribes provisions which the police
have to adopt as follow up steps in the matter of investigation and also
the requirements to be complied with on conclusion of such
investigation.
Section 173 says that on completion of investigation the officer-in-
charge of police station shall forward a report to the magistrate,
stating, inter alia, the names of the persons who appear to be
acquainted with the circumstances of the case. Sub-section (5)
of Section 173 requires that the police officer shall forward to the
magistrate along with the said report (a) all documents or relevant
extracts thereof on which the prosecution proposes to rely and (b) the
statements recorded under Section 161of all the persons whom the
prosecution proposes to examine as its witnesses.
Even when a further investigation, as indicated under sub-section (8) is
conducted by the police, they have to comply with all the requirements
contained in the preceding sub-sections.
In the scheme of the above provisions there is no set or stage at which a
magistrate can take note of a stranger individual approaching him
directly with a prayer that his statement may be recorded in connection
with some occurrence involving a criminal offence. If a magistrate is
obliged to record the statements of all such persons who approach him
the situation would become anomalous and every magistrate court will
be further crowded with a number of such intending witness brought up
at the behest of accused persons.
…..
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W.P.(MD).No.6011 of 2019
The contention that there may be instances when the investigating
officer would be disinclined to record statements of willing witnesses
and therefore such witnesses must have a remedy to have their version
regarding a case put on record, is no answer to the question whether
any intending witness can straightaway approach a magistrate for
recording his statement under Section 164 of the Code. Even for such
witnesses provisions are available in law, e.g. the accused can cite
them as defence witnesses during trial or the court can be requested to
summon them under Section 311 of the Code. When such remedies are
available to witnesses (who may be sidelined by the investigating
officers) we do not find any special reason why the magistrate should
be burdened with the additional task of recording the statements of all
and sundry who may knock at the door of the court with a request to
record their statements under Section 164 of the Code.
On the other hand, if door is opened to such persons to get in and if the
magistrates are put under the obligation to record their statements,
then too many persons sponsored by culprits might throng before the
portals of the magistrate courts for the purpose of creating record in
advance for the purpose of helping the culprits. In the present case, one
of the arguments advanced by accused for grant of bail to them was
based on the statements of the four appellants recorded by the
magistrate under Section 164of the Code . It is not part of the
investigation to open up such a vista nor can such step be deemed
necessary for the administration of justice.
Thus, on a consideration of various aspects, we are disinclined to
interpret Section 164(1) of the Code as empowering a magistrate to
record the statement of a person unsponsored by the investigating
agency.”
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W.P.(MD).No.6011 of 2019
15.The dictum laid by the Apex Court for recording statement of a
stranger not sponsored by the investigating office, by the Magistrate
under Section 164 of Cr.P.C, will equally apply for recording statement
of witnesses by the Investigating officer under Section 161 Cr.P.C. The
IO in his discretion may reduce into writing the statement of any witness,
if he has reasons to believe that the statements are of any use for the trial.
The IO is the best judge to decide whether it is an attempt to create
record in the nature of previous statement to be used to contradict the
testimony to be recorded later in the course of trial. Section 161 Cr.P.C
does not mandate all the statements of a witness to be recorded or to take
him as witness. If, request like one the petitioner now made is entertained
it open the flood gate for busybodies and interlopers to manipulate the
course of investigation, at their will. Therefore the Orissa High Court in
the case cited supra had imposed cost on the petitioner and same not
interfered by the Apex Court.
16.This petition deserve to be dismissed with costs for the reasons
stated supra. However taking note of the plea made by the learned
counsel for the petitioner that the petitioner is a social worker and so far
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W.P.(MD).No.6011 of 2019
he has not come under any adverse notice of the Court or Police, the
petition is dismissed without costs. Consequently, the connected
miscellaneous petition is closed.
07.01.2022
Index: Yes/No
Internet: Yes/No
tta
To
1.The Deputy Inspector of General of Police,
Palayamkottai,
Tirunelveli-2.
2.The Superintendent of Police,
Tirunelveli District,
Trirunelveli.
3.The Assistant Superintendent of Police,
Valliyoor Circle,
Valliyoor,
Tirunelveli Disrict.
4.The Inspector of Police,
Thisaiyanvilai Police Station,
Thisaiyanvilai,
Tirunelveli District.
5.Rani
Inspector of Police,
Sivanthipatti Police Station,
Sivanthipatti,
Tirunelveli District.
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W.P.(MD).No.6011 of 2019
DR.G.JAYACHANDRAN,J.,
tta
W.P.(MD).No.6011 of 2019
07.01.2022
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