Madras High Court
Shanmugaraj vs State Represented By on 8 March, 2022
Crl.O.P.(MD)No.12446 of 2020
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 08.03.2022
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.(MD)No.12446 of 2020
and
Crl.M.P(MD)No.5649 of 2020
Shanmugaraj ... Petitioner/Accused
Vs.
1.State represented by,
The Inspector of Police,
Thoothukudi South Police Station,
Thoothukudi.
(In Crime No.492 of 2017). ... 1st Respondent/Complainant
2.S.Nambirajan ... 2nd Respondent/
Defacto Complainant
Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records pertaining to the case registered in First
Information Report in Crime No.492 of 2017 on the file of the first
respondent and quash the same as illegal.
For Petitioner : Mr.G.Anto Prince
For R – 1 : Mr.R.M.Anbunithi
Additional Public Prosecutor
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Crl.O.P.(MD)No.12446 of 2020
ORDER
This Criminal Original Petition has been filed to quash the FIR
in Crime No.492 of 2017 for the offences under Sections 4(1)(aaa),
4(1)(i) and 14A of the Tamil Nadu Prohibition Act, 1937 on the file
of the first respondent.
2.The defacto complainant lodged a complaint alleging that on
10.06.2017 at about 10 p.m., when the second respondent/defacto
complainant along with other police officials were on duty patrol,
they identified a motorcycle and later found that the said vehicle
belonged to one Shanmugaraj, namely, the petitioner herein, and
found 23 bottles in a box containing 750 ml of white and black
whisky. On enquiry, the petitioner said that he had bought the
above said liquor bottles for sale from one unknown person. On
further investigation, the respondent also seized few bottles of
liquor from the petitioner's residence.
3.The learned counsel appearing for the petitioner raised the
grounds that the case of the prosecution is only on the basis of the
suo motu complaint made by the second respondent, who is also
the Investigating Officer, who .registered the F.I.R in the cadre of
Sub-Inspector of Police. The second respondent exercised his
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Crl.O.P.(MD)No.12446 of 2020
jurisdiction though he is not competent to do under the Tamil Nadu
Prohibition Act, 1937. In accordance with the provisions of Section
4(1)(b) of the Right to Information Act, 2005, the Prohibition and
Excise Wing of Home, Prohibition and Excise Department,
Government of Tamil Nadu and as a pro-active disclosure the State
Government of Tamil Nadu brought out a manual for information
and guidance of the stakeholders and the general public. The point
2.7 of the said manual stated that the Additional Director General of
Police (Enforcement) is the head of this unit and he is assisted by
the Inspector General of Police (Enforcement), a Superintendent of
Police, Central Investigation Unit at Chennai and a Superintendent
of Police (Enforcement) each at Chennai, Salem and Madurai. As
per the Act, 94 Prohibition Enforcement Wing units functioning in
the State headed by the Inspectors of Police are declared as police
stations for enforcing the Tamil Nadu Prohibition Act, 1937. Further,
in the case on hand, the second respondent registered the F.I.R in
Crime No.492 of 2017, who is not the enforcing officer under the
Act.
4.In this regard, it is relevant to rely upon the Judgment of
the Honourable Supreme Court of India reported in 2018 (4) MLJ
(Crl) 244 - [Mohan Lal Vs. The State of Punjab]. It will be
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Crl.O.P.(MD)No.12446 of 2020
useful to extract the relevant portions of the judgment which reads
as follows:
“5. We have considered the submissions on
behalf of the parties. The primary question for our
consideration in the present appeal is, whether in a
criminal prosecution, it will be in consonance with
the principles of justice, fair play and a fair
investigation, if the informant and the investigating
officer were to be the same person. In such a case,
is it necessary for the accused to demonstrate
prejudice, especially under laws such as NDPS Act,
carrying a reverse burden of proof.
...................
11. A fair trial to an accused, a constitutional
guarantee under Article 21 of the Constitution,
would be a hollow promise if the investigation in a
NDPS case were not to be fair or raises serious
questions about its fairness apparent on the face of
the investigation. In the nature of the reverse
burden of proof, the onus will lie on the prosecution
to demonstrate on the face of it that the
investigation was fair, judicious with no
circumstances that may raise doubts about its
veracity. The obligation of proof beyond reasonable
doubt will take within its ambit a fair investigation,
in absence of which there can be no fair trial. If the
investigation itself is unfair, to require the accused
to demonstrate prejudice will be fraught with
danger vesting arbitrary powers in the police which
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Crl.O.P.(MD)No.12446 of 2020
may well lead to false implication also.
Investigation in such a case would then become an
empty formality and a farce. Such an interpretation
therefore naturally has to be avoided.
12. That investigation in a criminal offence
must be free from objectionable features or
infirmities which may legitimately lead to a
grievance on part of the accused was noticed in
Babubhai vs. State of Gujarat, (2010) 12 SCC 254
as follows:
“32. The investigation into a criminal
offence must be free from objectionable
features or infirmities which may
legitimately lead to a grievance on the part
of the accused that investigation was
unfair and carried out with an ulterior
motive. It is also the duty of the
investigating officer to conduct the
investigation avoiding any kind of mischief
and harassment to any of the accused. The
investigating officer should be fair and
conscious so as to rule out any possibility
of fabrication of evidence and his impartial
conduct must dispel any suspicion as to its
genuineness. The investigating officer “is
not merely to bolster up a prosecution case
with such evidence as may enable the
court to record a conviction but to bring
out the real unvarnished truth”.
33. In State of Bihar v. P.P. Sharma
this Court has held as under:
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Crl.O.P.(MD)No.12446 of 2020
“57. … Investigation is a delicate
painstaking and dextrous process. Ethical
conduct is absolutely essential for
investigative professionalism. … Therefore,
before countenancing such allegations of
mala fides or bias it is salutary and an
onerous duty and responsibility of the
court, not only to insist upon making
specific and definite allegations of personal
animosity against the investigating officer
at the start of the investigation but also
must insist to establish and prove them
from the facts and circumstances to the
satisfaction of the court.
***
59. Malice in law could be inferred
from doing of wrongful act intentionally
without any just cause or excuse or
without there being reasonable relation to
the purpose of the exercise of statutory
power. …
61. An investigating officer who is
not sensitive to the constitutional
mandates, may be prone to trample upon
the personal liberty of a person when he is
actuated by mala fides.”
14. In a criminal prosecution, there is an
obligation cast on the investigator not only to be fair,
judicious and just during investigation, but also that the
investigation on the very face of it must appear to be
so, eschewing any conduct or impression which may
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Crl.O.P.(MD)No.12446 of 2020
give rise to a real and genuine apprehension in the
mind of an accused and not mere fanciful, that the
investigation was not fair. In the circumstances, if an
informant police official in a criminal prosecution,
especially when carrying a reverse burden of proof,
makes the allegations, is himself asked to investigate,
serious doubts will naturally arise with regard to his
fairness and impartiality. It is not necessary that bias
must actually be proved. It would be illogical to
presume and contrary to normal human conduct, that
he would himself at the end of the investigation submit
a closure report to conclude false implication with all its
attendant consequences for the complainant himself.
The result of the investigation would therefore be a
foregone conclusion.
.............
25. In view of the conflicting opinions expressed
by different two Judge Benches of this Court, the
importance of a fair investigation from the point of view
of an accused as a guaranteed constitutional right under
Article 21 of the Constitution of India, it is considered
necessary that the law in this regard be laid down with
certainty. To leave the matter for being determined on
the individual facts of a case, may not only lead to a
possible abuse of powers, but more importantly will
leave the police, the accused, the lawyer and the courts
in a state of uncertainty and confusion which has to be
avoided. It is therefore held that a fair investigation,
which is but the very foundation of fair trial, necessarily
postulates that the informant and the investigator must
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Crl.O.P.(MD)No.12446 of 2020
not be the same person. Justice must not only be done,
but must appear to be done also. Any possibility of bias
or a predetermined conclusion has to be excluded. This
requirement is all the more imperative in laws carrying
a reverse burden of proof.
26.Resultantly, the appeal succeeds and is
allowed. The prosecution is held to be vitiated because
of the infraction of the constitutional guarantee of a fair
investigation. The appellant is directed to be set at
liberty forthwith unless wanted in any other case”.
5.Here is a case, where the complainant is the Investigation
Officer. Therefore, the entire investigation becomes vitiated as held
by the Honourable Supreme Court in the judgment referred supra.
6.In the facts and circumstances of the case, the proceedings
in F.I.R in Crime No.492 of 2017, dated 10.06.2017 on the file of
the first respondent is quashed and accordingly, this Criminal
Original Petition is allowed. Consequently, connected Miscellaneous
Petition is closed.
08.03.2022
Internet :Yes
Index :Yes / No
ps
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Crl.O.P.(MD)No.12446 of 2020
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of
the order may be utilized
for official purposes, but,
ensuring that the copy of
the order that is presented
is the correct copy, shall
be the responsibility of the
advocate / litigant
concerned.
To
1.The Inspector of Police,
Thoothukudi South Police Station,
Thoothukudi.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.12446 of 2020
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.O.P(MD)No.12446 of 2020
08.03.2022
https://www.mhc.tn.gov.in/judis
