Madras High Court
G.K.Narayanasami vs State By on 27 May, 2022
Crl.O.P.No.28409 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.05.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
19.04.2022 27.05.2022
Crl.O.P.No.28409 of 2017
and
Crl.MP.Nos.16140 & 16141 of 2017
1.G.K.Narayanasami
2.N.Gunachandran ... Petitioners
Vs.
State by
Inspector of Police,
CBCID Tiruppur,
Tiruppur District. ... Respondent
PRAYER: Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to call for the records in C.C.No.32 of 2013 and
quash the order dated 14.12.2017 passed by the learned Chief Judicial
Magistrate, Tiruppur.
1/33
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For First Petitioner : Mr.I.Subramanian
Senior Counsel
for Mr.K.P.Anantha Krishna
For Second Petitioner : Mr.V.Karthick
Senior Counsel
for Mr.Karthikeyan
For Respondent : Mr.A.Damodaran
Additional Public Prosecutor
ORDER
The petitioners/A2 and A6 in C.C.No.32 of 2013 facing trial for the
offence under Section 379 IPC r/w. Sections 39(1) and 44(1)(c) of Indian
Electricity Act and Sections 120(B) r/w. 466, 477 and 109 IPC, 120B r/w.
201, 204 IPC filed this quash petition to quash the order dated 14.12.2017
passed in C.M.P.No.940 of 2017 taking cognizance of the case.
2.The gist of the case is that on 06.08.2001, the Electricity Board
squad inspected the factory of G.K.Alloys Streel Company situated at
Velayuthampalayam, Avinashi, the first pettioner G.K.Narayanasami/A2 is
the Managing Director. During the inspection, it was found that the
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electrical meter fitted in the Company was tampered and energy theft to the
tune of Rs.23,36,76,893/- was detected. The Assistant Engineer, TNEB,
North Coimbatore lodged a complaint and a case in Crime No.507 of 2001
under Section 379 r/w. 39(1) and 44 of Indian Electricity Act, 1910 was
registered on 06.08.2001 by the Avinashi Police against the first petitioner
G.K.Narayanasami. On completion of investigation, charge sheet was filed
on 25.10.2002 against A/1G.K.Alloy Steels Ltd., Velayuthampalayam,
Avinashi, A2/G.K.Narayanasami/petitioner herein, A3/Venkatesan,
A4/Selvaraj and A5/Murugayan and the same was taken on file in
C.C.No.68 of 2003 by the learned Judicial Magistrate, Avinashi on
18.02.2003. The second petitioner/A6, N.Gunachandran was the Assistant
Director of R&D Division, Tamil Nadu Forensic Science Department,
Chennai. During investigation, the electric meter which was seized from the
factory was sent to TNFSL, Chennai for analysis. One Sekar, Grade I
Constable, Avinashi Police Station collected the expert opinion report from
TNFSL, Chennai on 10.07.2002 and submitted the same to the learned
Judicial Magistrate, Avinashi on 12.07.2002. A copy was also sent to the
Investigating Officer, on perusal of the report, found that tampering took
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place in the report and consequently, it was informed to the TNFSL. The
Director of TNFSL Mr.Damodaran, who caused an internal enquiry, found
the allegation to be true and confirmed that the expert opinion report forged
and tampered, that happened in the TNFSL Laboratory which is a serious
matter, since TNFSL is a restricted area and the work involves
confidentiality and secrecy. Hence, he lodged a complaint to the CBCID,
Metro and a case was registered in Crime No.1 of 2003 under Sections 465,
468, 471, 420 r/w. 34 IPC on 11.01.2003. After completion of
investigation, the CBCID filed charge sheet against G.K.Narayanasami/A1,
N.Gunachandran/A2 and P.Sekar/A3 under Section 120B, 466, 471 and 109
IPC and the same was taken on file in C.C.No.7110 of 2005 on 29.12.2005
before the learned XI Metropolitan Magistrate, Saidapet, Chennai.
3.In the CBCID Chennai case, the petitioners herein filed a discharge
petition in C.M.P. No.2333 of 2006 and C.M.P.No.2988 of 2006 before the
learned XI Metropolitan Magistrate, Saidapet, Chennai, both the petitions
were dismissed on 29.12.2006. Against which, the first petitioner filed a
revision petition before this Court in Crl.R.C.No.148 of 2007. On
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03.09.2010, this Court allowed the revision petition, not only discharged the
first petitioner G.K.Narayanasami, it also discharged N.Gunachandran/
second petitioner and P.Sekar from the charges in C.C.No.7110 of 2005
giving liberty to the CBCID Police to seek remedy by invoking provisions
under Section 173(8) Cr.P.C. for further investigation in Crime No.507 of
2001. In the meanwhile, the Director General of Police in
Rc.No.255178/Crime.IV(2)/2010 dated 05.01.2011 on the request of the
Additional Director General of Police, Crime Branch, CID, Chennai
transferred the case in Crime No.507 of 2001, Avinashi Police Station to the
file of the Crime Branch, CID. The CBCID filed a petition for further
investigation on 20.04.2012 and on 10.08.2012. Thereafter, the CBCID
filed additional final report on 05.01.2014 wherein three persons were
arrayed as accused, namely, G.K.Narayanasami, N.Gunachandran and
P.Sekar. Since G.K.Narayanasami was already an accused in Crime No.507
of 2001, only additional charges to be added against him, as regards
Gunachandran/A6 and P.Sekar/A7 were added as additional accused.
Initially, Avinashi Police arrayed five persons as accused and after filing of
additional charge sheet by CBCID, there are now totally seven accused in
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the case.
4.The other side of progression of the case is that after order was
passed in Crl.R.C.No.148 of 2007 discharging all the accused n
C.C.No.7110 of 2005, the second petitioner herein filed a petition in
C.M.P.No.357 of 2017 in C.C.No.32 of 2013 seeking a direction to the
Regional Passport office, Chennai to renew and issue the passport for the
petitioner, which was dismissed. Against which, Crl.R.C.No.755 of 2017
was filed before this Court. While disposing of this petition on 15.09.2017,
this Court had gone in detail, considering the various petitions filed, delay
taken in proceeding of the case, finally observed that though additional
charge sheet was filed as early as on 05.01.2014, the Trial Court is not in a
position to take cognizance of the case and proceed further for the reason
that quash petition in Crl.O.P.No.12982 of 2003 filed before this Court and
stay was obtained. Thereafter, on verification it was found that case in
Crl.O.P.No.12982 of 2003 was disposed on 24.10.2009 and the bundle was
found missing despite all efforts taken. After dismissal of Crl.O.P.No.12982
of 2003 on 24.10.2009, there is no progress in the trial since the dismissal
was not informed and communicated to the Trial Court and hence this Court
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directed the Trial Court to proceed with the trial on the additional charge
sheet filed on 05.01.2014 immediately in Crl.R.C.No.755 of 2017 dated
15.09.2017.
5.Aggrieved against the said order, the second petitioner approached
the Apex Court challenging the order dated 15.09.2017 in Crl.R.C.No.755
of 2017. The Apex Court in SLP.(Crl.).No.9077 of 2017 dated 01.12.2017
observed as follows:
“In the operative portion of the impugned order, the High
Court has issued a mandatory direction to the learned
Magistrate to take cognizance of the additional final report
filed on 05.01.2014 and proceed with the trial.
We make it clear that the above need not be taken
as a mandatory direction, since it is for the Magistrate to
apply his/her mind and take further action in accordance
with law.
It is open to the petitioner to take all available
contentions before the learned Magistrate before taking
cognizance.
Subject to the above clarification, the special leave
petition is disposed of.
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Pending application(s), if any, shall stand disposed
of.”
6.In the meanwhile, the Trial Court on the directions issued in
Crl.R.C.No.755 of 2017 dated 15.09.2017 took cognizance of the offence as
per the additional charge sheet filed on 05.01.2014 against the accused,
finding prima facie case made out issued summons to all the accused
including the petitioners and posted the case on 05.12.2017. On
05.12.2017, a memo was filed by the first petitioner stating that since the
order passed by this Court in Crl.R.C.No.148 of 2007 summons could not
be issued to the petitioner, further referred to the judgment of this Court
reported in 2011 (2) MLJ(Crl.) 5, wherein it is held that no summons could
be issued to persons who got discharged, unless after commencement of
proceedings and evidence appears against him in the course of trial.
Likewise, the second petitioner filed a petition questioning the issuance of
summons relying upon the decisions of Iqbal Singh Marwah and another
vs. Meenakshi Marwah and another reported in 2005 SCC(Cr.) 1101 and
Perumal vs. Janaki reported in 2014 (1) RCR(Criminal) 851 and
questioned the issuance of summons when the High Court quashed the case
in C.C.No.7110 of 2005 for the same charges. Both the petitions were taken
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in C.M.P.No.940 of 2017, the learned Chief Judicial Magistrate, Tiruppur
by order dated 14.12.2017 finding that already cognizance taken, summons
issued, at that stage the order of the Apex Court was strictly complied with,
dismissed the petition filed by the petitioners herein and directed them to
appear before the Trial Court on 20.12.2017. Against which the present
petition is filed.
7.Mr.I.Subramaniam, learned senior counsel appearing for the first
petitioner submitted that the first petitioner is arrayed as A2 in Crime
No.507 of 2001 under Section 379 r/w. 39(1) and 44 of Indian Electricity
Act, 1910, on completion of investigation the Inspector of Police, Avinashi
Police Station filed charge sheet against the petitioner and four others in
C.C.No.68 of 2003. This being so, another case filed in Crime No.1 of 2003
by the Inspector of Police, CBCID Metro, Chennai, on completion of
investigation charge sheet filed and the same was taken on file by the
learned XI Metropolitan Magistrate, Saidapet, Chennai in C.C.No.7110 of
2005. The first petitioner filed discharge petition in C.M.P.No.2333 of 2006
which came to be dismissed, against which, he filed a revision petition
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before this Court in Crl.R.C.No.148 of 2007. The primary contention of the
learned senior counsel is that the charges and the allegations relating to the
CBCID case is connected with the earlier case in which the petitioner and
other accused are implicated for theft of energy under Indian Electricity Act.
He further submitted that filing of another FIR for the subsequent event,
would amount to filing of second FIR and relying upon the decision of the
Apex Court in the case of T.T.Antony vs. State of Kerala reported in
[2001] 6 SCC 181 made his submission before this Court in Revision
Petition in Crl.R.C.No.148 of 2007. In the revision petition, this Court
accepting the submission of the learned senior counsel by order dated
03.09.2010 held if the Investigating Agency [CBCID] is having any further
material or further information disclosing commission of offence, they can
resort by invoking provisions under Section 173(8) Cr.P.C. for further
investigation. It isfurther clarified that even after filing a final report, if the
Investigating Agency comes into portion of the further information or
material they need not register fresh FIR, they are empowered to conduct
further investigation, normally with the leave of the Court and during
further investigation any materials collected, the Investigating Agency is
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obliged to forward the same under Section 173(8) Cr.P.C. Thus, following
the principles laid down by the Apex Court finding that registration of FIR
by CBCID in Crime No.1 of 2003 is not proper, quashed the FIR and charge
sheet in Crime No.1 of 2003 and C.C.No.7110 of 2005 with liberty to the
prosecution to file petition under Section 173(8) Cr.P.C. in Crime No.507 of
2001.
8.The CBCID Police in the meanwhile took up the investigation from
the Avinashi Police and filed a petition under Section 173(8) Cr.P.C. on
20.04.2012 seeking clubbing of investigation done in Crime No.1 of 2003 in
Crime No.507 of 2001. Further, filed a petition under Section 173(8)
Cr.P.C. on 10.08.2012 with similar prayer and thereafter, filed additional
final report which is not proper. He further submitted that without any
further investigation whatever materials earlier collected in Crime No.1 of
2003 was attempted to be clubbed in Crime No.507 of 2001 which is not
proper. The observation of this Court in Crl.R.C.No.148 of 2007, is only if
any material is available to be investigated and not already available
materials. He further submitted that one of the accused filed a petition
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seeking issuance of passport before the Trial Court in C.M.P.No.357 of
2017 which was dismissed, against which revision petition was filed in
Crl.R.C.No.755 of 2017 and this Court by order dated 15.09.2017 gone into
the entire sequence of the case in detail and finally dismissed the revision
petition with a direction “the Trial Court shall take cognizance of the
additional final report filed on 05.01.2014 immediately and proceed with the
trial”. He would further submit that taking cognizance on the materials
produced after analysing the materials applying its mind is a discretion of
power of the concerned Magistrate to pass judicial order and no Court can
compel or direct the Trial Court to take cognizance de hors applying its
mind. He further submitted that against which the other accused
approached the Hon'ble Supreme Court and the Apex court set aside the
mandatory direction issued in Crl.R.C.No.755 of 2017. The Trial Court in
the meanwhile took cognizance of the case, issued summons to the
petitioners on 27.11.2017, the petitioner filed a memo, objected to the Trial
Court, in taking cognizance of the offence which is against the direction and
the dictum of the Apex Court. The Trial Court failed to consider the same
and passed an order rejecting the memo of the petitioner on 14.12.2017,
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against which, he filed this petition.
9.He further submitted that the first petitioner already filed a Writ
Petition which is pending before this Court, with regard to the
calculation of loss of energy and how it was arrived, the Electricity
Department is yet to file its report giving details and work sheet for
the energy theft and the electricity loss sustained by them, on the other
hand pressurizing the Police to proceed with the case as though energy
theft committed. The learned senior counsel submitted that the Trial
Court cannot brush aside or give its own interpretation that the Apex Court
order has been complied with, making it appear that it is only a formality
which is not proper and it is in total disregard to the directions of the Hon'ble
Apex Court. It is suffice that the petitioner's objections and their
submissions to be heard by the Trial Court as per the directions of the Apex
Court to consider all the available materials and contentions of the petitioner.
10.Mr.V.Karthick, learned senior counsel appearing for the second
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respondent submitted that the second petitioner initially not an accused in
Crime No.507 of 2001 in C.C.No.68 of 2003, on the complaint of the
Director of TNFSL, a case in Crime No.1 of 2003, FIR registered against the
petitioner and two others and on conclusion of investigation, charge sheet
filed in C.C.No.7110 of 2005 before the learned XI Metropolitan Magistrate,
Saidapet, Chennai. He further submitted that the second petitioner/A6 filed
a discharge petition in C.M.P.No.2988 of 2006 before the learned XI
Metropolitan Magistrate, Saidapet, Chennai which was dismissed. The
other accused filed C.M.P.No.2333 of 2006 which was also dismissed and
the same was challenged in Crl.R.C.No.148 of 2007 before this Court. This
Court by order dated 03.09.2010 dealt with the contention of the learned
senior counsel in detail and finally held that the registration of FIR in Crime
No.1 of 2003 is nothing but second FIR and hence, quashed the proceedings
in Crime No.1 of 2003, consequently quashed C.C.No.7110 of 2005 on the
file of the learned XI Metropolitan Magistrate, Saidapet, Chennai and gave a
liberty to the Prosecution Agency to file appropriate petition under Section
173(8) Cr.P.C., on collection of further materials, additional charge sheet
can be filed. In this case, the Investigating Agency failed to collect any
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additional materials, conveniently clubbed all the materials earlier collected
in Crime No.1 of 2003 in Crime No.507 of 2001 and sought a direction to
file a final report. He further submitted that as regards this petitioner, the
allegation is that the Forensic report was tampered with and it was done by
the second petitioner in conspiracy with A2 and A7.
11.He further submitted that the case against the second petitioner
is that the forensic report submitted in C.C.No.68 of 2003 was a
computer typed one, the original report was manually typed and the
discrepancies found in the forensic report which is a matter of serious
in nature. TNFSL is an independent primary Body which conducts
verification and examination of documents, handwriting, physical and
clerical features of disputed articles. It is a restricted place. In the
meanwhile, Crime No.1 of 2003 was registered by CB CID Metro
against both the petitioners and one Sekar/A7. The case is that the
said Sekar who was the property constable attached to the Avinashi
Police produced the Tampered Report of the forensic department. On
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10.07.2002, he came to the forensic department, received a report and
expended articles of the case. Thereafter, he produced the same before
the Judicial Magistrate Court, Avinashi on 12.07.2002. In the
meanwhile, the report tampered with and changed favouring the
accused. According to the forensic officials, the report was typed in
manual Typewriter and not computer typed as produced before the
Court which was with correction and insertion. Thereafter, a case in
Crime No.1 of 2003 was registered. This case culminated as charge
sheet in C.C.No.7110 of 2005, a discharge petition filed before the XI
Metropolitan Magistrate Court, Saidapet, in Crl.M.P.No.2333 of 2006
by the accused A1/Narayanasamy and A2/Gunachandran in
Crl.M.P.No.2988 of 2006, both came to be dismissed, against which a
Revision was filed before this Court in Crl.R.C.No.148 of 2007 by
A1/Narayanasamy, this Court by order dated 03.09.2010 found the
registration of the second First Information Report is in violation and
not following T.T.Antony's case dictum, quashed the case in Crime
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No.1 of 2002 giving liberty to the Investigating Agency to invoke
provision under Section 173(8) Cr.P.C. Thereafter, the investigation
of case transferred to the file of the CB CID by the orders of the
Director General of Police, and further investigation under Section
173 (8) of Cr.P.C., filed by the Inspector of Police, CB CID and
additional charge sheet including N.Gunasekaran and Sekar as A6 &
A7 was filed in C.C.No.32 of 2013.
12.The learned senior counsel would submit that this Court in
Crl.R.C.No.148 of 2007 quashed the entire proceedings in Crime No.1
of 2003 in all aspects and discharged the petitioners and the other
accused. In view of the same, when there is specific Judicial order
passed, without setting aside the Judicial order. Under the guise of
further investigation, on the same materials, the second petition
cannot be prosecuted. The learned counsel further submitted that the
second petitioner filed a petition seeking return of his pass port in
Crl.R.C.No.755 of 2017, this Court by the order dated 15.09.2017
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went into other aspects of the case, dismissed the petition, directed the
trial Court to take cognizance of the additional final report filed on
05.01.2014, which was not a Lis in Crl.R.C.No.755 of 2017.
Aggrieved against the same, the second petitioner approached the
Hon'ble Apex Court in SLP.No.9077 of 2017. The Apex Court by the
order dated 01.12.2017 found that no mandatory direction can be
given to the Magistrate to take cognizance, since it is the concerned
Magistrate to take further action on the materials produced before him
on application of mind to take a decision. Further gave liberty to the
petitioner to make his contention before the concerned Magistrate
before taking cognizance. The trial Court without following the Apex
Court orders, took cognizance of the case by the order dated
27.11.2017, following the direction of this Court in Crl.R.C.No.755 of
2017 on 15.09.2017. Further the learned Senior Counsel submitted
that the prosecution's specific stand is that, already final report after
further investigation was filed on 05.01.2014. The petitioner filed a
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Copy Application on 24.08.2021, on that date, the Copy Application
for additional final report filed by the CB CID dated 05.01.2014,
returned by the Chief Judicial Magistrate, Thirupur with endorsement
that the records are not available in the case bundles, hence, it is
confirmed that as on 24.08.2021 there is no further report, the trial
Court mechanically passed an order, further cognizance order does not
reflect application of mind. Further there is nothing to show how, on
what material and on what basis, the Trial Court got satisfied and
cognizance taken. The trial Court not followed the Apex Court's order
and the present Revision is filed.
13.The learned senior counsel further submitted that the forensic
report of TNFSL, both manually typed and computer typed was
submitted to the Government Examiner of Questioned Documents,
Hyderabad, who examined both documents and gave a report. This
report is in favour of the second petitioner and there is nothing to
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show that the petitioner had anything to do with the report. Further
submitted that now the case against the main offender in C.C.No.32 of
2013 is proceeded based on the original forensic report, mechanically
typed. The alleged computer typed forensic report not relied. The
petitioner is being proceeded merely on assumption and presumption.
There is no recovery pursuant to the confession of A7 and hence
confession cannot be looked into. The only other material which is
being projected against the second petitioner is that font size in the
report and the printer available in the second petitioner's office are
identical as per the report of the Director, Ramanujan Computing
Centre, Anna University, Chennai which alone will not confirm any
role of the petitioner. The data matrix printer format will be one and
the same universally. It is not the case of the prosecution that the
printer is in exclusive possession and with petitioner's usage. Merely
on assumption and presumption the petitioner not to undergo the
ordeal of trial. The second petitioner, a Scientist with credential who
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have authored several books, presented several research papers, a
visiting faculty, a Guest Lecturer and also an excellent trainer in the
field of Forensic Science, due to the above case his entire professional
career is stigmatized and unable to carry on with his professional and
research work, submit research papers, etc. He further submitted that
due to the internal bickering in TNFSL organization, he is falsely
implicated in this case. The TNFSL Department knowing about the
same, not conducted any departmental enquiry, further citing the
above case, not granted the petitioner, his terminal benefits. The
petitioner is more concerned and worried on the stigma attached to
him due to the above case. The petitioner is retired and in the evening
of his life. Now asking the petitioner on the insufficient materials to
undergo the ordeal of trial, that to at a far off place would cause great
hardship. There is no material to show that the petitioner is a
beneficiary in any manner.
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14.The learned Additional Public Prosecutor made his
submission and filed his counter produced the statement of witnesses,
submitted that the second petitioner/A6 was the Assistant Director of
R&D Division, Tamil Nadu Forensic Sciences Department, Chennai.
During investigation, the electric meter from the SOC was seized and
sent to TNFSL, Chennai for analysis. Gr.IPC 377 P.Sekar of Avinashi
Police Station collected the expert opinion report from TNFSL,
Chennai on 10.07.2002 and handed over the same to J.M. Court,
Avinashi on 12.07.2002. When the Investigating Officer perused the
report, it was found that some tampering and insertion taken place,
immediately, the Director, TNFSL lodged a complaint and a case in
CBCID Metro Crime No.1 of 2003 u/s.465, 468, 471, 420 r/w. 34 IPC
registered by Mr.Ravichandran, Inspector of Police, CBCID Metro,
Chennai on 11.01.2003. After completion of investigation, CBCID,
Chennai filed charge sheet against the accused (1) G.K.Narayanasami,
(2) N.Gunachandran (3) Gr.IPC 377 P.Sekar of Avinashi Police
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Station under Section 120-B r/w. 466, 471 and 109 IPC on 30.11.2005
before the Hon'ble XI Metropolitan Magistrate Court, Saidapet,
Chennai and it was taken on file in C.C.No.7110 of 2005 on
29.12.2005. It is further submitted that as per the order of this Court,
the Director General of Police, Chennai, Tamil Nadu, directed the
Investigating Officer, CBCID, Metro to take up further investigation
in Avinashi PS Crime No.507/2001. During investigation, the
Investigating Officer examined the witnesses Tmt.Hemalatha and
Mr.Ranjithcicil, Assistant Directors of Tamil Nadu Forensic Science
Laboratory, Chennai, in their statement implicate
A6/N.Gunachandran/second petitioner herein approached them and
influenced them to prepare forensic report in favour of the
accused/petitioner A2/G.K.Narayanasami/first petitioner herein and
A6/N.Gunachandran informed and requested them that his son is
working in the factory owned by A2/first petitioner herein and
requested to prepare report in favour of accused G.K.Narayanasami
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otherwise his son life would be spoiled. This clearly indicates
involvement of A6/N.Gunachandran in this case. Both are key
witnesses of this case, who examined the electric meter seized from
the SOC and gave the original analysis report.
15.It is further stated that another witness Gokulamaran, Lab
Technician, R&D Division, TNFSL, Chennai state that he saw
A2/G.K.Narayanasami, A7/Sekar along with A6/N.Gunachandran in
the office of A6 on the date of occurrence. He further stated that A6
received the original report kept in the Kakki cover from A7/Sekar at
his office. Moreover, on the date of occurrence during night hours he
saw A6 was typing in the computer in his office. This clearly
established the involvement of A2, A6 and A7. Likewise,
Mr.Damodharan, Mr.Thirunavukarasu, Mrs.Lakshmi and Mrs.Vanaja
have stated about the involvement of A6 in this occurrence. Further,
confession statement of A7/Sekar clearly establish the fact that on the
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date of occurrence, A2 and A7 met A6 at his office, R&D Division,
Chennai. At that time, A6 received the original TNFSL report from
A7 and subsequently on the same day returned the report in a sealed
cover and conveyed to A7 corrections made in the report. Thus,
during investigation, involvement of A2, A6 and A7 established. It is
further submitted that during investigation, the Investigating Officer
seized the computer and printer from the office of A6 and sent the
same to experts of Ramanujan Computing Centre, Anna University,
Chennai. Mr.Chellappan, Director of Ramanujan Computing Centre,
Anna University, Chennai given a report that bogus report containing
the letters are identical with the printers seized from the office of A6
and confirmed that it is a forged one. It is further stated that earlier
to the order of the Hon'ble Supreme Court, the learned Chief Judicial
Magistrate, Tiruppur following the orders of this Court in
Crl.R.C.No.755 of 2017 took cognizance of the additional charge sheet
on 27.11.2017 in C.C.No.32 of 2013, the same is pending and issued
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Crl.O.P.No.28409 of 2017
summons to the accused including A2 and A6 to appear before the
Trial Court on 05.12.2017. Subsequently, on 05.12.2017 A2 appeared
before the learned Chief Judicial Magistrate, Tiruppur and produced
the order of the Hon'ble Supreme Court in SLP(Crl.)No.9077 of 2017.
But the petition filed by A6 in C.M.P.No.940 of 2017 was dismissed
on 14.12.2017 stating that already the Trial Court applied its mind
and took cognizance of the additional charge sheet and posted the case
to 20.12.2017 for appearance of the accused. It is further submitted
that investigation was done in proper manner, totally 51 witnesses
examined, sufficient material evidences are produced before the Trial
Court to prove the offences committed by the petitioners and the
pendency of the stay order affect the speedy trial.
16.In support of his contention, the learned Additional Public
Prosecutor relied upon the decision of the Hon'ble Supreme Court in
the case of Sonu Gupta vs. Deepak Gupta and others reported in
[2015] 3 SCC 424 and submitted that the Apex Court had reminded
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Crl.O.P.No.28409 of 2017
time and again that at the stage of cognizance and summoning, the
Magistrate is required to apply his judicial mind only with a view to
take cognizance of offence.
17.Considering the submissions made and on perusal of the materials
placed before this Court, it is seen both the petitioners filed a common
petition with a prayer to quash the order dated 14.12.2017 passed in
C.M.P.No.940 of 2017 in C.C.No.32 of 2013. On perusal of the order, it is
seen both the petitioners have filed a memo with a copy of the order passed
by the Hon'ble Supreme Court in SLA(Crl.).No.9077 of 2017 dated
01.12.2017. As per the order of the Apex Court the directions given in
Crl.R.C.No.755 of 2017 dated 15.09.2017 not to be taken as mandatory
direction and it was for the Magistrate to apply his mind and take further
action in accordance with law. Further, the Apex Court gave liberty to the
petitioners to take all available contentions before the learned Magistrate
before taking cognizance. It is a directive for the Magistrate to hear the
contentions put forth by the petitioners before taking cognizance. On the
other hand, the learned Magistrate took cognizance by a detailed speaking
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Crl.O.P.No.28409 of 2017
order on 27.11.2017, on the additional final report filed by the respondent.
It is apathy to see that the Magistrate in his order dated 14.12.2017 observes
that the order of the Apex Court dated 01.12.2017 perused and as directed
by the Apex Court, the Trial Court has already applied its mind and passed a
detailed order on 27.11.2017 itself. Further, it is stated that the directions of
the Hon'ble Supreme Court was strictly complied with in letter and spirit
before taking cognizance. It is apparent that the order of the Apex Court is
dated 01.12.2017 and the cognizance order passed by the Magistrate is
much earlier on 27.11.2017 which is not proper.
18.Further, the learned senior counsel appearing for the first
petitioner/A2 submitted that it would suffice to set aside the cognizance
order by directing the learned Chief Judicial Magistrate, Tiruppur to hear the
first petitioner/A2, consider the documents and materials produced before
taking cognizance.
19.The learned senior counsel appearing for the second petitioner/A6
submits that apart from setting aside the cognizance order, on the facts and
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Crl.O.P.No.28409 of 2017
merits of the case, no case is made out as against the second petitioner. The
case proceeds against the second petitioner only on surmises and
conjunctures. The Government Examiner of Questioned Documents,
Hyderabad in his report confirms that there is nothing against the second
petitioner. The Director of Ramanujan Computing Centre, Anna University
in his report confirm the font size in his report. He further submitted that
no material is available against the second petitioner/A6. Due to
professional jealousy, the officials of Tamil Nadu Forensic Science
Laboratory falsely implicated the second petitioner. The second
petitioner/A6, a Scientist with credential is well known, he is an authority in
his subject, submitted several articles, published books, a visiting faculty to
several Institutions, a Guest Lecturer and an excellent Trainer in the field of
Forensic Science.
20.The learned Additional Public Prosecutor referred to several
witnesses, more particularly from the Forensic Science Department stating
that they were approached by the second petitioner/A6, the presence of the
first petitioner/A2 along with A7 is spoken by witnesses, they were also seen
along with the second petitioner/A6.
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Crl.O.P.No.28409 of 2017
21.Though that will not alone be sufficient for the second petitioner to
be the reason for the forged forensic report, this Court restrains from further
dwelling into the veracity of the document or statement of witnesses
considering the limited prayer seeking to set aside the order passed by the
learned Chief Judicial Magistrate taking cognizance by order dated
27.11.2017. It is not in dispute that the learned Chief Judicial Magistrate
taken cognizance, issued summons to the petitioners even before looking at
the order of the Apex Court. The order of the Apex Court is dated
01.12.2017 and the cognizance order is much earlier which is dated
27.11.2017. It is the duty of every Court to follow the orders of the Apex
Court in letter and spirit, any violation of the same would amount to
violating Article 142 of the Constitution of India. In view of the same, this
Court is inclined to set aside the order passed by the learned Chief Judicial
Magistrate taking cognizance of the case.
22.Accordingly, the order passed by the learned Chief Judicial
Magistrate, Tiruppur in C.M.P.No.940 of 2017 dated 14.12.2017 is set
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Crl.O.P.No.28409 of 2017
aside. The Trial Court is directed to hear both the petitioners/A2 and A6,
consider the submissions and materials produced and thereafter, pass
appropriate orders. The Judicial order to reflect the application of mind. It
is made clear that the observations made herein with regard to the merits of
the case is only for the limited purpose of disposing of the above petition, the
Trial Court dispassionately to dispose of the petition filed by the petitioners
uninfluenced by the observations made herein.
23.With the above directions, the Criminal Original Petition stands
allowed. Consequently, connected miscellaneous petitions are closed.
27.05.2022
Index : Yes/No
Internet: Yes/No
cse
To
1.The Inspector of Police,
CBCID Tiruppur,
Tiruppur District.
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Crl.O.P.No.28409 of 2017
2.The Chief Judicial Magistrate,
Tiruppur.
3.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.28409 of 2017
M.NIRMAL KUMAR, J.
cse
Pre-delivery order made in
Crl.O.P.No.28409 of 2017
27.05.2022
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