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K.G.Subramanian Vs the Deputy Superintendent of Police — Quashing and FIR | Madras HC (2023)

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Madras HC
2023
K.G.Subramanian Vs the Deputy Superintendent of PoliK.G.Subramanian v. the Deputy Superintendent of Police

Allowed

K.G.Subramanian v. the Deputy Superintendent of Police

Madras HC13 Jun 2023CRL OP/1198/2021

Case brief

AI extract

What is this about?

The High Court quashed the final report filed by the Police in a case involving alleged atrocities and POCSO offences. The Court held that the National Commission for Scheduled Castes lacks jurisdiction to direct reinvestigation and that the Investigating Officer violated settled law by reinvestigating without court permission after a prior closure report.

What did the court decide?

The impugned final report was quashed and the connected Miscellaneous Petition was closed.

What the court decided

AI extract

Outcome

The impugned final report was quashed and the connected Miscellaneous Petition was closed.

Issue for consideration

Whether the National Commission for Scheduled Castes has power to direct the Investigating Officer to reinvestigate a criminal case filed under Section 482 CrPC? +1 more

Detailed headnote1 paragraphs

The power to direct reinvestigation or investigation de novo is vested exclusively with Superior Courts under Section 482 CrPC and Article 226 of the Constitution. The National Commission for Scheduled Castes has no such power. An Investigating Officer cannot reinvestigate a case contrary to a prior closure report without obtaining permission from the Superior Court. An Impugned final report filed in violation of this principle is liable to be quashed.

A compact analysis

This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.

A

Crl.O.P.No.1198 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 13.06.2023

CORAM

THE HONOURABLE MR. JUSTICE SUNDER MOHAN Crl.O.P. No.1198 of 2021 & Crl. M.P.No. 730 of 2021

K.G.Subramanian ... Petitioner

Vs.

1.The Deputy Superintendent of Police, Erode Sub Division, Crime No.476 of 2018, Chennimalai Police Station, Erode District.

2.C.Prema

... Respondents

PRAYER: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, to call for the records relating to criminal case in Spl. S.C.No.16 of 2020 pending on the file of the learned Sessions Judge, Fast Track Mahila Court, Erode, quash the same by allowing this Criminal Original Petition.

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For Petitioner : Mr. N.Manokaran For Respondent 1 : Mr. S.Balaji Government Advocate (Crl. Side) For Respondent 2 : No Appearance.

O R D E R

The petition is filed to quash the final report filed for the alleged offences under Section 352 IPC, Section 3 (1) (w) (i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 and Sections 9 (n) and 10 of the Protection of Children from Sexual Offences Act , 2012.

It is alleged in the final report that the petitioner had misbehaved with the defacto complainant, who was working in the petitioner's house by touching the hands and breasts of the defacto complainant and thus he had committed the aforesaid offences.

Though the 2^nd respondent has been served, none has appeared for the 2^nd respondent. Therefore, this Court directed the learned Additional Public Prosecutor to instruct the 1^st respondent to inform the defacto

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complainant about the pending proceedings. On instructions, the learned Additional Public Prosecutor submitted that the 1^st respondent had informed the defacto complainant about the pending proceedings. However, the defacto complainant has chosen not to appear before this Court.

a) Mr. N.Manokaran, learned counsel for the petitioner would submit that the impugned final report is liable to be quashed mainly on the ground that the 1^st respondent was not competent to file the impugned final report since, he had filed a final report earlier closing the case as “ mistake of fact ”. The 1^st respondent had given elaborate reasons for coming to the said conclusion. While so, without any notice to the petitioner, the 1^st respondent re-investigated the case and filed the impugned final report, which is diametrically opposite to the earlier report filed by him.

b) The learned counsel would further submit that the 1^st respondent had no authority to re-investigate the case as held by the Hon'ble Supreme Court in number of cases, including the Judgement reported in 2016 (4) SCC 160 – Dharam Pal Vs. State of Haryana and others . Since the 1^st respondent had violated the settled position of law, the impugned final report is liable to be quashed.

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Per contra, the learned Government Advocate (Crl. Side) submitted

that pursuant to the closure report filed by the 1^st respondent, it appears that one Nartharsha Malim.H, State Corordinator – Tamil Nadu, Bachpan Bachao Andolan - BBA had approached the National Commission for Scheduled Castes, complaining about the action taken by the 1^st respondent in closing the case as “mistake of fact” . The National Commission for Scheduled Castes in their meeting held on 23.09.2019 observed that the 164 statement of victim child along with the other evidences of the child line volunteers prima facie discloses the commission of offences and also suggested that action should be taken against the Investigating Officer. The National Commission for Scheduled Castes further recommended that the case be re-investigated and the accused persons should be identified and arrested under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 . The learned Government Advocate (Crl. Side) submitted that therefore the 1^st respondent Police had to re-investigate the case and file the impugned final report. The learned Government Advocate (Crl. Side) further submitted that hence, the impugned final report cannot be quashed.

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This Court on perusal of the impugned final report and the earlier

closure report filed by the 1^st respondent Police finds that the 1^st respondent had given elaborate reasons for disbelieving the case of the de facto complainant. It is needless to state that the Investigating Officer shall not act as a mere Post Office. The purpose of the investigation is to ascertain the truth and form an opinion as to whether the version of the complainant is true or not . The 1^st respondent had done such an exercise and closed the case on 04.02.2019. The 1^st respondent dealt with each of the allegations made against the petitioner independently, and filed a detailed closure report. Finally, the first respondent concluded as follows:

11/// thjp gpnukh jhH;j;jg;gl;l rhjpiar; nrh;e;jth; vd;gjhy; K:is tsh;r;rp Fd;wpa Rg;gpukzpapd; kfd; Mjpuhk; vd;gtiu guhkhpf;f ,Ue;J te;jth; Rg;gpukzpad; tPl;oy; ,Ue;J jd; jhahh; j';fkzp tpl;ow;F te;Jtpl;ltiu gpnukhtpd; jhahh; j';fkzp kPz;Lk; Rg;gpukzpapd; tPl;ow;F mtuJ kfd; Mjpuhik ghh;f;f bry;Yk;go brhy;ypajpy; thjp gpnukhtpw;F m';F bry;y tpUg;gk; ,y;yhjjhy; <nuhL iry;L iyid nrh;ej rK:f Mh;tyh; bIa_ vd;gthplk; bjhptpj;Jk;. ; gpd;g[ <nuhL iry;L iydpy; gzpg[hpa[k; mzp

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cWg;gpdh;fs; jpt;ah. g[tnd!;thp jd;dhh;tyh g[co;gh ; Mfpnahhplk; bjhptpj;jjpy; bIa_. jpt;ah. g[tnd!;thp. g[co;gh Mfpnahh; thjp gpnukh K:yk; Rg;gpukzpapd; kfd; Mjpuhik mth; tPl;oy; ,Ue;J ghh;j;Jf;bfhz;lJ gw;wpa jfty;fis nfl;L bjhpe;J nkw;go egh;fs; <nuhL iry;L iydpy; gzpg[hptjhy; FHe;ij bjhHpyhsh;fs; rl;lk;. bfhj;joik rl;lk; td;bfhLik rl;lk;. ghypay; td;bfhLik rl;lk; Mfpa rl;l';fSf;F jFe;jhw;nghy; cz;ikf;F khwhd kpifg;gLj;jg;gl;l rk;gt';fis vGjp jahh; bra;J mjpy; thjp gpnukhtpd; ifbaGj;J bgw;W g[fhh; mspj;Js;sJ bjhpatUfpwJ/ tHf;fpd; g[yd; tprhuizapy; thjp gpnukh g[fhhpy; brhy;yp cs;sJ nghy; rk;gtk; ele;jjhf ve;j rhl;rpa[k; brhy;ytpy;iy/ thjp g[fhhpd; nghpy; g[yd; tprhuiz Kotpy; Fwpg;gpl;L ve;j Fw;wr;rhl;Lk; jhf;fy; bra;a ,ayhJ/

thjp gpnukhtpd; g[fhhpy; nghjpa rhl;rpak; ,d;wp ePjpkd;wj;jpy; epU:gpf;f ,ayhj epiyapy; tYtpGe;J fhzg;gLtjhy; ,t;tHf;fpy; rk;gtj;ij bghWj;j kl;oy; bghUz;ik gpiHahdJ (MISTAKE OF FACT) vd tHf;if Kot[ bra;J bfhs;syhk; vd <nuhL khtl;l mkh;t[ ePjpkd;w muR

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tHf;fwp"h; rl;l fUj;Jiu tH';fp cs;shh;. vdnt thjp kw;Wk; rk;gtk; bjhlh;g[ila rhl;rpfspd; thf;FK:yk; midj;ija[k; ghprPyid bra;jjpypUe;Jk; khtl;l mkh;t[ ePjpkd;w muR tHf;fwp"hpd; rl;lf; fUj;Jg;goa[k; ,t;tHf;F rk;gtj;ij bghWj;jkl;oYk; cz;ikf;F g[wk;ghd tHf;F vd Kot[ bra;J RCS 01/2019 - d; go rhh;g[ bra;J tHf;fpy; nky; eltof;if Kof;fg;gl;L ,Wjp mwpf;if rkh;g;gpf;fg;gLfpwJ. thjp gpnukh jhH;j;jg;gl;l tFg;ig rhh;e;jth; vd;gjhy; tHf;F nfhg;gpid khtl;l Ml;rpahpd; tpHpf;fz;FGtpy; rkh;gpj;J khtl;l Ml;rpahpd; bray;Kiw cj;jut[ bgw;W tHf;F nfhg;g[ld; ,izf;fg;gLk;/

However, the National Commission for Scheduled Castes had recommended re-investigation. Based on the recommendation, the Superintendent of Police sent a letter to the Investigating Officer dated 23.10.2019 which reads as follows:

'' In the reference cited, it is instructed to re-investigated the FIR No. 476/2018 u/s 352 IPC, Act r/w 3 (1) (w) (i) of SC/ST

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(POA) and identified the accused person in the case and arrest them under POA SC/ST Act.

2) Hence, DSP, Perundurai Sub division is instructed to investigate the FIR No. 476/218 u/s 352 IPC, Act r/w 3(1) (w) (i) of SC/ST (POA) and identified the accused person in the case and arrest them under POA SC/ST Act and send compliance report within 15 days.''

On receipt of the above letter the very same Investigating Officer had re-investigated the case and filed a final report, which is exactly opposite to the earlier report. This Court finds that the subsequent report had not stated about the earlier report and as to why the impugned report is contrary to the earlier report.

In this case, the following questions arise:

(i) Whether the National Commission for Scheduled Castes has power to direct the Investigating Officer to reinvestigate the case?

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(ii) Even if such a direction is issued, whether the Investigating Officer can re-investigate the case without approaching the Superior Courts for permission to reinvestigate.

As regards the 1^st question, it is seen that the National Commission for Scheduled Castes derives its power from Article 338 of the Constitution of India and the Commissions of Inquiry Act, 1952. The Hon'ble Supreme Court in the Judgement reported in 1996 (6) SCC 606 – All India Indian Overseas Bank SC and ST Employees Welfare Association and others Vs. Union of India and others., had an occasion to consider the power of the National Commission for Scheduled Castes, which is traceable to Article 338 of the Constitution of India. The Hon'ble Supreme Court held that though the National Commission for Scheduled Castes had the power of Civil Courts for the purpose of conducting investigation or enquiry, they cannot be termed as Civil Court.

The Kerala High Court in the Judgement reported in 2020 SCC

Online Ker 2157 – Vimalan and another Vs. Kerala State Scheduled

Caste and Schedules Tribes Commission, had found that the Kerala State

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Scheduled Castes and Schedules Tribes Commission had no power to direct the authorities to conduct further investigation as per the provisions of Section 9 of the Kerala State Commission for the Scheduled Castes and the Scheduled Tribes Act, 2007.

Rule 7 (4) of the Rules of Procedure of the National Commission for Schedules Castes, provides for the procedure for Inquiry into Specific Complaints. Rule 7 (4) of the Rules of Procedure of the National Commission for Schedules Castes reads as follows:

“ 7.4 Inquiry into specific complaints

The Commission is required to inquire into specific complaints with respect to the deprivation of rights and safeguards of Scheduled Castes. In order to enable the Commission to perform this function effectively and efficiently, the Commission would like the members of Scheduled Castes to know that it will be helpful to inquire into their grievances if they substantiate their complaints with supporting documents and quote the relevant provisions of the Act or Rules or directions which have been violated.

7. 4.1 The following aspect may be kept in mind while filing complaints before the Commission-

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(a) The complaint should be directly addressed to the Chairman/Vice-Chairman/Secretary, National Commission for Scheduled Castes, New Delhi or the heads of its State Offices.

(b) The complainants should disclose his full identity and give his full address and should sign the representation.

(c) Complaints should be legibly written or typed and, where necessary, supported by authenticated documents.

(d) Complaints should clearly disclose the violation of Reservation policy, DOPT OMs, Government of India Orders, State Government Orders, PSUs and Autonomous Bodies orders or any other violation Rules of Reservation.

(e) No action will be taken on matters, which are subjudice. Hence subjudice matter need not be referred to the Commission as complaint(s).

(f) Cases pending in courts or cases in which a court has already given its final verdict may not be taken up afresh with the Commission.

(g) The cases of Administrative nature like transfer/posting/grading of ACRs will not be taken up by the Commission unless there is caste based harassment of petitioner.

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The above Rule 7.4.1 (e) and (f) would show that the Commission

shall not take up matters which are subjudice or where final orders have been passed by the Courts. Admittedly, in this case, the final report, closing the case, was filed before the Court. Thus, the Act does not confer any power on the National Commission for Scheduled Castes to order re-investigation. The Kerala High Court on the basis of similar provisions had held that, even further investigation cannot be directed by the Commission.

Further, it is well settled that the power to direct re-investigation is vested only with the Superior Courts. The relevant portion of the Judgement of the Hon'ble Supreme Court reported in 2016 (4) SCC 160 – Dharam Pal Vs. State of Haryana and others reads as follows:

“ 23. In the said case, the question had arisen whether a Magistrate can direct for re-investigation. While dealing with the said issue, the Court has observed:-

“At this stage, we may also state another well-settled canon of the criminal jurisprudence that the Superior Courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct

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“further investigation”, “fresh” or “de novo” and even “reinvestigation”. “Fresh”, “de novo” and “reinvestigation” are synonymous expressions and their result in law would be the same. The Superior Courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the Superior Courts very sparingly and with great circumspection.”

[Emphasis supplied]

And again:-

“Whether the Magistrate should direct “further investigation” or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct “further investigation” or “reinvestigation” as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation.”

24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be

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a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor.

25. We may further elucidate. The power to order fresh, de-novo or re-investigation being vested with the Constitutional Courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic setup has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that Sun rises and Sun sets, light and darkness, winter and spring come

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and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a Court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the ‘faith’ in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a Constitutional Court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the “tour de force” of the prosecution and if we allow ourselves to say so it has become “‘id’ee fixe” but in our view the imperium of the Constitutional Courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one’s wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an “orphan under law”.

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Therefore, this Court is of the view that the power of the Investigating Officer to ascertain the truth cannot be scuttled by such a direction by the Commission. The National Commission for Scheduled Castes has no jurisdiction to direct the respondent to conduct re-investigation. If the de facto complainant or any other person is aggrieved by a report filed by the Investigating Officer, they can challenge the same only by following the procedure prescribed by law. In any case, the respondent Police ought to have approached this Court seeking permission to conduct re-investigation even assuming that he was obliged to do so on the directions of the National Commission for SC/ST as per the law laid down by the Hon'ble Supreme Court referred above. He has not done so.

That apart, this Court finds that the reasons for not accepting the version of the de facto complainant in the earlier closure report are well founded and does not call for any inference. Further, in view of the procedural illegality committed by the respondent, the impugned final report is liable to be quashed and accordingly quashed.

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In the result, the instant petition is allowed. Consequently, the connected Miscellaneous Petition is closed.

13.06.2023

kan/dk Index : Yes/No Internet : Yes/No Neutral Citation :Yes/No

To 1.The Sessions Judge, Fast Track Mahila Court, Erode.

2.The Deputy Superintendent of Police, Erode Sub Division, Chennimalai Police Station, Erode District.

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SUNDER MOHAN. J,

kan/dk

Crl.O.P.No. 1198 of 2021

13.06.2023

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Issues for consideration

2 issues framed by the court

AI extract

1.
Whether the National Commission for Scheduled Castes has power to direct the Investigating Officer to reinvestigate a criminal case filed under Section 482 CrPC?
2.
Can an Investigating Officer re-investigate a case without approaching the Superior Courts for permission after a closure report was filed as a mistake of fact?

Cases cited

Colour shows how this judgement treated each authority

AI extract

Dharam Pal Vs. State of Haryana and othersRelied on¶24
2016 (4) SCC 160 – Dharam Pal Vs. State of Haryana and others · Who else cites this
All India Indian Overseas Bank SC and ST Employees Welfare Association and others Vs. Union of India and othersRelied on¶58
1996 (6) SCC 606 – All India Indian Overseas Bank SC and ST Employees Welfare Association and others Vs. Union of India and others
Vimalan and another Vs. Kerala State Scheduled Caste and Schedules Tribes CommissionRelied on¶61
2020 SCC Online Ker 2157 – Vimalan and another Vs. Kerala State Scheduled Caste and Schedules Tribes Commission · Who else cites this

Statutes considered

5 provisions across 4 enactments

AI extract

Criminal Procedure Code482
Constitution of IndiaArticle 226Article 338
Protection of Children from Sexual Offences Act, 20129
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 20153(1)(w)(i)

Parties & counsel

AI extract

petitioner
K.G. Subramanian
respondent
The Deputy Superintendent of Police, Erode Sub Division
respondent
C. Prema

Coram

AI extract

Sunder Mohan

Case details

As recorded by the court registry

Court: Madras HC
Decided on: 13 Jun 2023 · June
Registered: 25 Jan 2021
Case no.: CRL OP/1198/2021
CNR: HCMA010071442021
Topic: Quashing and FIR
Bench: Sunder Mohan
Disposal: ALLOWED

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Cite this judgement

K.G.Subramanian v. the Deputy Superintendent of Police, CRL OP/1198/2021 (MAD), decided on 13 June 2023.

The Madras High Court publishes no neutral citation for this judgement — cite it by case number and date of decision.

Cases cited3

Dharam Pal Vs. State of Haryana and othersRelied on¶24
All India Indian Overseas Bank SC and ST Employees Welfare Association and others Vs. Union of India and othersRelied on¶58
Vimalan and another Vs. Kerala State Scheduled Caste and Schedules Tribes CommissionRelied on¶61

Open Authorities

Statutes5

Criminal Procedure Code482
Constitution of IndiaArticle 226 · Article 338
Protection of Children from Sexual Offences Act, 20129
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 20153(1)(w)(i)

View all statutes

Bench / Coram

Sunder Mohan

Parties & counsel