Allowed

J.Sabura v. State Rep by

Madras HC2 Nov 2023CRL OP/4669/2021

Case brief

AI extract

What is this about?

The High Court of Madras allowed a Criminal Original Petition under Section 482 Cr.P.C. to quash CC.No.1024 of 2011. The Court held that the proceedings were unsustainable due to a closure report by the investigating agency, investigative faults by the prior investigation officer revealed by an independent inquiry, and the closing of the FIRs as undetected.

What did the court decide?

The entire proceedings in CC.No.1024 of 2011 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai is quashed and the criminal original petition is allowed.

J.Sabura Vs State Rep by — Cheque Dishonour | Madras HC (2023)

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Crl.OP.No.4669 of 2021

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'IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 02.11.2023

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CORAM:

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THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

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Crl.OP.No.4669 of 2021 and Crl.MP.Nos.2974 & 2975 of 2021

J.Sabura

... Petitioner

Vs.

1.State rep. by The Inspector of Police, R-10, MGR Nagar Police Station, Chennai 600 083 crime No.742 of 2010

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2.State Rep.by Inspector of Police, Crime Branch CID, Metro Wing, Egmore, Chennai-8 crime No.1 of 2012 3.S.Jainulabhudin ... Respondents

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PRAYER :

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Criminal original petition is filed under Section 482 of Cr.P.C. to call for records relating to CC.No.1024 of 2011 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai and to quash the same.

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https://www.mhc.tn.gov.in/judis

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Crl.OP.No.4669 of 2021

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For Petitioner : Mr.S.N.Arunkumar For Respondents For R1 & 2 : Mr.A.Gopinath, Government Advocate(Crl.side) For R3 : No appearance

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ORDER

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This Criminal Original Petition has been filed to quash the

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proceedings in CC.No.1024 of 2011 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai taken cognizance for the offences under Section 380 of IPC as against the petitioner.

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On the complaint lodged by the third respondent, the first respondent registered FIR in crime No.742 of 2010 for the offences punishable under Section 380 of IPC. The crux of the complaint is that on 23.07.2010 at about 11.00 a.m., when the defacto complainant and his wife were about to proceed to their relatives' house by wearing jewels, they opened the beero and found that the jewel box was opened and 45 ½ sovereigns jewels were missing. In pursuant to the registration of FIR, the petitioner was arrested and remanded

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to judicial custody on 14.01.2011. On the confession statement of the

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https://www.mhc.tn.gov.in/judis

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Crl.OP.No.4669 of 2021

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petitioner, 45 sovereigns of gold ingots was recovered from her. Subsequently, she was released on bail and 45 sovereigns of gold ingots was returned to the third respondent by way of return of property in Crl.MP.No.286 of 2011 dated 19.01.2011 without even ordering notice to the petitioner. Therefore, the mother of the petitioner lodged complaint before the Commissioner of Police on 28.01.2011 alleging that the first respondent who is the Investigation Officer had taken purchase bills of gold jewels for 80 sovereigns from the petitioner's mother and had seized 60 sovereigns of gold jewels from locker of Abdul Azeez who is the brother in law of the petitioner's sister and converted into gold ingots as 45+10+5 sovereigns with the help of one Mahaveer. Thereafter, the first respondent had misappropriated balance 15 sovereigns of jewels. However, there was no action and as such, the petitioner's mother approached this Court in WP.No.6613 of 2011. This Court, considering the facts and circumstances, ordered for enquiry by CBCID i.e. the second respondent herein. The relevant portion of the order is extracted hereunder:

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“28.In the light of the aforesaid decisions and also in view of the fact, more particularly, taking into account the supporting affidavits of Ameer Abbas and Abdul Aziz and also the fact of not taking any statement from Abdul Hakkim by Additional Deputy Commissioner and not tracing the conversation details in the cell phone of Abdul Aziz and Ameer

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Crl.OP.No.4669 of 2021

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Abbas and the tenth respondent on 13.01.2011 and not examining the then Branch Manager of State Bank of India, Vadapalani Branch, who was on duty on 13.01.2011, I am of the view that there is prima facie case made out by the petitioner for investigation on the allegations made against the tenth respondent that 60 sovereigns of jewels were taken away by him. Hence, it requires an investigation by an independent agency. I am, therefore of the view that the investigation shall be entrusted to CBCID, Tamil Nadu.

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29.Accordingly, the Additional Director General of Police, CBCID, Chennai is directed to depute a responsible person not below the rank of an Inspector of Police to enquire into the complaint of the petitioner dated 28.01.2011 against the tenth respondent on registering FIR against the tenth respondent. The Additional Director General of Police, CBCID, Chennai is also directed to supervise the investigation. The tenth respondent is directed to hand over all the papers to the Investigating Officer of CBCID for the purpose of carrying out the investigation. The investigation shall be completed within a period of three months from the date of receipt of a copy of this order.

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30.It is made clear that the tenth respondent could proceed further against Safura in Crime No.742 of 2010. It is now stated that charge sheet was filed and no witnesses were examined. That case could proceed in accordance with law and

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Crl.OP.No.4669 of 2021

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the same could not come in the way of the direction that was issued above.”

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Though this Court ordered for investigation to be done by the CBCID, this Court specifically directed the first respondent to proceed further as against the petitioner in pursuant to registration of crime No.742 of 2010. Further, even at the time of passing order, the first respondent filed final report in crime No.742 of 2010 and the same has been taken cognizance by the trial court in CC.No.1024 of 2011 on the file of the XI Metropolitan Magistrate, Saidapet, Chennai. As directed by this Court, the second respondent herein registered FIR in crime No.1 of 2012 as against the first respondent. However, during the enquiry, no witnesses supported the case of the second respondent and as such, by an order dated 16.09.2014, the Additional Director General of Police, CBCID ordered for further investigation in crime No.742 of 2010 registered for the offence under Section 380 of IPC on the file of the first respondent herein. The second respondent investigated both the FIR's registered in crime No.742 of 2010 and crime No.1 of 2012. After completion of investigation, the second respondent closed the FIR in crime No.742 of 2010 as undetected one. Insofar as the crime No.1 of 2012 is concerned, in the absence of mens rea and lack of intention for wrongful gain, based upon the

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Crl.OP.No.4669 of 2021

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collected materials, the second respondent decided to proceed with a departmental action for major penalty for the committed irregularities against the Investigation Officer. However, the said report was not accepted by the trial court i.e. XI Metropolitan Magistrate, Saidapet, Chennai and ordered for further investigation by an order dated 19.10.2016. Aggrieved by the same, the Investigation Officer in crime No.742 of 2010 filed revision before this Court in Crl.RC.No.129 of 2017. This Court by an order dated 02.08.2018, allowed the revision and set aside the order passed by the trial court. Therefore, the closure report filed by the second respondent was restored. Hence, on the basis of the final report submitted by the first respondent, the trial court had taken cognizance in CC.No.1024 of 2011.

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Therefore, in view of the closure report filed by the second respondent, the final report submitted by the first respondent and the further proceedings in CC.No.1024 of 2011 cannot be sustained and it is liable to be quashed.

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Accordingly, the entire proceedings in CC.No.1024 of 2011 on the

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file of the learned XI Metropolitan Magistrate, Saidapet, Chennai is quashed

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Crl.OP.No.4669 of 2021

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and this criminal original petition is allowed. Consequently, connected

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miscellaneous petitions are closed.

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02.11.2023

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Index :Yes/No Internet : Yes/No Speaking order/non-speaking order lok

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1.The learned XI Metropolitan Magistrate, Saidapet, Chennai 2.The Inspector of Police, R-10, MGR Nagar Police Station, Chennai 600 083 3.Inspector of Police, Crime Branch CID, Metro Wing, Egmore, Chennai-8 4.The Government Advocate, High Court of Madras

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Crl.OP.No.4669 of 2021

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G.K.ILANTHIRAIYAN, J.

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lok

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Crl.OP.No.4669 of 2021

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02.11.2023

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J.Sabura v. State Rep by

Case brief

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J.Sabura v. State Rep by

Case brief

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