AI Structured Summary
Not yet generated for this judgment
Judgment
Janarthanam, J.—In respect of the transaction that took place on 21.5.1992 at Sriperumpudur in which our lamented former Prime Minister
Rajiv Gandhi was gruesomely done to death, a case in Cr. No. 329 of 1991 had been registered by the Station House Officer, Sriperumpudur on
22.5.1991. The Government of India, it is said, passed an order in Notification No. 228/28/91-AVD . II dated 23.5.1992, transferring the
investigation in respect of the said transaction to the Central Bureau of Investigation in pursuance of the notification issued by the Government of
Tamil Nadu which is as follows:
In pursuance of the provisions of Section 6 of the Delhi Special Establishment Act, 1946 (Central Act 25 of 1946), the Government of Tamil
Nadu is pleased to accord consent to the extension of powers and jurisdiction of the Members of the Delhi Special Police Establishment in the
whole of the State of Tamil Nadu for the investigation of offences punishable u/s s. 302,307,326 IPC and u/s s. 5 and 6 of the Indian Explosive
Substances Act and attempts, abetments and conspiracies in relation to or in connection with the said offences and any other offence committed in
the course of the same transaction arising out of the same facts in regard to case in Crime No. 329/91 of Sriperumbudur Police Station, Chengai-
Anna (West) District, in the State of Tamil Nadu.
After transfer, investigation had been taken up by the Central Bureau of Investigation (in short ''C.B.I'') on 24.5.1991 and a case had been
registered by them as R.C. No. 9 of 1991. Thereafter, relentless investigation, it is said, had been undertaken by them. One, Aathirai, it is said, had
been arrested by the C.B.I, on 4.7.1991 at Delhi and she had been produced before the Chief Metropolitan Magistrate, New Delhi and police
custody had been obtained for a specified period and thereafter she had been produced before the Designated Court at Madras on 2.8.1991.
Thereafter, time and again, it is said, she had been produced before the Designated Court for the extension of her remand. She, it is said, had given
a voluntary confession statement to the Superintendent of Police, C.B.I., on 29.8.1991 u/s 15 of the Terrorist and Disruptive Activities Act.,
On 5.3.1992, she was stated to have filed an affidavit in M.P. No. 204 of 1992 riesling from the confession statement she had made before the
Superintendent of Police, C.B.I. On 2.4.1992, she filed an application in Crl.M.P. No. 1000 of 1992 on the file or the Chief Judicial Magistrate,
Chengalpattu, impleading the Deputy Superintendent of Police, C.B.I., Mallikai, Madras as Respondent, praying for her statement to be recorded
u/s 164 of the Criminal Procedure Code. In that application, apart from riesling her confession statement made before the Superintendent of
Police, C.B.I., she had also stated that certain important people belonging to the All India Congress Commit tee were the brain behind the entire
operation of murder of our late lamented former Prime Minister. Learned Chief Judicial Magistrate, Chengalpattu, after hearing the arguments of
both sides, dismissed the application by order dated 28.5.1992. Aggrieved by the said order, Aathirai preferred this Criminal Revision case No.
209 of 1992 on the file of this Court.
Subsequent to the dismissal of Crl.M.P. No. 1000 of 1992, she, it is said, preferred a complaint on 3.6.1992 through the jail authorities, to the
Inspector of Police, Sriperumpudur Police Station, which was stated to have been not yet registered, the consequent of which was that again she
complained of the same to the Supreintendent of Police, Chengai M.G.R. District, Kancheepuram, again through the jail authorities. Since no
action was taken either by the Inspector or by the Superintendent of Police, she preferred a petition in Crl.O.P. No. 9260 of 1992 on 7.7.1992
impleading the Inspector of Police, Sriperumbudur Police Station and the Superintendent of Police, Chengai M.G.R. District as Respondents u/s
482 of the Criminal Procedure Code, 1973, seeking a direction to register the case on the complaint said to have been given by her and deal with
the case according to law producing thereby a copy of the complaint. The complaint so produced reveals not only riesling her confession statement
before the Superintendent of Police, C.B.I., but also contains specific details by making a reference to one Kalyanaraman, Manager of the All
India Congress Committee, Delhi, being the brain behind the entire operation of the murder of late lamented former Prime Minister Rajiv Gandhi.
The said Crl.O.P. 9620 of 1992 was originally listed for admission on 28.7.1992 and it was a journey time and again and ultimately it was
brought to the notice of this Court the pendency of the revision in respect of the same matter in Crl.R.C. No. 209 of 1992 and consequently both
the revision and Crl.O.P. No. 9620 of 1992 were directed to be posted for disposal together. Coming to know of the filing of Crl.O.P. No. 9620
of 1992, the Superintendent of Police, S.I.T., C.B.I., Madras, filed an application in Crl.M.P. No. 5808 of 1992 praying to implead him as a party
Respondent in Crl.O.P. No. 9620 of 1992.
Arguments in all these matters were heard today (24.9.1992).
From the back drop of the summation of the case, it is rather crystal clear that the fact that was sought to be achieved by Aathirai either by the
prayer for her statement to be recorded u/s 164 of the Code of Criminal Procedure by the Magistrate or by the registration of a case by the
Inspector of Police, Sriperumpudur, is one and the same. That is to say, her confession before the Superintendent of Police C.B.I. is the resultant
product of torture and what not and the persons behind the operation are relatable only to congress party in the helm of affairs of that party. As
adverted to earlier, there is no pale of controversy that the investigation had been relatable to the transaction that took place on 21.5.1991 at
Sriperumpudur, registered as a case in Cr. No. 329 of 1991, had been transferred to the C.B.I, by the Central Government with the Consent or
the Government of Tamil Nadu. Yet another fact about which there is no dispute, is that the C.B.I. after completion of the investigation filed a final
report u/s 173(2) of the Criminal Procedure Code before the Designated Court and in the said case Aathirai is arrayed as sixteenth accused. It is
only to set up a defence in the case pending before the Designated Court, it appears that she apart from riesling her confession statement said to
have been given to the Superintendent of Police, C.B.I., having been resiled by filing an affidavit in M.P. No. 204 of 1992 also resorted to file an
application in Crl.M.P. No. 1000 of 1992 before the Chief Judicial Magistrate, Chengalpattu and filed a complaint before the Inspector of Police,
Sriperumpudur and followed it up by another complaint to the Superintendent of Police, Chengai M.G.R. District and no action having been taken
on such complaint, she had resorted to file Crl.O.P. No. 9620 of 1992.
Section 164 of the Code of Criminal Procedure deals with recording of confessions and statements. Sub-section (1) of Section 164, Code of
Criminal Procedure prescribes as follows:
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made
to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the
commencement of the inquiry or trial.
From the wordings of the section as extracted above, it is very crystal clear that the Magistrate is having the discretion to record confession or
other statement at any stage of the proceedings before the commencement of enquiry or trial. The discretion inherent in the Magistrate has to be
exercised on sound judicial principles and he cannot be expected to exercise such power in any manner he likes in the sense of recording the
confession or other statement, the moment any person going before him for such a purpose. No doubt, true it is as stated across the bar, the trial of
the case is yet to commence. Therefore, there is no legal bar for the recording of confession or other statement from Aathirai. But, the moot
question is whether in the circumstances of the case such a course would be warranted.
Learned Chief Judicial Magistrate, before whom such a prayer had been made actually turned down the prayer in exercising the discretion, in
the best of fashion possible by resorting to give valid and tenable reasons. While penning down the order, he had taken notice of the chronological
events that had followed prior to the filing of the petition before him. After taking notice of such events, he would also express the purpose for
which the present action had been resorted to. He would say in express terms that the present action had been resorted to obviously as a defence
that she would be setting up in the trial she has to face. Learned Chief Judicial Magistrate, obviously being conscious of the fact that if he allowed
the recording of such a confession or statement or by whatever name it is to be called has stated that it is nothing but an abuse of process of court
and perhaps in that view of the matter he was impelled to refuse the prayer and consequently dismissed the petition. In such circumstances, I am
not prepared to hold that learned Chief Judicial Magistrate has acted illegally or with material irregularity in the exercise of jurisdiction.
My attention had been drawn to the case in Cases v. King (1948 M.W.N. 81) by Mr. P. Rajamanickam, learned Special Public Prosecutor.
In that case, a similar question like the one that we have on hand arose for consideration and in that context a learned Judge of this Court
expressed thus:
It is not obligatory on a magistrate to record the statement of an individual u/s 164 Code of Criminal Procedure Simply because an application is
made to him that such a statement may be necessary in an inquiry or trial that may develop as a result of an investigation. Any person who feels that
he has useful information to give in connection with an investigation will '' have to contact the investigating police officers and impart that information
to such investigating staff.
It is not necessary that the magistrate must be moved by the police in order that he might record a statement, and if a magistrate records a
statement and transmits the same to the court where the enquiry or trial is to go on, there is nothing wrong in his action. But such a thing will be
very exceptional. When a private party seeks to invoke this power the magistrate has a very wide discretion in acting or refusing to act.
Criminal Revision Case No. 209 of 1992, as such deserves to be dismissed and is accordingly dismissed.
Entrustment of the function of investigation is indisputably an executive power of the State to be discharged through the medium of the police
personnel and the State, in exercise of such a function, is having the necessary and requisite power to order for the transference of an investigation
from a regular investigating agency within whose jurisdiction the offence took place to another agency, as has been held by the Privy Council in
AIR 1945 18 (Privy Council) and approved by the Supreme Court in very many decisions.
In the case on hand, as already referred to the investigation is relatable to the transaction that took place on 21.5.1991 at Sriperumpudur
registered as Cr. No. 329 of 1991 and had been transferred by the Central Govt. with the Consent the State Government utilising its power to the
C.B.I, which also after such transfer, had taken up the investigation, completed it and filed a final report before the Designated Court, which
numbered it as C.C. No. 3 of 1992. When such is the case, it goes without saying that no other agency can have any power of investigation
relatable to the said transaction. The investigation that is now sought for by Aathirai is with reference to her complaint stated to have been given on
3.6.1992 to the Inspector of Police, Sriperumpudur, who in such circumstances cannot at all enter into the arena of investigation of this case.
In such circumstances, Crl.O.P. No. 9620 of 1992 also deserves dismissal even at the admission stage and is accordingly dismissed.
It goes without saying that once Crl.O.P. No. 9620 of 1992 is dismissed, even at the admission stage, there is no need to pass any order in
Crl.M.P. No. 5808 of 1992. Hence this petition is disposed of accordingly.