Madras High Court Advocates' Association vs State of Tamil Nadu and Others

Jagadeesan, J.—The writ petition has been filed under Article 226 of the Constitution of India, in public interest, by the Madras High Court Advocates'' Association, represented by its Honorary Secretary, relating to the attack of an Advocate Mr. R. Shanmugasundaram by certain miscreants, seeking for a direction, directing the criminal case registered by the Inspector of Police G.3 Kilpauk Police Station, Madras, the third Respondent herein, in Crime No. 895/95, be further investigated by the Central Bureau of Investigation, represented by its Director, New Delhi and for direction directing the first Respondent State of Tamil Nadu, represented by its Secretary to Government, Home Department to pay compensation of a sum of Rs. 50 lakhs to Advocate Mr. R. Shanmugasundaram.

The averments in the affidavit are as follows:

The Petitioner association is an incorporated body under the Societies Registration Act and from time to time the said association has taken up number of issues affecting the rights of the advocates in general and its member in particular. Mr. R. Shanmugasundaram is a member of the Petitioner association and was a former Additional Public Prosecutor in the High Court of Madras. He is the counsel on record for one Mrs. Subbulakshmi Jagadeesan, a prominent D.M.K. leader and former Minister, in C.C.5/92 pending before Designated Court No. II, Madras. He also appeared for some of the leaders in the D.M.K. party and defended the criminal defamation cases filed against them by the present Chief Minister of Tamil Nadu. He also appeared for the D.M.K. party in the case filed against the then Governor of Tamil Nadu for not sanctioning prosecution against the Chief Minister.

In the course of his professional work, he has been engaged to prepare, file and prosecute criminal proceedings against Ms. J. Jayalalitha in her personal capacity for certain acts of corruption which attract the provisions of Prevention of Corruption Act. He has gathered all relevant particulars in this behalf and has been working at, by drafting a criminal complaint to be filed before the Criminal Court against Ms. J. Jayalalitha, the present Chief Minister of Tamil Nadu. When Mr. R. Shanmugasundaram and another Advocate Mr. R.S. Bharathy were engaged in preparing the complaint, Mr. Shanmugasundaram received anonymous telephone calls on 28.5.1995 and on 29.5.95 holding out threat to his life. The caller gave out the names of some of the Law Officers of the State of Tamil Nadu. The complaint to be filed against the Chief Minister came to be almost finalised on 30-5-1995, on which day he was at work with another advocate Mr. R.S. Bharathy. While they were thus engaged in work, a pseudonymous call on telephone was received to ascertain his presence and the caller gave out his name as Ramesh from Mannady, Madras-1. As the work was finalised, the said advocate Mr. R.S. Bharathy left the office. Soon thereafter, around 7.45 P.M. one Mr. Mohan, Junior of Mr. R. Shanmugasundaram came to inform him in the office on the upstairs of premises No. II, Professor Subramaniam Street, Kilpauk, Madras 10 that one Mr. Ramesh had come to see him. Before ever Mr. Mohan could finish his statement, four persons forced their way into his office room and shouted at him as follows:

So saying they started quite unexpectedly attacked Shanmugasundaram with iron rods and cut him with knife and those present could not prevent the attack as it took place all in a sudden and in a lightening speed.

Mr. Shanmugasundaram suffered grievous injuries and in fact it was an attempt on his life. The women " " mentioned by the assailants could only refer to the accused in the proposed criminal complaint i.e., Ms. J. Jayalalitha. The injured was admitted in the K.J. Hospital and he was kept in intensive care unit and only after three days he was declared as out of danger. The attack on the life of Mr. Shanmugasundaram was a premeditated one bearing direct nexus with the object of preventing the criminal complaint being filed against Ms. J. Jayalalitha, who is the present Chief Minister of Tamil Nadu. The direct nexus with the persons interested in preventing the filing of Criminal complaint against Ms. J. Jayalalitha is evident from the fact that closely following the report of the occurrence in the Press, a Minister in the Government of Tamil Nadu has chosen to issue a statement to the effect that-the assailants did not utter the words attributed to them, which had been confirmed at an earliest opportunity by the victim in his statement given to the police at 9.30 p.m. on the same day of occurrence. A Senior Police Officer has admitted the making of the statement but attempted to explain it away by saying that it might be intended to misdirect the investigation.

On 3.6.95, one Advocate Mrs. Ramani Natarajan wrote a letter to the Commissioner of Police, stating that she had received an anonymous phone call stating that the vehicle in which the culprits escaped was a blue Maruthi van and that belonged to one Sekar Babu of AIADMK political party, residing at Purusavakkam. Even after the receipt of the said letter, the police did not make any attempt to search for the vehicle and only on 7.6.95 they arrested the driver of Sekar Babu.

A similar case of attack on the life of another advocate Mr. K.M. Vijayan took place last year when the said Advocate was engaged in prosecuting a proceeding against the State of Tamil Nadu in which the Chief Minister Ms. J. Jayalalitha claimed that she had a stake. There were other instances where persons holding high Offices were attacked for raising voice to protest against the manner in which the Government under the specific direction of the Chief Minister was going about in the matter of disinvestment of shares in public sector giving rise to allegations of corruption. In all such cases, even though the crimes were registered by the police, no investigation was made. A close analysis of these cases will disclose unequivocally a pattern by which the police machinery as a whole, including all the top officers has been abused. Either there is no investigation worth its name carried out or make believe reports are prepared with a view to cover up the crime. In the case of K.M. Vijayan, the Supreme Court rejected the police report, finding that the police had deliberately shown to have arrested some lumpen elements and directed the C.B.I, to investigate into the crime. In Mr. R. Shanmugasundram''s case, though the F.I.R. was registered at 9.35 P.M. on 30-5-95, no appreciable progress is made in the investigation. It is a shocking state of affairs that no policemen visited the spot of occurrence on the same day. Apart from the pattern adopted by the State in the matter of investigation into crimes like this, as stated above, it stands to reason that a person who issued a public statement on 1.6.95 has personally interested in scuttling or otherwise cripple the investigation. The public statement made by a senior Police Officer lends support to such an inference. If the Respondents 2 and 3 are further expected to deal with the case, it may result in partisan investigation and will not help in booking the real culprits. The hand of State police is tied as the assailants enjoy part on age by the political party in power. Hence in the interest of justice, the investigation has to be entrusted to the fourth Respondent.

Under Article 21 of the Constitution of India, the State is expected to protect the life and livelihood of all persons. If it is not done, professional advocates will find it difficult to practise, as enjoined upon them by the Advocates Act and the Rules framed by the Bar Council of India. For the dastardly attack made against a practicing advocate, the State Government must be made to pay compensation, since only by compensating the victim, the mandate of Article 21 of the Constitution of India can be fulfilled.

W.M.P. 12518 of 1995 has been filed for an interim direction to the first Respondent to pay the medical expenses incurred by the injured advocate Mr. R. Shanmughasundaram for the injuries sustained by him.

On behalf of Respondents 1 to 3, the Joint Secretary to Government of Tamil Nadu, Home Department has filed the Counter. In the counter, Respondents'' 1 to 3 have denied the various averments made in the affidavit of the Petitioner and further stated that the counter is being filed to place on record the details of the investigation made by the State police machinery in order to justify that the State Police machinery have been discharging the statutory obligation in accordance with law and that there is no justification or necessity to have the investigation transferred to any external agency.

On 30-5-1995 the Sub-Inspector, of Police Mr. K.K. Murugesan who was on evening patrol at the junction of E.V.R. Salai and New Avadi Road, received information about the incident at 8.55 P.M. and immediately he proceeded to K.J. Hospital, recorded a statement from Mr. R. Shanmugasundaram. The said statement was attested by a doctor on duty. Thereafter the Sub-Inspector of Police proceeded to G.3 Kilpauk police station at 9.30 P.M. on the same day and registered a case in Crime No. 895/95 for offences under Sections 147, 148, 341, 452 and 307 I.P.C. The Inspector of Police of G.3 Police Station was on leave and Inspector of Police G.1. Police Station was incharge. The said Inspector of Police (incharge) was on patrol duty when he received the information through the control Room at 8.55 p.m. and he proceeded to K.J. Hospital, on reaching the K.J. Hospital, the Inspector of Police came to know that the Sub-Inspector of Police had recorded the statement and hence he proceeded to G.3 Police station and took up the further investigation. He visited the scene of occurrence at about 10.00 P.M. prepared rough sketch and observation mahazar which were attested by the Junior advocates of Mr. R. Shanmugasundaram. The scene of occurrence was photographed. The Investigating Officer got the detective dog to the scene of occurrence and utilised the services of the same. The Finger Print Experts were taken to the scene. After due search, they lifted certain finger prints and developed the prints. Between 10.50 P.M. and 11.30 P.M. material objects were seized and the eye-witness Mr. Bhaskaran and Mr. Mohan, Clerk and Junior advocate of Mr. R. Shanmugasundaram respectively and 13 other witnesses were examined and their statements were recorded. The investigation has been proceeded without any distortion or delay. Though several photographs have been shown to identify the culprits, on 6.6.95, Mr. R. Shanmugasundaram identified one Senthil, who was appearing in a group photo. The said Senthil was arrested on 14.6.95 and his confessional statement has been recorded from him. The Maruthi car alleged to have been involved in the incident was also seized. On the basis of the information furnished by the assailant Senthil, two other assailants were arrested and their confessional statements were also recorded on 14.6.95. The Police are taking necessary steps to arrest two other persons and the investigation has been properly done in a scientific manner and the Respondents are confident of nabbing the other accused shortly. As there is no lapse in the investigation, there is absolutely no warrant for the investigation to be handed over to the fourth Respondent. Further, the fourth Respondent is not empowered to take up the investigation in respect of the offences in question and there is absolutely no justification whatsoever for interdicting the statutory duties and obligations of the State Police machinery at this stage. The investigation into the offence is in progress and the motive of the attack would be a matter, which would be collected in the course of investigation and enquiry. So far as the investigation part is concerned, it has been swiftly initiated and sincerely pursued, leading to the arrest of three persons, one of whom has-been identified as the assailant by the injured. The State Police machinery had been pursuing the matter diligently bona fide, without any interruption or interference from anybody or authority.

So far as the claim of the Petitioner for compensation is concerned, the Respondents have stated that the same is not tenable in-law. The allegation made by the Petitioner that the state is vicariously responsible is not legally sustainable and that there are no circumstances present in this case to warrant allegations of vicarious responsibility or liability on the part of the State Government or any obligation on the part of the State Government to pay compensation to Mr. R. Shanmugasundaram and hence the claim of the Petitioner deserves to be rejected.

The Petitioner has filed a reply stating that the State has suppressed material facts which are available and have given a totally distorted version with the ulterior purpose. The significant omission is the statement made by the assailant at the time of the assault which has been truly recorded in the statement given by the victim at the earliest opportunity, which has been treated as F.I.R. The omission to provide the index to the mind of the investigating agency and all efforts appeared to have taken to divert the attention away from the motive flowing from the statement and that it is evident that the investigation is aimed at extricating Sekar Babu, who is a close relative of Mr. Madhusudhanan, the Cabinet Minister in the State of Tamil Nadu. He is related to be the brother of Mr. Madhusundhanan''s second wife. The allegations in paras 14, 15 and 16 of the counter affidavit is an attempt of the three Respondents to misdirect the investigation so as to screen the real culprits.

There was another Maruthi van also seen at or about the time of the occurrence near the place and the number plate has been changed and the arrest of Senthil and other persons named therein have not been on the date and in the manner stated in the affidavit. Very vital and relevant facts on the commission of the offence have been passed on to Mr. Sundaramurthy, the Deputy Commissioner of Police. This aspect of the case has been totally suppressed. It is within the knowledge of the Police Officers. Particularly Mr. Sundaramurthy, Deputy Commissioner of Police and Mr. Radhakrishna Raju, Joint Commissioner that the most important person among the persons who went to the scene of crime on 30.5.95 is Welding Kumar, who is involved in several criminal cases and about him the police have sufficient record. The said Welding Kumar was for a long time since the date of occurrence is under the protection of Joint Commissioner Mr. Radhkrishna Raju. The place where the conspiracy was hatched, the persons involved, the hiring of professional murderers, the amount involved in the bargain are all within the knowledge of the investigating agencies, including Joint Commissioner and the Deputy Commissioner. Senthil has disclosed the name of Welding Kumar long before and the names of other conspirators. From Welding Kumar statement has been obtained that the hiring took place by Sekar Babu at the instance of Minister Mr. Madhusudhanan, there are further information available which are very reliable about the attempt of the investigating agency to screen away the evidence and extricate the real culprits. The Joint Secretary has not whispered even a word about the surrender of three persons viz., Karunanidhi, Durai and Hari because the surrender was intended to wholly misdirect the investigation and if possible to put an end to the investigation by unscrupulous means. The facts stated in the reply has been gathered from a person having personal knowledge.

From the above stated facts, the points that arise for consideration are:

(i) Whether it is necessary that the investigation of the crime, which is the subject matter of the writ petition should be handed over to the C.B.I.?

(ii) Whether the first Respondent can be asked to pay compensation in the circumstances of the case?

(iii) Whether the interim direction, directing the first Respondent to bear the medical expenses of the victim Mr. R. Shanmugasundaram can be ordered?

Point No. (i): Mr. K.T. Palpandian, the Learned Counsel for the Petitioner contended that it is absolutely necessary that the investigation has to be handed over to the C.B.I, because three Ministers of Tamil Nadu are involved in the incident and the assailants had acted only on the instructions and at the instigation of the Ministers. When once the Ministers are involved and during the investigation either the witnesses or the assailants give any statement with regard to the involvement of such Ministers, then the State police may not record such statements as it is and they would immediately approach the higher authorities for appropriate direction. Further there is possibility that their statements may be omitted so far as the involvement of the Ministers. The Learned Counsel referred to the newspaper publications to establish his claim with regard to involvement of the two Ministers in the incident and referred to the statement given by the victim in respect of the other Minister. He further represent that the Petitioner has no grievance against the police officers or the investigating agency but the only apprehension is that inspite of the best efforts, the police authorities may not be able to discharge their functions to their fullest ability and be impartial in case during investigation the involvement of Ministers comes to light. What all the Petitioner wants is an unbiased and impartial investigation and it is not their claim that the assailants have to be convicted straight away on the basis of their statements. The investigation should bring forth the true culprits and once if the involvement of the Ministers comes to light, then naturally the investigation by the State agencies would be partisan and a distorted one because the State agency may not be in a position to book a case against the Ministers by virtue of their office. When in the earliest statement the victim has stated that the assailants had proclaimed that

from the paper report, the investigation reveals three different motives had been attributed by the assailants, which are as follows:

(1) The victim is interfering in the Real Estate business of Welding Kumar.

(2) The victim had received money and did not appear in cases. Hence enmity.

(3) The Victim''s interference in the assailant''s profession.

This would clearly show that the State Police agency has totally discarded the statement of the victim and they are trying to get the confessional statement from the arrested persons, giving distorted version in order to neglect the F.I.R. Hence the investigations has to be entrusted to the C.B.I. So far as the medical expense is concerned, the Learned Counsel for the Petitioner contended that in the medico legal cases, if the victim is admitted in the Government Hospital, they are getting free treatment. So far as the present victim is concerned, it is a brutal attack on him by four assailants with deadly weapons and the victims life was in danger and hence he was rushed to the nearby private hospital for treatment. Hence the medical expenses should be borne out by the state. So far as the compensation is concerned, since the State Government has failed to provide enough security to the individual at his residence, the assailants had entered into the house of the victim and acted in a free hand and attacked him. Hence the State Government is vicariously liable to pay compensation. this Court, under Article 266 of the Constitution of India, has got enormous power to direct the first Respondent to pay compensation irrespective of their liability or otherwise.

The learned Government Pleader Mr. Muthukumarasamy, with all politeness contended that the investigation is in progress and till the investigation is over, it cannot be said that the investigating agency has committed any lapse, especially when no lapse has been pointed out upto the present stage. Further he contended that the Court having pursued the case diary, can find out from the statements given by the assailants with regard to the involvement of the other persons, including the Ministers. The names of the Ministers had been dragged on in order to politicise the issue. More over the names of the Ministers and part played by them have not been given in detail in the affidavit and hence the Respondents have no opportunity to deal with the same in their counter. No arguments can be advanced without any plea and without giving an opportunity to the Respondents to controvert the same. The arguments with regard to the involvement of the ministers are advanced by the counsel only on the basis of the newspaper report which cannot be a basis for any conclusion. If the assailants have not-implicated any of the ministers in their confessional statement then the apprehension of the Petitioner that the State polled may not proceed with the investigation in a proper manner, is only a presumption. Further only if the investigation so far done by the State machinery is improper or inadequate, the Court can entrust the matter to a third party and if the case diary does not reveal any lapse, as stated above, then there is no need for the entrustment of the investigation to a third person and the State agency can be permitted to carry on and complete the investigation. Even after the completion of the investigation, it is open to the Petitioner to seek for the present relief because the third person has to investigate the matter afresh from the beginning. So far as the medical expenses are concerned, the learned Government Pleader represented that there are certain guidelines for the release of the funds from the Chief Minister''s Relief Fund and this case does not fall within the purview of such guidelines and hence the Government is not in a position to bear the medical expenses. With regard to the compensation, the Government Pleader contended that unless the State machinery is involved or any negligence is attributed to the State machinery, no compensation can be paid to the victim.

There is no dispute that Mr. R. Shanmughasundaram, a practicing advocate of this Bar had been brutally attacked by some unsocial elements on 30-5-95. The Petitioner, on behalf of the victim, has pleaded that the victim was attacked in discharge of his professional work. However, the prosecution is giving a different version i.e., there seems to be some personal enmity between the assailants and the victim. Even in other respects, with regard to the progress of investigation, there are disputed factual versions on behalf of the Petitioner and on behalf of the Respondents 1 to 3. Though it is a well laid principle that the disputed questions of fact cannot be decided in the writ proceeding under Article 226 of the Constitution of India, still I am of the view that in a given case this Court is entitled to go into the merits and demerits of the claim made by the parties to find out the truth of otherwise. But in this case, I am not proposed to deal with the facts in detail because the investigation is still pending and if I make any observation either way, it would naturally have a bearing on the future investigation. Hence, I refrain myself from making any comments on the manner in which the investigation has been proceeded so far. But, however, having gone through the case diary, I am bound to observe one thing i.e., so far, the investigation has been done by the police officials, in a proper manner and they have taken every steps to find out the culprits without much delay. Four assailants have been apprehended and confessional statement have been recorded from them. Those confessional statements do not throw any light on the apprehension of the Petitioner about the involvement of the Ministers. Two more assailants have to be apprehended. The Petitioner''s apprehension is that even if any statement is given about the involvement of the Ministers, the State Police Officials may not record the statement and they may distort the version and hence in order to get unbiased and non-partisan investigation, the matter should be entrusted to the C.B.I.

The Petitioner''s counsel relied upon the judgment reported in Gudalure M.J. Cherian and Others Vs. Union of India (UOI) and Others, , It is a case where three miscreants entered the premises through the kitchen by breaking open the window and assaulted the nuns before decamping with about Rs. 1.10 lakhs in cash. The complaint was lodged and after the investigation a charge sheet was filed. After filing the charge sheet, the Petitioner therein filed the writ petition for the entrustment of the matter to the C.B.I, stating that the police have not arrested .the true culprits. The Supreme Court ordered the petition with the following observations:

...We are also conscious that of late the demand for CBI investigation even in police cases is on the increase. Nevertheless--in a given situation, to do justice between the parties and to instill confidence in the public mind--it may become necessary to ask the CBI to investigate a crime. It only shows the efficiency and the independence of the agency.

...It is obvious from the affidavit of the Senior Superintendent, Police that the nuns who are victims of the tragedy are not coming forward to identify the culprits in an identification parade to be held by the Magistrate. The Petitioners on the other hand, have alleged that the four persons who have been set up as accused by the Police are not the real culprits and the police is asking the sisters to accept the four arrested persons as culprits. In the face of these averments and keeping in view the facts and circumstances of this case, we are of the view that ends of justice would be met if we direct the CBI to hold further investigation in respect of the offences committed between the night of July 12 and 13, 1990 as per the FIR lodged at Police Station, Gajraula.

In another case relied upon by the counsel for the Petitioner reported in Maniyeri Madhavan Vs. Inspector of Police, Cannanore, , the Petitioner therein moved the Supreme Court on earlier occasion when the Supreme Court directed the State agency to complete the investigation and the State agency also gave an undertaking to complete the investigation within a period of two months from the date of receipt of the representation. But, however, the State Government foiled to complete the investigation and the Petitioner had moved the Supreme Court once again. Since the State Government failed to obey the earlier orders of the court, the Supreme Court directed the matter to be entrusted to the C.B.I, with the following observation:

Since it appears appropriate that the conduct and progress of the investigation of the case is such as not to inspire confidence, we recall the operative part of our order dated 22.12.1989 and direct the C.B.I, to investigate the complaint of the Petitioner, complete the investigation and make a report to this Court within four months from today. All the records of the investigation including the representation filed by the Petitioner before Mr. Raman shall be transferred by the State to the C.B.I, promptly for further action.

I am of the view that this case may not be of any help to the Petitioner, as the Supreme Court had directed the matter to be investigated by C.B.I, totally on the inadequacy of the investigation by the State agency. In R.S. Sodhi Vs. State of U.P. and others, the Supreme Court has held as follows:

We have examined the facts and circumstances leading to the filing of the petition and the events that have taken place after the so-called encounters. Whether the loss of lives was on account of a genuine on a fake encounter is a matter which has to be inquired into and investigated closely. We, however, refrain from making any observation in that behalf; we should, therefore, not be understood even remotely to be expressing any view thereon one way or the other. We have perused the events that have taken place since the incidents but we are refraining from entering upon the details thereof lest it may prejudice any party but we think that since the accusations are directed against the local police personnel it would be desirable to entrust the investigation to an independent agency like the Central Bureau of Investigation so that all concerned including the relatives of the deceased may feel assured that an independent agency is looking into the matter and that would lend the final outcome of the investigation credibility. However, faithfully the local police may carry out the investigation, the same will lack credibility since the allegations are against them. It is only, with that in mind that we having thought it both advisable and desirable as well as in the interest of justice entrust the investigation to the Central Bureau of Investigation forthwith and we so hope that it would complete the investigation at an early date so that those involved in the occurrence one way or the other may be brought to book. We direct accordingly. In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice.

In Ramanathan v. State 1995 I L.W. (Cri.) 272, this Court has directed the investigation to be taken over by the C.B.I, in the following terms:

In a situation where prima facie, the police have not acted in a forthright manner in investigating the case registered on the complaint and wherever effort had been made to protect and shield the guilty officers, Courts have directed investigation by an independent agency Ref. Kashmeri Devi Vs. Delhi Administration and Another, . The Supreme Court further held that when the investigation was already completed ordinarily it should not be reopened but in order to do justice between the parties and to instill confidence in the public mind, directed investigation by the Central Bureau of Investigation. Ref. Gudalure M.J. Cherian v. Union of India 1982 MLJ (Cri.) 508. In another case, in order to uphold human values and to protect the rights guaranteed under the constitution, directions issued that C.B.I, should investigate and register case and prosecute the officers however high or law. Ref. Khedat Mazdoor Chetna Sangath v. State of M.P. 1994 SCC (Cri.) 1643. Whenever investigation by the State Police is lacking credibility, investigation by independent agency is always desirable and in such situation C.B.I, was directed to investigate. Ref R.S. Sodhi Vs. State of U.P. and others, .

When the complaint prima facie reveal that the officials intimidated and goaded the deceased and threatened her that she will have to face dire consequences and immediately thereafter she committed suicide, whether it could be said that the provocation incited the deceased to commit suicide and instigated her to do that act or actually suggested or stimulated the act by means of any language direct or indirect. When Officers omitted to prevent an act, which in normal circumstances, they are bound to do and exhibit both indifference and in-sensitiveness, there could be no worse act or lapse on their part. The accused, whether abetted the offence u/s 306 of Indian Penal Code or acted with common intention, has to be urged in the conspectus of the entire averments made in the complaint.

In this case this Court has exercised its discretion any power u/s 482 of the Code of Criminal Procedure on the ground that the police had tailed to register the case for nearly eight months and the witnesses were not examined and the officials had forcibly evicted the Petitioner therein, which was unwarranted and thereby the authorities have exceeded their powers and had acted arbitrarily and high handed manner that too without an order of eviction. This action has created an impression in the mind of the Petitioner that investigation in the hands of the local police will not be fair and the local police, may shield the officers of the State Police and the Revenue Department. In yet another unreported judgment of this Court in A. Nallasivan v. State and Ors. W.P. No. 14949/92, this Court has directed the investigation by the C.B.I. My learned brother Abdul Hadi, J had elaborately discussed the matter and found that the matter has to be investigated by C.B.I., since the Government officials are involved in the incident. This judgment was confirmed by a Division Bench of this Court consisting of Chief Justice and Raju, J. in State v. A. Nallasivam W.A. 249/95. The Division Bench has observed as follows:

Normally, as stated in the earlier paragraph, it is the State Police that is to be entrusted with the investigation, but in the facts and circumstances of the case and having regard to the stand taken by the State Government, we feel that it would be just and necessary to entrust the matter to any agency; who will be unconnected with the State and the State Police. By this we shall not be taken to have expressed any opinion or doubted about the honesty and integrity of the CB/CID of the State Police or a regular police force of the State and also about the State itself. It is necessary to ensure all concerned that an investigation is going to be conducted by the disinterested agency.

Against the judgment of the Division Bench in State v. A. Nallasivam W.A. 249/95, SLP was filed in SLP (Crl.) No. 1686/95. The SLP was dismissed in limine. The learned Government pleader has cited the judgment reported in State of West Bengal and Others Vs. Sampat Lal and Others, , where the Supreme Court had occasion to deal with a case where an ex parte order was passed by the High Court, directing the investigation to be entrusted to the C.B.I, without issuing notice to the Respondents in that case. While dealing with the necessity to hear the other side before over any order is passed, the apex Court has made certain observations with regard to the procedure to be followed and laid down certain norms. I am of the view that this case may not be of any use to deal with the present case.

From the above stated principles laid down by this Court as well as by the Apex Court, it is clear that normally the court should not interfere in the investigation of the crime as well as the progress made by the investigating agencies of the State. But, however, if on facts, it is clearly established that some Government officials either on the revenue side or on the police side is involved and if there is any possibility of investigating agencies are not in a position to discharge their functions or duties freely in an unbiased manner, then the courts have held that the investigation has to be entrusted to some other agency other than the State Police.

So far as the case in hand is concerned, as stated already, the apprehension of the Petitioner is that the press report reveals the involvement of the Minister and his relatives. Merely on the basis of the Press Report, it would be very difficult for me to decide at this stage with regard to the involvement of either the Minister of his relatives. There is absolutely no material forthcoming on the side of the Petitioner except the press report. Having gone through the case diary and having found that the assailants have not stated any thing in their confessional statements about the involvement of any of the Ministers or the relatives of any one of the Ministers, I would say that the averments of the Petitioner are unfounded. But, however, Mr. K.T. Palpandian, the Learned Counsel for the Petitioner argued that there are two more assailants to be apprehended and on their apprehension, there is likelihood of recording a confessional statement from them and there is a possibility that these assailants may give the details of the involvement of the Ministers. In such case, the apprehension of the Petitioner is that the police may not record the statement properly. I am of the view that the said apprehension may be a well founded one. When the Petitioner expects a proper investigation to get at the culprits, a mere apprehension in their mind that proper justice may not be done to them, itself is a ground to transfer the investigation to a third person. A citizen should always have the faith both in the police officials and the judiciary as well. Then only he will have the satisfaction that his case has been properly dealt with. I would recall the words of the Supreme Court in Gudalure, Gudalure M.J. Cherian and Others Vs. Union of India (UOI) and Others, .

Nevertheless--in a given situation, to do justice between the parties and to install confidence in the public mind--it may become necessary to ask the CBI to investigate a Crime.

In Dayal Vs. State of Madhya Pradesh, the Supreme Court has observed as follows:

However, faithfully the local police may carry out the investigation, the same will lack credibility, since the allegations are against them. It is only with that in mind that we having thought it both advisable and desirable as well as in the interest of justice entrust the investigation to the Central Bureau of Investigation forthwith.... In so ordering we mean no reflection on the credibility of either the local police or the State Government but we have been guided by the larger requirements of justice.

A Division Bench of this Court in State v. A. Nallasivam W.A. 249/95 also held as follows:

We feel that it would be just and necessary to entrust the matter to an agency, who will be unconnected with the State and the State Police. By this we shall not be taken to have expressed any opinion or doubted about the honesty and integrity of the CBCID of the State Police or a regular Police force of the State and also about the State itself. It is necessary to ensure all concerned that an investigation is going to be conducted by the disinterested agency.

Following the above said Principles, I am of the view that without any disregard to the State Police, I direct the investigation in Crime No. 895/95 on the file of the third Respondent Inspector of Police, G.3 Kilpauk Police Station be entrusted to the C.B.I., the fourth Respondent herein for the purpose of investigation. The C.B.I., is directed to complete the investigation and file the report within four months from today. The First Respondent herein is directed to extend all help and co-operation to the fourth Respondent C.B.I, in completing the investigation.

Point No. (ii): So far as the demand for compensation is concerned, the Petitioner referred to a judgment reported in Smt. Charanjit Kaur Vs. Union of India and others, . In that case, the Petitioner''s husband, who was a Major in the Army fell ill. On receiving the information, the Petitioner went to the Petitioner''s husband''s place and found that the condition of her husband is very precarious. She made a request to the higher authorities to air lift him to some other place for proper medical treatment. Though it was declined at first, subsequently on the persuasion made by the Petitioner, her request was conceded. But, however, he has not been air lifted to any other place and he was kept in the same place. The Petitioner was informed suddenly that her husband was not well and when she went there, she was shown the burnt body of her husband. The authorities failed to give any explanation as to how the Petitioner''s husband was partly burnt. The subsequent explanation given by the officials that the Petitioner''s husband went to the kitchen and was injured, was not accepted on the basis of the medical evidence that the Petitioner''s husband was not in a position to move about. The Supreme Court directed a compensation of Rs. 6 lakhs to be paid to the victim''s wife, the Petitioner in that case. In that case the Supreme Court has ordered compensation because the Petitioner''s husband died under suspicious circumstances, when he was under the treatment in the Army Hospital. No proper explanation has been given by the authorities and the explanation given by them was not accepted. Hence this cannot be taken a guideline for the case in hand to give compensation. Yet another judgment cited by the counsel for the Petitioner is reported in Rajalakshmi v. Union Territory of Pondicherry, 1992 Supp. (2) SCC 27 . This is a case where the compensation was paid to the wife of the deceased, since the death was caused in the police custody. Even in that case, the Supreme Court has held as follows:

The prayer for compensation also deserves to be reconsidered in the light of the ultimate conclusion which may be reached by the Court.

In order to award compensation, I am of the view that first of all the liability has to be fixed or at least the negligence on the part of the State has to be established. At this stage, it is very difficult to fix any liability. The allegation of the Petitioner that the assailants had attacked the victim only at the instance of the political agencies belonging to ruling party, is a matter for evidence. In case, it is established during the trial about the involvement of the politicians or Ministers, as alleged by the Petitioner, it is open to the trial Court to award compensation. At this stage, it would be premature to decide with regard to the involvement of any of the Ministers and direct the State Government to award compensation. Hence so far as this relief is concerned, the writ Petitioner is dismissed.

Point No. (iii): The relief sought for in W.M.P. No. 12518 of 1995 is concerned, I directed the Government Pleader to ascertain from the State Government as to the possibility of undertaking the medical bill of the victim. The Government Pleader represented that the claim of the Petitioner does not fall in any of the norms fixed for the release of exgratia from the Chief Minister''s Relief Fund. The norms laid down are as follows:

(1) Medical Relief: This relates to the case of costly treatment such as Heart Surgery, complicated Orthoptics Surgery, Renal transfer etc. The amount to be released should not exceed Rs. 12,000/-

(2) Accident Cases,

(3) Communal clashes

(4) Accidental death

(5) Shoot out incidents

(6) Natural calamities

(7) Sick Mill workers

(8) Death of fisherman

(9) Victims of bomb blast

There is a note stating that the release of the fund will not be normally made as a matter of right but only in deserving cases, based on the orders of the Hon''ble Chief Minister.

I am of the view that the case in hand cannot be treated on par with the cases for the release of the Chief Minister''s Relief Fund. As pointed out by the Learned Counsel for the Petitioner that if the victim Mr. R. Shanmugasundaram had been admitted in any one of the Government Hospitals, he is. entitled for free treatment. I have seen the wound certificate from the case diary. The nature of injuries are such that the victim had narrowly escaped from the clutches of death. When he was brutally attacked and when his life was in danger, it is but natural that the members of his family had rushed him to the private hospital to get proper treatment. The action taken for admitting the, victims in the private hospital cannot be said to be unreasonable. Everyone''s life is as valuable as that of the other. More over, it could be seen from the earliest statement given by the victim that he was attacked with the following words:

Hence there may be possibility that the family members and the other persons who were with the victim at that time might have had apprehension that the victim may not get proper treatment if he is to be admitted in the General Hospital. Taking into consideration of the overall circumstances and in the interest of justice, I think it would be proper to direct the first Respondent, the State of Tamilnadu to bear the medical expenses that has to be incurred by the victim Mr. R. Shanmugasundaram.

Before parting with the case, I have to mention about one request made by the counsel for the Petitioner. He represented that the assailants are clients of one Mr. G. Krishnamurthy, Advocate. The said Mr. G. Krishnamurthy had given out certain details which had been revealed to him by the assailants when they met him for consultation. Mr. K.T. Paul Pandian represented that this Court can act upon the version of Mr. G. Krishnamurthy and in order to satisfy myself I have to examine Mr. G. Krishnamurthhy in the open court and get the particulars. I decline to do so because if the Court proposes to examine any person as Court witness, the Government Pleader should be in a position to cross-examine him. He should not be taken by surprise by the act of the Court. More over, Mr. G. Krishnamurthy, as a practicing lawyer, ought to have known as to whom he should contact and to whom the matter has to be revealed. Unless he claims privilege of professional communication, it is open to him to inform about the details given to him by the assailants either to the investigating agencies or to other appropriate authorities. I do not think it would be proper for me, at this stage, to examine him or permit him to narrate as to what transpired between him and his clients, the assailants. Hence, I refuse to examine him in the open Court.

It is further represented by the Learned Counsel for the Petitioner that there was a second attempt on the life of the victim Mr. R. Shanmugasundaram by some of the miscreants in the early hours of 16th June, 1995. He also informed the Court that the security provided to the victim was withdrawn and now, only the family members and the juniors and the clerk of the victim are keeping watch in the hospital. I am of the view that as the victim has identified the assailants, it may be probable that the persons connected with the assailants may take a hostile attitude. At this state, the victim has to be provided with enough security, especially when he is bed-ridden. When the matter was argued, I directed the Government Pleader to inform the concerned authorities, to provide with sufficient security to the victim He also promised to take necessary steps. In order to avoid any lapse, I am hereby directing the first Respondent to provide the victim Mr. R. Shanmughasundaram with enough security by armed men, round the clock till the charge sheet is filed against the assailants. In case, if further extension of security is necessary, the authorities have to provide the same till such period as the circumstances warrant.

For the reasons stated above, the Writ Petition is partly allowed in the following terms:

(i) The investigation in Crime No. 895/95 on the file of Inspector of Police, G-3, Kilpauk Police Station, Madras-10 the third Respondent herein, be handed over to Central Bureau of Investigation, the fourth Respondent herein, for further progress of the investigation by their officials.

(ii) The first Respondent is directed to extend fullest assistance and co-operation to the fourth Respondent C.B.I. in completing the investigation of the above said crime.

(iii) The fourth Respondent C.B.I, is directed to complete the investigation within four months from today and file the report.

(iv) In other respects, the Writ Petition is dismissed. No costs.

W.M.P. 12518/95 is allowed in the following terms:

The first Respondent is directed to bear the medical expenses that would be incurred by the victim Mr. R. Shanmugasundaram.