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Judgment
R. Balasubramanian, J.—Heard. The Sub-Inspector of Police and the Head-Constable, who are the accused in C.C. No. 4447 of 1998 on the file of the XV Metropolitan Magistrate, George Town, Madras, appear to have taken law into their own hands but the Assistant Commissioner of Police, Washermenpet Range, Chennai, who had filed the final report, went leaps ahead of them and assumed the role of a Judge by filing a final report against the accused only for an offence under S. 325 IPC and thereby acquitting his departmental colleagues from the graver offence of S. 326 IPC even before trial. A learned single Judge of this Court as early as in the year 1983 in a judgment in Marappa Gounder v. Venkatahalam (1983 L.W. (Crl.) 1) set out the duties and responsibilities of police officers in charge of an investigation as well as the duties and responsibilities of the Assistant Public Prosecutor and the Court. It appears what the learned Judge had said then seem to have been forgotten by all people concerned. Therefore I feel it desirable to repeat here what the learned Judge said so that it will act as a sharp reminder to all people concerned. The learned Judge in that judgment had stated as follows:
8... In this connection, I would like to mention that it is imperative on the part of the police who initially register the case or finally file the charge-sheet, to mention the proper penal provisions which should be in conformity with the nature of the accusations made in the complaint and the gravity of the offence brought out during the investigation. Such an action of registering a case under a specific penal provision should not be at the fanciful or whimsical discretion of the officer concerned, lest it would be an abuse of his powers because a criminal trial is the culmination of a genuine investigative process.
As far as the duties and responsibilities of the Public prosecutor are concerned, the learned Judge relied on an earlier Bench Judgment of this Court and quoted the following in his judgment from that Division Bench judgment.
The ideal Public Prosecutor is not surely concerned with securing convictions, or with satisfying the departments of the State Government, with which he has to be in contact. He must consider himself as an agent of Justice.
The learned single Judge in his judgment proceeded to state as follows:
Indubitably the office of the Public Prosecutor involves the duties of public nature and is of vital interest to the public and therefore the Public Prosecutor, who is rightly regarded as a Minister of Justice, should unreservedly dedicate himself to the task assigned to him and discharge the same impartially, fairly and fearlessly, with a full sense of responsibility and with so much of efficiency and thoroughness, which are the essential requisite qualifications that one should possess to hold this high office... "To the above observation, it may be added that the Public Prosecutor is not the protagonist of any party though in theory he stands for the State in whose name all prosecutions are conducted... Hence, a person who is appointed to this highly responsible post should always uphold the dignity of this high office with a full sense of responsibility and see that its value is in no circumstance devalued..."
I would have definitely avoided repeating the observations of the learned single Judge in this case so far as the Public Prosecutor is concerned. But on going through the Case Diary, I find that the entire Case Diary was shown to the concerned Assistant Public Prosecutor and only with his approval, the final report for an offence under S. 325 IPC had come to be filed.
Though initially after hearing the arguments of Mr. K. Ashokan, learned senior counsel for the petitioners; Mr. R. Shanmugasundaram, learned State Public Prosecutor and Mr. P. Jayaraman, learned senior counsel representing the Madras High Court Advocate Association, I visualised that there appears to be some biased investigation, yet on going through the Case Diary very carefully and meticulously, I find that the Inspector of Police, H-3 Police Station, Chennai, who was in charge of this investigation till 12.6.1998, appears to have proceeded in the right direction. The materials collected by him from the date of the occurrence till he handed over the investigation to the Assistant Commissioner of Police, reveal that prima facie an offence under S. 326 IPC is made out. It may be noticed here that the crime in this case was originally registered under Ss. 341 and 324 IPC alone and later on the Section of offence was altered into Ss. 341 and 326 IPC since the materials collected during the investigation revealed that the injured had suffered a fracture and lathi was used in the commission of the offence. There are no materials whatsoever on record till this date in this case to show as to how the Assistant Commissioner of Police was justified in filing the final report for an offence under S. 325 IPC. Whether the weapon of offence stated to have been used in the crime against the injured in this case would attract S. 326 IPC or it would attract only S. 325 IPC is purely within the realm of the Court to be gone into at the time of trial and decided after appreciation of evidence. As I have already observed, the Assistant Commissioner of Police, Law and Order, Washermenpet Range, Chennai, had assumed the role of a Judge in this case which he is totally prohibited from so doing.
Under these circumstances since I am prima facie satisfied from the materials available in the Case Diary relating to these accused that an offence under S. 326 IPC is made out, I am inclined to pass the following order:
(a) The learned XV Metropolitan Magistrate, George Town, Madras, is directed to take cognizance of the offence under S. 326 IPC against the accused in C.C. No. 4447 of 1998 pending on his file;
(b) If summons have been issued, as requested by the Assistant Commissioner of Police, Law & Order while he filed the final report, for securing the presence of the accused, I order that the said summons shall stand cancelled forthwith;
(c) The Case Diary reveals that both the accused are absconding and attempts made by the police personnel to secure them failed. Under these circumstances I have no hesitation to direct the XV Metropolitan Magistrate. George Town, Chennai, to issue a non-bailable warrant against the accused to secure their presence before Court.
(d) On account of the attitude and conduct of the Assistant Commissioner of Police, Law & Order, Washermenpet Range, Chennai, who had filed the final report in this case, I am satisfied that justice would definitely fad if he is allowed to be in the picture any more. Therefore the Commissioner of Police, Greater Chennai, is directed to entrust the handling of this case to a senior police officer of repute in the category of Joint Commissioner of Police to supervise and monitor the further conducting of this case by an Inspector of Police of repute other than the Inspector of Police who had already investigated this case;
(e) What remains to be done as I could see from the case diary is, the blood-stained cloth of the injured should be recovered as well as the doctors should be examined with reference to the other injuries found on the person of the injured. Therefore, the Inspector of Police, who is going to work under the supervision of the Joint Commissioner of Police, both to be nominated by the Commissioner of Police, Greater Chennai, will take up further investigation in this matter and file further materials before Court as and when the said investigation is completed.
(f) It is needless to state that the filing of the final report and the acceptance of the same by the Magistrate is not a bar for further investigation under sub-Section (8) of S. 173 Code of Criminal Procedure.
(g) In view of the accused being police personnel in this case and in view of the facts that have come to surface in this case, Mr. P. Jayaraman, learned senior counsel representing the Madras High Court Advocate Association apprehends that if they are not going to be heard whenever an application for any relief relating to bail as far these aroused are concerned, comes up before the Subordinate Courts, then the case of justice would suffer irretrievably. Under these circumstances, I direct me Subordinate Courts, before whom any application on behalf of the present accused in C.C. No. 4447 of 1998 comes up for consideration for bail, to give prior notice of the same to the President of the Madras High Court Advocate Association before passing any order on these applications.
Mr. C. Duraipandian, Learned Counsel who is before this Court defending the cause of the accused in this case, states that the anticipatory bail petition filed on behalf of his clients in this case could not be argued on account of the atmosphere not being conducive and under these circumstances only the anticipatory bail petition came to be dismissed by the learned Principal Sessions Judge, Madras. Therefore, I hereby reserve me liberty of the accused in this case to move for whatever relief they deem fit before the learned Principal Sessions Judge, irrespective of the dismissal of their earlier request for anticipatory bail.
Before parting with this case, I want to say the following which flows from the bottom of my heart. Whatever I say now is not directed against any individual or to wound the feelings of any particular person:
The strongest arm of democracy is judiciary. Judges and lawyers are two sides of the same coin, viz. judiciary. Lawyers are pillars on which the dome of judiciary rests, which together constitute the house of judiciary. Infraction of fundamental rights and violation of Rule of Law are brought before the house of judiciary by the lawyers where me violations referred to above are set right. The judiciary and its independence must be preserved intact and the same cannot be allowed to be eroded-already attempts are there. The need of the hour to protect judiciary and it''s independence from being eroded is a strong, able and vigilant Bar. If the pillars of the house of judiciary are going to crumble, then the entire house will collapse leaving the common man in lurch, wondering as to where he should go for his remedy. If the system of judiciary is destroyed, which should be avoided at any cost, the mother of democracy will wail uncontrollably and alas, it would be the saddest day of democracy.
Under these circumstances, I, on my own behalf and on behalf of this great institution, appeal to the members of the Bar, especially young members of the Bar, who appear to be guided now by the rush of blood, to lend their ears to their conscience and its dictates. Resorting to boycott for one reason or another may not be a proper remedial measure to get their grievances satisfied. Resorting to boycotts is likely to affect the entire judiciary system irretrievably and before it is too late every one must realise the evil consequences of such boycotts. The members of the legal fraternity know it better.
The State Police Agency, whose ability and intelligence is known to be of international repute, and the members of the Bar should work in harmony, the former bringing the culprits before the Court of law for trial and punishment and the members of the Bar acting as Officers of Court in getting justice dispensed with. Unless mere is harmony among me two, the society at large would definitely suffer. The individual interest of a person should always lie low when larger interest of the society comes up for consideration and there cannot be any doubt about this. Therefore I once again appeal to the members of the legal fraternity as well as the state police agency to consciously apply their mind to their respective duties and obligations to the society, which expects them in a large measure from these two functionaries. Therefore I feel, it may be appropriate to suggest that a committee of members, consisting of representatives of various advocates associations, the State police Agency as well as senior members of the Bar, be constituted to sort out any problem that may arise in future between these two important wings of the public to whom the society looks at with great hope and expectations. With great pain in my heart, I also wish to add that this Court finds it very difficult to digest the manner in which the police outpost inside the High court campus became the target of attack. It is very sad to notice that it is stated that a few learned members of the Bar are involved in this occurrence. The damage, which the dignity and nobility of the legal profession, had suffered on account of this act is not possible to be ascertained and quantified now and only the years to come will tell me learned members of the Bar the answer.
I am conscious about the fact that the sentiments expressed by me herein above may irk someone, irrespective of the fact to which section they belong and yet I am prepared to bear the brunt of the same in the larger interest of this great institution, which had an unparalleled golden period of high standard during the yesteryears.