TaxTMI 
TaxTMI 
2001 (7) TMI 1322
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....ogether. 3. The relevant facts, giving rise to these appeals, which have a strong political backdrop, need to be noticed for appreciating the contentions of the parties. 4. The Communist Party of India (Marxist), C.P.I.(M), is said to have a strong hold in Kannur District of the State of Kerala. One Mr. M.V. Raghavan who was once a comrade-in-arms in C.P.I.(M) and was its M.L.A. for over 15 years, broke away from that party and formed a new party -- 'The communist Marxist Party' (CMP). He was elected as an M.L.A. on the ticket of CMP from the Azkeekkode Constituency, Kannur District. The CMP became a constituent of United Democratic Front (UDF) which formed the Government and was in power in the State of Kerala during the relevant period. He was a Minister in UDF Government having the portfolio of Co-operation and Ports. This gave rise to retribution in the rank and file of C.P.I.(M) particularly in the youth wing (DYFI) which took upon itself to prevent his visits to Kannur District. In January 1993 during his visit to Azhikal (Kannur District) a favour Country-made bombs were hurled on him. In view of that incident the then Government ordered elaborate security arra....
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....0, 1995, the then Kerala Government of UDF appointed Mr.K.Padmanabhan Nair, the learned District & Sessions Judge, Thalassary as Commission of Inquiry under Section 3(I) of the Commission of Inquiry Act, 1952 to inquire into: "(i) The circumstances which led to the firing by police on 25.11.94 at Kuthuparamba Kannur District which resulted in the death of five persons and injuries to many others. (ii) Whether the said firing by the police was justified. (iii) The person/persons responsible for the firing. (iv) Such other matters as the incidental to and arising out of the above." 7. The 1996 assembly elections in the State of Kerala resulted in the change of the Government. The UDF lost to LDF which come to power and headed by CPI(M) formed the Government. On May 27, 1997 the Commission submitted its report to the LDF Government of Kerala recording the following findings: "(1) The uncompressing attitude of Sri. M.V. Raghavan, former Minister of Co-operation and Ports to attend the inaugural function of the opening of the evening branch of the Co-operative Urban Bank, Koothuparamba inspite of the prior inf....
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....cutive Magistrate (T.T.Antony); O.P. No. 24401/98 by the Assistant Superintendent of Police (R.A.Chandrasekhar) and O.P. No. 23702/99 by 14 constables (Damodaran and 13 others) - were filed in the High Court of Kerala praying to quash the F.I.R. in Crime No. 268/97; alternatively for directing investigation into the said crime by the C.B.I. 10. It is noticed that case registered as Crime Nos.353/94 and 354/94 of Kuthuparamba Police Station which were mainly against the workers and DYFI (youth wing of CPI(M)) came to be closed as being false and undetected some time in April 1999 and June 1999 respectively after the said Crime No. 268/97 of Kuthumparamba Police Station was registered. 11. The learned Single Judge who dealt with the said O.P.s thought it fit, having regard to peculiar facts and circumstances of the case, to have the case re-investigated by the C.B.I. instead of quashing the FIR at the threshold and accordingly disposed of the writ petitions on November 29, 1999. Against the said judgment of the learned Single Judge, six writ appeals were filed - three by the said writ petitioners and three by the State of Kerala. A Division Bench of the High Court, by its judgm....
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....es who were injured were paid Rs. 500/- cash ex-gratia. The wind changed after the change in the Government; it resulted in arresting the said Executive Magistrate on the charge under Section 302 of Indian Penal Code and shielding the S.P. who also ordered firing which caused the death of five persons by charging him only under Section 201 I.P.C. as he turned an approver. It is also submitted that the Executive Magistrate has been under suspension from 1997 and thus lost one chance of promotion and if he is put to the ordeal of trial on the basis of the final report submitted by the new investigating team, which is a mere re-production of first report, his career will be seriously affected. 13. Mr. Mahendra Anand, the learned Senior counsel, has argued that out of 350 police personnel deployed to take care of Law and order in Kuthuparamba, fourteen constables for whom he is appearing, are arbitrarily booked under Section 302 read with Section 34 I.P.C.; they were under the leadership of the ASP and obeyed his orders; the criminal proceedings against him were quashed by the Division Bench of the High Court on the ground that he was exonerated by the Commission of Inquiry; all tho....
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....ating agency. Both the learned Single Judge as well as the learned Division Bench of the High Court did not find any mala fide intention in filing the FIR; they took note of the fact that the FIR was lodged on the basis of findings recorded by the Inquiry Commission that the firing was unjustified, there fore, there could be no interference with the investigation by the police in view of the guidelines laid down by this Court in Bhajan Lal's case. Inasmuch as after investigation the final report has been filed and the learned Magistrate has taken cognizance and issued summons, the trial court can consider the pleas of the accused under Section 227 of Cr.P.C. but at this stage neither the investigation can be challenged in these appeals nor can the sufficiency of the evidence by gone into by the High Court the Supreme Court except to see whether a cognizable offence has been disclosed. Insofar as the appeal against quashing of criminal proceedings against the ASP by the Division Bench is concerned, it is contended that the reasons given by the High Court are untenable. It is submitted that the order directing firing at the mob was unjustified as the crowd was not violent; there ....
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....n of the State Government has been obtained, the question whether the Executive Magistrate in protected under Section 129 of Cr.P.C. is a matter of defence in the trial and cannot be gone into at this stage. With regard to the police constables, it is contended that though they belong to different groups, namely, 'escort' party and ' law and order' party they subsequently merged into one group and resorted to indiscriminate firing; in any event they are not entitled to the benefit of Section 132(2) of Cr.P.C. which is applicable only to the armed forces; further the police constables who participated in unjustified firing cannot be permitted to plead defence of obedience to the order of the superior. It is argued that the material collected in investigation reveals that the Dy. SP took rifle from one Abdul Salam to whom it was officially issued and handed it over to Damodaran who had no authority to use the rifle for firing thus he resorted to deliberate illegal firing. The persons who fell to the shots and died were found to be far away from the Town Hall, the place where the Minister was to address a meeting, which shows that callous and indiscriminate firing was ....
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....ion received and forwarding a further report; at any rate, the objection is merely one of a form and not of substance and it makes no differences so far as the final report is concerned. 16. On these contentions, four points arise for determination: (i) Whether registration of a fresh case, Crime No. 263/97, Kuthuparamba by Police Station on the basis of the letter of the DGP dated July 2, 1997 which is in the nature of the second R.R. under Section 164 of Cr. P.C. is valid and can it form the basis of a fresh investigation? (ii)Whether the appellants in Appeal Nos.689/2001 & 4066/2001 (arising out of SLP(Cd.) 1502/00 and SLP(c) 8840/00) and respondent in Appeal Nos. 698-91/01 (arising out of SLP (Cr.) Nos. 2724-25/00) have otherwise made out a case for quashing of proceedings Crime No. 268/97 Kuthuparmaba Police Station; (iii) What is the effect of the report of Sri. K. peamanebann Commission of Inquiry, and (iv) whether the facts and the circumstances of the case justify a fresh investigation by CBI. 17. As points (i) and (ii) are interconnected, it will be convenient to deal with them together. Inasmuch as the germane question rela....
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....ate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1), free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section(1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr.P.C., if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence. 19. An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first in....
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....of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. The scheme of the Cr.P.C. is that an officer in charge of a Police Station has to commence investigation as provided in Section 156 or 157 of Cr.P.c. on the basis of entry of the First Information Report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of evidence collected he has to form opinion under Section 169 or 170 of Cr.P.c., as the case may be, and forward his report to the concerned Magistrate under Section 173(2) of Cr.P.C. However, even after filing such a report if he comes into possession of further information or material, he need not register a fresh FIR, he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports: this is the import of sub-section (8) of Section 173 Cr.P.C. From the above discussion it follows that under the sc....
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....it criminal breach of trust and cheating. The C.B.I. after necessary investigation filed charge sheet in the court of Special Magistrate, Ambala, against both of them. Ultimately on the application of the public prosecutor the case was permitted to be withdrawn and the accused were discharged. Sometime later the original genuine pillars were found in London which led to registering an F.I.R. in Delhi under Section 120B read with Section 411 of I.P.C, and Section 25(1) of the Antiquities and Art Treasures Act, 1972 against three persons who were brothers (referred to as 'Narangs'). The gravamen of the charge against them was that they, Malik and Mehra, conspired together to obtain custody of the genuine pillars, got duplicate pillars made by experienced sculptors and had them substituted with a view to smuggle out the original genuine pillars to London. After issuing process for appearance of Narangs by the Magistrate at Delhi, an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before Ambala Court, therefore, the Delhi Court acted without jurisdict....
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....er the Cr.P.C. In Emperor vs. Khwaja Nazir Ahmad, the Privy Council spelt out the power of the investigation of the police, as follows : "In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court." This plenary power of the police to investigate a cognizable offence is, however, not unlimited. It is subject to certain well recognised limitation. One of them, is pointed out by the Privy Council, thus : "if no cognizable offence is disclosed, and still more if no offence of any kind in disclosed, the police would have no authority to undertake an investigation." Where the police transgresses its statutory power of investigation the High Court under Section 482 Cr.P.C. or Article 226/227 of the Constitution and this Court in appropriate case can interdict the investigation to prevent abuse of the process of the Co....
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.... Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge." The above list, as noted, is illustrative and not exhaustive. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable off....
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.... the said FIRs were pending, the report of Mr.K.Padmanabhan Nair, Inquiry Commission, was submitted to the Government. On June 30, 1997, the Additional Chief Secretary wrote to the Director-General of Police that the Government had accepted the report of the Commission and directed that the legal action be taken against those responsible on the basis of the findings of the Commission. On July 2, 1997, the Director General of Police, however, wrote to Inspector General of Police (North Zone) to register a case immediately and have the same investigated by a senior officer. Two days thereafter, the Inspector General of Police added his own remarks - "firing without justification by which people were killed amounted to murder" - and ordered the Station House Officer to register a case under the appropriate sections and forward the investigation copy of the FIR to the Deputy Inspector of Police (North Zone) for urgent personal investigation. On the date when the Additional Chief Secretary wrote to the Director-General of Police, the investigations initiated in the said two crimes relating to the same incident were in progress. The investigating agency should have taken advantage of the....
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....m an opinion under Sections 169 and 170 Cr.P.C., as the case may be, and forward the report/reports under Section 173(2) or Section 173(8) Cr.P.C. top the concerned Magistrate. The course adopted in this case, namely, the registration of the information as the second FIR in regard to the same incident and making afresh investigation is not permissible under the scheme of the provisions of the Cr.P.C. as pointed out above, therefore, the investigation undertaken and the report thereof cannot but be invalid. We have, therefore, no option except to quash the same leaving it open to the investigating agency to seek permission in Crime No. 353/94 or 354/94 of the Magistrate to make further investigation, forward further report or reports and thus proceed in accordance with law. Regarding point No. 3, the principles as to the position of Commission of Inquiry appointed under the Commissions of Inquiry Act, the report and finding recorded by the Commission are too well-settled to admit of any elaborate discussion except to reiterate them here. As long back as in 1904, the Privy Council in Re: Maharaja Madhava Singh [31 Indian Appeals 239 (PC)] laid down, "..it is suffici....
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...., refers, in the context, to wrongs already down or committed, for redress or punishment for such wrongs, if any, has to be imposed by a court of law properly constituted exercising its own discretion on the 'facts and circumstances of the case and without being in any way influenced by the view of any person or body, howsoever august or high powered it may be." In State of Karnataka vs. Union of India Anr. [1978]2SCR1 : [1978]2SCR1 , the observations referred to above were approved by a seven-Judge Bench of this Court. In Sham Kant vs. State of Maharashtra 1992CriLJ3243 , it was held that the findings of the Inquiry Commission would not be binding on the Supreme Court. There, the question was whether an under trial died due to injuries sustained by him in police custody. The report of the Commission of Inquiry mentioned that the injuries possibly might have been sustained by him even prior to his arrest. In the appeal arising out of conviction and sentence of the concerned police officer, this Court, on material before it, found that the victim died on account of ill treatment meted out by the police and held that the findings of the Commission would not bind this Court. ....