- (1.) This appeal has been preferred against the judgment and order dated 8.12.2011 passed by the High Court of Judicature at Madras in Crl.O.P. No. 9639 of 2011, by way of which the High Court has rejected the prayer of the appellant to transfer the investigation of his case/complaint to Central Bureau of Investigation (hereinafter referred to as the 'CBI').
(2.) The case has a chequered history as the matter has moved from the court of the Magistrate to this Court time and again. Facts and circumstances necessary to adjudicate upon the controversy involved herein are that: A. The appellant, who is an Associate Professor in Physics in the Presidency College, Chennai, went to his village on 26.8.1998. At about 11.00 P.M., approximately ten people headed by the then Revenue Divisional Officer (hereinafter referred to as the 'RDO'), forcibly took him in a government jeep and brought him to the Taluk office and enquired about why he had given a false complaint regarding the smuggling of teakwood in that area. The then RDO and other officials treated him with utmost cruelty and caused severe injuries all over his body and then obtained his signatures on blank papers which were filled up as directed by the then RDO. On the next day, he was handed over to the local Police Inspector along with the statement purported to have been written by the officials concerned. B. The appellant was produced before the Magistrate on 27.8.1998 at 10.30 A.M. and he was remanded to judicial custody. His request to the Judicial Magistrate in regard to medical examination of the injuries which had been caused to him was rejected. The appellant was kept in Sub Jail, Poraiyar, wherein he was treated by the jail doctor on 28.8.1998. On being released on bail, the appellant got treatment of his injuries in a private hospital. C. The appellant filed a complaint against the said RDO and other officials. The said complaint was also sent to the office of Hon'ble Chief Minister of the State, the Director General of Police and other officials, alleging the brutal torture caused to him by the then RDO. The case was entrusted for investigation to Deputy Superintendent of Police, SBCID, Nagapattinam. A confidential report was forwarded to higher officials by the said DSP in this regard. However, no progress could be made in the investigation and no case was registered in respect of the complaint of the appellant. D. The appellant approached the High Court of Madras by filing Crl. O.P. No. 19352/1998 with the prayer to direct the registration of First Information Report (FIR) based on his complaint. In view of the fact that a confidential report of Deputy Superintendent of Police, SBCID revealed that the preliminary enquiry was conducted in a proper manner, the High Court did not transfer the investigation to CBI, however, the petition was allowed vide order dated 1.3.2001 issuing the direction to register a case. E. The DSP, SBCID filed an application i.e. Crl.M.P. No. 3713/2001 before the High Court in the disposed of case i.e. Crl.O.P. No. 19352/1998 stating that there was no post of DSP, SBCID on the date of the order as the same had been abolished, so proper directions needed to be issued. In the meanwhile, the appellant also filed another petition to transfer the case to CBI. Both the said applications were heard together and the order dated 1.10.2004 was passed modifying the earlier order dated 1.3.2001 for transferring the investigation to CBI. F. Aggrieved, the DSP, SBCID, preferred Criminal Appeal No. 1389 of 2008 before this Court. The said criminal appeal was disposed of by this Court vide a detailed judgment and order dated 2.9.2008. It was observed that by the first order dated 1.3.2001, the High Court had declined to handover the investigation to CBI, therefore, it was not proper for the High Court to pass a fresh order in a petition that had been disposed of, directing again the investigation to be made by the CBI. This view was taken in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.'). This Court also took note of the fact that it was not the application by the appellant to transfer the case to CBI. Thus, the said order dated 1.10.2004 transferring the investigation to CBI by the High Court was set aside. However, this Court kept it open that the appellant could prefer a fresh criminal petition under Section 482 Cr.P.C. for transferring the investigation from the State police authorities to CBI, depending upon subsequent events. In such an eventuality, it would be open to High Court to entertain such application and decide the same in accordance with law. G. The appellant was summoned by the DSP, SBCID on 7.7.2010 and again on 25.10.2010 and his statements were recorded. Being un- satisfied with the investigation conducted by the SBCID, the appellant filed Crl. O.P. No. 9639 of 2011 in April 2011 before the High Court, seeking transfer of the investigation to CBI. The said application has been dismissed vide impugned judgment and order dated 8.12.2011. Hence, this appeal.
(3.) Ms. Kamini Jaiswal, learned counsel appearing on behalf of the appellant, has submitted that there was no justification for the High Court to reject the application seeking transfer of the investigation from the State investigating agency to CBI as the State investigating agency did not conduct the investigation properly as its investigation has been tainted and biased, favouring the then RDO. The SBCID threatened the witnesses and recorded their version under coercion. Moreover, inordinate delay had been there in concluding the investigation. The High Court could not be justified in making such an observation that even if a shabby investigation had been made, it could not be a ground to change the investigating agency. Further, there was no material to show as observed by the High Court, that the appellant had improved his case stage by stage. Even if the investigation was at the verge of conclusion or already stood concluded, it is permissible in law to change the investigating agency. Thus, the appeal deserves to be allowed.;