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Madras High Court · body

2014 DIGILAW 3938 (MAD)

Jainab Beevi v. Secretary to Home Department

2014-10-20

N.KIRUBAKARAN

body2014
Judgment : 1. "Real Estate Business" has become vulnerable and easy avocation to make quick and huge money by land grabbers brokers and criminals by hook or crook. The Dangerous, brutal and Cruel face of the “REAL ESTATE” is exhibited in this case. The case on hand only speaks about what is happening in the real estate business for more than a decade. In this case, the victim, main accused and some other accused are in real estate business. It also proves another important fact about entry of criminals into politics. The main accused Sithik @ Mohammed Sithik, who kidnapped murdered (Late) K.Jamal Mohamed along with others, is a District President of Tamizhaga Makkal Jananayaka Katchi and his political office was used to detain the victim. Simiarly, another accused Abbas @ Karadi Abbas is the South Constituency Secretary of Social Democratic Party of India (SDPI). Accused Marimuthu is in-charge of Anayoor for "Naam Thamilar Katch. The antecedents of those above accused would show that they are involved in commission of offences. If the criminals enter into the political parties and become the local leaders, the police cannot go near them easily for interrogation as they create law and order problem using their political clout. 2. The wife and the relatives of deceased K.Jamal Mohamed have approached this Court seeking a direction to transfer the case in Crime No.901 of 2014 registered under Sections 364(A) and 302 regarding the murder of the first petitioner's husband from the State police to CBI for investigation. 3. The first petitioner's husband namely K.Jamal Mohamed was the Managing Trustee of K.M.Allaudin Rowther Dharma Trust. The petitioners 2 to 9 are the Trustees of the said Trust and the close relatives of the said K.Jamal Mohamed. The said Trust is having extensive properties in and around Madurai. The property comprised in Survey No.1057/1, measuring to an extent of 1 acre 64 cents near New Jail Road,Arappalayam, Madurai, which market value is Rs.30 Crores, also belongs to the said Trust. The properties were given for the purpose of doing religious activities and rituals. The Trust deed specifically states that the properties of the Trust shall not be either sold nor encumbered. 4. One G.Ganesan and others by criminal conspiracy, encroached upon a small portion of Trust property comprised in S.No.1057/1 putting up huts and filed collusive suits without making the Trust as a party. The Trust deed specifically states that the properties of the Trust shall not be either sold nor encumbered. 4. One G.Ganesan and others by criminal conspiracy, encroached upon a small portion of Trust property comprised in S.No.1057/1 putting up huts and filed collusive suits without making the Trust as a party. The revenue records changed in their names were subsequently cancelled by the Managing Trustee K.Jamal Mohamed by appropriate proceeding. In connection with that, a writ petition in W.P(MD)No.15522 of 2012 was filed by G.Ganesan and others the same is pending before this Court. 5. In the above background, it is stated that Mr. K.Jamal Mohamed, the Managing Trustee was missing from 31.08.2014, on which date he left his house at 08.30 a.m in his car bearing Registration No.TN-64-C-6672. He was having a Airtel Cell phone bearing No.9894150390. Since, he was not returning for three days, a complaint was lodged on 03.09.2014, with the sixth respondent and the same was registered in Crime No.901 of 2014 as "Man Missing" case. The sixth respondent was informed about the enemity between the land grabbers and the Managing Trustee. The sixth respondent did not take steps to trace the said K.Jamal Mohamed. 6. On 06.09.2014, a news was flashed in T.V. channels that one Sankar who was the suspected accused in the murder of K.Jamal Mohamed surrendered before the learned Judicial Magistrate, Melur, and the same was published in the newspapers on 07.09.2014. On verification the said information with the respondents 5 and 6, it was informed that the information might not be correct and that they were still searching him. On 08.09.2014, at 02.00 p.m, the fifth respondent, over the phone, informed the third petitioner that the body of the K.Jamal Mohamed was found near Perumal Malai, Kodaikanal. 7. It was revealed that K.Jamal Mohamed was forcibly abducted on 31.08.2014, putting him in fear of death, he was made to execute four documents on 01.09.2014 before the Sub-Registrar, Arasaradi, Madurai, in respect of the property comprised in Survey No.1057/1, near New Jail Compound, Arappalayam, Madurai, measuring to an extent of 1 acre and 64 cents. The accused abducted him on 31.08.2014 and forced to execute a resolution on behalf of the Trust by himself authorising himself to sell the said Trust property. The accused abducted him on 31.08.2014 and forced to execute a resolution on behalf of the Trust by himself authorising himself to sell the said Trust property. Based on the said resolution, the victim K.Jamal Mohamed was taken to the office of Sub-Registrar, Arasaradi, on 01.09.2014 and three sale deeds were executed by him in favour of one D.Indira W/o.Duvaraganathan, N.Palanivelu S/o.P.Natarajan, P.Umarani W/o. N.Palanivelu measuring to an extent of 4345 Sq.ft, 2000 Sq.ft and 2348.25 Sq.ft respectively, which form part of the aforesaid property measuring about 1acre 61 cents. One power of attorney deed was registered in respect of the remaining vacant land measuring 1 acre 49 cents in favour one G.Ganesan, S/o Gurusamy and the same was executed on 01.09.2014. Thereafter only, the victim is said to have been murdered. Alleging that, the above case has not been properly investigated by 5th and 6th respondent police, the petitioners seek to transfer the case to CBI. 8. Mr.A.Rahul, learned Counsel appearing for the petitioners would contend that even though the complaint was given at the earliest, investigation has not been commenced immediately; All the accused have not been arrested; Though one Palanivelu, one of the accused, was taken for interrogation, later he was let off; Similarly another accused A.Mahendra Varman was also taken to the police station and later was rescued by a group of Advocates; The accused who were involved in money lending and land grabbing caused the death and they have not been arrested so far; The State police is not properly investigating the case to help the accused; The real accused who were instrumental in planning the entire event and guided the persons over phone to execute the murder have not been arrested; The sixth respondent is conducting investigation in mala fide manner only to help the accused; There is a reasonable suspicion that the investigation has not been proceeding in a proper manner. He would also rely upon the documents to show that the victim was fighting with culprits, namely, G.Ganesan and others by initiating appropriate proceedings before the revenue authorities with regard to the property which was forcibly conveyed in favour of some of the accused. The following judgments are relied upon to contend that this Court can transfer the investigation to the C.B.I: 1) S.M.Sharma -vs- Bipenkumar Tiwari reported in AIR 1970 SC 786 . The following judgments are relied upon to contend that this Court can transfer the investigation to the C.B.I: 1) S.M.Sharma -vs- Bipenkumar Tiwari reported in AIR 1970 SC 786 . 2) Divine Retreat Centre -vs- State of Kerala reported in AIR 2008 SCC 1614. 3)National Human Rights Commission -vs- State of Gujarath reported in 2009 (6) SCC 342 . 4) Punjab -vs- CBI reported in 2011 (9)SCC 182 . 5) National Manoharlal Sharma -vs- Principal Secretary reported in 2014 (3) SCC 163. 6) Unreported Judgment in W.P(MD)No.2381 of 2013. 9. On the other hand, Mr.P.Kandasamy, learned Government Advocate (Criminal Side) would oppose the transfer stating that the investigation is being done properly and almost all the accused have been arrested as per the order of this Court and the call details were gathered from the cellphone operators and the CCTV clippings from the Registrar Office has been taken. When the investigation is properly done, there is no necessity to transfer the investigation. 10. Mr.Mahendran, learned Counsel appearing for A.Mahendravarman, Advocate, one of the accused would submit that the said Advocate is the Counsel for G.Ganesan and he is no way connected with the crime; He was not present in the Registrar Office at the time of execution of deeds; Moreover, no money was taken by the Advocate; The said Advocate went to the police station, only when his client G.Ganesan was taken for interrogation; A.Mahendravarman was enquired by the police and after enquiry he was let off; However, he would submit that he has got no objection for transfer of the case to any agency. 11. Heard Mr.A.Rahul Counsel for the petitioners and Mr.P.Kandasamy, Government Advocate (Criminal side) appearing for the respondents 1 to 6 and 8 to 10, Mr.G.R.Swaminathan, Assistant Solicitor General of India for CBI, and Mr.Mahendran, counsel for A.Mahendravarman. Case diary has been perused carefully. 12. It is a brutal murder by strangulation of throat of the victim for gain. With meticulous planning and conspiracy, the accused forcibly kidnapped, the victim, detained in a political party office, later taken to the Registrar Office and under threat of death, got executed deeds by the victim in favour of the other accused. The complaint was given by the petitioners on 03.09.2014 about missing of K.Jamal Mohamed from 31.03.2014 and the case was registered in Crime No.901 of 2014 as "Man Missing" case. The complaint was given by the petitioners on 03.09.2014 about missing of K.Jamal Mohamed from 31.03.2014 and the case was registered in Crime No.901 of 2014 as "Man Missing" case. It is alleged that the sixth respondent was informed about the previous enemity between the land grabbers and the victim who was the Managing Trustee and the Trust is owning valuable properties. Even then, no steps have been taken to trace the victim. The said allegations of the petitioner cannot be ignored. Once the cellphone number was given and the other proposed accused name was given, the respondents should have verified the call details from the cellphone operators at the earliest for proper investigation. It only shows the lapse in the initial stage itself. 13. Though A.Mahendravarman, Advocate, one of the accused, was brought to the police station on 04.09.2014, he was let off at the intervention of a group of Advocates. When a person was taken for interrogation, the sixth respondent should not have been lenient to release the said person at the intervention of third parties. The said incident proves that there is no proper investigation done by the sixth respondent. 14. On 10.09.2014, the sixth respondent revealed through press that one Sithik intended to grab the properties of the trust with the help of one Poongodi, who accompanied late K.Jamal Mohamed to an astrologer Katrakudi village, and on their return at 06.30 p.m at Katrakudi junction the said Sithik who is District Secretary of Tamil Nadu Makkal Jananayaka Katchi And other accused intercepted K.Jamal Mohamed's car and kidnapped him, detained illegally in the political party office, forcibly obtained deeds in the Registrar Office and thereafter, he was murdered and later the case was done to death. 15. The respondents police on preliminary investigation came to know that the said Poongodi who was the "Honey trap" accompanied the victim in his Holswagan Car lastly. Poongodi was enquired on 04.09.2014, and the first arrest was made on 05.09.2014 detaining Mrs.Poongodi. Ganesan, the other accused was arrested on 07.09.2014. However, for the reasons best known to the sixth respondent, their police custody was sought only on 17.09.2014. The earliest opportunity to get correct details was lost by 6th respondent, in spite of material details given by those accused. 16. The victim was "Last seen" with Mrs.Poongodi, as per initial enquiry. Ganesan, the other accused was arrested on 07.09.2014. However, for the reasons best known to the sixth respondent, their police custody was sought only on 17.09.2014. The earliest opportunity to get correct details was lost by 6th respondent, in spite of material details given by those accused. 16. The victim was "Last seen" with Mrs.Poongodi, as per initial enquiry. Poongodi w/o.Velmurugan who is stated to be "Honey Trap" to lure the victim, was interrogated on 04.09.2014 and she was arrested on 05.09.2014. From Poongodi, clue should have been got and the investigation should have moved in the right direction. If the said Poongodi was interrogated properly on 04.09.2014 or 05.09.2014 definitely there would have been break through in the murder of K.Jamal Mohamed and the details would have been known as she was aware of the murder of the said K.Jamal Mohamed on 02.09.2014 itself by Sithik and others. The said fact was already informed to Poongodi as revealed in the confession statement dated 13.09.2014 made by Sithik. It is revealed in the said confession that on 02.09.2014, after the murder of K.Jamal Mohamed, said Sithck shared the money with other accused. The respondents police could have got the details very easily regarding that the murder of K.Jamal Mohamed on 04.09.2014 or 05.09.2014 itself from Poongodi, who is one of the accused. Sixth respondent wrote to the Commissioner of Police on 07.09.2014 stating that Poongodi was arrested on 05.09.2014 and that she gave statement that she was introduced to Sithick, the main accused by one Sundar, Head Constable. However, statement recorded under Section 161(3) from Poongodi is not available in the C.D.file. 17. Inspite of giving the complaint on 03.09.2014 and the details about the enemity between the deceased and Ganesan and other land grabbers, the said Ganesan was arrested only on 07.09.2014. The statement of the said Ganesan recorded on 07.09.2014 at 05.30 p.m. would reveal that there was a dispute between Ganesan and the victim and that the victim was kidnapped by Sithik on 30.09.2014 and that he was made to execute the deeds on 01.09.2014 in favour of the other accused namely Palanivelu and Indira. The statement of the said Ganesan recorded on 07.09.2014 at 05.30 p.m. would reveal that there was a dispute between Ganesan and the victim and that the victim was kidnapped by Sithik on 30.09.2014 and that he was made to execute the deeds on 01.09.2014 in favour of the other accused namely Palanivelu and Indira. The following portion of statement would show who are all said to be involved in the commission of offence: (“Tamil”) At least based on the above statement dated 07.09.2014, the persons named in the statement should have been interrogated properly by the sixth respondent which was not done. Here also there is a serious lapse in the investigation. 18. Another accused Sankar surrendered before the learned Judicial Magistrate, Melur, on 06.09.2014 whereas he was taken to police custody only on 13.09.2014, after lapse of one week. The said Sankar surrendered on 06.09.2014 stating that he only murdered K.Jamal Mohamed due to the dispute in sharing real estate commission. When such a vital and material detail of murder was given by Sankar, the respondents 5 and 6 should have got the said Sankar to police custody and all the accused would have been identified by interrogation. For a week, the respondents police did not take proper steps to get the said Sankar to police custody. Instead of adopting effective method the respondents 5 and 6 have been beating about the bush in a wrong direction. The above lapse proves improper investigation. 19. The respondents police came to know about the kidnapping of the victim and forcible execution of documents in respect of the Trust property before the Sub-Registrar, Arasaradi, when they arrested, Poongodi on 05.09.2014 itself, who stated that she helped the Mohamed Sithik to kidnap the deceased K.Jamal Mohamed for the purpose of getting the documents in respect of the property. However, for the reasons best known to the respondents 5 and 6 did not verify with the Sub-Registrar, Arasaradi, about the registration of document executed by the victim K.Jamal Mohamed in favour of the other accused. Either on 05.09.2014 or 06.09.2014 if the respondents 5 and 6 verified with the Sub-Registrar Office, Arasaradi, the other accused could have been known and they would have been arrested. The respondents 5 and 6 miserably failed to utilize the opportunity. Here also, there is a serious lacuna in the investigation. 20. Either on 05.09.2014 or 06.09.2014 if the respondents 5 and 6 verified with the Sub-Registrar Office, Arasaradi, the other accused could have been known and they would have been arrested. The respondents 5 and 6 miserably failed to utilize the opportunity. Here also, there is a serious lacuna in the investigation. 20. Only when the petitioner approached this Court for change of investigation on 10.09.2014, sixth respondent became active. The other accused D.Indira, N.Palanivelu, P.Umarani were arrested on 23.09.2014 and 19.09.2014. However, the other accused A.Mahendrvarman, is not arrested till date. 21. Moreover, the Closed Circuit Television recordings recorded on 01.09.2014 in the office of Sub-Registrar, Arasradi, was not seized by the respondents police. Pursuant to the direction of this Court on 11.09.2014 only, the CCTV clippings were directed to be produced by the ninth respondent, Sub-Registrar Office, Arasaradi, as the sixth respondent told the Court that till that date he did not get the clipping from ninth respondent. The sixth respondent was negligent and failed to take the CCTV recordings and even to visit the office to verify the execution of the documents. It only goes to show that the investigation is not properly done. 22. Moreover, sixth respondent informed the Court on 11.09.2014 that he did not get CCTV clippings. However, it is seen from the case diary, a letter is available stating as if he wrote on 08.09.2014 to the ninth respondent seeking CCTV clippings. Yet another letter dated 09.09.2014 written by the sixth respondent and received by 9th respondent on 10.09.2014 seeking CCTV clipping is available. Therefore, it is not clear which letter is correct one. The above only proves all is not well with the investigation conducted by the sixth respondent. Hence, the investigation cannot be done fairly by the sixth respondent. 23. For the reasons stated above, this Court concludes that the investigation is not properly done and if it is allowed to be continued by the sixth respondent, there will not be any proper fair investigation in this case. Though, there is no material to show that only to help the accused the respondents 5 and 6 are making improper investigation, the said contention of the petitioner cannot be ignored. The suspicion in the minds of the petitioner has to be removed. 24. Though, there is no material to show that only to help the accused the respondents 5 and 6 are making improper investigation, the said contention of the petitioner cannot be ignored. The suspicion in the minds of the petitioner has to be removed. 24. This Court's powers under Section 482 of Cr.P.C. or under Article 226 of the Constitution of India as held by the Honourable Supreme Court in the State of Punjab vs. C.B.I. reported in 2011 (9) SCC 182 to transfer the case where it has become necessary to provide credibility and confidence in investigation and for giving complete justice. The other Judgments in this regard are; (i) Gudalure M.J vs. Union of India reported in (1992)1 SCC 397 . (ii) Inder Singh vs. State of Panjab reported in (1994)6 SCC 275 . (iii) Punjab and Hariyana High Court Bar Association vs. State of Punjab and others reported in (1994)1 SCC 616 . (iv) Rubabbuddin Sheikh vs. State of Gujarat reported in (2010)2 SCC 200 . (v) Kashmeri Devi vs. Delhi Administration and others reported in 1988(Supp) SCC 482. (vi) S.M.Sharma vs. Bipenkumar Tiwari reported in AIR 1970 SC 786 . (vii) Divine Retreat Centre vs. State of Karela reported in AIR 2008 SC 1614 . (viii) National Human Rights Commission vs. State of Gujarat reported in 2009(6) SCC 342 . (ix) State of Punjab vs. C.B.I reported in 2011(9) SCC 182 . (x) unreported judgment in W.P(MD)No.2381 of 2013 dated 28.08.2014 (I.Jegajothi vs. State of Tamil Nadu and others). 25. As stated above, there is a improper, irresponsible, unfair investigation and the investigation is not going in the proper direction and in every stage there is a delay and more so for taking custody of the accused. Hence, this Court holds that that the investigation in this case is not done as per the statutory provision and it appears clear mala fide. To secure ends of justice, this Court transfers the case to the C.B.I/7th respondent herein and the sixth respondent shall handover the entire case file to the seventh respondent. This transfer has been made for the reasons stated above and to ensure that the investigation is conducted in a proper manner and to instil confidence in the minds of the petitioners and the public. 26. This transfer has been made for the reasons stated above and to ensure that the investigation is conducted in a proper manner and to instil confidence in the minds of the petitioners and the public. 26. For the reasons stated above, the following directions are given: (a) The case in Crime No.901 of 2014 is withdrawn pending on the file of the sixth respondent and transferred to the seventh respondent. (b) The fifth respondent Assistant Commissioner of Police, Thallakulam Range, Madurai is directed to handover the entire case records in Crime No.901 of 2014 on the file of the 6th respondent on or before 24.10.2014 to the seventh respondent, Joint Director, C.B.I, Sasthri Bhavan, Nungambakkam, Chennai, and the seventh respondent shall appoint a competent officer not below the rank of Deputy Superintendent of Police, to investigate the case and file a final report within a period of twelve weeks from the date of receipt of a copy of this order. (c) After filing final report before the competent Court within twelve weeks CBI shall file a compliance report before this Court. 27. It is made clear that the observations of any kind made by this Court is only for the purpose of disposal of this case. Though this Court grants the relief to the petitioners as prayed for by the petitioners, the main Criminal Original Petition is kept pending to decide about the general issues raised by this Court based on this case. 28. As observed in the opening paragraph, the real estate business is a grey area where the criminals, some of the officials and powerful persons are having big business. For the past 10 to 15 years, many murders are committed, a number of persons are being kidnapped and made to execute documents by force as seen in this case. Mostly persons with muscle power and political connections are active the business. It is very unfortunate, even the agricultural lands are being made as commodities for the purpose of plotting out in the name of real estate. As stated above, many murders, kidnaps and other offences have been reported with regard to real estate transactions. This case is one such type case. Therefore, in the interest of public, this Court suo motu impleds Inspector General of Police (Intelligence), as R10 and Mr.P.Kandasamy, learned Government Advocate(Criminal Side) takes notice for R10. 29. As stated above, many murders, kidnaps and other offences have been reported with regard to real estate transactions. This case is one such type case. Therefore, in the interest of public, this Court suo motu impleds Inspector General of Police (Intelligence), as R10 and Mr.P.Kandasamy, learned Government Advocate(Criminal Side) takes notice for R10. 29. The respondents 1 to 3 and 10 are directed to give their response to the following queries: a) How many crimes were committed in connection with real estate transaction business for the past 10 years in Tamil Nadu (year wise and district wise details to be given) b) How many murders and kidnappings in particular were committed for the past 10 years with regard to real estate transactions? (year wise and district wise details to be given?) c) How many cases of land grabbing and forging of land documents have been filed for the past ten years (year wise and district wise details to be given)? d) Whether organised gangs/Katta-panchayat groups are involved in land grabbing and committing offences relating to real-estate? e) Whether Government lands are grabbed by land sharks in connivance with the officials as part of real estate business? f) Why not Government sensitise the general public in particular by land owners and the common man buyers about the precautions to be taken while dealing with properties? and g) has it not become the need of the hour to device a mechanism/system by the Government to regulate the real estate transaction? As offences relating to the real estate are raising for the past 10 to 15 years and absolutely, there is no mechanism to regulate the real estate dealings, the above details are necessary to pass appropriate orders. The learned Government Advocate(Criminal side) is directed to get the details on or before 27.10.2014. 30. Post the matter on 27.10.2014.