S P SAKTIVELU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This writ petition is filed for issue of a Writ of Mandamus directing the Respondents to take appropriate steps under Section 308 Code of Criminal Procedure against the Approver who was treated as hostile and to re-examine the hostile witnesses and mark their 164 Code of Criminal Procedure statements and thereafter examine the Petitioner as a witness in S.C. No. 94 of 2005 on the file of the Principal Sessions Judge, Puducherry.

(2.) Admittedly, in the Sessions Case in S.C. No. 94 of 2005, the Petitioner, an Investigating Officer, being the last witness, has been slated to give evidence today. The main grievance of the Petitioner appears to be, as could be seen from the affidavit, that as an Investigating Officer, though he has investigated properly, yet, the trial has not been properly done and it is evidenced by the fact that many witnesses have been treated as hostile and according to the Petitioner, the prosecution is not assisting the Court in a proper manner for the purpose of convicting the guilty persons. The Petitioner would further state that as an Investigating Officer, he has to be given the necessary papers so as to enable him to substantiate his stand while giving evidence and inasmuch as the papers have not been given to him, it is not possible for him to give evidence at this stage. Moreover, according to the Petitioner, the Approver, who has been treated as hostile, has not been properly examined and unless, he is recalled and examined, the Petitioner, being the Investigating Officer, cannot be called to give evidence.

(3.) Mr. S. Doraisamy, learned Counsel for the Petitioner, heavily relied upon the judgment of the Supreme Court, popularly known as "Best Bakery Case" (Zahira Habibullah Sheikh(5) and Anr. v. State of Gujarat and Ors., 2006 3 SCC 374) to substantiate his contention that rendering a judgment in an impartial manner and fair trial are prime aspects of justice delivery system and that has to be ensured by proper investigation and according to the learned Counsel, such an investigation having been done by the Petitioner as an Investigating Officer, the Petitioner has got every right to approach this Court under Article 226 of the Constitution of India, when there is an apprehension that the trial is not being conducted in a proper manner, to see that the guilty is punished. Learned Counsel for the Petitioner also relied on Section 308(1) Code of Criminal Procedure to contend that the discretion vested upon the Public Prosecutor has not been exercised properly as contemplated under the said Section and therefore, this Court, while exercising supervisory powers and also under Article 226 of the Constitution of India, can issue a direction to the Public Prosecutor to exercise his discretion in a proper manner.