# THE STATE OF TAMIL NADU & ORS v. ELEPHANT G. RAJENDRAN & ORS. ETC

- **Citation:** [2019] 5 S.C.R. 771
- **Court:** Supreme Court of India
- **Decided:** 2019-04-12
- **Case number:** Civil Appeal Nos. 3918-3919 of 2019
- **Bench:** Ashok Bhushan, K.M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-tamil-nadu-ors-v-elephant-g-rajendran-ors-etc-33741
- **Pages:** 50

## Headnote

Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959: Idol theft cases - Idol Wing of Crime Investigation Department
handling investigation, detection and follow up of such cases -
Hindu Religious and Charitable Endowments Department of the
State controlling and managing the temples, idols and artefacts -
Letter by Commissioner, Hindu Religious and Charitable Endowments
to Director General of Police pointing out various complaints of
his officers received by him against Idol Wing of Police - By G.O.
dated 01.08.2018, State of Tamil Nadu transferring all the under
investigation cases being investigated by the Special Team constituted
for Idol theft cases and all such future cases to the CBI - Justification
of - Held: It was known fact that there were allegations and FIRs
against few officers of HR & CE and complaints submitted by the
Commissioner against the Idol Wing of the Police ought not to have
been accepted outrightly without conducting any enquiry - Even if
there was some truth in the complaints made by the Commissioner,
the same ought to have been enquired and informed decision ought
to be taken by the Government - On a single letter of the
Commissioner suddenly no opinion could have been formed that
Idol Wing of the Department is not doing its job - Decision to
transfer the cases to CBI was hurriedly taken within one day on a
complaint received by the Commissioner without making any inquiry
and the decision of the Government cannot be said to be an informed
decision - When the matters pertaining to Idol Thefts were already
under investigation by SIT constituted under the order of the High
Court, it was appropriate that the State Government ought to have
apprised the Court before issuing any Government order for
transferring the cases - In any view of the matter looking to the
large number of cases of idol thefts cases and cases to come in
future regarding idol thefts, the CBI was not appropriate
 [2019] 5 S.C.R. 771
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investigating agency to be requested by the State - CBI itself has
expressed its inability to undertake such huge exercise - Thus, the
High Court did not commit any error in quashing the Government
order dated 01.08.2018.
Constitution of India:
Art. 226 - Jurisdiction under - Exercise of - Respondent no.
2-police officer, heading Idol Wing has been supervising Idol theft
cases and efficiently traced and recovered several idols worth
several crores - Direction by the High Court appointing respondent
no 2 after his superannuation to head a Special Investigation Team
(SIT) to carry out investigations and other functions, which can be
exercised by a police officer under CrPC - Sustainability of - Held:
Jurisdiction of constitutional courts u/Arts. 226 and 32 can be used
to forge new methodology to achieve the constitutional objectives -
For sufficient reason investigation can be handed over to a person
who is retired or no longer in employment - Government can issue
orders enabling respondent no. 2 to carry on functions as per the
direction - High Court in exercise of jurisdiction u/Art. 226 could
very well direct respondent No.2 to head the SIT to carry out
investigation and other functions after attaining the age of
superannuation - Thus, the directions of the High Court to continue
respondent No.2 in Idol Wing of CID after his superannuation is
sustainable.
Art. 226 - Jurisdiction under - Exercise of, by the High Court
- Scope and ambit of - Held: Power given to the High Court u/Art.
226 is of very wide nature which does not contain any fetter except
self-imposed restrictions - High Court while exercising jurisdiction
u/Art. 226 shall not issue any direction which is contrary to law.
Partly allowing the appeal, the Court
HELD: 1.1 In the letter dated 31.07.2018 by Commissioner,
HR & CE to Director General of Police, the Commissioner
pointed out various complaints of his officers which were received
by him in writing and orally. The Co

## Text

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THE STATE OF TAMIL NADU & ORS.
v.
ELEPHANT G. RAJENDRAN & ORS. ETC.
(Civil Appeal Nos. 3918-3919 of 2019)
APRIL 12, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959: Idol theft cases - Idol Wing of Crime Investigation Department
handling investigation, detection and follow up of such cases -
Hindu Religious and Charitable Endowments Department of the
State controlling and managing the temples, idols and artefacts -
Letter by Commissioner, Hindu Religious and Charitable Endowments
to Director General of Police pointing out various complaints of
his officers received by him against Idol Wing of Police - By G.O.
dated 01.08.2018, State of Tamil Nadu transferring all the under
investigation cases being investigated by the Special Team constituted
for Idol theft cases and all such future cases to the CBI - Justification
of - Held: It was known fact that there were allegations and FIRs
against few officers of HR & CE and complaints submitted by the
Commissioner against the Idol Wing of the Police ought not to have
been accepted outrightly without conducting any enquiry - Even if
there was some truth in the complaints made by the Commissioner,
the same ought to have been enquired and informed decision ought
to be taken by the Government - On a single letter of the
Commissioner suddenly no opinion could have been formed that
Idol Wing of the Department is not doing its job - Decision to
transfer the cases to CBI was hurriedly taken within one day on a
complaint received by the Commissioner without making any inquiry
and the decision of the Government cannot be said to be an informed
decision - When the matters pertaining to Idol Thefts were already
under investigation by SIT constituted under the order of the High
Court, it was appropriate that the State Government ought to have
apprised the Court before issuing any Government order for
transferring the cases - In any view of the matter looking to the
large number of cases of idol thefts cases and cases to come in
future regarding idol thefts, the CBI was not appropriate
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investigating agency to be requested by the State - CBI itself has
expressed its inability to undertake such huge exercise - Thus, the
High Court did not commit any error in quashing the Government
order dated 01.08.2018.
Constitution of India:
Art. 226 - Jurisdiction under - Exercise of - Respondent no.
2-police officer, heading Idol Wing has been supervising Idol theft
cases and efficiently traced and recovered several idols worth
several crores - Direction by the High Court appointing respondent
no 2 after his superannuation to head a Special Investigation Team
(SIT) to carry out investigations and other functions, which can be
exercised by a police officer under CrPC - Sustainability of - Held:
Jurisdiction of constitutional courts u/Arts. 226 and 32 can be used
to forge new methodology to achieve the constitutional objectives -
For sufficient reason investigation can be handed over to a person
who is retired or no longer in employment - Government can issue
orders enabling respondent no. 2 to carry on functions as per the
direction - High Court in exercise of jurisdiction u/Art. 226 could
very well direct respondent No.2 to head the SIT to carry out
investigation and other functions after attaining the age of
superannuation - Thus, the directions of the High Court to continue
respondent No.2 in Idol Wing of CID after his superannuation is
sustainable.
Art. 226 - Jurisdiction under - Exercise of, by the High Court
- Scope and ambit of - Held: Power given to the High Court u/Art.
226 is of very wide nature which does not contain any fetter except
self-imposed restrictions - High Court while exercising jurisdiction
u/Art. 226 shall not issue any direction which is contrary to law.
Partly allowing the appeal, the Court
HELD: 1.1 In the letter dated 31.07.2018 by Commissioner,
HR & CE to Director General of Police, the Commissioner
pointed out various complaints of his officers which were received
by him in writing and orally. The Commissioner stated that HR
and CE Department is facing a crisis. The Commissioner wrote
to the Director General to ensure a fair and confidential
investigation and bring the culprits to book, without damaging
the reputation of honest officials and the Department. By a letter
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of 31.07.2018 itself Additional Director General of Police made
recommendation to the Director General of Police to transfer all
cases under investigation being investigated by the Special Team
constituted for the Idol Theft cases to the CBI. The Director
General on the next day i.e. 01.08.2018 recommended for
transferring the cases to the CBI, on the same day the GO dated
01.08.2018 was issued. The entire process for transferring cases
to the CBI was completed within one day on complaints submitted
by the Commissioner. The High Court order dated 21.07.2018
has directed for holding departmental inquiry against certain
officers of HR & CE. FIRs were registered against the officers
of the HR & CE Department and other accused. Thus, it was
known fact that there were allegations and FIRs against the few
officers and complaints submitted by the Commissioner against
the Idol Wing of the Police ought not to have been accepted
outrightly without conducting any enquiry. Even if there was some
truth in the complaints made by the Commissioner, the same
ought to have been enquired and informed decision ought to be
taken by the Government. The Idol Wing had been carrying out
its work for the last more than three decades, several Idols were
recovered and cases launched and prosecutions were
accomplished. On a single letter of the Commissioner suddenly
no opinion could have been formed that Idol Wing of the
Department is not doing its job. The Higher Police authorities
and State was fully competent to take action against any officer of
the Idol Wing, if any excess or misdeeds were reported against
any officer of the Idol Wing. The letter of the Commissioner dated
31.07.2018 does not refer to any written complaint by HR & CE
Department to Police, higher authorities or the Government in
the above regard. The decision to transfer the cases to CBI was
hurriedly taken within one day on a complaint received by the
Commissioner without making any inquiry and the decision
of the Government cannot be said to be an informed decision.
[Para 32][798-F-H; 799-A-E]
1.2 The High Court in the impugned judgment gave detail
of reasons for quashing the order dated 01.08.2018. The High
Court in its order dated 21.07.2017 has already directed to
constitute a SIT of the Officers of the Idol Wing to carry on the
investigation and follow up pending trial. The compliance of the
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
RAJENDRAN & ORS. ETC.
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said order was under consideration before the Court. The
Additional Chief Secretary to the Government, after receiving
letter from Additional Director General of Police, wrote a letter
dated 01.08.2018 to the Additional Advocate General in making
a request. The Advocate General brought to the notice of the
Bench of the letter dated 01.08.2018 and wrote back to the
Additional Chief Secretary to the Government that Division Bench
of the High Court has observed that communication, decisions
or orders be placed before the Court in the next hearing to be
held on 08.08.2018. When the matters pertaining to Idol Thefts
were already under investigation by SIT constituted under the
order of the High Court, it was appropriate that the State
Government ought to have apprised the Court before issuing
any Government order for transferring the cases. In any view of
the matter looking to the large number of cases of Idol Thefts
cases and cases to come in future regarding Idol Thefts, the CBI
was not appropriate investigating agency to be requested by the
State. The CBI itself has expressed its inability to undertake
such huge exercise, the High Court did not commit any error in
quashing the Government order dated 01.08.2018. [Para 35,
36][800-E-H; 801-A-C]
2.1 Article 226 of the Constitution of India confers to the
High Courts wide powers in the matter of issuing writs which
they never possess before. Article 226 of the Constitution is
couched in very wide words, power given to the High Court are
both plenary and inherent. The power under Article 226 is not
confined only to issue specified writs but power conferred to the
High Court is to issue directions, orders or writs including writs
in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari or any of the rights conferred by Part III
and for any other purpose. The power given to the High Court
under Article 226 is power of very wide nature which does not
contain any fetter except self-imposed restrictions. It is well
settled that the High Court while exercising jurisdiction under
Article 226 shall not issue any direction which is contrary to law.
[Para 38, 42][801-G-H; 802-A-B; 803-F]
Constitution of India by Durga Das Basu Vol.6 8th Edn
2010 - referred to.
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2.2 Different High Courts and this Court have passed
several orders constituting Special Investigation Team to carry
out investigations in cases where such requirement was found
necessary. Retired Police Officers have been included to be part
of SIT or to head a SIT. The jurisdiction of constitutional courts
under Article 226 and Article 32 can be used to forge new
methodology to achieve the constitutional objectives. No fetter
can be read in the jurisdiction under Article 32 or 226. For
sufficient reason investigation can be handed over to a person
who is retired or no longer in employment. The functions which
are to be performed by that person is under authority of Court's
order. There may be varied situations and circumstances where
a former officer is entrusted with an investigation or any other
function to achieve an object or purpose. When the constitutional
courts direct particular officer to carry on specific job that order
cannot be treated to be put that person in office of that post with
all necessary consequences. The particular object is entrusted
or only a specific job is entrusted to the officer which he has to
carry. The Court in issuing such direction neither creates any
ex-cadre post nor affects the post of officer by giving any kind of
appointment to a post. The violation of All India Services Act,
1951 or Rules framed thereunder cannot be read in entrustment
of specific job to a retired officer. All India (Death-cum-Retirement
Benefits) Rules, 1958 of the extension in service to the
incumbents of the posts of the Cabinet Secretary, Defence
Secretary, Home Secretary, Director, Intelligence Bureau,
Secretary, Research and Analysis Wing and Director, Central
Bureau of Investigation for such period as it may deem proper.
There cannot be any quarrel to the said provision nor applicability
of the provision in facts of the instant case. In the instant case
the Government has not decided to extend the services of
respondent No.2. The High Court issued direction appointing
respondent No.2 as a Special Officer to head Idol Wing-CID,
Chennai to deal with the cases of theft of Idols and antiques in all
stages, for a period of one year, after his superannuation. The
Court further directed "the Government to pass orders to that
effect". The Court clearly intended that in the above regard
Government may pass appropriate orders. It is open for the
Government to issue orders enabling respondent No.2 to carry
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
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on functions as per the direction. The Attorney took exception
to direction No.3 by which it is directed that respondent No.2
shall draw the same pay and benefits that were available to him at
the time of his retirement as Special Officer. On objection being
raised to the said direction, the counsel for respondent No.2
submitted that respondent No.2 is ready to carry on and discharge
his duties as per orders of this Court without drawing any pay
and benefits as .directed by the High Court. The High Court
instead of issuing direction No.3 ought to have given option to
the State Government either to continue/re-employ respondent
No.2 or in alternative fix some honorarium for the duties
entrusted on respondent No.2. The State Government having
not passed any order in consequence of which respondent No.2
may continue in the office of Inspector General of Police, justice
would be served when the State Government is directed to pay
some honorarium during the period respondent No.2 performed
his duties under the order of the Court in addition to his pension.
However, it is made clear that any pay and benefits which have
already been extended to respondent No.2 shall neither be
recovered nor adjusted. [Paras 48, 53][808-C; 811-B-H;
812-A-F]
2.3 The High Court in exercise of jurisdiction under Article
226 can very well direct respondent No.2 to head the SIT to carry
out investigation and other functions after attaining the age of
superannuation. The directions of the High Court to continue
respondent No.2 in Idol Wing of CID after his superannuation is
sustainable. [Para 54][812-G]
2.4 The High Court in the impugned judgment before
issuing a direction to continue respondent No.2 in the Idol Wing
has thoroughly examined the credential of respondent No.2. The
High Court has noticed that there are no allegations against
respondent No.2 as to come to the conclusion that he was not a
fit person to be directed to continue in the idol wing except that
he has not submitted the report to Additional Director General
of Police. The reasons for directing respondent No.2 to continue
have been set out by the High Court. The High Court has taken
note of the fact that the Government order dated 01.08.2018
transferring the cases to CBI having been quashed, it has become
just and necessary for the Court as the custodian of the Idols, in
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the role of parens patriae to exercise its jurisdiction to formulate
a solution. In paragraph 36 the Court has noticed the details of
the work accomplished by Idol Wing and the Idols recovered by
the SIT headed by respondent No.2. The High Court had after
due examination of all relevant documents taken a decision to
continue respondent No.2 to head the Idol Wing. The High Court
has referred to various judgments of the High Court and this
Court where work and conduct of respondent No.2 was
appreciated. [Paras 56-58][813-D-F; G-H; 814-F; G-H]
2.5 The complaints which have been now referred to and
relied by the appellant are the complaints which have been
submitted after the judgment of the High Court. They are the
complaints which were submitted even after the filing of the SLP
in this Court. The High Court in its direction has observed that if
there are materials against respondent No.2 the same can be
placed before the High Court for further direction. On the
strength of the complaints which are subsequently submitted after
the judgment of the High Court, the submission of the appellant
that respondent No.2 was not a fit person to be allowed to head
the Idol Wing after 30.11.2018 cannot be accepted. In so far as
submission of the appellant that after filing of the affidavit on
27.11.2018 by the respondent No.2 no opportunity was given to
the appellant, it is useful to extract the judgment where High
Court observed that as an affidavit was filed on 27.11.2018, again
a direction was issued on similar lines by this Court to place any
materials if available before this Court. However, till date no such
materials have been placed before this Court. The High Court
had given opportunity to place the materials, if any. The High
Court did not commit any error in directing respondent No.2 to
continue to head the Idol Wing after his superannuation.
[Para 59][815-B-F]
Dwaraka Nath v. Income-tax Officer AIR 1966 SC
81: 1965 SCR 536 ; Rohtas Industries Ltd. And another
v. Rohtas Industries Staff Union and others (1976) 2
SCC 82 : [1976] 3 SCR 12 ; Air India Statutory
Corporation and others v. United Labour Union and
others (1997) 9 SCC 377 : [1996] 9 Suppl. SCR 579 ;
Vineet Narain and others v. Union of India and another
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
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(1998) 1 SCC 226 : [1997] 6 Suppl. SCR 595 ; M.C.
Mehta and another v. Union of India and others 1987
(1) SCC 395 : [1987] 1 SCR 819 ; Guruvayoor
Devaswom Managing Committee and another v. C.K.
Rajan and others (2003) 7 SCC 546 : [2003] 2 Suppl.
SCR 619; Ranjitsing Brahmajeetsing Sharma and Ors.
v. Kisan Baburao Hazare and Ors. 2004 (3) MhLJ 760;
R. Sankarasubbu v. The Commissioner of Police,
Egmore, Chennai 2013 (1) CTC 1 ; Advocates
Association, Bangalore v. Union of India and others
(2013) 10 SCC 611 : [2013] 10 SCR 813 ; Sunita Devi
and Another v. Union of India and others (2018) 3 SCC
664 ; Board of Control for Cricket in India v. Cricket
Association of Bihar and others 2014 (7) SCC 385 -
referred to.
3. By direction No.1, respondent No.2 was directed to
function as Special Officer to head Idol Wing-CID, Chennai on
his superannuation on 30.11.2018. The Government was directed
to pass orders to that effect. It has been held that respondent
No.2 could have been directed to work as a Special Officer to
head Idol Wing-CID, thus, there is no error in direction No.1.
With regard to direction No.2, Special Team was already
constituted by the earlier order of the High Court dated
21.07.2017 which was directed to be continued to which direction
no exception can be taken. With regard to direction No.3, it was
directed to respondent No.2 to draw the same pay and benefits
that were available to him at the time of his retirement for the
entire tenure of his term as Special Officer. Instead of such
direction, the High Court ought to have given an option to the
State Government either to pass an order for re-employment/reengagement or the liberty ought to have been given to State to
fix some honorarium in addition to pension which would have
been drawn by respondent No.2. During the course of hearing it
was submitted for respondent No.2 that he is ready to carry on
his duty as entrusted by the High Court even without receiving
any emoluments. In the facts and circumstances of the case,
direction No.3 is modified to the effect that the State shall fix a
honorarium to be paid to respondent No.2 in addition to pension
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to be drawn by him. In the event any amount has already been
paid to respondent No.2 in pursuance to the direction of the High
Court, the same shall not be recovered and adjusted. By direction
No.4 the High Court directed the Special Officer to investigate
the cases thoroughly and submit all the reports before the Court
in a sealed cover to enable the Court to monitor the investigation.
It is noticed that an Additional Director General of Police was
appointed to head the Idol Wing by order dated 29.11.2018, it
was not necessary for the High Court to burden itself with
scrutinizing each and every report and requiring each and every
report to be submitted before the Court. There being a higher
Officer posted in the Idol Wing, progress and result of the
investigation ought to have been reported to Additional Director
General of Police and the report in the High Court was necessary
when certain directions were required by the Special Officer.
Direction No.4 is modified to the effect that report of progress of
the investigation shall be submitted to the Additional Director
General of Police of Idol Wing and report to the High Court may
be submitted by the Special Officer only when any further
directions are required from the High Court. With regard to
direction No.5, by this direction the Special Officer is directed to
continue to not only investigate and file charge sheets and
prosecute in the pending cases but also to continue to do so in
the cases arising in future during his tenure. No exception can
be taken. The direction No. 6 which requires CBI and other
agencies of Central Government shall continue to give appropriate
support to the Special Officer. No exception can be taken since
CBI itself sent letter dated 19.09.2018 communicating its support.
With regard to direction 7 serious objection has been raised by
the Attorney General. He submits that the said direction gives
exemption to respondent No.2. The respondent No.2 cannot be
held above law. No one is above the law. The High Court has
given liberty to the State or any competent authority to place the
materials before the Court for further direction if there are any
materials against respondent No.2. The liberty given in direction
No.7 amply protects the interest of the State which needs no
interference. Direction No.8 pertains to communications to
concerned Departments to extend co-operation to the Special
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Team with which no exception can be taken. It is to be noted that
Idol Wing has been created by the State in 1983 and for several
decades Idol Wing has been continuing without provision of any
separate division to handle the financial aspects. There was no
such requirement to issue any direction to create such division
to handle the financial aspects. The Idol Wing has to be run as
per budget allocation and in any case of requirement it is always
open to the higher Police authorities and State Government to
do the needful. Direction No.9 as regards financial aspects is
deleted. Direction No.10 is general direction to which no
exception can be taken. [Para 60][815-G-H; 816-A-H; 817-A-H;
818-A-C]
4. By the Government order dated 29.11.2018 the post of
Inspector General of Police was upgraded as Additional Director
General of Police who was appointed by the State Government
on 29.11.2018. The order dated 29.11.2018 being not under
challenge in the writ petition, it was not necessary for the High
Court to make any observation in that regard. The High Court
was not right in observing that order dated 29.11.2018 has become
redundant. The observation made by the High Court in paragraphs
47 and 48 that the order dated 29.11.2018 has become redundant
is disapproved. Order dated 29.11.2018 was a Government order
which was not challenged in the writ petition, the same shall
remain effective that the Idol Wing shall be headed by the
Additional Director General of Police appointed on 29.11.2018.
However, the Special Officer shall take all appropriate steps along
with his Team and he shall submit report to the Additional Director
General of the result of the investigations so that appropriate
further action be taken. [Para 62][819-B-E]
5. Insofar as filing of the statutory reports as per the
procedure prescribed in the Code of Criminal Procedure,
necessary reports have to be filed by the officer authorized as
per Code of Criminal Procedure. There might arise exceptional
cases where the direction for appointment of retired officers may
be unavoidable to achieve the goal of justice but the High Court
may resort to the power under Article 226 only after weighing all
pros and cons and after exhausting all options and as a matter of
last resort. Taking services of a retired police officer or any other
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retired personnel is not to be normally resorted to since in the
State concerned, there is always no dearth of competent and able
officers, hence whenever the Court finds it necessary to take
assistance of services of the retired officers or personnel, it should
be with necessary caution and resorted to only when there are
very valid and unavoidable circumstances. [Para 63][819-F-H;
820-A-B]
Case Law Reference
1965 SCR 536
referred to
Para 39
[1976] 3 SCR 12
referred to
Para 40
[1996] 9 Suppl. SCR 579
referred to
Para 41
[1997] 6 Suppl. SCR 595
referred to
Para 44
[1987] 1 SCR 819
referred to
Para 46
[2003] 2 Suppl. SCR 619
referred to
Para 47
2004 (3) MhLJ 760
referred to
Para 48
2013 (1) CTC 1
referred to
Para 49
[2013] 10 SCR 813
referred to
Para 50
(2018) 3 SCC 664
referred to
Para 51
2014 (7) SCC 385
referred to
Para 52
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 39183919 of 2019.
From the Judgment and Order dated 30.11.2018 of the High Court
of Judicature at Madras in Writ Petition Nos. 20392 and 20963 of 2018.
K. K. Venugopal, AG, Balaji Srinivasan, AAG, Mukul Rohatgi, R.
Basant, Jaideep Gupta, Mohan Parasaran, Sr. Advs., B. Vinodh Kanna,
Ms. Pallavi Sengupta, Ms. Valarmathi, Ms. Swati Ghildiyal, Ms. Shraddha
Deshmukh, Ankur, B.V. Balramdas, Mayilsamy K., K. Muthu Ganesh
Pandian, N. R. Maurya, P. Somasundram, Ms.Vrinda Grover, Dr. Anindita
Pujari, Soutik Banerjee, Ms. Aarti Krupa Kumar, Gagan Gupta, R. Anand
Padmanabhan, Prawal Chaturvedi, Ms. Nishaka Tyagi, Aravind S., Shashi
Bhushan Kumar, Ashwin Kumar D.S., Aditi Dani, D. L. Chidananda, G.
S. Mani, Lewish Edward, R. C. Sharma, R. Sathish, Ms. Purbita Mitra,
R. Naveenraj, K. V. Vijayakumar, Advs. for the appearing parties.
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
RAJENDRAN & ORS. ETC.
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The Judgment of the Court was delivered by
ASHOK BHUSHAN, J. 1. Leave granted.
2. The State of Tamil Nadu alongwith its functionaries have filed
these appeals against the common judgment dated 30.11.2018 passed
by the High Court of Madras in Writ Petition Nos. 20392 and 20963 of
2018 filed by the respondents as PIL (Public Interest Litigation).
3. Tamil Nadu is a State, which is known for its majestic temples,
its rich culture and heritage. Idols consecrated in its various temples
have their own significance, rich heritage and some of the idols dates
back to 1500 to 2000 years back. There have been several instances for
theft of precious idols and artefacts in the State of Tamil Nadu, which
alarmed the State Government. The State Government vide its G.O.Ms.
No. 2098, Home(Pol-IV) Department dated 07.10.1983 formed an Idol
Wing of Crime Investigation Department (CID). The temples in Tamil
Nadu are administered under the enactment namely, Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 (hereinafter referred
to as "Act, 1959"). Hindu Religious and Charitable Endowments
Department (hereinafter referred to as "HR & CE Department") of the
State controls and administers various temples in the State. The HR &
CE Department of the State keeps a direct control and management of
the temples, its properties, idols and artefacts etc.
4. One Mr.A.G. Ponn Manickavel, the respondent No.2 herein,
who shall hereinafter be referred to as "respondent No.2" was appointed
as Deputy Inspector General of Police, Idol Wing, Chennai on 11.02.2012,
which was part of Economic Offences Wing of the Tamil Nadu Police.
The role of the wing is basically for efficient investigation, detection and
follow up of the Idol theft cases and follow the Court cases concerning
them. Respondent No.2 was continued in the Idol Services Wing since
then.
5. The two individuals namely, Mr. R. Venkataraman and Mr.
Elephant G. Rajendran, the respondent No.1 herein, filed petitions before
the High Court of Madras under Section 482 Cr.P.C. being Crl.O.P. No.
8960 of 2017 and Crl.O.P. No. 12060 of 2017. In Crl.O.P. No.8960 of
2017, it was prayed for transferring the investigation regarding theft of
06 idols from the HR & CE Department to the Idol Wing of the Tamil
Nadu Police and in Crl.O.P. No.12060 of 2017, the prayer was made to
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transfer an FIR pertaining to an Idol theft from the Idol Theft Wing,
CID, Chennai to the Crime Branch, CID, Chennai.
6. The case filed by the petitioner in Crl.O.P. No. 8960 of 2017
was with regard to Sri Pasupatheeswarar Temple in Thanjavur District,
which was built during the Chola Reign about 1500 to 2000 years ago,
which according to petitioner houses several ancient idols of temples.
Allegation was made that 06 of such idols were missing belonging to a
temple with regard to which complaints were made to police officers
and officials of HR & CE Department. Despite several complaints to
police officers and officials of HR & CE Department, no FIR has been
lodged and no action has been taken to punish the erring officials of the
HR & CE Department. It was further pleaded that officials of HR &
CE Department are not appropriate authority to investigate the offence
of theft, hence appropriate direction was sought for.
7. Mr. Elephant G. Rajendran, who is respondent No.1 in this
appeal, had filed Crl.O.P. No. 12060 of 2017 making allegation that a
police official came into possession of six Idols during the course of their
investigation had sold the Idols for Rs.6 Crores. Despite the fact that
FIR had been lodged against the accused, they have been promoted and
no further action was taken. Further allegation was that investigation by
a subordinate officer of the same wing cannot be handled effectively.
Allegations were also made that Idols worth several crores of rupees
were sold by the trustees in collusion with the HR & CE authorities.
8. Madras High Court disposed of both the Crl.O.P. petitions by
its judgment dated 21.07.2017. the High Court during the hearing had
summoned the Inspector General of Idol Wing, who at that time was
second respondent. Inspector General of Idol Wing appeared before
the Court and brought to the notice of the Court, various difficulties and
shortcomings faced by the Idol Wing due to which steps for detection of
Idol thefts and bringing the culprits before law is being hampered. During
the course of hearing on 30.06.2017, it was brought before the knowledge
of Madras High Court that respondent No.2, who was working as
Inspector General of Police, Idol Wing has been transferred. Court
observed that officer, the respondent No.2 has been supervising the cases
and has efficiently traced and recovered several Idols worth several
crores. Court further observed that it is not that the succeeding officer
is less efficient, but considering that Respondent No.2 and his team have
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
RAJENDRAN & ORS. ETC. [ASHOK BHUSHAN, J.]
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extensively travelled throughout the country and are aware of the modus
operandi of the culprits, for the sake of continuity, speedy completion of
the investigation and completion of the pending cases, respondent No.2
must continue despite the work assigned presently. The Madras High
Court on 21.07.2017 issued 20 directions to the State of Tamil Nadu, out
of which first 04 directions are as follows:-
"(i)
The Chief Secretary of the State of Tamil Nadu must issue
appropriate orders within a week for the creation of a
special camp at Tiruchirappalli headed by Mr. A.G. Ponn
Manickavel, IPS, Inspector General of Police with other
members of Idol wing, who associated him earlier for the
completion of trial in the pending cases in the State and
needless to say that necessary infrastructure, staff and
transportation, vehicle, fuel etc. from time to time are to be
provided. The said officer can place his representation
immediately intimating required assistance and the team
members required by him to the Chief Secretary and on
such representation, the same shall be provided forthwith.
(ii)
The cases pending on the file of various courts in the State
of Tamil Nadu prosecuted by the Idol wing are hereby
transferred to the file of the learned Additional Chief Judicial
Magistrate, Kumbakonam for effective and speedy disposal
of the cases, on day to day basis.
(iii)
The Inspector General of Police Mr. A.G. Ponn Manickavel,
IPS and all the officers of the cases connected with Idol
wing, CID are directed to continue to investigate and follow
up all the cases under investigation, pending trial, till the
disposal by the learned Additional Chief Judicial Magistrate,
Kumbakonam.
(iv)
The team as now ordered by this Court headed by the
Inspector General of Police Mr. A.G. Ponn Manickavel,
IPS, shall continue to follow up those cases in addition to
their present and future assignments, wherever they are
posted.
............"
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9. The Director General of Police aggrieved by the order dated
21.07.2017 passed by the Madras High Court filed a SLP (Crl.) Nos.
6139-6140 of 2017, which was disposed of by this Court by its order
dated 01.09.2017 in following manner:-
"Having heard Mr. Mukul Rohatgi, learned Senior Counsel for
the petitioners and Mr. J. Sai Deepak Iyer, learned counsel for
the respondents and upon perusal of the record, we consider it
appropriate to delete the findings pertaining to the mala fide nature
of the transfer of Inspector General of Police Mr. A.G. Ponn
Manickavel. We order accordingly.
Nonetheless, the order regarding the transfer of Inspector
General of Police Mr. A.G. Ponn Manickavel, shall remain intact.
With the aforesaid observations, the special leave petitions stand
disposed of.
As a sequel to the above, pending interlocutory applications, if
any, stand disposed of."
10. This Court did not interfere with the directions of Madras
High Court dated 21.07.2017 directing the respondent No.2 to continue
to head the Idol Wing of the CID. The High Court vide its order dated
21.07.2017 had not disposed of the matter finally rather it postponed the
matter for reporting compliance. It appears that before the High Court,
it was brought to the notice that State has not complied with various
directions issued on 21.07.2017 and there are obstacles created in carrying
out various functions of the Idol Wing. It is further to be noticed that
several FIRs were registered leading to arrest of several culprits including
some officers of HR & CE Department. In order dated 21.07.2017, in
Crl.O.P. No. 8690 of 2017 and Crl.O.P. No. 12060 of 2017, High Court
made certain observations about not providing proper infrastructure to
the Court appointed idol Wing.
11. On 31.07.2018, Commissioner, HR & CE Department wrote
a letter to Director General of Police, Chennai. In the D.O. letter,
Commissioner stated that Idol Wing of the Police is harassing the officials
of HR & CE Department and they are being threatened with filing of
the FIRs. Reference to certain complaints made by officers of HR &
CE Department brought to the notice of the Commissioner were also
narrated. The Commissioner requested the State to take necessary action
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
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to ensure a fair and confidential investigation and bring the culprits to
book, without damaging the reputation of honest officials and the
Department. Commissioner also requested that early charge sheets be
filed and prosecution be undertaken to enable disposal of the cases,
early apprehension of criminals and restoration of the Idols to the
respective temples.
12. On the said letter, Additional Director General of Police on
same date, i.e., on 31.07.2018 wrote to the Director General of Police
mentioning that during investigation of cases, several senior officers and
other staff belonging to HR & CE Department were also arrested. The
Additional Director of Police recommended that all cases under
investigation by the special team constituted for Idol theft cases and all
such future cases may be transferred to the Central Bureau of
investigation. Director General of Police on 01.08.2018 wrote to Additional
Chief Secretary to the Government concurring with the views of
Additional Director General of Police to transfer the cases to Central
Bureau of Investigation. On 01.08.2018, the Additional Chief Secretary
to the Government wrote to Additional Advocate General of the High
Court of Madras bringing into notice the development. In the end of the
letter, it was stated by Additional Chief Secretary to the Government
that High Court be apprised about the decision of the Government and
when the above cases are taken up for hearing and whether any orders
from the Court are required. On 01.08.2018 itself, the Additional Advocate
General of Tamil Nadu brought to the notice of Additional Chief Secretary
that he has brought into the notice of the Madras High Court about the
communication dated 01.08.2018 on which the Bench has observed that
the communication, decisions or orders, as the case may be placed before
the Court on its next hearing on 08.08.2018. On 01.08.2018 itself, the
State Government issued an order according its consent to transfer all
cases being investigated by the Special Team constituted for the Idol
cases and all such future cases to the Central Bureau of Investigation.
13. Two Writ Petitions being Writ Petition No.20392 of 2018 -
Elephant G.Rajendran Vs. The State of Tamil Nadu and Writ Petition
No. 20963 of 2018 - Traffic Dr. K.R.Ramaswamy Vs. State and Others,
has been filed in the Madras High Court praying for quashing the
Government Order dated 01.08.2018, transferring the investigation to
the Central Bureau of Investigation. The above writ petitions were
heard by the Division Bench and the Division Bench of the High Court
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vide its judgment dated 30.11.2018 allowed both the above writ petitions
quashing the Government Order dated 01.08.2018 and issued several
directions. The conclusion of the Court is recorded in paragraph No.45.
In paragraph Nos.45 to 48 of the judgment, the High Court has held:-
"45. This Court is empowered under Article 226 of the Constitution
to pass any orders to secure the ends of justice. We have already
expressed our anguish over the conduct of the State in handling
the matter insensitively. The directions issued by this Court and
confirmed by the Hon'ble Supreme Court have not been complied
in full. We have also expressed that we are satisfied with the
credentials of the Mr.A.G.Pon Manickavel, I.P.S, Inspector General
of Police and the steps taken by him in the process of investigation.
Hence, the following directions are given, which shall be
implemented by the State forthwith:
(1)Mr.A.G.Pon Manickavel, I.P.S, Inspector General of Police
is hereby appointed as a Special Officer to head Idol
Wing~CID, Chennai to deal with the cases of theft of
idols and antiques in all stages, for a period of one year, who
shall assume charge on his superannuation on 30.11.2018
forthwith and function from the same camp with the same
facilities. The Government shall pass orders to that effect. It is
made clear that any delay by the Government in passing
appropriate orders, shall not curtail the powers of Mr.A.G.Pon
Manickavel, I.P.S. to head the team and investigate the cases
and take appropriate action as per law.
(2)The members of the Special team constituted on the basis
of the orders of this Court on 21.07.2017 shall continue to be
part of the team and any such member as requested by
Mr.A.G.Pon Manickavel, I.P.S., shall be spared by the
Government from the Tamil Nadu Police Force.
(3)Mr.A.G.Pon Manickavel, I.P.S., Inspector General of Police,
shall draw the same pay and benefits that were available to
him at the time of his retirement for the entire tenure of his
term as Special officer.
(4)The Special Officer, hereby appointed shall investigate the
cases thoroughly and periodically submit all the reports before
THE STATE OF TAMIL NADU & ORS. v. ELEPHANT G.
RAJENDRAN & ORS. ETC.