Tmt.Vijayalakshmi v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.10.2009CORAMTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMARCrl.O.P.No.13132 of 2009 Tmt. Vijayalakshmi .. Petitioner-Vs-The StateRep. by Inspector of PoliceDharapuram Police StationThirupur District .. RespondentPetition filed under section 482 Cr.P.C., to direct the learnedJudicial Magistrate, Dharapuram to register a private complaint given by the petitioner on 11.05.2009 under Section 156(3) Cr.P.Con the file of the said court. For Petitioner : Mr.J.ManikkamFor Respondent : Mr.I. Paul Nobel Devakumar Govt. Advocate (Crl. Side)

O R D E RThis petition has been filed under Section 482 Cr.P.Cseeking a direction to the learned Judicial Magistrate, Dharapuramto take the private complaint preferred by the petitioner on11.05.2009 under section 190(1)(a) Cr.P.C r/w Section 200 Cr.P.C on file and proceed in accordance with law.

The submissions made by Mr.J.Manikkam, learned counselfor the petitioner and by Mr.I.Paul Nobel Devakumar, learnedGovernment Advocate (Crl. Side) representing the respondent police were heard. The documents produced in the form of typed set of papers were also perused.

The petitioner, at the first instance, lodged acomplaint with the police alleging commission of forgery and other offences. The gist of such complaint is that a suit was pending in the civil court (District Munsif Court, Dharapuram asO.S.No.562/2004) between the petitioner and one Nataraja Gounder in respect of a house site measuring 3730 sq.ft. comprised inT.S.No.492/1A2 in Dharapuram Town; that the said Nataraja Gounderdied on 01.01.2008; that after his death his legal heirs applied for electricity connection to the said property in the name of Nataraja Gounder forging his signature in the application and obtained electricity connection; that when the same was brought to the notice of the Electricity Board authorities, the service was disconnected and that by the said act, the legal heirs of deceasedNataraja Gounder had committed offences of forgery, cheating etc. https://hcservices.ecourts.gov.in/hcservices/

However the police officials, after obtaining a legal opinion from Additional Government Pleader cum Additional PublicProsecutor to the effect that the dispute was of civil nature, refrained from registering a case. Therefore, petitioner had to approach the learned Judicial Magistrate, Dharapuram having jurisdiction over the place of occurrence by way of a private complaint. The learned Judicial Magistrate has not chosen eitherto proceed with the complaint as per the procedure prescribed in Chapter XV of Cr.P.C or to refer the complaint to the police under Section 156(3) of Cr.P.C for investigation. On the other hand, the learned Judicial Magistrate has simply retured the complaint stating that the same shall be presented before the concerned police for further action, by an order dated 12.05.2009. Thereason stated therein was that no complaint to the concerned police was given before filing the private complaint. The complaint was represented on 02.06.2009 stating that since the police officer in charge of the police station did not respond after receiving the complaint and he refused even to issue a receipt, the petitioner had to send the gist of the complaint in writing to the superior authority.

It is obvious that the gist of the complaint in writing was sent tot he Superintendent of Police in accordance with Section154(3) Cr.P.C. Thereafter only the legal opinion of the Additional Government Pleader cum Additional Public Prosecutor was obtained and the police refrained from registering a case. Therefore the reason assigned in the order dated 12.05.2009retiring the complaint is factually incorrect. Even after the complaint was represented, the learned Judicial Magistrate chose to return it for the second time on 05.06.2009 by a short order stating that the complainant had not approached proper police concerned and that the complaint could be produced before the concerned police authority.

It is not the observation of the learned JudicialMagistrate that the complaint does not disclose commission of any offence or that there is a bar for taking cognizance of the offence disclosed in the complaint. A perusal of the complaint shows thataverments have been made to the effect that the persons named in the complaint have committed offences punishable under Sections465, 468, 471 and 120-B IPC. As rightly pointed out by the learned counsel for the petitioner, the learned Judicial Magistrate ought to have adopted either of the two courses available, viz. i) to forward the complaint to the police with a direction to investigate under Section 156(3) Cr.P.C. or ii) to proceed with the examination of the complainant and the witnesses produced, if any, under Section 200 Cr.P.C and follow the procedure prescribed in ChapterXV of Cr.P.C. Without doing it, the learned Judicial Magistrateproceeded on an erroneous assumption that before ever a private complaint is filed the complainant should have approached the police. There is no provision in the Cr.P.C which requires that acomplaint should have been lodged with the police before a private complaint is preferred on the file of the Magistrate. It is not acondition precedent for preferring a private complaint under https://hcservices.ecourts.gov.in/hcservices/ Section 200 Cr.P.C. that the police should have been approached at the first instance with an information under Section 154 Cr.P.CThe legal position shall be clear from the fact that a private complaint forwarded by the Magistrate with a direction to the police under Section 156(3) Cr.P.C is to be construed as an information to the police based on which FIR has to be registered.

Viewed from any angle, the order of the learned JudicialMagistrate returning the complaint is not legally sustainable. There is no other effective and efficacious remedy available to the petitioner. Hence the invocation of the inherent powers of this court under Section 482 Cr.P.C is proper and appropriate. It is afit case in which this court shall exercise its inherent power in favour of the petitioner. However, a specific direction to take cognizance of the offences by taking the complaint on file cannot be issued since the same shall have the effect of denying the discretion available to the Magistrate either to take the complaint on file under Chapter XV of Cr.P.C or to forward the same without taking cognizance to the police under Section 156(3) Cr.P.C for registration of a case and investigation.

The petitioner shall represent the complaint within 15days from the date of receipt of a copy of this order. On such representation, the learned Judicial Magistrate, Dharapuram shall either take it on file and proceed in accordance with the procedure prescribed in Sections 200 to 203 (Chapter XV) of Cr.P.C or forward the same under Section 156(3) Cr.P.C to the police with a direction for investigation.asrSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Judicial Magistrate, Dharapuram.2.-do-through The Chief Judicial Magistrate, Coimbatore3. The Inspector of Police, Dharapuram Police Station Thirupur District4. The Public Prosecutor, High Court of Madras, Chennai. 1CC to Mr.J.Manikkam, Advocate (SR.No.51528) Crl.OP.No.13132 of 2009JP (CO)SS (23.10.2009)