K.Kannan v. The Superintendent of Police Villupuram Villupuram District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.09.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.1649 of 2009K.Kannan.. PetitionerVs.State1. The Superintendent of Police Villupuram Villupuram District2. The Inspector of Police Thirunavalur Police Station Uludurpet Taluk Villupuram District .. RespondentsThis Criminal Original Petition has been filed under Section482 Cr.P.C to direct the second respondent to register FIR on thecomplaint dated 14.11.2008 and investigate into the complaint asexpeditiously as possible.For Petitioner : Mr.T.GandhiFor Respondents : Mr.I.Paul Nobel Devakumar Govt Advocate (Crl.Side) O R D E RThe petitioner herein having seen the inaction on the part ofthe police after receiving a complaint given by the petitionerherein dated 14.11.2008 addressed to the Inspector of Police,Thirunavalur Police Station, Villupuram District, has come forwardwith the present petition under Section 482 Cr.P.C seeking adirection to the respondents herein to register a first informationreport based on the above said complaint and investigate the sameas expeditiously as possible.2. The contents of the petition are as follows:-a) An extent of 0.17.0 hectares of land comprised in SurveyNo.500/19 in Ayan Vellore Village, Ulundurpet Taluk, VillupuramDistrict belongs to one Periyayi. She was in possession andenjoyment of the said land. She belongs to Korava community, whichis included in the list of a Scheduled Tribe. As Sundaram,Thambusamy, Thiruvengadam, Kolanjiappan and Subramani, who are non- https://hcservices.ecourts.gov.in/hcservices/ members of a scheduled caste or a scheduled tribe, tried tointerfere with the peaceful possession and enjoyment of the saidPeriyayi. The petitioner is the son-in-law of the above saidPeriyayi. Regarding the said land, she filed a suit inO.S.No.19/2001 on the file of the Principal District Munsif,Ulundurpet. She was also granted an injunction in her favour andthe learned Principal District Munsif had also directed the policeto give protection by an order dated 12.04.2006 made inE.A.No.165/2006. The case between the said Periyayi and the abovesaid persons has reached the stage of a second appeal, which is nowpending on the file of this court as S.A.No.592/2007. This court(High Court, Chennai) also granted interim injunction in favour ofthe said Periyayi and made it absolute till the disposal of thesecond appeal by its order dated 07.12.2007 in M.P.No.1/2007 inS.A.No.592/2007.b) On 14.11.2008 at about 9.00 a.m the petitioner and hisfather-in-law were engaged in strengthening the bunds of the saidland for paddy plantation. Sundaram, Thambusamy and Subramanialong with their henchmen Koothan, Palani and Elumalai formed anunlawful assembly with deadly weapons, trespassed into the saidlands and abused the petitioner and his father-in-law in filthylanguage. They also threatened the petitioner and his father-in-law with dire consequences, if they failed to vacate the land.When the petitioner and his father-in-law raised protest, the saidpersons severely bet the father-in-law of the petitioner using aspade and the petitioner using the handle of the spade. Theassailants also humiliated them using the name of the caste of thepetitioner and his father-in-law in public view. The assailantsalso obliterated the bunds of the land. They had also causedintimidation with dire consequences if the petitioner and hisfather-in-law would again enter the said land. c) After having admitted his father-in-law and he himselfhaving been treated at the government hospital, Ulundurpet, thepetitioner went to Thirunavalur police station and lodged acomplaint in writing on 14.11.2008 itself. But the Inspector ofPolice, Thirunavalur police station, who is arrayed as the secondrespondent herein, after receiving the complaint failed andneglected to register a first information report and investigatethe matter. Therefore, the petitioner herein had to send acomplaint to the second respondent herein by registered post. Thesecond respondent herein, even after receiving the complaint,refused to register a case based on the complaint of thepetitioner. Therefore, the petitioner had to send the complaint inwriting to the Superintendent of Police, Villupuram District (firstrespondent herein). The first respondent herein also failed to dohis duty. Therefore, the petitioner left with no other option, hasfiled the present petition under Section 482 Cr.P.C for a directionagainst the respondents to register a case based on the complaintof the petitioner dated 14.11.2008 and investigate the same.3. The Superintendent of Police, Villupuram District and theInspector of Police, Thirunavalur, Villupuram District have been https://hcservices.ecourts.gov.in/hcservices/ arrayed as the first and second respondents respectively. Thelearned Government Advocate (Crl. Side) has taken notice andentered appearance on behalf of the respondents 1 and 2.4. The submissions made by Mr.T.Gandhi, learned counsel forthe petitioner and by Mr.I.Paul Nobel Devakumar, learned GovernmentAdvocate (Crl. Side) representing the respondents were heard. Thepetition and the documents produced along with the petition werealso perused.5. The learned Government Advocate (Crl.Side), representingthe respondent police, has chosen to make his submissions withouteven filing a counter affidavit. He has stated that an order canbe passed after hearing the submissions made on the side of thepetitioner and on the side of the respondents, even without filinga formal counter affidavit. 6. It is the contention of the learned counsel for thepetitioner that though the complaint disclosed the commission ofcognizable offences including one under Section 3(i)(x) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989, the second respondent failed to register a case. It isthe further contention of the learned counsel for the petitionerthat the second respondent, being the station house officer of theThirunavalur Police station, was duty bound to register a casebased on the complaint of the petitioner, as the same disclosed notonly cognizable offences but also an offence punishable underSection 3(i)(x) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989, which is triable exclusivelyby a special court (Sessions Court). 7. It is the contention of the learned counsel for thepetitioner that the first respondent has also failed to perform hisduties by his failure to either investigate or cause aninvestigation to be made, even after the contents of the complaintwere sent to him in writing and by registered post as contemplatedunder Section 154(3) Cr.P.C.8. Per contra, the learned Government Advocate (Crl.Side),argued that the dispute between the petitioner and the allegedassailants was civil in nature in the perception of the respondentsand that hence there was justification on the part of therespondents in omitting and refusing to register a case based onthe complaint of the petitioner as there was no truth in theaverments made in the complaint. The learned Government Advocate(Crl.Side) also contended that the property in dispute was aporamboke land belonging to the government and that the complaintof the petitioner was an attempt to squat on the property. It isalso the contention of the learned Government Advocate (Crl.Side)that in the light of the recent pronouncements made by the Hon'bleSupreme Court in Aleque Padamsee v. Union of India reported in 2008(1) MLJ (Crl) 490 (SC) and Sakiri Vasu v. State of U.P., reportedin 2008(1) MLJ (Crl) 1393 (SC), the remedy available to the personaggrieved by the inaction on the part of the police to register a https://hcservices.ecourts.gov.in/hcservices/ case is to approach the concerned magistrate and such person cannotbe granted a relief either under Section 482 Cr.P.C or underArticle 226 of the Constitution of India.9. The petitioner along with his petition has produced copiesof six documents in the form of typed set of papers. Document No.1is a letter dated 01.09.2008 addressed by the Principal DistrictMunsif, Ulundurpet to the Inspector of Police, Thirunavalur policestation referring to an order dated 12.04.2006 made inE.A.No.165/2006 for the grant of police protection and directingthe Inspector of Police to give police protection to Periyayee toensure non-interference with her peaceful possession and enjoymentof the property comprised in Survey No.500/19 in Ayan Vellorevillage, Ulundurpet Taluk, Villupuram District. The seconddocument is a copy of an order dated 07.12.2007 passed by thiscourt in M.P.No.1 of 2007 in S.A.No.592/2007 making the interiminjunction granted in the said miscellaneous petition absolute tillthe disposal of the second appeal. From the said documents, it isobvious that there was a dispute between Periyayee, the mother-in-law of the petitioner herein and Sundaram, Thambusamy,Thiruvengadam, Kolanjiappan and Subramani regarding the enjoymentof the above said property pursuant to which she filed a suit inO.S.No.19/2001 on the file of the Principal District Munsif,Ulundurpet. After the disposal of the suit and the first appealarising therefrom, the matter is now pending before the High Court(this court) as S.A.No.592/2007. In the second appeal this courthas granted an order of injunction restraining the above saidpersons from interfering with the peaceful possession and enjoymentof the Periyayee till the disposal of the second appeal. 10. Under such circumstances, the petitioner who is the son-in-law of the above said Periyayee lodged a complaint with thesecond respondent herein on 14.11.2008 alleging that Sundaram,Subramanian, Koothan, Thambusamy and Palani trespassed into thesaid land, intimidated the petitioner and his father-in-law not todo any agricultural operation in the disputed land, attacked thepetitioner and his father-in-law with the handle of spade and spaderespectively and again intimidated with dire consequences andhumiliated them by uttering the name of their caste in public viewwhen they protested against their high handed act. The complaintalso contains an allegation that the petitioner and his father-in-law got treatment in Government Hospital, Ulundurpet, whereupon thepetitioner alone went to the police station to lodge the complaint,as his father-in-law was admitted as an in-patient in the saidhospital. A meek attempt was made on behalf of the respondents toshow that no such complaint was received by the second respondent.11. The second respondent has not come forward with a counteraffidavit denying the petition averments regarding lodging of thesaid complaint dated 14.11.2008. There cannot be any substance insuch a denial on the part of the second respondent. As the secondrespondent has not chosen to take any action based on the complaintin writing lodged in person by the petitioner herein on 14.11.2008,he had to send the same by registered post with acknowledgment due https://hcservices.ecourts.gov.in/hcservices/ to the second respondent (Inspector of Police) as well as the firstrespondent (Superintendent of Police, Villupuram district). A copyof the communication received from the postal department on01.12.2008 by the petitioner has been included as document No.4 inthe typed set of papers. From the said communication, it isobvious that the registered letters were sent on 17.11.2008 itself.The copies of the complaints sent by registered post to the secondrespondent and the first respondent are produced as document Nos.3and 5 in the typed set of papers. The said complaint copies sentby post were received by the addressees as evidenced by the copiesof the postal acknowledgment cards produced as document No.7 in thetyped set of papers. Therefore, the respondents cannot deny havingreceived such a written complaint from the petitioner.12. So far as the contention of the learned GovernmentAdvocate (Crl.Side) that the police chose to refrain fromregistering a case because, according to their perception, thedispute was civil in nature is concerned, this court is not in aposition to countenance the same. Of course the land disputebetween Periyayee and Sundaram and others was civil in nature,which is now pending on the file of this court in S.A.No.592/2007.The police were not asked by the petitioner to enquire into andsettle the civil dispute between mother-in-law of the petitionerand the persons against whom she had filed the suit. She ispursuing civil proceedings in an appropriate court for the saidrelief. In fact, she has also been granted an order of injunctionagainst the defendants in the suit not to interfere with herpossession and enjoyment of the property till the disposal of thesecond appeal. On the other hand, the petitioner wanted the policeto take action against the persons shown to be the assailants inthe complaint for their acts which amounted to criminal offences,which are cognizable. Therefore, the refusal on the part of thepolice to register a case on the ground that there was a civildispute between the mother-in-law of the petitioner and the allegedassailants regarding the enjoyment of property in dispute, cannotbe justified. 13. The further contention on behalf of the respondents thatthe complaint was lodged with an ulterior motive making falseallegations citing an imaginary incident also cannot becountenanced. Whether the allegations made in the complaint aretrue or not, cannot be prompted by the police before registering acase, to make a decision as to whether a case has to be registeredor not. The police officer has to consider the allegations made inthe complaint and the documents, if any, produced along with thecomplaint without trying to adjudicate upon the genuineness of suchallegations. In the complaint lodged by the petitioner on14.11.2008, clear allegations have been made disclosing commissionof offences punishable under Sections 447, 323 and 506(ii) and anoffence punishable under Section 3(i)(x) of the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989. Clearaverments have been made to the effect that the petitioner and hisfather-in-law belonged to Korava community included in the list ofScheduled Tribes and that the assailants were non-members of a https://hcservices.ecourts.gov.in/hcservices/ Scheduled Caste or a Scheduled Tribe. Therefore, this court is ofthe firm view that the police could not have refused to register acase on the ground that the complaint did not disclose anycognizable offence. 15. As per Section 154(1) Cr.P.C. the police officer in-chargeof the station, on receipt of information regarding the commissionof a cognizable offence is duty bound to register a case and give acopy of the first information report, free of cost, to the personfurnishing the information under sub-clause (ii) of Section 154.Time and again it has been indicated in a number of judgments ofthe Hon'ble Supreme Court that registration of a case is mandatoryand the police do not have any discretion either to register a caseor not to register a case, if the complaint discloses thecommission of a cognizable offence. Even in the judgments of theHon'ble Supreme Court, relied on by the learned Government Advocate(Crl.Side), viz. Aleque Padamsee v. Union of India reported in 2008(1) MLJ (Crl) 490 (SC) and Sakiri Vasu v. State of U.P., reportedin 2008(1) MLJ (Crl) 1393 (SC), the said point has been reiterated.However, the Hon'ble Supreme Court observed that the violation ofthe mandatory duty should not be confused with the relief availablefor the said violation. The said view expressed by the Hon'bleSupreme Court is enough to hold that the second respondent hasfailed to perform his duty and violated the mandatory provisionfound in Section 154(1) Cr.P.C. 16. The remedy available to a person aggrieved by the inactionon the part of the Station House Officer, as per Section 154(3) isto send the substance of the information in writing and by post tothe Superintendent of Police, who can either investigate the caseor direct an investigation to be made, if he is satisfied that theinformation disclosed the commission of a cognizable offence. Inthis case, we have already seen that the complaint clearlydisclosed the commission of more than one cognizable offence. Thepetitioner, after the failure on the part of the second respondentto register a case based on the complaint of the petitioner, hasrightly sent the substance of the information in writing and bypost to the first respondent, namely the Superintendent of Police,Villupuram district. The first respondent, after receiving thesame has also failed to investigate or direct an investigation tobe made. Under such circumstances alone, the petitioner has comeforward with the present petition seeking a direction to therespondents to register a case and investigate the same. From theforegoing discussions, it is abundantly clear that the firstrespondent has also failed in his duty to act in consonance withsection 154(3) Cr.P.C.17. However, the learned Government Advocate (Crl.Side) hasrelied on the observations made by the Hon'ble Supreme Court in theabove said judgments cited on behalf of the respondents that thepetitioner cannot be granted the relief sought for, despite therebeing failure on the part of the respondents to perform theirmandatory duty under Section 154 Cr.P.C. Of course, it is truethat the Hon'ble Supreme Court, in the said case in Sakiri Vasu's https://hcservices.ecourts.gov.in/hcservices/ case, held that the remedy, in such cases, for the complainant wasto approach the Superintendent of Police under Section 154(3)Cr.P.C. and in case of inaction on his part also, the complainantcould approach the Judicial Magistrate by way of an applicationunder Section 156(3) Cr.P.C., for a direction to investigate thematter. A three judge bench of the Hon'ble Supreme Court in AlequePadamsee's case, held that in case of refusal on the part of thepolice officials to register a case, even though the complaintdisclosed a cognizable offence, the modalities to be adopted by thecomplainant were, as set out in Section 190 r/w Section 200Cr.P.C. But when the said observations came to be considered by asingle judge of this court in G.Arokiya Marie v. Superintendent ofPolice reported in 2008(2) MLJ (Crl) 796, it has been observed thatthe Supreme Court had not ruled out in totality the exercise of theinherent power under Section 482 Cr.P.C to register a case andinvestigate the same in appropriate cases. In fact in G.ArokiyaMarie's case, the Hon'ble Justice M.Jeyapal has observed that inappropriate cases, namely wherein commission of grave offences likemurder, attempt to murder wherein grievous injuries have beencaused, robbery, dacoity, rape and attempt to rape are reported, inorder to see that the evidence does not get erased by passage oftime, swift action is needed and hence such cases can be taken asexceptional cases in which the High Court can issue directionsunder Section 482 Cr.P.C to register a case and investigate thesame. Of course, none of the offences alleged in the complaint ofthe petitioner herein is found in the list of grave offencesenumerated in the said judgment of the learned single judge. Butthe said list provided in the judgment cannot be construed to beexhaustive and on the other hand, it can be taken only asillustrative.18. The learned counsel for the petitioner also contendedthat, in addition to the offences listed in the said judgment ofthis court in G.Arokiya Marie's case, offences exclusively triableby a court of Sessions should also be added to the said list.According to his submissions, if the aggrieved person (de-factocomplainant) is left with no other option except to approach theJudicial Magistrate by way of a private complaint under Section 200Cr.P.C, there is the danger of the Magistrate taking cognizance ofthe offence without forwarding the complaint as an information tothe police for registration of a case in which event the case hasto be inquired into by the Magistrate himself. Under suchcircumstances, the de-facto complainant shall be denied the benefitof having the resources of the government investigatingmissionaries to collect evidence. As rightly said by the learnedcounsel for the petitioner, a Magistrate receiving a complaintunder Section 200 Cr.P.C. cannot order an investigation by apolice officer after taking cognizance of an offence, if the sameis exclusively triable by a court of Session. It shall not beobligatory on the part of the Magistrate to refer the complaint tothe police without taking cognizance of the offence. Therefore, theabove said contention raised by the learned counsel for thepetitioner that the de-facto complainant in such cases shall bewith a handicap to prove the case, as he is denied the opportunity https://hcservices.ecourts.gov.in/hcservices/ of having the case investigated by the State investigating agency,has got to be countenanced. Therefore, this court comes to theconclusion that in cases wherein the complaint discloses thecommission of an offence exclusively triable by a court of Session,the alternative remedy available should be considered to be notfully effective and efficacious and that hence in such cases, theHigh Court exercising its inherent power preserved under Section482 Cr.P.C can issue directions to the police to register a caseand investigate the same. Therefore, this court comes to theconclusion that it is a fit case in which a direction sought forhas to be issued.19. Yet another aspect should also be taken note of in thiscase. The offences alleged in the complaint are not onlypunishable under the provisions of the Indian Penal Code but alsoattracting Section 3(i)(x) of the Scheduled Castes and ScheduledTribes (Prevention of Atrocities) Act, 1989. Provisions similar toSection 154 Cr.P.C have been made under Rule 7 of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995which reads as follows:-Investigating Officer.— (1) An offence committedunder the Act shall be investigated by a police officernot below the rank of a Deputy Superintendent of Police.The investigating officer shall be appointed by the StateGovernment/Director General of Police/Superintendent ofPolice after taking into account his past experience,sense of ability and justice to perceive the implicationsof the case and investigate it along with right lineswithin the shortest possible time.(2) The investigating officer so appointed under sub-rule(1) shall complete the investigation on top prioritybasis within thirty days and submit the report to theSuperintendent of Police who in turn will immediatelyforward the report to the Director General of Police tothe State Government.(3) The Home Secretary and the Social WelfareSecretary to the State Government, Director ofProsecution, the officer in-charge of Prosecution and theDirector General of Police shall review by the end ofevery quarter the position of all investigations done bythe investigating officer.20. Considering the gravity of the offence and importance ofsuch cases, the parliament itself has enacted the special law underthe Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989. The rules framed thereunder are intended tohave speedy investigation of the case by a police officer of ahigher rank with certain qualities. It has also been mandatedtherein that the investigation of the case should be completedwithin a month from the date of registration of the case. Rule 6of the Scheduled Castes and Scheduled Tribes (Prevention of https://hcservices.ecourts.gov.in/hcservices/ Atrocities) Rules, 1995 also mandates the Superintendent of Policeto visit the place of occurrence and appoint an investigatingofficer immediately to investigate the case. Such importance givenby the legislature to have the investigation of the atrocitiescommitted, which are punishable under the provisions of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989, cannot be diluted by driving the aggrieved party toapproach the Magistrate by way of a private complaint, whereupon heshall not have the privilege of having the case investigated bysuch a high official of the police department. Therefore, thiscourt comes to the conclusion that it is a fit case in which thedirection sought for has to be granted in the interest of justiceand to avoid miscarriage of justice.21. In the result, this petition is allowed and the secondrespondent herein is directed to register a case based on thecomplaint of the petitioner dated 14.11.2008 and place the papersbefore the first respondent for appointment of an investigatingofficer in accordance with Rule 7 of the Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Rules, 1995 and thefirst respondent is directed to appoint an officer in the policedepartment not below the rank of Deputy Superintendent of Police,after considering the qualities of such officer in accordance withthe above said rule. Such an officer, thus appointed by the firstrespondent, shall commence investigation within the periodstipulated in the above said rule and submit a final report. Sd/Asst. Registrar/true copy/Sub Asst.RegistrarasrTo1.The Superintendent of Police Villupuram, Villupuram District2.The Inspector of Police Thirunavalur Police Station Uludurpet Taluk Villupuram District3.The Public Prosecutor High Court, Madras-600 104+ 1 cc to Mr.T.Gandhi, Advocate, SR.46513.ORDER in Crl.O.P.No.1649/2009LA (CO)A.S./29.09.2009