M.Chandran @ Thammu Bala v. Inspector of Police, (Law & Order), Uthangarai Police Station, Uthangarai, Krishnagiri District. (Ref: CSR No.241/2009)
Case at a glance
Outcome
Disposed of
The writ petition is disposed of accordingly
Provisions considered
- Constitution of India arts. 226, 227
- Code of Criminal Procedure, 1973 ss. 36, 139, 154, 154(3), 156(3), 200, 482
Key paragraphs
- Para 44. The Superintendent of Police, Vellore District, Vellore...RespondentsWrit petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, for the reasons statedtherein. For Petitioner : Mr.A.Ramesh, Senior Counsel for Mr.V.VijayakumarFor Respondents : Mr.R.Murali, G.A.,ORDERThis writ petition is filed…
- Para 55. With regard to the said arguments, the learned counsel forthe petitioner submitted, by relying upon the judgment reported in(1998) 5 SCC 749 (PEPSI FOODS LTD ..vs.. SPECIAL JUDICIAL MAGISTRATEAND OTHERS) that the petition filed under Article 226 can be treatedas one under Article 227…
- Para 1111. The first and foremost issue that has to be consideredin the writ petition is, whether the remedy of the petitionerlies before this Court exercising its power under Article 226of the Constitution of India or whether the remedy of thepetitioner lies elsewhere as contemplated under…
Judgment
In the High Court of Judicature at MadrasDated: 01.04.2010Coram: The Honourable Mr.Justice R.SUBBIAHWrit Petition No.1806 of 2010M.Chandran @ Thammu Bala..Petitioner..vs..
Inspector of Police, (Law & Order), Uthangarai Police Station, Uthangarai, Krishnagiri District. (Ref: CSR No.241/2009)
Inspector of Police, (Law & Order) Jolarpet Police Station, Jolarpet, Vellore District.
The Superintendent of Police, Krishnagiri District, Krishnagiri.
The Superintendent of Police, Vellore District, Vellore...RespondentsWrit petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, for the reasons statedtherein. For Petitioner : Mr.A.Ramesh, Senior Counsel for Mr.V.VijayakumarFor Respondents : Mr.R.Murali, G.A.,ORDERThis writ petition is filed for a direction to the 3rd respondentto club the complaints pending in CSR No.419/2009 and CSRNo.241/2009, pending before the 2nd and 1st respondent respectively, and to transfer the same to the District Crime Branch, Krishnagiriwith a direction to register and investigate the same expeditiously. https://hcservices.ecourts.gov.in/hcservices/
2. The averments made in the writ petition are as follows: (a) The petitioner is the absolute owner of the landed propertymeasuring about 4.99 acres at Reddypatti village, Uthangarai Taluk. The petitioner has no issues and he is residing along with his wifeunder the care of his younger brother Baskaran. He followed'Bhuddhism' and he decided to develop an Ashram to the followers of'Bhuddism'. In order to construct the same, he approached oneParamasivam, son of Ponnusamy Chettiar, for mobilizing funds, who, inturn, introduced one Velu, son of Aathimoolam, a Ward Councilor of Uthangarai Town Panchayat. Though they tried to get a loan fromvarious financial sources, they had not succeeded in their attempt. During the year 2008, the said Velu obtained three passport sizephotographs and a copy of the ration card from the petitioner forgetting a free gas connection under the Tamil Nadu GovernmentSchemes, but he did not fulfil his assurance.
Since the petitionerwas not in a position to mobilize funds, he dropped the constructionof Ashram. Hence, he gifted the land to his brother Baskaran on24.04.2009 by way of a gift deed, registered as Document No.1718 of2009 and his brother Baskaran had also mutated the revenue records inhis name. (b) While the situation stood thus, on 07.05.2009, thepetitioner came to know that the said Velu sold his landed propertyin favour of Nataraja Mudaliar vide Document No.1902 of 2009registered before the Sub Registrar Uthangarai. On enquiry, he wasinformed that the said Velu had executed a sale deed as the poweragent of the petitioner by showing the power of attorney registeredon 30.10.2008, by the Sub Registrar, Jolarpet. Hence, he obtained acertified copy of the power of attorney dated 31.10.2008 and foundthat his photograph had been affixed on the said power of attorneydocument, but the thumb impression on the document was not that ofhim but a forged one.
Then only, the petitioner realised that bygetting photographs from the petitioner under the guise of gettingfree gas connection, the said Velu has created a false power ofattorney document using the photographs of the petitioner and soldthe property in favour of Nataraja Mudaliar. Therefore, thepetitioner lodged one complaint before the 1st respondent, underwhose jurisdiction the sale deed was registered and another complaintbefore the 2nd respondent, under whose jurisdiction the power ofattorney document was registered. On receipt of the complaint, thoughthe 1st respondent police had issued C.S.R.No.241 of 2009, did notproceed further. But the 2nd respondent on receipt of the complaint, did not enter his complaint into the Community Service Registermaintained in his office. Hence, after issuing a legal notice to thesaid Velu and M.Raja, who stood as witnesses to the sale deed andalso to Nataraja Mudaliar (purchaser), he filed a petition beforethis Court in Crl.O.P.No.10277 of 2009 for directing the 1strespondent to register the complaint dated 11.05.2009 and by order https://hcservices.ecourts.gov.in/hcservices/ dated 03.07.2009, this Court directed the 1st respondent to conduct anenquiry on the complaint of the petitioner within a period of twoweeks.
Similarly, in the other Crl.O.P.No.10278 of 2009, this Courtdirected the 2nd and 4th respondents to dispose of the case inaccordance with law by its order dated 05.10.2009. In spite of that, they did not obey the said order. Hence, the petitioner has filed acontempt petition No.1021 of 2009 before this Court, wherein the 4threspondent herein apologized before this court and undertook to takenecessary steps in accordance with law. Thereafter, after a lapse oftwo months, the 2nd respondent made an entry in his file as C.S.R.419of 2009 based on the complaint dated 11.05.2009. Since no effectiveaction was taken pursuant to the orders of this Court and he wasforced to withdraw his complaint, and hence he has filed the presentwrit petition for the relief stated above. (c) The 1st respondent has filed a counter stating that he hasconducted an enquiry and referred the case as closed on 25.05.2009since the case was of civil in nature and advised the petitioner toapproach the proper forum.
The 2nd respondent also filed a counterstating that he complied with the direction of this Court and thedocument in question was sent for forensic finger print expert'sopinion and they are awaiting for the opinion and as soon as thereport is received, they will investigate the matter and file thefinal report in accordance with law.3. Learned counsel for the appellant submitted that thecomplaint was lodged for the commission of cognizable offences, namely, forgery, impersonation, etc. The petitioner had to run frompillar to post for registering the complaint lodged by him. It hasbeen stated in the counter filed by the 1st respondent that hiscomplaint was closed as early as 25.05.2009 itself, but, till date, no communication was sent to the petitioner. Similarly, the 2ndrespondent in his counter stated that the document was sent to theexpert's opinion. Even without registering the complaint, thedocument had been sent to the expert's opinion, which would show thathe was adopting delayed tactics in not registering the complaint forthe reasons best known to him.
Further, though the complaint waslodged on 11.05.2009, even after ten months, the complaint had notseen the light of the day. Hence, both the complaints pending beforethe 1st and 2nd respondents have to be clubbed together and transferredto the District Crime Branch, Krishnagiri for investigation.4. Opposing the submissions made by the petitioner, the learnedGovernment Advocate submitted that the writ petition for a directionto register the complaint is not maintainable under Article 226 ofthe Constitution of India. Moreover, already two criminal originalpetitions were filed by the petitioner in Crl.O.P.Nos.10227 and 10228of 2009 for a direction to the 1st and 2nd respondents to register thecomplaint, in which the court has given a direction to the https://hcservices.ecourts.gov.in/hcservices/ respondents to register the complaint and proceed with the enquiry, in accordance with law. Therefore, the writ petition has to bedismissed on the ground of maintainability.
Further, the learnedGovernment Advocate, by relying upon the judgment of the Hon'bleSupreme Court reported in (2008)2 SCC 409 (SAKIRI VASU ..vs.. STATEOF U.P. AND OTHERS) submitted that the Apex Court has held that adirection to register a complaint cannot be sought by a writ petitionwhen there are many other alternative remedies available to thepetitioner and following the said dictum, this Court in (2008) 8 MLJ485 (SUN T.V.NETWORK LTD., ..vs.. STATE OF TAMIL NADU) has held whenthe remedy is available by taking recourse under the CriminalProcedure Code, writ petition under Article 226 of the Constitutionis not maintainable. Further, he has also relied upon anotherjudgment of this Court reported in CDJ 2009 MHC 4300 (CRL.O.P.No(MD.)No. 8464 of 2008 delivered on 19.02.2009 (S.Uthaya Suriyan ..vs..STATE) in support of his contention that the power under section 482Cr.P.C. should be sparingly exercised.
With regard to the said arguments, the learned counsel forthe petitioner submitted, by relying upon the judgment reported in(1998) 5 SCC 749 (PEPSI FOODS LTD ..vs.. SPECIAL JUDICIAL MAGISTRATEAND OTHERS) that the petition filed under Article 226 can be treatedas one under Article 227 of the Constitution or section 482 Cr.P.C.Therefore, there is no bar in seeking for a direction to therespondents to register the complaint and transfer the same. Further, the learned counsel for the respondent relied on the judgmentrendered in Crl.O.P.9245 of 2008, wherein this Court by relying onSAKIRI VASU's case has held that the Hon'ble Supreme Court does notcome under exception and that in appropriate cases, in order toprevent the miscarriage of justice, directions can be issued. Further, the learned counsel relied on the judgment reported in2008-2-L.W.(Crl.) 843 (A.SOWFILA ..vs.. THE COMMISSIONER OF POLICE,MADURAI AND OTHERS) and submitted that considering the facts andcircumstances of that case which apply to the facts of the presentcase, the prayer sought for has to be allowed.
Heard the learned counsel for the parties and perused thematerials available on record.
Keeping in view the submissions made by the learned counselon either side, the question that has to be decided in this writpetition is, whether the prayer sought for by the petitioner can beallowed or not ? 8. The contention of the learned Government Advocate is that adirection to the police officials to register the complaint could beentertained only under section 482 of the Criminal Procedure Code andafter exhausting the remedies by filing petitions under section 154(3) or section 200 Cr.P.C. then only, he can move this Court undersection 482 Cr.P.C. Now, it is pertinent to rely on the decision ofthe Apex Court reported in (2008)2 SCC 409 (cited supra), wherein it https://hcservices.ecourts.gov.in/hcservices/ has been held as follows: "26. If a person has a grievance that his FIR has notbeen registered by the police station his first remedy is toapproach the Superintendent of Police under Section 154(3)CrPC or other police officer referred to in Section 36 CrPC.If despite approaching the Superintendent of Police or theofficer referred to in Section 36 his grievance stillpersists, then he can approach a Magistrate under Section156(3) CrPC instead of rushing to the High Court by way of awrit petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section482 petitions be entertained when there are so manyalternative remedies?27. As we have already observed above, the Magistratehas very wide powers to direct registration of an FIR and toensure a proper investigation and for this purpose he canmonitor the investigation to ensure that the investigation isdone properly (though he cannot investigate himself). TheHigh court should discourage the practice of filing a writpetition or petition under section 482 CrPC simply because aperson has a grievance that his FIR has not been registeredby the police, or after being registered, properinvestigation has not been done by the police. For thisgrievance, the remedy lies under Sections 36 and 154(3)before the police officers concerned, and if that is of noavail, under Section 156(3) CrPC before the Magistrate or byfiling a criminal complaint under Section 200 CrPC and not byfiling a writ petition or a petition under Section 482 CrPC".
Following the said dictum, this Court in (2008) 8 MLJ 485)has held as follows: "
The first and foremost issue that has to be consideredin the writ petition is, whether the remedy of the petitionerlies before this Court exercising its power under Article 226of the Constitution of India or whether the remedy of thepetitioner lies elsewhere as contemplated under the CriminalProcedure Code. The matter in issue came in considerationbefore the then Hon'ble First Bench of this Court and it hasbeen held by the then Hon'ble First Bench that the remedy ofthe person in given circumstances is only by taking recourseunder the Criminal Procedure Code. The same is VenuSrinivasan ..vs.. Krishnamachari and Others (2005) 4 MLJ 596:2005-3-L.W.87. It would be useful to refer paragraphs 9 to 16of the said judgment, which are extracted hereunder: "9. In our opinion, whenever it is alleged that a https://hcservices.ecourts.gov.in/hcservices/ criminal offence has been committed, the complainantshould ordinarily first avail of his remedy of filing anF.I.R.in the police station under Section 154(1) of theCr.P.C.10.
Under that provision information relating to thecommission of cognizable offence can be given to anofficer in charge of the police station. Section 154(3)of the Cr.P.C. states that if an officer in charge of thepolice station refuses to record the information referredto in sub-section(1) of Section 154 of the Cr.P.C., thecomplainant can send the substance of the information inwriting by post to the Superintendent of Policeconcerned. Thus, if the Station House Officer of a policestation refuses to register an F.I.R., the complainanthas an alternative remedy by approaching the Superintendent of Police under Section 154(3) of theCr.P.C.11. ......."Hence, it is clear that the petitioner cannot approach this Court byfiling this writ petition since the Honble Apex Court has taken theview that the remedy of the petitioner does not lie before this Courtin filing the writ petition under Article 226 of the Constitution orto exercise the power of this Court under Article 227 of the Constitution or under section 482 Cr.P.C. 10.
On the contrary, the learned counsel for the petitionerrelied on the decision reported in AIR 2006 SC 1322 (RAMESH KUMARI ..vs.. STATE (N.C.T.OF DELHI AND OTHERS) in support of his contentionthat a direction can be given to the independent agency like CBI toinvestigate the matter if the allegations are made against the policepersonnel, wherein it has been held as follows: "4. That a police officer mandatorily registers a case on acomplaint of a cognizable offence by the citizen under Section154 of the Code is no more res integra. The point of law hasbeen set at rest by this Court in State of Haryana v. BhajanLal (1992 Supp (1) SCC 335). This Court after examining thewhole gamut and intricacies of the mandatory nature of Section154 of the Code has arrived at the finding in paras 31 and 32of the judgment as under: “31. At the stage of registration of a crime or a caseon the basis of the information disclosing a cognizableoffence in compliance with the mandate of Section 154(1)of the Code, the police officer concerned cannot embarkupon an enquiry as to whether the information, laid by the https://hcservices.ecourts.gov.in/hcservices/ informant is reliable and genuine or otherwise and refuseto register a case on the ground that the information isnot reliable or credible.
On the other hand, the officerin charge of a police station is statutorily obliged toregister a case and then to proceed with the investigationif he has reason to suspect the commission of an offencewhich he is empowered under Section 156 of the Code toinvestigate, subject to the proviso to Section 157. (As wehave proposed to make a detailed discussion about thepower of a police officer in the field of investigation ofa cognizable offence within the ambit of Sections 156 and157 of the Code in the ensuing part of this judgment, wedo not propose to deal with those sections in extenso inthe present context.) In case, an officer in charge of apolice station refuses to exercise the jurisdiction vestedin him and to register a case on the information of acognizable offence reported and thereby violates thestatutory duty cast upon him, the person aggrieved by suchrefusal can send the substance of the information inwriting and by post to the Superintendent of Policeconcerned who if satisfied that the information forwardedto him discloses a cognizable offence, should eitherinvestigate the case himself or direct an investigation tobe made by any police officer subordinate to him in themanner provided by sub-section (3) of Section 154 of the Code.32.
Be it noted that in Section 154(1) of the Code, thelegislature in its collective wisdom has carefully andcautiously used the expression ‘information’ withoutqualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ‘reasonable complaint’ and‘credible information’ are used. Evidently, the non-qualification of the word ‘information’ in Section 154(1)unlike in Section 41(1)(a) and (g) of the Code may be forthe reason that the police officer should not refuse torecord an information relating to the commission of acognizable offence and to register a case thereon on theground that he is not satisfied with the reasonableness orcredibility of the information. In other words,‘reasonableness’ or ‘credibility’ of the said informationis not a condition precedent for registration of a case. Acomparison of the present Section 154 with those of theearlier Codes will indicate that the legislature hadpurposely thought it fit to employ only the word‘information’ without qualifying the said word.
Section139 of the Code of Criminal Procedure of 1861 (Act 25 of1861) passed by the Legislative Council of India read that‘every complaint or information’ preferred to an officerin charge of a police station should be reduced into https://hcservices.ecourts.gov.in/hcservices/ writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) whichthereafter read that ‘every complaint’ preferred to anofficer in charge of a police station shall be reduced inwriting. The word ‘complaint’ which occurred in previoustwo Codes of 1861 and 1872 was deleted and in that placethe word ‘information’ was used in the Codes of 1882 and1898 which word is now used in Sections 154, 155, 157 and190(c) of the present Code of 1973 (Act 2 of 1974). Anoverall reading of all the Codes makes it clear that thecondition which is sine qua non for recording a firstinformation report is that there must be an informationand that information must disclose a cognizable offence.” Finally, this Court in para 33 said: “33.
It is, therefore, manifestly clear that if anyinformation disclosing a cognizable offence is laid beforean officer in charge of a police station satisfying therequirements of Section 154(1) of the Code, the saidpolice officer has no other option except to enter thesubstance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” 11. In (2008) 2 MLJ (Crl.) 796 (G.AROKIYA MARIE ..vs..SUPERINTENDENT OF POLICE), it has been held as follows: "While discouraging the invocation of inherentjurisdiction by the persons who allege commission of offenceof lesser gravity which may not require immediateinvestigation, the Court shall entertain petitions under Section 482, Code of Criminal Procedure, 1973 involved by thevictims of heinous crimes who cry for registration of a caseand investigation forthwith in order to do complete justice".Since the other judgments cited by the petitioner are also on thesame line, they are not dealt with.
On going through the decisions relied on by both sides andthe submissions made, I am of the opinion that the propositiondepends upon the facts and circumstances of each case. In (2008)2MLJ (Crl.)796, this Court has held that the rule enunciated by the Hon'ble Supreme Court is not without exception and that inappropriate cases, in order to prevent miscarriage of justice, directions can be issued. Therefore, the question that has to bedecided is whether it is proper for this Court to give a direction tothe police to register the complaint or not ? 13. It is the case of the complainant/petitioner that heintended to put up an Ashram to the followers of 'Buddha' in hisproperty and as such, he approached one Velu for mobilisation of https://hcservices.ecourts.gov.in/hcservices/ funds; thereafter, he dropped the idea of the construction of Ashramsince he could not get the loan; hence, he gifted the property to hisbrother Baskaran and in recognition of the same, the revenue recordswere changed to his name; in the meantime, the said Velu sold thepetitioner's property to one Nataraja Mudaliar by creating an allegedforged power of attorney document affixing the photographs of thepetitioner, which were given by the petitioner to the said Velu inthe guise of getting a free gas connection from the Government. Oncoming to know the said sale, immediately the petitioner gave acomplaint to the 1st respondent as well as to the 2nd respondent; sincethe same were not registered, he approached this Court by filingCrl.O.P.Nos.10227 of and 10278 of 2009; pursuant to the orders ofthis Court, the complaints were registered and according to the 1strespondent, the complaint under C.S.R.No.241 of 2009 was closed on25.05.2009 since the case was of civil in nature; according to the 2ndrespondent, after enquiry, the documents were sent to the fingerprint expert for their opinion and they are awaiting for the report.
From the said facts, it is to be noted that, as contended bythe learned counsel for the petitioner, even without registering thecomplaint, the 2nd respondent has sent the documents for expert’sopinion. The attitude of the 2nd respondent fortifies the contentionof the petitioner that the 2nd respondent has not shown any interestin investigating the case of the petitioner. A perusal of the entirematerials would go to show that the petitioner was made to run frompillar to post by the respondents for the registration of thecomplaint.
The Hon'ble Supreme Court in SAKIRI VASU's case, referred toabove, has held that instead of rushing to the High Court by way of awrit petition or a petition under Section 482 Cr.P.C., the petitionercan approach a Magistrate (Criminal court) and he has a furtherremedy of filing a criminal complaint under Section 200 Cr.P.C. But, in the instant case, the petitioner was constrained to wait for morethan ten months in registering the complaint. Under suchcircumstances, it cannot be construed that the petitioner hasapproached this Court immediately on filing the complaint, since theinvestigation has not yet been done. If the petitioner is directed toavail the alternative remedies, he may not get justice at this lengthof time. Moreover, I am of the opinion that the prayer sought for bythe petitioner is maintainable, in view of the dictum laid down inthe Pepsi case (cited supra).
Moreover, the attitude of the 2nd respondent would show thatno appropriate action has been taken in accordance with law. Undersuch circumstances, it is not proper to allow the 2nd respondent toconduct the investigation. Taking into consideration the facts andcircumstances of the case, I am of the opinion that this is a fitcase where this Court can grant the relief sought for by the https://hcservices.ecourts.gov.in/hcservices/ petitioner by exercising its inherent jurisdiction.
It is pertinent to point out that from the counter filed bythe 1st respondent, it could be understood that the complaint pendingin C.S.R.No.241 of 2009 was closed as it is civil in nature. Therefore, I am of the opinion that, there is no necessity totransfer the same to another agency.
Operative part
For the reasons stated above, the 3rd respondent is directedto transfer C.S.R.No.419 of 2009 pending on the file of the 2ndrespondent, to the District Crime Branch, Krishnagiri, who in turn, is directed to register and investigate the same in accordance withlaw as expeditiously as possible. So far as the prayer sought forwith regard to C.S.R.No.241 of 2009 is concerned, there is nonecessity to pass any order since it has already been closed as civilin nature. The writ petition is disposed of accordingly. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarglTo 1. The Inspector of Police, (Law & Order), Uthangarai Police Station, Uthangarai, Krishnagiri District. (Ref: CSR No.241/2009)2. The Inspector of Police, (Law & Order) Jolarpet Police Station, Jolarpet, Vellore District.3. The Superintendent of Police, Krishnagiri District, Krishnagiri.4. The Superintendent of Police, Vellore District, Vellore.1 cc To Mr.V.Vijayakumar, Advocate, SR.21989 W.P.No.1806 of 2010TRM(CO)PMK.13.4.2010.
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The writ petition is disposed of accordingly
Which statutory provisions did this judgment involve?
Constitution of India — arts. 226, 227; Code of Criminal Procedure, 1973 — ss. 36, 139, 154, 154(3), 156(3), 200, 482.
Which court decided this case, and when?
Madras High Court, on 03 Jul 2009. The bench was R SUBBIAHWRIT.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.