BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/12/2009
CORAM
THE HONOURABLE MR. JUSTICE S.NAGAMUTHU
WRIT PETITION (MD) No.4435 OF 2009
and WRIT PETITION (MD) No. 4436 of 2009
M.P.(MD)Nos.1, 1, 2 and 2 of 2009
C.Kumaraselvam .. Petitioner in
W.P.(MD)No.4435 of 2009
A.Murugesan .. Petitioner in
W.P.(MD)No.4436 of 2009
Vs
1.The Deputy Inspector
of General of Police,
Tirunelveli Zone,
Tirunelveli.
2.The Superintendent of Police,
Thoothukudi District,
Thoothukudi.
3.The Deputy Superintendent of Police,
Vilathikulam Sub-Division,
Thoothukudi District. .. Respondents in both
the Writ Petitions
Writ Petition (MD) Nos.4435 and 4436 of 2009 filed under Article 226 of
the Constitution of India to issue a Writ of Certiorari to call for the entire
records pertaining to the charge memo issued by the 1st respondent vide his
proceedings in j.g.vz;.17/2009 and j.g.vz;.16/2009 respectively dated 28.1.2009
and to quash the same.
!For petitioners … Mr.R.Anand
^For respondents … Mr.M.Rajarajan,
Government Advocate
:COMMON ORDER
The petitioner in W.P.(MD)No.4435 of 2009 is a Head Constable and the
petitioner in W.P.(MD)No.4436 of 2009 is a Sub-Inspector of Police.
2. During the year 2008, they were working at Thiruchendur Police Station
in Thoothukudi District. A complaint preferred by one Karukkuvelrajan, son of
Murugan Pillai of Therikudiyiruppu Village before the learned Judicial
Magistrate, Thiruchendur was referred to the Sub-Inspector of Police,
Thiruchendur Police Station under Section 156(3) of the Criminal Procedure Code
with a direction to register a case on the said complaint and to investigate.
Based on the said order of the learned Judicial Magistrate dated 27.5.2008, the
petitioner, Mr. C.Kumaraselvam, who was the then a Head Constable, registered a
case in Crime No.235 of 2008 under Section 294(b), 323 and 506(ii) of the IPC on
27.5.2008. Thereafter, Mr.Murugesan, the Sub-Inspector of Police, took up the
investigation and filed a final report before the said Court.
3. The petitioner, Mr. Kumaraselvam, is stated to have assisted Mr.
Murugesan in the matter of investigation and for laying the charge sheet. The
learned Judicial Magistrate has taken cognizance on the said final report and it
appears that the trial is pending.
4. In the mean while, curiously and shockingly, the first respondent
issued a charge memorandum in j.g.vz;.16/2009 dated 28.1.2009 under Rule 3(b)
of the Tamil Nadu Police Subordinates (Discipline and Appeal) Rules against the
petitioner, Murugesan levelling as many as two charges. The first charge is that
the petitioner Mr.Murugesan, as the Sub-Inspector of Police of Thiruchendur
Police Station, without properly investigating the case, laid charge sheet on
10.6.2008. The second charge is that without getting approval from the
Superintendent of Police, he submitted a final report to the Court with ulterior
motives and met the staff of the Court of the Judicial Magistrate and managed to
get the same taken on file. Seeking to quash the said charge memorandum, he has
come forward With Writ Petition (MD)No.4436 of 2009.
5. Similarly, the first respondent issued a charge memorandum in
j.g.vz;.17/2009 dated 28.1.2009 under Rule 3(b) of the Tamil Nadu Police
Subordinates (Discipline and Appeal) Rules against the petitioner Mr.
Kumaraselvam, levelling two charges. The first charge is that the petitioner
registered the case without placing the papers before the superior officers for
their approval with corrupt motive. The second charge is that he joined along
with the petitioner Mr. Murugesan in meeting the staff of the Judicial
Magistrate’s Court to see that the case is taken on file. Seeking to quash the
said charge memorandum, he has come forward with Writ Petition (MD) No.4435 of
2009.
6. Learned counsel for the petitioners would submit that both the charge
memorandums are liable to be quashed since the case was registered in pursuance
of a direction issued by the learned Judicial Magistrate, Thiruchendur under
Section 156(3) of the Criminal Procedure Code. When the petitioners have simply
obeyed the direction of the judicial order passed by the learned Judicial
Magistrate, according to the learned counsel for the petitioners, such
registration of the case cannot be found fault with in any manner so as to form
the basis for the charge memorandums issued. Further, he submitted that the
case was properly investigated, materials were properly collected and placed
before the Court along with the final report. It was only on considering all
those materials, the learned Judicial Magistrate took cognizance on the said
report. He would further submit that subsequently, a petition was filed by some
other police officer on the instruction of the higher police officers before the
Judicial Magistrate seeking permission to reinvestigate the case. But the
learned Judicial Magistrate dismissed the same. He would further submit that
when there are such judicial orders passed by the Judicial Magistrate, it is not
at all legal on the part of the first respondent to issue such charge
memorandums. Thus, the charge memorandums are liable to be quashed.
7. In the counter affidavit filed on behalf of the respondents, it is
stated that the writ Petitions are not maintainable inasmuch as the petitioners
have got alternative remedy of submitting their explanations and to face the
enquiry so as to establish their contentions. It is further contended in
paragraph 6 of the counter affidavit that, though it is true that a direction
had been issued by the learned Judicial Magistrate to register the case, the
petitioner, Mr.Kumaraselvam, without any intimation to the higher authorities
has registered the case. It is further stated that whenever any such direction
is received from the Court, the petitioners are expected to intimate the order
of the Judicial Magistrate to the higher officials. Since the petitioners have
not obeyed the same, the said conduct amounts to misconduct and that is the
foundation for the first charge. It is further stated that the second
respondent had directed the Inspector of Police, District Crime Branch to
further investigate the case and an order to that effect was issued on 1.7.2008.
But, knowing the same fully well, the petitioners filed the final report, in the
mean while, before the Court, and got the case taken on file by the learned
Judicial Magistrate. Thus, according to the respondents, this conduct also
amounts to misconduct.
8. I have heard Mr. R.Anand, learned counsel appearing for the petitioners
and Mr.M.Rajarajan, learned Government Advocate appearing for the respondents.
9. At the outset, I have to state that it is the settled law that as soon
as any direction is issued by a Judicial Magistrate under Section 156(3) of the
Criminal Procedure Code, it is the bounden duty of the Station House Officer to
register a case and to investigate the same. In the case on hand, admittedly,
such direction was issued by the learned Judicial Magistrate, Thiruchendur on
27.5.2008 and the same was received by the Thiruchendur Police Station at 7.00
p.m.,. In pursuance of the said direction, the petitioner, Mr. Kumaraselvam,
had duly registered the case.
10. In this regard, I have to state that, after all, the petitioner, Mr.
Kumaraselvam had acted swiftly to obey the order of the Court in which, no fault
can be found. For having obeyed the order of the Court, one cannot expect him
to undergo the ordeal of facing the charge. Thus, the first charge against the
petitioner, Mr. Kumaraslevam, is not only baseless but also misconceived.
11. After the case was registered by Mr. Kumaraselvam, the Head Constable,
it was duly taken up for investigation by the Sub-Inspector of Police, Mr.
Murugesan and he investigated the same. Time and again, the Courts have been
insisting upon the police officials to expedite the investigation and to lay
final reports before the Courts of law without any unnecessary delay. The
petitioner, Mr.Murugesan had done the same by filing a final report on 10.6.2008
itself. On going through the final report and other documents submitted along
with the same, the learned Judicial Magistrate, having satisfied that there was
a case to be tried, took cognizance of the offences and that is why, he assigned
the number.
12. The second charge against both the petitioners states that they have
managed to get the case taken on file by the Court by influencing staff of the
Court. In this regard, I have to state that it only reflects the non-
application of mind of the first respondent as to what is the process of taking
cognizance by a Magistrate. Probably, he is under the mistaken impression that
taking cognizance is a mechanical act that too, by the staff of the Court. It
is needless to say that taking cognizance is a serious judicial act to be
performed by the Judicial Magistrate under Section 190 of the Criminal Procedure
Code. On receipt of the police report, the Judicial Magistrate is required to
look into the final report including all the papers submitted along with it to
see whether there is any offence to be taken cognizance of and if only he is so
satisfied, he will take cognizance and decide to issue summons under Section 204
of the Criminal Procedure Code to the accused. Thus, the entire process of
taking cognizance is performed by the Judicial Magistrate judicially in which
the staff of the Court have got no role to play except placing the records
before the learned Judicial Magistrate. When that be so, without properly
understanding the said legal process, the second charge has been levelled
against both the petitioners as though they have managed to get the case taken
cognizance of, with the help of the staff of the Court. Thus, the second charge
against both the petitioners is again baseless.
13. Insofar as the first charge against the petitioner, Mr. Murugesan is
concerned, it alleges that the petitioner without making proper investigation
had filed a final report before the Court. But, now curiously, in the counter,
a new theory is coined by saying that when there was transfer order by the
second respondent transferring the investigation to the Inspector of Police,
District Crime Branch, the petitioner, Mr. Murugesan hurriedly concluded the
investigation and laid charge sheet knowing fully well about the transfer of
investigation. But, the learned counsel for the petitioners would point out
that the charge sheet had already been laid on 10.6.2008 itself where as,
according to the counter, the order transferring the investigation was made only
on 1.7.2008. Thus, the said allegation is incorrect.
14. It is further stated in the said charge that the petitioner,
Mr.Murugesan, did not do the investigation properly. If that is so, one would
expect the statement appended to the charges to contain as to what are all the
lapses said to have been committed by the petitioner, but, no such allegation is
found any where in the records. On the contrary, as pointed out by the learned
counsel for the petitioners, a petition was filed by the Inspector of Police,
District Crime Branch, before the learned Judicial Magistrate seeking permission
under Section 173(8) of the Criminal Procedure Code for reinvestigation/further
investigation. But, the learned Judicial Magistrate was pleased to dismiss the
same, which means, he was not satisfied that the allegations made in the
petition warranted either reinvestigation or further investigation. This would
also go to show that, apparently, there appears to be no lapses committed by the
petitioner, Mr.Murugesan, in the matter of investigation.
15. Above all, if really, any such lapse had been committed, the same
would be found out by the trial Court and it would be exposed. Even before
that exercise is completed, I do not know how the first respondent can come to
the conclusion that the petitioner, Mr. Murugesan has not investigated the case
properly. Thus, the first charge is also totally baseless.
16. Now, coming to the preliminary objection raised by the learned
Government Advocate that the Writ Petition is not maintainable inasmuch as the
petitioners have got an alternative remedy of making their explanations before
the enquiry officer, I am of the view that in general, in matters of charge
memo, this Court would be very slow in interfering. But, there are certain
exceptions to the said general proposition. In a case where the Court is of the
view that the charges are totally baseless, it is settled law that the Courts
should rise upto the occasion to exercise its power under Article 226 of the
Constitution of India to extend its long arm to rescue the person, who is
unnecessarily made to toil to face the charge memorandum. The case on hand, is
such a classic example where, as I have stated at the outset, charges are not
only baseless but also highly mischievous. Under these circumstances, this is
the fittest occasion for this Court to interfere with the charge memorandums
issued against the petitioners. Hence, this Court is inclined to quash the
impugned charge memorandums.
17. In the result, both the Writ Petitions are allowed and the impugned
charge memorandums are quashed. Connected Miscellaneous Petitions are closed.
No costs.
asvm
To
1.The Deputy Inspector
of General of Police,
Tirunelveli Zone,
Tirunelveli.
2.The Superintendent of Police,
Thoothukudi District,
Thoothukudi.
3.The Deputy Superintendent of Police,
Vilathikulam Sub-Division,
Thoothukudi District.