BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/10/2010 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Contempt Petition (MD)No.534 of 2010 K.K.Ramesh ... Petitioner Vs Thangavel, Inspector of Police, C1 Thideer Nagar Police Station, Madurai. ... Respondent Prayer Petition filed under Section 11 of the Contempt of Courts Act, to punish the respondent herein for his wilful disobedience of the order passed by this Court in Crl.O.P.No.5022 of 2009 dated 29.06.2010. !For Petitioner ... Mr.K.K.Ramesh, Party-in-person ^For Respondent ... Mr.R.M.Anbunithi Govt. Advocate (Crl. Side) * * * * * :ORDER
This Contempt Petition is focussed to punish the respondent herein for his
wilful disobedience of the order passed by this Court in Crl.O.P.No.5022 of 2009
dated 29.06.2010.
2. The petitioner/party-in-person is present and the learned Government
Advocate (Criminal Side) is also present along with the respondent, namely
Thangavel, Inspector of Police, C1, Thideer Nagar Police Station, Madurai.
3. The nut-shell facts would run thus:
(a) The police earlier registered a case in Cr.No.1761 of 2008 for the
offences punishable under Sections 147, 148, 341, 307, 506(2) I.P.C. as against
ten persons consequent upon the complaint having been referred to the police by
the learned Magistrate concerned, under Section 156(3) Cr.P.C. The police
investigated into the offence and laid the police report invoking Sections 147,
341, 294(b), 506(ii) I.P.C. The learned Magistrate took it on file and numbered
it as C.C.No.146 of 2009.
(b) While so, the defacto complainant, the petitioner herein filed
necessary petition before the learned Magistrate seeking direction from him for
ordering further investigation into the matter. The learned Magistrate
dismissed that petition. Whereupon, a Criminal Revision Case was filed and in
that, this Court remitted the matter to the learned Magistrate and thereupon,
the learned Magistrate, on 08.01.2010, directed the police to conduct further
investigation. However, the police was inert and hence, the petitioner herein
was constrained to file Crl.O.P.(MD)No.5022 of 2010 and obtained a direction
from this Court on 29.06.2010 and as per which, this Court directed the police
to complete the investigation and file the final report within a period of one
month from the date of receipt of a copy of the order, which means that by
09.08.2010, the police ought to have laid the supplementary/additional charge
sheet.
4. Being dissatisfied with the procedure adopted by the police, the party-
in-person filed the present Contempt Petition.
5. The counter affidavit has been filed pleading that owing to busy work
and, law and order problem, the respondent police officer could not complete the
investigation and file necessary report within 09.08.2010, but he filed the
final report on 06.09.2010 before the learned Magistrate.
6. The learned Government Advocate (Criminal Side) would submit that the
police officer did his best and he cannot be found fault with and that the
respondent police officer may be exonerated from this contempt proceedings.
7. Whereas the petitioner/party-in-person would submit that the charge
sheet filed is not in accordance with law as the police officer only invoked
Sections 147, 341, 294(b), 506(ii) I.P.C, leaving major Sections 307 and 148
etc. According to him, the police officer failed to discharge his duty and he
has not complied with the order of this Court.
8. At this juncture, I would like to point out that there is apparently
delay of nearly one month for which the police officer would plead that because
of the law and order problem, he was not in a position to file the charge sheet
within the stipulated time.
9. Taking into account the averments put forth by the police officer, I
would like to condone the delay. However, the grievance of the petitioner is
that the police officer did not search and seize the vehicle concerned in which
the accused persons came to the place of occurrence and attempted to attack him
and that as an individual, he cannot go and seize the vehicle and only the
police can do it.
10. Furthermore, his case is that even though no physical injury was
inflicted on him by the accused, yet he narrowly escaped from the said brutal
attack levelled as against him by the accused.
11. I would like to recollect the following decisions of the Honourable
Apex Court:
(i) Abhinandan Jha v. Dinesh Mishra reported in AIR 1968 SC 117.
(ii) H.S.Bains, v. The State (Union Territory of Chandigarh), reported in
AIR 1980 SUPREME COURT 1883. An excerpt from it, would run thus:
“6. It is seen from the provisions to which we have referred in the
preceding paras that on receipt of a complaint a Magistrate has several courses
open to him. He may take cognizance of the offence and proceed to record the
statements of the complainant and the witnesses present under Section 200.
Thereafter, if in his opinion there is no sufficient ground for proceeding he
may dismiss the complaint under Section 203. If in his opinion there is
sufficient ground for proceeding he may issue process under Section 204.
However, if he thinks fit, he may postpone the issue of process and either
enquire into the case himself or direct an investigation to be made by a police
officer or such other person as he thinks fit for the purpose of deciding
whether or not there is sufficient ground for proceeding. He may then issue
process if in his opinion there is sufficient ground for proceeding or dismiss
the complaint if there is no sufficient ground for proceeding. On the other
hand, in the first instance, on receipt of a complaint, the Magistrate may,
instead of taking cognizance of the offence, order an investigation under
Section 156(3). The police will then investigate and submit a report under
Section 173(1). On receiving the police report the Magistrate may take
cognizance of the offence under Section 190(1)(b) and straight away issue
process. This he may do irrespective of the view expressed by the police in
their report whether an offence has been made out or not. The police report
under Section 173 will contain the facts discovered or unearthed by the police
and the conclusions drawn by the police therefrom. The Magistrate is not bound
by the conclusions drawn by the police and he may decide to issue process even
if the police recommend that there is no sufficient ground for proceeding
further. The Magistrate after receiving the police report, may, without issuing
process or dropping the proceeding decide to take cognizance of the offence on
the basis of the complaint originally submitted to him and proceed to record the
statements upon oath of the complainant and the witnesses present under Section
200 of the Criminal Procedure Code and thereafter decide whether to dismiss the
complaint or issue process. The mere fact that he had earlier ordered an
investigation under Section 156 (3) and received a report under Section 173 will
not have the effect of total effacement of the complaint and therefore the
Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under
Section 156(3) and receives a police report under Section 173(1), may,
thereafter, do one of three things: (1) he may decide that there is no
sufficient ground for proceeding further and drop action; (2) he may take
cognizance of the offence under Section 190 (1)(b) on the basis of the police
report and issue process; this he may do without being bound in any manner by
the conclusion arrived at by the police in their report; (3) he may take
cognizance of the offence under Section 190(1)(a) on the basis of the original
complaint and proceed to examine upon oath the complainant and his witnesses
under Section 200. If he adopts the third alternative, he may hold or direct an
inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the
complaint or issue process, as the case may be.
7. In Abhinandan Jha v. Dinesh Mishra, the question arose whether a
Magistrate to whom a report under Section 173(1) had been submitted to the
effect that no case had been made out against the accused, could direct the
police to file a charge-sheet, on his disagreeing with the report submitted by
the police. This Court held that the Magistrate had no jurisdiction to direct
the police to submit a charge-sheet. It was open to the Magistrate to agree or
disagree with the police report. If he agreed with the report that there was no
case made out for issuing process to the accused, he might accept the report and
close the proceedings. If he came to the conclusion that further investigation
was necessary he might make an order to that effect under Section 156(3). If
ultimately the Magistrate was of the opinion that the fact set out in the police
report constituted an offence he could take cognizance of the offence,
notwithstanding the contrary opinion of the police expressed in the report.
While expressing the opinion that the Magistrate could take cognizance of the
offence notwithstanding the contrary opinion of the police the court observed
that the Magistrate could take cognizance under “section 190(1)(c)”. We do not
have any doubt that the reference to “section 190(l)(c)” was a mistake for
“section 190(l)(b)” That appears to be obvious to us. But Shri Kapil Sibal urged
that the reference was indeed to Section 190(1)(c) since at that time Section
190(1)(c) included the words ‘or suspicion” and the court had apparently taken
the view that the Magistrate could take cognizance of the offence not under
Section 190(1)(a) as if on a police report but under Section 190(1)(c) as if “on
suspicion”. We do not agree with this submission. Section 190(l)(c) was never
intended to apply to cases where there was a police report under Section 173(1).
We find it impossible to say that a Magistrate who takes cognizance of an
offence on the basis of the facts disclosed in a police report must be said to
have taken cognizance of the offence on suspicion and not upon a police report
merely because the Magistrate and the police arrived at different conclusions
from the facts. The Magistrate is not bound by the conclusions arrived at by the
police even as he is not bound by the conclusions arrived at by the complainant
in a complaint. If a complainant states the relevant facts in his complaint and
alleges that the accused is guilty of an offence under Section 307 of the Indian
Penal Code the Magistrate is not bound by the conclusion of the complainant. He
may think that the facts disclose an offence under Section 324 of the Indian
Penal Code only and he may take cognizance of an offence under Section 324
instead of Section 307. Similarly if a police report mentions that half a dozen
persons examined by them claim to be eyewitnesses to a murder but that for
various reasons the witnesses could not be believed, the Magistrate is not bound
to accept the opinion of the police regarding the credibility of the witnesses.
He may prefer to ignore the conclusions of the police regarding the credibility
of the witnesses and take cognizance of the offence. If he does so, it would be
on the basis of the statements of the witnesses as revealed by the police
report. He would be taking cognizance upon the facts disclosed by the police
report though not on the conclusions arrived at by the police. It could not be
said in such a case that he was taking cognizance on suspicion.
8. In Tula Ram v. Kishore Singh the Magistrate, on receiving a complaint,
ordered an investigation under Section 156(3). The police submitted a report
indicating that no case had been made out against the accused. The court,
however, recorded the statements of the complainant and the witnesses and issued
process against the accused. It was contended that the Magistrate acted without
jurisdiction in taking cognizance of the case as if upon a complaint when the
police had submitted a report that no case had been made out against the
accused. This Court held that the Magistrate acted within his powers and
observed that the complaint did not get exhausted as soon as the Magistrate
ordered an investigation under Section 156(3). We are, therefore, unable to
agree with the submission of Shri Sibal that the Magistrate acted without
jurisdiction in taking cognizance of the offence and issuing process to the
accused notwithstanding the fact that the police report was to the effect that
no case had been made out.”
(iii) TULA RAM V. KISHORE SINGH, reported in (1977) 4 SCC 459.
(iv) RAM LAL NARANG V. STATE (DELHI ADMINISTRATION) reported in (1979) 2
SUPREME COURT CASES 322.
12. The learned Magistrate also may keep in mind the following precedents:
(i) State of M.P v. Mishrilal reported in 2003 Supreme Court Cases (Cri)
1829.
(ii)Sudhir v. State of Madhya Pradesh reported in 2001 CRL. L. J. 1072.
(iii) Nathilal and others v. State of U.P. And another reported in 1990-
Supreme Court Cases (Crl) 638.
13. A mere perusal of the above said decisions would amply make the point
clear that in matters of this nature, the crucial role to be played is by the
learned Magistrate concerned. It is for the petitioner to file necessary
protest petition before the learned Magistrate within a period of ten days from
the date of receipt of a copy of this order expressing his grievance, whereupon
the learned Magistrate has to resort to any one of the procedures contemplated
in the aforesaid decisions and accordingly, deal with the matter.
14. As such, by issuing the aforesaid direction, this Contempt Petition
stands closed.
rsb
To
1.The Inspector of Police,
C1 Thideer Nagar Police Station, Madurai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.