BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/07/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.O.P.(MD).No.6999 of 2007 K.Nalluchamy ... Petitioner Vs State represented by, the Inspector of Police, Ulagampatti Police Station, Sivagankai District. ... Respondent Prayer Petition filed under Section 482 of the Code of Criminal Procedure, to direct the respondent to register a case and file final report in accordance with law in complaint dated 17.03.2007 pending before the respondent. !For Petitioner ... Mr.A.K.Azagarsamy ^For Respondent ... Mr.P.Rajendran Government Advocate (Crl. Side) :ORDER
This petition is focussed to get an F.I.R registered based on the
complaint of the petitioner dated 17.03.2007 and investigated by the police.
2. Heard both sides.
3. The nitty-gritty, the gist and kernel, the pith and marrow of the
grievance of the petitioner is that despite he having lodged the complaint with
the police, the latter failed to respond to it legally, whereas the learned
Government Advocate (Criminal Side) would submit that the police have enquired
into the matter and it is civil in nature.
4. In this factual matrix, I would like to observe that whenever a
complainant could not get registered an F.I.R, it is open for him to send the
complaint by R.P.A.D for registering the case as per Section 154(3) Cr.P.C, to
the Superintendent of Police concerned and even thereafter, if there is no
response, his remedy is to approach the learned Magistrate as under.
5. Trite, the proposition of law is that a complaint which is popularly
called as ‘private complaint’ could rightly be filed before the learned
Magistrate who on receipt of it could suo motu invoke his power under section
156(3) Cr.P.C and send the complaint without taking cognizance of the offences
referred to in the application to the police for registering an F.I.R and
investigate into the matter as per the Code of Criminal Procedure or in the
alternative, the learned Magistrate without sending the application under
Section 156(3) Cr.P.C could himself record the sworn statement of the
complainant and thereby take cognizance of the offences referred to in the
complaint. Relating to this procedure, there are catena of decisions as under:
1. Abhinandan Jha v. Dinesh Mishra reported in AIR 1968 SC 117.
2. H.S.Bains, v. The State (Union Territory of Chandigarh), reported in
AIR 1980 SUPREME COURT 1883.
3. TULA RAM V. KISHORE SINGH, reported in (1977) 4 SCC 459.
6. I would also like to sensitize the Magistrate and the police about the
dicta of the Honourable Apex Court in the following decisions:
(i) State of Haryana v. Bhajan Lal reported in AIR 1992 SUPREME COURT
604.
(ii) Prakash Singh Badal v. State of Punjab reported in (2007) 1 Supreme
Court Cases 1.
(iii) Lallan Chaudhary and others v. State of Bihar and another reported
in (2007) 1 Supreme Court Cases (Cri) 684 and accordingly, the matter should be
processed.
7. However, I would like to highlight a fresh procedure which may not be a
new one in stricto sensu, but to the legal field in this part of the country, it
might be new to a few and caviar to the general, so to say, to file an
application incorporating the averments constituting the offences in terms of
Section 156(3) Cr.P.C only and also highlighting therein the justification for
sending the said application to the police and the importance of gathering
evidence by conducting a detailed investigation by the police as absolutely
necessary in addition to expounding the futility of pursuing his remedy in the
form of private complaint by himself before the Magistrate. Whereupon, the
learned Magistrate shall apply his mind as to whether from the versions averred
in the petition any cognizable offence is made out in addition to assessing as
to whether a detailed police investigation is absolutely necessary for gathering
evidence. Once he comes to the conclusion that a cognizable offence is made out
from the said averments and that the police investigation is a must, he is duty
bound to send the application in terms of Section 156(3) Cr.P.C to the police
concerned having jurisdiction to register an F.I.R and investigate into the
matter. Thereupon, the police without any demur of hesitation, by way of
implicitly obeying the direction of the Magistrate under Section 156(3) Cr.P.C,
should register the F.I.R in the prescribed format and thereupon, it is open for
the police to investigate into the matter keeping in mind Section 157 Cr.P.C and
other allied provisions under Chapter XII of the Code of Criminal Procedure.
8. The learned Magistrate while sending the application in terms of
Section 156(3) Cr.P.C to the police shall make a despatch entry in a separate
register meant for it. The police after registering the F.I.R as quickly as
possible consequent upon the receipt of such application, shall send the F.I.R
to the learned Magistrate without any delay and on receipt of such F.I.R from
the police, the learned Magistrate shall make the receipt entry in that
aforesaid register. If there is failure on the part of the police, immediately
the learned Magistrate is expected to issue memo to the police calling upon the
police to appear and thereupon, he shall enforce compliance with his direction
under Section 156(3) Cr.P.C.
9. Here, in this case, the petitioner is directed to approach the learned
Magistrate with an application in terms
of Section 156(3) Cr.P.C thereupon, the learned Magistrate shall adhere to the
procedures set out supra.
10. With the above direction, this petition is closed.
To
1.The Inspector of Police,
Ulagampatti Police Station,
Sivagankai District.
2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
