IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 22/02/2005
Coram
The Honourable Mr.Justice M.CHOCKALINGAM
Crl.OP.No. 32871 of 2004
and
CRL.M.P.NO.10462 OF 2004 AND 544 OF 2005
1.S.Subramanian @ Senthil
2.S.Sambandam
3.S.Bakialakshmi
4.S.Rajaram ...Petitioners
-vs-
State rep. by
the Inspector of Police
All Women Police Station,
Ranipet. ...Respondent
Petition filed under section 482 of Cr.P.C. for the relief as stated
therein.
For Petitioners : Mr.K.S.Dinakaran
For Respondent : Mr. K.Doraisamy
Public Prosecutor
assisted by Mr.V.Arul
Government Advocate( Crl.Side)
:ORDER
The petitioners have filed the above Criminal Original
petition praying to call for the records in C.C.No.206 of 2004 on the file of
the Judicial Magistrate No.II, Walajapet and quash the order of taking
cognizance dated 5.8.2004 and consequent issuance of summons to the
petitioners and to allow this Criminal Original Petition.
2.Heard the learned counsel for the petitioners as well as the
learned Public Prosecutor.
3.This criminal Original petition has been brought forth by
the petitioners four in number, who are facing the proceedings before the
Court of Judicial Magistrate II, Walajapet in C.C.No.206 of 2004 which was
taken cognizance by the said Court on 5.8.2004, on a charge sheet filed by the
respondent police under Sections 498A, 294B, 342, 506( I) IPC and Section 4 of
Dowry Prohibition Act as against the first petitioner and under Sections
498A,342 read with 34,114 read with 4 of Dowry Prohibition Act as against the
other petitioners/accused 2 to 4 .
4. Originally, a complaint was lodged by the de-facto
complainant before the respondent police, and since no action was taken by
them, a private complaint was lodged before the concerned Magistrate, and the
learned Magistrate forwarded the said complaint under Section 156(3) Cr.P.C.
to the respondent police. Pursuant to the same, a case came to be registered
by the respondent police in Crime No.6 of 2004 for the offences punishable
under Sections 498(A), 344, 294(B), 506(2) IPC and under Section 4 of Dowry
Prohibition Act against the four accused.
5.Admittedly, the marriage between the de-facto complainant
and the first petitioner took place on 5.11.2003, and they were living
together for a short while. Following the same, a complaint was lodged before
the concerned Court on 9.3.2004, as a result of which, a case came to be
registered in Crime No.6 of 2004 by All Women Police Station, Ranipet.
Investigation was taken up by the respondent police, and charge sheet was also
laid in C.C.No.206 of 2004 under Sections 498(A) IPC, 4 of Dowry Prohibition
Act, 343,294(b), 506(i) IPC read with 34 /1145 IPC, and now it is under
challenge in this Criminal Original Petition.
6. Petitioners, originally filed a Criminal Revision Case in
Crl.R.C.No.1650 of 2004 challenging the impugned order of the lower Court
taking cognizance of the case. Subsequently it was withdrawn since it is not
maintainable. Now the petitioners have brought forth this petition to quash
the proceedings before the lower court.
7.Learned counsel appearing for the petitioners inter-alia
would submit that the marriage between the first petitioner and the de-facto
complainant took place on 5.11.2003. But the marriage was never consummated.
Since the first petitioner found that there was a lack of cooperation from the
spouse and the marriage did not fructify in the true sense, he approached the
family Court for nullity of marriage under Section 12(1)(a) and (c) of the
Hindu Marriage Act. On service of summons on 1.2.2004, from the Family Court,
as a counter-blast, the de-facto complainant lodged the instant complaint on
9.2.2004 with all false, frivolous and vexatious allegations, as if there was
a demand of dowry, wrongful confinement, abuse of filthy language etc. After
registration of the case, the police agency have not taken up the
investigation in a fair manner, but with lopsided and it was done in the
interest of the de-facto complainant. Before the lower Court, an application
was filed stating that the investigation was not properly done and that the
first petitioner was only interrogated and not others and though the documents
were handed over to the police agency at the time of investigation, they were
not produced along with the case papers before the lower Court. But,there was
a denial on the part of the Inspector of Police, in his affidavit as to the
receipt of the said documents and that they are not in their custody. Added
further, learned counsel for the petitioner relying on Rule 566 of Police
Standing Orders that the investigating officer should carry on the
investigation in an impartial manner and this particular Standing Orders give
warning to the Investigating officer who is entrusted with the investigation
and as to the facts, a duty is cast upon the police officer to find out the
truth, and to achieve the purpose, it is necessary to preserve an open mind
throughout the inquiry. But in the instant case, it was not done so.
8.The first petitioner herein was residing in Saligramam with
other members of the family where he was given police personnel for his
security purposes. The illegal confinement, dowry harassment, etc have taken
place, according to the complainant, at the house of the second respondent at
Saligramam. No one of the police personnel attached was examined by the
investigating officer. It is needless to state that the Police personnel
attached to the security office, have to be examined to come out with the
truth that no occurrence has been taken place in the residence of the second
petitioner. The last contention put forth by the learned counsel for the
petitioner is that the investigation was done by the inspector of police
attached to the Women Police Station. But it should have been done only by
the Deputy Superintendent of Police. He also took the Court to the Tamil Nadu
Dowry Prohibition Rules, 2004 (hereinafter referred to as ‘the Rules’) wherein
the police officer is defined as “Deputy Superintendent of Police” of the
Division concerned. Thus, the investigation should have been done in the
sense that after registering the case, under the Rule, the investigation
should have been taken by the Deputy Superintendent of Police and that a case
has to be registered in the light of the said Rules. Thus, the investigation
of the case should have been taken by the Deputy Superintendent of Police who
is defined as Police officer in the said Rules and in the instant case, it has
affected the entire investigation. Under the circumstances, the case before
the lower court has got to be quashed.
9.Contrary to the above contentions, learned Public prosecutor
appearing for the State would submit that it is true that the Tamil Nadu Dowry
Prohibition Rules, 2004 defines the police officer as Deputy Superintendent of
Police of the Division concerned. But, nowhere it prohibits any officer in
the rank of Inspector of Police to conduct the investigation and it is only a
subordinate legislation and it cannot over ride what is found in the Act .
Learned Public Prosecutor would further add that it has been clearly mentioned
in 5(xviii)of the said rules that the marriages performed within his
jurisdiction are likely to be visited by him or his staff along with the
police officers . Therefore, for this action, the visit becomes necessary.
The rule would not contemplate that the investigation should be done by the
Deputy Superintendent of Police and not by any one in the rank of Inspector of
Police for the purpose of investigation and in so far as the other contentions
are concerned, he would state that the factual positions as submitted by the
learned counsel for the petitioners shall be put forth before the lower Court
by adducing evidence and not by invoking the jurisdiction of this Court under
Section 482 Cr.P.C. and hence this criminal Original petition has got to be
dismissed.
10.After careful consideration of the rival submissions, this
Court is of the considered opinion that the Criminal Original Petition has no
merit. Admittedly, a complaint was lodged by the de-facto complainant before
the concerned Magistrate Court and the same was forwarded to the concerned
police under Section 156(3) Cr.P.C. and a case came to be registered,
investigation was done and now the charge sheet was filed and taken cognizance
by the lower Court in C.C.No.206 of 200 4.
11. The contentions now put forth by the learned counsel for
the petitioners is that the investigation was not done in a free mind, but
lopsided and the rules of the Police Standing orders have not been strictly
followed. This could be gone into only at the time of trial and not at this
stage by filing a quash petition under Section 482 Cr.P.C. An opportunity has
to be given for the defence to put forward all the questions at the time of
cross examination of the concerned officer. Apart from that, it is the duty
of the prosecution to show that fair investigation was conducted and it has
got to be appreciated by the Court concerned only at the time of trial, and
the matter has got to be disposed of by the trial Court on appreciation of
evidence, on merits and in accordance with law. This Court at this juncture
cannot go into or investigate into whether the investigation was done with an
open mind or otherwise. The further contention of the learned counsel for the
petitioners that the investigation should have been done only by the Deputy
Superintendent of Police who is defined as police officer under the Rules and
not by the Inspector of Police, cannot be countenanced. The Rule is a
subordinate legislation and the provisions under the Criminal Procedure Code
give full power on the Inspector of Police to proceed with the matter and
apart from that, the definition for Police officer would clearly reveal as
submitted by the learned Public Prosecutor that nowhere there is a prohibition
that below the rank of Deputy Superintendent of Police shall not exercise the
power to investigate the case and hence the contention of the learned counsel
for the petitioners in this regard cannot be countenanced. However, there
cannot be any impediment to raise all the contentions put forth by the learned
counsel for the petitioners before this Court and recorded above, at the time
of examination of witnesses and also adducing evidence before the lower Court.
It can be well stated that there is no impediment in law for the petitioners
to avail the opportunity before the lower Court by filing an application for
discharge. The above contentions also have to be gone in to only by the lower
Court at the time of disposal of the application for discharge and not by way
of 482 Cr.P.C. like this.
12.It is brought to the notice of the Court that the second
petitioner is a retired District Judge and presently a Member of State Human
Rights Commission and the fourth petitioner is a practising advocate. Hence,
the personal appearance of 2nd and 4th petitioners before the lower court is
dispensed with, except on the dates necessary in the opinion of the lower
Court.
13.With this observation, the Criminal Original Petition is
dismissed. Consequently, Crl.M.P.No.10462 of 2004 and 544 of 2005 are also
dismissed.
Index : Yes
Internet : Yes
VJY
To
1.Judicial Magistrate II,
Walajapet.
2.Inspector of Police
All Women Police Station,
Ranipet.
3. The Public Prosecutor,
Madras.