BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06/03/2009 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.O.P.(MD).No.9245 of 2008 Venkatesh ... Petitioner Vs. 1.The Superintendent of Police, Sivagangai District, Sivagangai. 2.The Inspector of Police, Sivagangai Taluk Police Station, Sivagangai, Sivagangai District. 3.The Sub-Inspector of Police, Sivagangai Taluk Police Station, Sivagangai, Sivagangai District. ... Respondents Prayer Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying to direct the second respondent to register the case on the complaint given by the petitioner dated 21.09.2008 and direct the first respondent to take appropriate action against the third respondent. !For Petitioner ... No Appearance ^For Respondents ... Mr.Siva.Ayyappan Government Advocate(Crl.side) ****** :ORDER
There is no representation for the petitioner. The submissions made
by Mr.Siva.Ayyappan, learned Government Advocate (Criminal side) representing
the respondents were heard.
2. Aggrieved by the non-registration of a case based on the
complaint of the petitioner herein dated 21.09.2008, the petitioner has brought
forth this petition under Section 482 Cr.P.C., invoking the inherent powers of
the Court and has prayed for the issue of a direction to the second respondent
to register a criminal case based on the said complaint and investigate the
same.
3. According to the petitioner, the contents of the complaint
disclosed commission of an offence punishable under Section 307 IPC, a
cognizable and non-bailable offence and the Inspector of Police, Sivagangai
Taluk Police Station, Sivagangai failed to register a case, despite the fact
that the contents of the complaint clearly made out a prima facie case for a
cognizable and non-bailable offence, namely an offence punishable under Section
307 IPC. On the other hand, the learned Government Advocate (Criminal side)
representing the respondents submits that upon considering the contents of the
complaint and the accident register, the Sub-Inspector of Police (the third
respondent herein) came to the conclusion that the offence made out was
punishable only under Section 323 IPC, a non-cognizable offence and hence, he
submitted a report to the jurisdictional Judicial Magistrate seeking permission
to investigate the case as required under Section 155(2) Cr.P.C.
4. A copy of the complaint dated 21.09.2008 enclosed along with the
petition recites that the persons mentioned as assailants therein were armed
with knife and sticks and that the petitioner was attacked with knife. It has
also been averred in the complaint that he was bitten by one Senthil. Necessary
averments have also been made in the complaint to the effect that the assailants
committed the said act of causing injury by hitting him with stick, cutting him
with knife and biting him with teeth with intent to cause his death. Even if the
injuries sustained by the petitioner were simple in nature as contended by the
learned Government Advocate (Criminal side) representing the respondents, there
are clear averments to the effect that such an attempt was made with a
proclamation that they would kill the petitioner. Allegations have also been
made in the complaint to the effect that knife, a dangerous weapon was used in
causing the injuries to the petitioner. It is not necessary that any injury
should have been caused to constitute an offence of attempt to murder punishable
under Section 307 IPC. Nor is it necessary that the injury should be a grievous
one to constitute such an offence. Therefore, this Court is in agreement with
the contention of the petitioner that necessary averments to make out a case for
an offence punishable under Section 307 IPC or at least an offence punishable
under Section 324 IPC if not the offence punishable under Section 307 IPC, have
been made in the complaint.
5. However, in the event of the police officer in-charge of the
police station refusing to register a case even though the complaint discloses
commission of a cognizable offence, as per the judgments of the Hon’ble Supreme
Court in Sakiri Vasu v. State of U.P., reported in 2008(1) MLJ (Crl) 1393 (SC);
and in Aleque Padamsee v. Union of India reported in 2008(1) MLJ (Crl) 490
(SC), the remedy available to the complainant/informant is to first approach the
Superintendent of Police concerned and then, in case of inaction on his part
also, to approach the Judicial Magistrate either under Section 156(3) Cr.P.C.,
or under Section 200 Cr.P.C. by way of a private complaint. The rigour of the
said judgment has been diluted to some extent by the judgment of a learned
Single Judge of this Court sitting in the Principal Bench in G.Arokiya Marie v.
Superintendent of Police reported in 2008(2) MLJ (Crl) 796, wherein it has been
held that the said rule enunciated by the Hon’ble Supreme Court is not without
exception and that in appropriate cases, in order to prevent miscarriage of
justice, directions can be issued. The learned Single Judge has given some
illustrations of the cases (murder, attempt to murder wherein grievous injuries
have been caused, robbery, dacoity, rape and attempt to rape), in which
directions have to be issued so as to ensure that the evidence in such serious
cases do not get erased by passage of time. As it is contended by the learned
Government Advocate (Criminal side) representing the respondents that the
injuries sustained by the petitioner were simple in nature, it can be said that
the present case does not come under anyone of the offences coming under the
exempted category enumerated in the said judgment of the learned Single Judge of
this Court. Therefore, this Court is of the view that the direction for
registration of a case cannot be issued in this case directly.
6. Though this Court has arrived at a conclusion that a direction to
register a case cannot be issued straight away, the present case can be taken as
yet another exceptional case in which a different direction can be issued to the
police, in view of the stand taken by them. It is the contention of the learned
Government Advocate (Criminal side) representing the respondents that the
offence made out was only a non-cognizable one, namely an offence punishable
under Section 323 IPC and that hence, the third respondent has sought the
permission of the Judicial Magistrate to investigate the case. But the
respondents have not produced any copy of the report submitted to the Magistrate
seeking permission of the Judicial Magistrate to investigate the case. In this
regard, consideration of Section 155 Cr.P.C. shall be very much relevant and
useful. As per Sub-clause 2 of Section 155, no police officer can investigate a
non-cognizable case without the order of a Magistrate having power to try such
case or commit the case for trial. But taking umbrage under the said clause, the
police cannot be allowed to remain inactive without following the procedure
prescribed in Section 155 Cr.P.C. Sub-clause (1) of Section 155 enjoins a duty
on the officer in-charge of a police station, who receives information regarding
commission of a non-cognizable offence within the limits of such station, to
enter such information in a book kept for that purpose and refer the “informant”
to the Magistrate. The section directs the police officer in-charge of the
police station to refer the “informant” to the Magistrate and not the
“information alone”. In this case, admittedly, the petitioner who was the
informant was not referred to the Magistrate concerned. As such, the requirement
of Sub-clause (1) of Section 155 has not been properly complied with by the
respondents. Unfortunately, in all cases, wherein the police are of the view
that the offences made out are non-cognizable offences, they think that they
need not register a case nor refer the informant to the Magistrate concerned. It
is to be kept in mind that Section 155 does not prohibit registration of a case,
if the averments disclosed the commission of only a non-cognizable offence. What
is prohibited is to investigate the same without obtaining the order of the
Magistrate. The procedure prescribed in Sub-Clause (1) of Section 155 is being
made a dead letter in practice. The said practice, according to the considered
view of this Court, will amount to gross violation of the statutory provision
which may, at times, result in miscarriage of justice. Therefore, this Court
deems it fit to issue a direction to the respondents either to register a case,
if they come to the conclusion that a cognizable case has been made out by the
contents of the complaint or to refer the informant (petitioner herein) to the
Magistrate as per Section 155(1) Cr.P.C. This direction shall be complied with
within two weeks from the date of receipt of a copy of this order. The learned
Government Advocate (Criminal side) representing the respondents shall be
provided with a copy of this order, who in turn, will communicate the same to
all the respondents herein.
7. In the result, this Criminal Original Petition is disposed of
with the above direction.
SML
To
1.The Superintendent of Police,
Sivagangai District,
Sivagangai.
2.The Inspector of Police,
Sivagangai Taluk Police Station,
Sivagangai,
Sivagangai District.
3.The Sub-Inspector of Police,
Sivagangai Taluk Police Station,
Sivagangai,
Sivagangai District.
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.