Madras High Court
C. Krishnamoorthy vs The State Rep. By on 24 June, 2011
Author: C.T. Selvam
Bench: C.T. Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.06.2011 CORAM: THE HONOURABLE MR. JUSTICE C.T. SELVAM CRL.O.P.No.962 of 2011 and M.P. No.1 of 2011 C. Krishnamoorthy .. Petitioner/ Defacto complainant Vs. The State rep. by The Inspector of Police T-6, Police Station Avadi, Chennai -54. .. Respondent PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying to direct the respondent to register a case on the basis of complaint given by the petitioner on 30.11.2010. For Petitioner : Mr. N.R. Elango, Sr. Counsel for Mr. M. Krishnamoorthy For Respondent : Mr. C. Balasubramanian, A.P.P For Intervener : Mr. A. Ramesh, Sr. Counsel and Mr. R. Muniyapparaj for Mr. Jeeva O R D E R
This petition seeks a direction to the respondent to register a case on the complaint of the petitioner dated 30.11.2010.
2. The petitioner has preferred a complaint with the respondent on 30.11.2010, informing that he was the Manager of a concern by name M/s. Jack Communications and that the accused had issued a cheque in favour of the Managing Director of the Company in a sum of Rs.5 crores, which was due from him under business transactions. As security he had handed over title deeds to property. The cheque which was dated 15.10.2010, had been returned unpaid on 22.10.2010. The accused came along with some unknown persons on 30.11.2010 and informed that he was most sorry for the return of cheque 'unpaid' and that if the document of title was shown to him he immediately would arrange for payment of the sum due. Taken in by the polite conduct of the accused, the complainant took the accused to his room and showed him the concerned documents, with the concurrence of the Managing Director. When the accused was going through the documents one Vasu came to the complainant's room. The complainant spoke to the said Vasu for some time and went to the bathroom and on coming back, found the accused missing. On enquiry, the said Vasu informed that such persons had just gone down. Immediately, the complainant told Vasu that the accused were doing away with the documents and they were to be stopped. When Vasu intercepted the car of accused Velayutham and asked for the document, some unidentifiable persons showed a knife, informed that they would murder him, pushed him down and went away. The said complaint was entered into the Community Service Register of the respondent under No.247 of 2010 only on 02.12.2010. According to the petitioner, no action whatsoever was taken by the respondent and hence, the petitioner has filed this petition seeking a direction for registration of a case.
3. This Court has heard Sri. N.R. Elango, Senior Counsel for the petitioner, Sri. A. Ramesh, Senior Counsel who sought to intervene on behalf of the accused as also learned Additional Public Prosecutor.
4. The crux of the submission of learned senior counsel for the petitioner is that a bare reading of the complaint discloses cognizable offences and therefore the respondent was duty bound to register a case thereupon. The present was a case, where mere conduct of a petition enquiry was not justified, the respondent police were acting in aid of the accused and though a larger question of whether the conduct of a preliminary enquiry by police was justifiable in the eye of law, was pending decision of the Apex Court in Lalita Kumari v.Government of U.P. & Ors., this Court could, if satisfied, that the complaint disclosed necessary ingredients, direct the registration of a case. Learned senior counsel would object to representation being made on behalf of the accused, stating that at the stage of registration of a case, the accused could have no say.
5. Learned Senior Counsel for the intervenor/ accused submitted that in the event of non-registration of a case on the complaint, the petitioner could not move this Court for a direction therefor under section 482 CrPC and the proper remedy for the petitioner would be to follow the procedure provided in the Cr.P.C. He may make a representation to a senior police official, seek a Magisterial direction for investigation or prefer a private complaint as provided for, under Sections 154(2), 156 (3) and 200 Cr.P.C. Learned senior counsel also raised a contention that since no case has been registered on the complaint of the petitioner, the intervener cannot be treated as an accused and on such reasoning also the intervener would have the right to intervene. This contention readily was repulsed by senior counsel for petitioner stating that if that be so, no Court upon receipt of the complaint could direct investigation upon 156(3) Cr.P.C without hearing the person complained against. As some documents were referred to, by learned senior counsel for the intervenor/accused, learned senior counsel for the petitioner submitted that the defence documents presently could not be considered.
6. Though the petition stands filed seeking a direction for registration of a case, both senior counsels have raised strenuous contentions on the stage at which an accused may be heard. This Court considers it necessary to enter upon such issue and render a finding thereupon.
7. Learned senior counsel for the intervenor placed reliance on the decision of the Hon'ble Supreme Court of India in Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542., wherein the Apex Court was pleased to observe as follows :
'51. The order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that the accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 and 228 and 239 and 240 CrPC. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one's own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/information has been lodged with the police is violative of principles of natural justice.'
8. This decision was followed in D. Venkatasubramaniam & Ors. v. M.K. Mohan Krishmamachari & anr., (2009)4 MLJ (Crl.) 347 (SC). It immediately is to be informed that the decision of the Hon'ble Supreme Court in Divine Retreat Centre and D. Venkatasubramaniam & Ors., came in very particular and peculiar circumstances and the observations therein cannot be treated as being of universal application. We say so because, the Divine Retreat Centre case was one where, the High Court directed investigation of a particular case to be taken away from the Investigating Officer and required that the investigation be entrusted to a Special Investigating team headed by a particular CBI police official. Such official was also required to investigate on various allegations levelled in an anonymous petition. The orders of the High Court came to be passed in suo motu proceedings initiated on the basis of an anonymous petition addressed to a particular Judge.
9. The facts surrounding such case are found in the decision of the Honourable Apex Court:
'5. The tell-tale facts disclosed from the record may have to be noted in some detail. One Mini Varghese, a female remand prisoner, sent a petition to the District Judge, Kozhikode, inter alia, alleging that while she was taking shelter in Divine Retreat Centre she had been subjected to molestation and exploitation and became pregnant from Father Jose Thadathil (later identified as Father Mathew Thadathil). When she came out of the Centre to attend her sister's marriage she was implicated in a false theft case and lodged in the jail.
6. The District Judge having received the petition on 28-7-2005 forwarded the same to the Magistrate concerned on 9-8-2005 to do the needful. The Judicial Magistrate, First Class, Koyilandi recorded the statement of the victim on 11-8-2005 and thereafter the matter was transferred to the Judicial Magistrate, First Class, Chalakuddy. The learned Magistrate having received the records ordered investigation. A case was registered in Crime No. 381 of 2005 under Section 376(g) IPC at Koratty Police Station.
7. For whatever reasons, the District Judge sent a copy of the petition received by him to the Registrar of the Kerala High Court which was placed before Thankappan, J. who in turn directed the complaint to be forwarded to the Superintendent of Police, Thrissur to cause an inquiry and, if necessary, to register a case and report to the court. The Superintendent of Police as well as the Circle Inspector of Police (investigating officer) submitted their reports duly informing the Registry that a case has already been registered and was being investigated.
8. On 28-10-2005, District Judge, Kozhikode, addressed a letter to the Registrar General, High Court of Kerala enclosing anonymous petition dated 26-10-2005 received by him addressed to Justice K. Padmanabhan Nair. The petition was accompanied by photocopies of certain press reports and three video CDs. In his covering letter, the District Judge referred to the facts leading to the registration of Crime No. 381 of 2005 on the file of Koratty Police Station on 31-8-2005 under Section 376(g) IPC and further stated:
In the meantime, Smt Mini Varghese delivered. The local police, while arresting her in connection with a theft case had seized a mobile phone from her. The police produced that mobile phone in JFMC, Koyilandy. That mobile phone was forwarded to JFM, Chalakuddy for investigation as the priest concerned was said to have made several calls to the lady in that mobile phone. Later, I happened to see some press reports (I have enclosed the 3rd page of NIE dt. 13-10-2005 which carried a report, DNA test? Oh no) to the effect that the police is not properly investigating the case and instead, are more interested in tracing her antecedents and alleged bad character. They did not reportedly collect the details of calls to the mobile phone seized from the lady, which would have given some clue regarding the alleged connection. Nor did they attempt a DNA test. The lady had complained to me that she is afraid to come out of the jail on bail as she is under threat. I do not know what is the present stage of the investigation.
9. The matter was accordingly placed before Padmanabhan Nair, J. by the Registry who in turn directed the matter to be placed before the Registrar General for necessary action by his endorsement dated 21-12-2005.
10. The matter was accordingly placed before Padmanabhan Nair, J. on 24-1-2006 by the Registry in the following manner:
Shri Thomas P. Joseph, District Judge, Kozhikode has sent a communication dated 28-10-2005, enclosing a complaint addressed to the Hon'ble Mr Justice K. Padmanabhan Nair. The communication of the learned District Judge and the complaint are self-explanatory.
If any steps are to be taken with regard to the matter may kindly be indicated.
11. The learned Judge on the same day made the following endorsement:
Please verify and report whether FPR Mini Varghese had sent any petition to this Court and if so, what action was taken on that petition?
12. Thereafter the Registry resubmitted the whole file before Padmanabhan Nair, J. as under:
It appears that Smt Mini Varghese, FPR 287, District Jail, Kozhikode had sent a complaint to the Hon'ble High Court, narrating her agonies. The matter was placed before the Hon'ble Mr Justice K. Thankappan, since His Lordship was dealing with the petitions sent from jail. As per the order of the Hon'ble Judge, the petition was sent to the Superintendent of Police, Thrissur for an enquiry and if found necessary, to register a case. It was also directed that the Superintendent of Police would file a report before this Court within a reasonable time.
Presumably, in pursuance of the said direction, it appears that Crime No. 381 of 2005 under Section 376(g) IPC was registered in Koratty Police Station on 31-8-2005.
When the above matter was reported to this Court, the Hon'ble Judge, as per His Lordship's order dated 22-12-2005 directed that the matter be closed.
The entire file is submitted.
13. On resubmission of the file, the learned Judge passed the following order on 8-2-2006 thus:
I have carefully gone through anonymous petition and the documents endorsed along with it. One of the documents enclosed along with the petition is a petition submitted by FPR 287, Mini Varghese raising an allegation of rape against the Head of the Divine Centre, Muringoor Rev. Fr. Mathew Thadathil. Of course in the petition she had given the name as Jose Thadathil but there is no room for any doubt regarding the identity of the person.
It is seen that this Court had forwarded the petition received from Smt Mini Varghese to the Superintendent of Police, TCR for necessary action on 7-9-2005. The Superintendent of Police had filed a statement on 5-11-2005 to the effect that a crime as Case No. 381 of 2005 at Koratty Police Station under Section 376(g) IPC is registered and the same is being investigated by CI of Police, Chalakkudy. CI of Chalakkudy had also submitted a similar statement on 31-10-2005.
It is seen that on 8-11-2005 the report of CI was brought to the notice of the Hon'ble Judge who was dealing with the petition received from jail. He passed an order on 22-12-2005 to close the file.
In the meanwhile another petition is seen received from FPR 287. That petition was forwarded to this Court on 11-11-2005 and received in this Court only on 21-11-2005. The Registry had noted that the file was already put up to KT(J) and the petition was to be incorporated in the file.
In the abovesaid petition FPR 287 had raised serious allegation regarding the investigation. It is stated that two policemen went to the jail but they did not make enquiry regarding her allegation of rape alleged against the priest. Even though there is an order to close the file Crl. PP No. 57929 of 2005 I am of the view that subsequent petition ought to have been treated as a separate petition praying for an order for proper investigation and separate action taken. I am of the view that petition can also be clubbed with the anonymous petition.
A perusal of the anonymous petition dated 26-10-2005 shows it contains serious allegation. So it is only just and proper that the matter is taken on the judicial side especially in view of the allegation of involvement of senior IAS and IPS officers.
So there will be direction to the Registry to treat the anonymous petition along with petition of FPR 287 received in the court on 21-11-2005 as petitions praying for an order for proper investigation and register as a suo motu criminal miscellaneous case. Serve a copy of the above stated petition to the Director General of Prosecution. The copies of the documents except the CDs may also be given to him. Keep the CD under safe custody for the time being till a decision is taken in the matter.
Register the criminal miscellaneous case and post for admission.
14. Be it noted that the complaint/petition dated 27-10-2005 received from Mini Varghese by the Registry on 21-11-2005 was placed in the same file based on which Thankappan, J. initially ordered an inquiry. Thereafter the entire matter was placed before Thankappan, J. on 22-12-2005 itself and the learned Judge directed the closure of the matter thus: No further probe is necessary. Close the file. This fact was also brought to the notice of Padmanabhan Nair, J.
15. However, the learned Judge was of the view that the subsequent petition sent by Mini Varghese dated 27-10-2005 ought to have been treated as a separate petition praying for an order for proper investigation. The learned Judge was also of the view that the said petition was required to be clubbed with the anonymous petition.
16. The Registry in compliance with the directions so issued by the learned Judge promptly registered a case in Criminal MC No. 405 of 2006 under Section 482 of the Code in which the persons against whom accusations were made have been duly impleaded as the respondents. The matter was listed for admission in the Court on 10-2-2006 and was adjourned to 15-2-2006 for serving a notice upon the learned Director General of Prosecution (Public Prosecutor). The learned Judge heard the matter and reserved the case for order. The impugned order was passed on 10-3-2006.'
10. Dealing with the judgment of the High Court, the Honourable Apex Court had referred to various decisions to inform that investigation was a sphere reserved for the police and when the same was done in keeping with the procedure prescribed in the Code, the Court could not interfere. Paragraph 34 of the said judgment reads as follows :
'34. The question that arises for our consideration is whether the contents of the petition submitted by the victim and as well as the allegations made in the anonymous complaint reveal any cause for issuing directions relieving the investigating officer of his statutory power and duty to investigate Crime No. 381 of 2005 under Section 376(g) of the Penal Code.'
11. Thus, the above makes abundantly clear that in general circumstances, the statutory power and duty to investigate lies with the police. Again, in paragraph 46 of such judgment, the Supreme Court had observed as follows :
'46. On a careful perusal of the order passed by the learned Judge, we find that the learned Judge initiated suo motu proceedings without even examining as to whether the contents of the anonymous letter and material sent along with it disclosed any prima facie case for ordering an investigation. The question is: can investigation be ordered by the High Court in exercise of its inherent jurisdiction under Section 482 of the Code based on such vague and indefinite allegations made in unsigned petition without even arriving at any prima facie conclusion that the contents thereof reveal commission of any cognizable offence? Whether such directions could have been issued by the High Court even in exercise of its jurisdiction under Article 226 of the Constitution of India? .'
12. Though other issues such as an impropriety of directing investigation to ascertain whether a person has committed an offence or not and whether an anonymous petition could be treated as a public interest litigation, as also the importance of roster was gone into, the same need not be dealt with, for the purpose of the present case. Suffice it to say, in the words of Hon'ble Supreme Court itself:
' It is a peculiar case of its own kind where an anonymous petition is sent directly in the name of a learned Judge of the Kerala High Court, which was suo motu taken up as a proceeding under Section 482 of the Code.'
13. The case in D. Venkatasubramaniam & Ors. v. M.K. Mohan Krishmamachari & anr., (2009)4 MLJ (Crl.) 347 (SC) was one wherein the exercise of powers under Section 482 Cr.P.C. had disastrous consequences to the persons accused. To inform the facts, circumstances and effect of the order passed under Section 482 Cr.P.C., this Court may reproduce the relevant paragraphs of the judgment of the Honourable Apex Court. Paragraph Nos. 10, 11 and 15 read as follows:
"10. On 12.1.2007 the respondent herein lodged first information with the Sub-Inspector of Police, Central Crime Branch, Tamil Nadu against the appellants alleging commission of offences under Sections 406 and 420 of the Indian Penal Code (IPC) and the same was registered on 26.2.2007 in FIR No.93 of 2007. It is not necessary for the purpose of disposal of these appeals to notice the details of allegations leveled in the said First Information Report as we propose not to make any comment or observation which may hamper further pending proceedings. The police, having registered the case against the appellants had commenced its investigation. Even while the investigation was in progress, for some inexplicable reasons, the respondent moved the High Court under Section 482 of the Code, in Criminal Original Petition No. 6194 of 2007 seeking directions to the police to seize an amount of Rs 2,28,00,000/- from the appellants claiming that he was entitled for an amount of Rs 1,28,00,000/- for facilitating the registration of 64 acres of land under the MOU which amount is alleged to have been withheld by the appellants together with a sum of Rs 1 crore which is stated to have been paid by him to the appellants. The petition filed in the High Court makes an interesting reading in which it was stated that the following questions arise for the consideration of the High Court:
A.Whether the accused have not committed serious cognizable offences?
B.Whether the termination of MOU is legally and morally correct?
C.Whether the petitioner had not sustained a huge monetary loss of Rs 5 crores, which was invested in the said project?
D.Is it not the duty of the respondent police to seize the petitioner's money of Rs 1,28,00,000/- from accused Nos.1 to 3?
E.Is it not the duty of the respondent police to seize the petitioner's money of Rs 1,00,00,000/- from accused Nos. 4 to 6?
F.Whether the claim of accused Nos.1 to 3 that the petitioner has to pay a sum of Rs 2 crores as liquidated damages is justified?
11. Be it noted, that there is no allegation of dereliction of any duty on the part of the investigating agency. There is also no allegation of any collusion and deliberate delay on the part of the investigating agency in the matter of investigation into the case that has been promptly registered on the information lodged by the respondent. The petition almost reads like a civil suit for recovery of the money. As noted hereinabove, the petition has been filed within one week of registration of the crime by which time the police had already started serious investigation as is evident from the material available on record. It is also required to notice that none of the appellants have been impleaded as party respondents to the petition filed under Section 482 of the Code. The State represented by its Sub-Inspector of Police, Central Crime Branch, Egmore, Chennai alone was impleaded as the respondent. The investigating agency in its counter filed in the High Court stated that after obtaining necessary legal opinion, a case was registered and 'commenced the investigation'. It is also stated in categorical terms that the police had inquired all the connected witnesses, recorded their statements and also collected the material documents and confirmed commission of cognizable offences by all the accused. The High Court, within a period of one month from the date of filing of the petition, finally disposed of the same observing that it is obligatory on the part of the respondent police to conduct investigation in accordance with law, including recording of statements from witnesses, arrest, seizure of property, perusal of various documents, filing of chargesheet. It is also needless to state that if any account is available with the accused persons, or any amount is in their possession and any account is maintained in a Nationalised Bank, it is obligatory on the part of the respondent police to take all necessary steps to safeguard the interest of the aggrieved persons in this case. The Court accordingly directed the police to expedite and complete the investigation within six months from the date of receipt of a copy of the order. The said order of the High Court is impugned in these appeals.
15. It is too fairly well settled and needs no restatement at our hands that the saving of the High Court's inherent power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. It is unfortunate that it is the exercise of the inherent power by the High Court in this case that had ultimately resulted in harassment of the appellants as is evident from the subsequent events. Pursuant to the impugned order, the investigating authorities have approached appellant No.1 [in SLP (Crl.) No. 3269 of 2007], took him into custody and exhibited him on a television channel. The police have demanded to pay an amount of Rs 2,28,00,000/- and threatened that he would be arrested if he fails to comply with their demand. Accordingly, the appellants have paid Rs.10 lakhs in cash in the police station itself and issued a cheque for an amount of Rs.2.18 crores drawn on Tamil Nadu Mercantile Bank. However, the cheque was not encashed on account of the instructions to the bank to stop the payment in view of the interim order dated 4-5-2007 of this Court. The police offered explanation stating that the matter was settled voluntarily between the parties and therefore, the accused were not arrested and remanded to custody. It is difficult to buy this idea that there was a settlement between the parties in the police station. It is not difficult to discern as to how and under what circumstances the appellants may have agreed to pay the amounts and also issued a cheque. It is not known as to how and under what authority the police could intervene and settle any disputes between the parties. It is needless to observe that the police have no such authority or duty of settling disputes."
14. The Honourable Apex Court discussed the principles enunciated in Emperor v. Khwaja Nazir Ahmad (1945) 1 MLJ 86, State of West Bengal v. S.N.Basak, AIR 1963 SC 447, State of Bihar v. J.A.C. Saldanha (1980) 1 MLJ (Crl) 382, M.C.Mehta (Taj Corridor Scam) v. Union of India (2007) 1 SCC 110, largely to inform that investigation into crime was the prerogative of the police. It is in the particular circumstances of the case that His Lordship reiterated the observations in paragraph No.51 of his judgment in the Divine Retreat Centre case.
15. In Union of India and another v. W.N.Chadha (1993) SCC (Cri) 1171 it inter alia was contended that a Special Judge had no jurisdiction to issue a letter rogatory unless he prima facie was satisfied of the involvement of the accused persons whose property or rights were sought to be affected and as such was a condition precedent, the Special Judge could exercise its jurisdiction only after giving prior notice and after affording reasonable opportunity of being heard to the named accused. Observing that the question was not whether audi alteram partem is implicit but whether the occasion for its attraction exists at all, the Honourable Apex Court held as follows:
"80. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. In S.A. de Smith's Judicial Review of Administrative Action, (4th Edn.) at page 184, it is stated that in administrative law, a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another. Those special factors are mentioned under items (1) to (10) under the heading Exclusion of the audi alteram partem rule.
81. Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.
82. Bhagwati, J. (as the learned Chief Justice then was) in Maneka Gandhi (1992) 4 SCC 305 speaking for himself, Untwalia and Murtaza Fazal Ali, JJ. has stated thus: (SCC p. 290, para 14) ... Now, it is true that since the right to prior notice and opportunity of hearing arises only by implication from the duty to act fairly, or to use the words of Lord Morris of Borth-y-Gest, from fair play in action, it may equally be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion.
83. Thus, it is seen from the decision in Maneka Gandhi (1978) 1 SCC 248 that there are certain exceptional circumstances and situations whereunder the application of the rule of audi alteram partem is not attracted.
84. Paul Jackson in Natural Justice at pages 112 and 113 observed thus:
... It was seen that anybody making a decision affecting party's right or legitimate expectation must observe the rules of natural justice. Conversely a decision which does not affect rights, because for example, it is a prelude to taking further proceedings in the course of which the party concerned will have an opportunity to be heard, will, very likely, not itself be subject to the requirements of natural justice, or only in a modified form. A fortiori, the decision by, for example, the responsible Minister or official to initiate the procedure necessary to reach a preliminary conclusion or to examine the existence of a prima facie case can be taken without first giving the person affected a hearing ....
87. A Division Bench of the Allahabad High Court in Indian Explosives Ltd. (Fertiliser Division) Panki, Kanpur v. State of U.P. (1981) 2 LLJ 159 after referring to the decision in Barnet (1972) 2 QB 342 and Norwest Holst Ltd. v. Secretary of State for Trade (1978) 1 Ch D 201 said thus:
Thus, it has been recognised by Judges of undoubted eminence that a decision on substantive rights of parties is one thing and a mere decision that another body investigate and decide on those substantive rights is quite another, and the principle of hearing is not applicable to the latter class of cases.
88. The principle of law that could be deduced from the above decisions is that it is no doubt true that the fact that a decision, whether a prima facie case has or has not been made out, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full-fledged enquiry follows is a relevant and indeed a significant factor in deciding whether at that stage there ought to be hearing which the statute did not expressly grant.
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
93. It may be noted that under Section 227 of the Code dealing with discharge of an accused in a trial before a Court of Sessions under Chapter XVIII, the accused is to be heard and permitted to make his submissions before the stage of framing the charge. Under Section 228 of the Code, the trial Judge has to consider not only the records of the case and documents submitted therewith but also the submissions of the accused and the prosecution made under Section 227. Similarly, under Section 239 falling under Chapter XIX dealing with the trial of warrant-cases, the Magistrate may give an opportunity to the prosecution and the accused of being heard and discharge the accused for the reasons to be recorded in case the Magistrate considers the charge against the accused to be groundless. Section 240 of the Code dealing with framing of charge also reaffirms the consideration of the examination of an accused under Section 239 before the charge is framed.
94. Under Section 235(2), in a trial before a Court of Sessions and under Section 248(2) in the trial of warrant-cases, the accused as a matter of right, is to be given an opportunity of being heard. Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect.
95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make a search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to anyone or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or seizure of any property in his possession connected with the crime unless otherwise provided under the law.
96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."
(underlining ours)
16. In any event, the issue is not res integra. A four Judge Bench of the Honourable Apex Court in Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose and another AIR (1963) SC 1430, has informed as follows:
"7. Taking the first ground, it seems to us clear from the entire scheme of Chapter XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on. But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued; nor can he examine any witnesses at the instance of such a person. Of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr Sethi for Respondent No.1 that the very object of the provisions of Chapter XVI of the Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, according to Mr Sethi, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects behind the provisions of Section 202, Cr.P.C. is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under Section 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry..........."
17. This Court acutely is conscious that it has elaborately extracted chapter and verse of the judgments of the Honourable Apex Court. We have been impelled to do so towards informing the rare circumstance wherein notice to the accused was found necessary and that notice to the accused at the stage of investigation/ prior to taking cognizance upon complaint was foreign to criminal law.
18. Reverting to the prayer in the present petition, it is to be stated that two sets of decision of Honourable Apex Court stand informed in the judgment of this Court in A.Sowfila v. The Commissioner of Police, Madurai City and others (2008) 2 L.W. (Crl.) 843. Decisions in All India Institute of Medical Sciences Employees' Union (Regd.) v. Union of India (1996) 11 SCC 582, Gangadhar Janardan Mhatre v. State of Maharashtra (2004) 7 SCC 768, Minu Kumari v. State of Bihar (2006) 4 SCC 359, Hari Singh v. State of U.P. (2006) 5 SCC 733, Sakiri Vasu v. State of U.P. (2008) AIR SCW 309 and Aleque Padamsee v. Union of India (2007) 3 SCC (Cri.) 1, indicate that the proper procedure upon non-registration of a case on a complaint preferred before the police would be to take resort to 154(3), 156(3) or 200 Cr.P.C., while those in Mohindro v. State of Punjab (2002) SCC (Cri.) 1087, Ramesh Kumari v. State of (N.C.T. of Delhi) and others (2006) 2 Supreme 243, Lallan Chaudhary v. State of Bihar (2006) 12 SCC 229 and Rajinder Singh Kotoch v. Chandigarh Administration (2008) 1 M.L.J. (Cri.) 488 (SC), support the issue of direction by this Court to the police to register a case.
19. Thus, the decision of this Court eventually would depend upon the facts and circumstances of a particular case. In the instant case, this Court finds that the respondent informs of having conducted a petition enquiry and closing the same as 'mistake of fact'. In such circumstance, no useful purpose would be served in passing a direction as prayed for.
20. In the result, the Criminal Original Petition stands dismissed. Consequently, the connected miscellaneous petition is closed.
avr/gm To
1.The Inspector of Police T-6, Police Station Avadi, Chennai -54.
2.The Additional Public Prosecutor High Court of Madras