Madras High Court
Bavani vs State Rep By on 25 September, 2024
Crl.O.P.(MD)No.9405 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.09.2024
Pronounced on : 25.09.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.9405 of 2024
Bavani ... Petitioner
Vs.
State rep by
The Inspector of Police,
Pavoorchatram Police Station,
Tenkasi District. ... Respondent
Prayer : This Criminal Original Petition filed under Section 482 Cr.P.C.,
to call for the records pertaining to the impugned closure report dated
20.11.2023 filed by the respondent police and set aside the same and
consequently direct the respondent police to register the FIR in the light of
the order in Crl.M.P.No.8236 of 2023 dated 17.10.2023 passed by the
Judicial Magistrate, Tenkasi.
For Petitioner : Mr.G.Karuppasamy Pandian
for Mr.P.Edin Brough
For Respondent : Mr.P.Kottai Chamy
Government Advocate (Crl. Side)
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https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.9405 of 2024
ORDER
The Criminal Original Petition is directed against the closure report filed by the respondent police and for direction to the respondent police to register an FIR in pursuance of the order passed in Crl.M.P.No.8236 of 2023 dated 17.10.2023 by the Judicial Magistrate, Tenkasi.
2. The case of the petitioner/complainant is that the proposed accused had encroached the petitioner's land, compound wall on south side of the petitioner's house and constructed a balcony and for removal of that encroachment, the petitioner had filed a suit in O.S.No.368 of 2023 on the file of the Principal Subordinate Court, Tenkasi and is pending, that after receipt of the summons in the said suit, the proposed accused had quarreled with the construction workers in the petitioner's building on site on 24.06.2023, that on 13.08.2023 at about 11.00 a.m., after coming to know that the petitioner had visited the building site, the proposed accused had trespassed into the petitioner's land and started wordy quarrel and threatened them and also tried to record the same with her mobile phone hidden under the back of her child, that though the petitioner preferred a 2/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 complaint through online on 13.08.2023, there was no response and that even after submitting video taken by the petitioner's husband with regard to the occurrence, the respondent police has not taken any action.
3. It is the further case of the petitioner that the proposed accused is working in Madras City Civil Court and her father, a local business man influenced the respondent police and made the police to threaten the petitioner's husband to withdraw the civil case, that since the respondent police has not taken any action, the petitioner was constrained to file a petition under Section 156(3) Cr.P.C. before the jurisdictional Magistrate Court, that the learned Magistrate has passed an order dated 17.10.2023 directing the respondent police to conduct a preliminary enquiry as per the dictum laid down by the Hon'ble Supreme Court in Lalita Kumari's case and to take necessary action, that the respondent police despite the instructions of the learned Magistrate has refused to register an FIR, but on the other hand, sent a closure report on 20.11.2023 to the concerned Court and that therefore the petitioner was constrained to file the present petition invoking Section 482 Cr.P.C. for setting aside the closure report filed by the respondent police.
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4. The learned counsel appearing for the petitioner would mainly contend that the Hon'ble Supreme Court in cantena of decisions has reiterated the settled legal position that if the Magistrate forwards any petition filed under Section 156(3) Cr.P.C., the concerned police is duty bound to register the FIR and that whether the Magistrate has directed for registration of FIR or for any enquiry that does not make any difference and the police has no other option but to register an FIR.
5. The learned counsel appearing for the petitioner would rely on a decision of this Court in the case of M.Veluthai Vs. Superintendent of Police, Thoothukudi and another reported in 2024 (1) MWN (Cr.) 13, wherein, a learned Magistrate has passed an order under Section 156(3) Cr.P.C. in Crl.M.P.No.5511 of 2023 directing the respondent police therein to register an FIR and for conducting investigation but the respondent police has conducted an enquiry and finally filed a closure report and in that fact situation, a learned Judge of this Court has held, “14. In the case on hand, the petitioner filed a complaint under Section 156(3) of Cr.P.C. and the same was referred to police. The police instead of registering FIR has closed the same stating that there is no cognizable 4/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 offence made out. The procedure followed by police is incorrect.
15. Considering the discussions above, filing of a closure report by the respondent police after the complaint referred to by learned Magistrate under Section 156(3) of Cr.P.C. is illegally not permissible. Once the Magistrate refers the complaint to the police under Section 156(3) of Cr.P.C. the police have no option except to register FIR and investigate the case. Once the complaint has been referred by learned Magistrate to police under 156(3) of Cr.P.C. it means that the learned Magistrate has prima facie satisfied that the cognizance has already been committed. Therefore, the police should have registered the FIR and started investigation.”
6. In the case on hand, the learned Magistrate has not passed any order directing the respondent police to register an FIR and conduct investigation but on the other hand, directed the respondent police to conduct preliminary enquiry by following the dictum laid down by the Hon'ble Supreme Court in Lalita Kumari's case and take necessary action.
7. I had an occasion to deal with the similar fact situation in the case of D.Vinoth Vs. Superintendent of Police, Virudhunagar District and 5/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 another passed in Crl.O.P.(MD)No.22627 of 2022 dated 20.01.2023 and the relevant passages are extracted hereunder:-
“8. At the outset, it is pertinent to note that the learned Judicial Magistrate, in the case on hand, has not passed any order, directing the Station House Officer to register the FIR and the contention of the learned counsel for the petitioner in this regard is patently incorrect. The learned Judicial Magistrate, as already pointed out, has specifically directed the Station House Officer to peruse the complaint and other documents and to conduct an enquiry and in case, if the compliant disclose any cognizable offence, he has to register the FIR and then to submit a report. Since the learned Judicial Magistrate has not specifically directed the second respondent to register the FIR, the procedure adopted by the second respondent in conducting enquiry and submitting the report, cannot be found fault with.
9. Now turning to the other submission of the learned counsel for the petitioner, even though the learned Magistrate has forwarded the complaint under Section 156(3) Cr.P.C., to conduct enquiry/ investigation, the Station House Officer has no other go, but to register the FIR and then to proceed with the investigation.6/20
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10. No doubt, such was the position prevailing prior to the judgment of the Constitution Bench in Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1.
11. As rightly pointed out by the learned counsel for the petitioner, the Hon'ble Supreme Court, in the case of Madhu Bala Vs. Suresh Kumar and others reported in (1997) 8 SCC 476, has specifically observed that even in the absence of a direction to register the case by the Magistrate, the Police is bound to formally register a case and then investigate into the same and the relevant passage is extracted hereunder :
“10.From the foregoing discussion, it is evident that whenever a magistrate directs an investigation on a 'complaint', the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above rules. It, therefore, passes our comprehension as to how the direction of a magistrate asking the police to 'register a case' makes an order of investigation under section 156(3) legally unsustainable. Indeed, even if a magistrate does not pass a direction to register a case, still in view of the provisions of section 156(1) of the Code which 7/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 empowers the police to investigate into a cognizable 'case' and the rules framed under the Indian Police Act, 1861, it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, do not in any way stand in the way of a magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion, when an order for investigation under section 156(3) of the Code is to be made, the proper direction to the police would be to register a case at the police station treating the complaint as the First Information Report and investigate into the same.”
12. Section 154 (1) Cr.P.C, contemplates that any information relating to the commission of a cognizable offence, is given orally, such information is to be reduced in writing and after getting the signature of that person, the matter shall be entered in a book to be kept by that Officer. If a person is aggrieved by refusal on filing a complaint by the Officer in charge of the Station, then in such a case, the said person has to send such information in writing to the Superintendent of Police concerned. If still no action is taken, then the said person can approach 8/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 the Magistrate under Section 156(3) Cr.P.C. If a complaint is received by the Police Officer from the complainant directly or from the Court under Section 156(3) Cr.P.C, attracting any cognizable offence the concerned Police Officer, is duty bound to register an FIR and then to investigate the same. But the Constitution Bench of the Hon'ble Apex Court in Lalita Kumari's case, has conferred some extra rights on the Police, which is not contemplated by Cr.P.C, for conducing primary enquiry in cases where the police is not able to find out whether the complaint discloses any cognizable offence or not.
13. No doubt, the Hon'ble Supreme Court has specifically clarified that the registration of FIR is mandatory under Section 154 Cr.P.C, if the information discloses commission of a cognizable offence and in that situation, no preliminary enquiry is permissible.
14. The Hon'ble Apex Court has held that if the information received does not disclose a cognizable offence, but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. It is necessary to refer the directions issued by the Hon'ble Supreme Court in Lalita Kumari's case, hereunder for better appreciation :
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120. In view of the aforesaid discussion, we hold:
120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4.The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if 10/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
11/20https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 120.7.While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
15. The learned counsel for the petitioner would contend that the above directions issued by the Hon'ble Supreme Court are applicable only in the cases of complaint received by the Police under Section 154 Cr.P.C and not when the complaint is forwarded by the Judicial Magistrate under Section 156(3) Cr.P.C.
16. Section 156(3) Cr.P.C says that any Magistrate empowered under Section 190 Cr.P.C, may order such enquiry as above mentioned.
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17. No doubt, the above provision is very briefly worded. But the Hon'ble Apex Court in catena of decisions has specifically observed that Section 156(3) Cr.P.C., is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R. and of ordering a proper investigation. To put it in short, Section 156(3) Cr.P.C is very wide and it would include all such incidental powers as are necessary for ensuring a proper investigation.
18. As already pointed out, in the case on hand, the learned Magistrate has not given a finding/observation that the complaint of the petitioner discloses commission of a cognizable offence. But, on the other hand, the learned Magistrate directed the Station House Officer to conduct an enquiry and to register an FIR, if the complaint and enquiry discloses commission of a cognizable offence. Since the learned Magistrate has not taken a decision as to whether any cognizable offence is disclosed or not and the complaint was forwarded directing the Police Official to find out whether any cognizable offence is disclosed or not, after conducting enquiry, it can easily be inferred/observed that the Station House Officer has to act under Section 154 r/w 156(i) Cr.P.C.
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19. The learned counsel for the petitioner has relied on another judgment of the Hon'ble Supreme Court in Hemant Ashwant Dhage Vs. State of Maharashtra and others reported in (2016) 6 Supreme Court Cases 273, wherein the Division Bench of the Hon'ble Apex Court has referred its earlier decision in Mohamed Yousuf Vs. Afaq Jahan reported in 2006 (1) SCC 627, wherein the Hon'ble Apex Court has pointed out that to enable the police to start investigation, it is open to the Magistrate to direct the police to register an F.I.R. and even where a Magistrate does not do so in explicit words but directs for investigation under Section 156(3) of the Code, the police should register an F.I.R.
20. As already pointed out, the Mohamed Yousuf's case was decided prior to the judgment in Lalita Kumari's Case.
21. In view of the above, the procedure adopted by the second respondent cannot be found fault with and hence, this court concludes that the above Criminal Original Petition is devoid of merits and the same is liable to be dismissed.”
8. Considering the above, since the learned Magistrate has not 14/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 directed the respondent police to register an FIR but only directed to conduct a preliminary enquiry, filing of the impugned closure report by the respondent police cannot be found fault with.
9. Now turning to the next contention, what is the course open to the petitioner/complainant in case of filing of such a closure report in pursuance of the directions of the learned Magistrate and without registration of FIR. No doubt, the closure report came to be filed by the respondent police after conducting preliminary enquiry in the petition filed by the petitioner and in pursuance of the direction given by the learned Magistrate under Section 156(3) Cr.P.C. and hence, the petitioner is entitled to know about the result of the enquiry conducted by the concerned police and on that basis, the petitioner is certainly entitled to get the copy of the closure report. After filing of the closure report before the jurisdictional Court, the petitioner is also entitled to raise her objections by filing a memo of objections (called as protest petition in the legal parlance) and on such filing of a protest petition, the learned Magistrate is duty bound to conduct a summary enquiry and on considering the closure report and the objections raised by the 15/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 complainant, if the Magistrate finds that there are materials which discloses cognizable offence, then he can direct the concerned police to register an FIR and proceed with the investigation or if the Magistrate finds that the way in which enquiry conducted is not proper, he can direct the concerned police to conduct a fresh enquiry and to submit a report or if the Magistrate finds that enquiry came to be conducted properly and that the materials does not disclose any cognizable offence, can very well accept the closure report and direct the complainant to file a private complaint, if so advised.
10. No doubt, there is a confusion that the protest petition can be filed by the complainant only in case of filing of the negative final report by the concerned police after conducting investigation in pursuance of the registration of the FIR and there is no practise of filing any protest petition for the closure report filed in pursuance of the enquiry conducted under Section 156(3) Cr.P.C. But the fact remains that since the petitioner has lodged a complaint raising some averments and alleging some occurrences against the proposed accused and the respondent police, after conducting an enquiry, comes to a decision that there was no scope for registering FIR 16/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 and for proceeding further and in that scenario, the complainant is certainly entitled to know about the nature of the enquiry and the result of the enquiry. After receiving the copy of the closure report, she can very well agitate the way in which enquiry is conducted is not proper or that the materials gathered by the concerned police during the enquiry discloses cognizable offence and as such, the filing of the closure report is not proper. There is absolutely no legal bar or prohibition for filing protest petition objecting to the closure report filed by the concerned police in pursuance to their preliminary enquiry conducted in pursuance of the order of the learned Magistrate passed under Section 156(3) Cr.P.C. Admittedly, the petitioner has not challenged the order of the learned Magistrate passed in the petition filed under Section 156(3) Cr.P.C., wherein, the learned Magistrate has directed for preliminary enquiry.
11. From the above discussion, this Court concludes that the petition is devoid of merits and the same is liable to be dismissed.
12. In the result, the Criminal Original Petition is dismissed. The petitioner is at liberty to file a protest petition before the jurisdictional 17/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 Magistrate Court and if such a petition is filed, the learned Magistrate is directed to conduct enquiry and pass orders in the manner known to law.
25.09.2024 NCC :yes/No Index :yes/No Internet:yes/No csm To
1.The Judicial Magistrate, Tenkasi.
2.The Inspector of Police, Pavoorchatram Police Station, Tenkasi District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
18/20https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 19/20 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9405 of 2024 K.MURALI SHANKAR,J.
csm Pre-Delivery Order made in Crl.O.P.(MD)No.9405 of 2024 Dated : 25.09.2024 20/20 https://www.mhc.tn.gov.in/judis