Madras High Court
Jeyakumar vs State: Rep. By on 23 July, 2009
Author: G.M.Akbar Ali
Bench: G.M.Akbar Ali
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/07/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Criminal Original Petition No.4735 of 2009 Jeyakumar .. Petitioner vs. State: Rep. By The Inspector of Police, Vembakkottai Police Station, Virudhunagar District. .. Respondents * * * Prayer Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure praying to direct the learned Judicial Magistrate No.II, Sattur to take up the complaint in S.R.No.1428 of 2009 dated 06.03.2009 on its file and further direct the learned Judicial Magistrate No.II, Sattur to forward the same to the respondent police under Section 156(3) of Cr.P.C for investigation. * * * !For Petitioners ... Mr.N.Damodaran ^For Respondent ... Mr.L.Murugan, Govt. Advocate(Crl. Side) :ORDER
The petitioner has come forward with this petition seeking a direction to direct the learned Judicial Magistrate No.II, Sattur to take up the complaint in S.R.No.1428 of 2009 dated 06.03.2009 and to forward the same to the respondent police under Section 156(3) of Cr.P.C., for investigation.
2. Learned counsel appearing for the petitioner submitted that the petitioner had presented a complaint under Section 190(1) (a) of Cr.P.C., praying to forward the said complaint under Section 156(3) of Cr.P.C., before the learned Judicial Magistrate No.II, Sattur stating that on 23.04.2007, a forged sale deed has been created by the proposed accused persons with an intention to cheat the petitioners. He has also submitted that the complaint discloses non-bailable cognizable offences punishable under Sections 464, 465, 420, 468, & 474 of I.P.C. He would further submit that the learned Magistrate had returned the complaint on the same day of the presentation, stating that the dispute involves purely of civil nature and the petitioner has to seek alternative remedy before the civil Court.
3. Learned counsel appearing for the petitioner further submitted that the complaint presented under Section 190(1) (a) of Cr.P.C., requesting the learned Magistrate to forward the same under Section 156(3) of Cr.P.C., to the respondent police for investigation and there is a prayer that as the proposed accused have created forged document with an intention to cheat the petitioner that the Magistrate ought not to have returned the complaint and should have forwarded the same to the respondent police for investigation.
4. Heard the learned Government Advocate(Crl. Side) on the submissions made by the learned counsel appearing for the petitioner and perused the materials available on record.
5. On perusal of the documents would show that the complainant had alleged forgery and cheating, though the other allegations related to property dispute. When there is an allegation of forgery and cheating which are cognizable offences, the learned Magistrate ought not to have returned the petition.
6. When the learned Magistrate receives a complaint under Section 190(1)
(a) of Cr.P.C., which constitute any cognizable offence, the following two options are there before the learned Magistrate:
(1) He has to forward the complaint under Section 156(3) of Cr.P.C., to the concerned police officer for investigation.
(2) He has to proceed with the matter under Section 200 of Cr.P.C."
7. However, there is no provision to return the complaint, when a complaint indicates certain cognizable offences also.
8. In A.Sowfila vs. Commissioner of Police, Madurai City and others reported in [2008(2) T.N.L.R243 (Mad) (MB)], Wherein this Court has held as follows:
53. This Court already pointed out in the earlier portion of this order that the Hon'ble Apex Court in Sakiri Vasu's case has not altogether excluded the exercise of power under Section 482, Cr.P.C. By this Court. It is well-
settled by a catena of decisions of the Hon'ble Apex Court that the power under Section 482 of Cr.P.C. may be exercised under the following three circumstances, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure the ends of justice. Therefore, considering the seriousness, gravity and complication of each case, this Court can give direction to the police to register the First Information Report, if the allegation contained in the complaints constitutes cognizable offence in the event of their failure to register the First Information Report, by exercising the power under Section 482, Cr.P.C. to secure the ends of justice and such power has to the exercised sparingly, carefully and with caution only where such exercise is justified by the tests laid down in the section itself.
This Court further held that
55. I respectfully agree with the view of my learned Brother Judge. In the said order, the learned Brother Judge has classified certain offences which would require immediate inspection of the scene of crime, recovery of material objects and collection of other potential evidence in heinous crimes may be highly warranted such as the commission of the offences of murder, dowry death, attempt to murder wherein the victim sustained grievous injuries, robbery, dacoity, rape and attempt to rape. I am of the considered view that the above categorization and classification of offences are only illustrative and not exhaustive and this Court can very well exercise the power under Section 482,Cr.P.C. in order to secure to ends of justice in respect of other serious and complicated offences depending upon the facts and circumstances of each case and this Court cannot stipulate hard and fast rule by classifying certain offences. There is no frequent grievances in respect of the petitions filed under Section 482 for the serious offence of murder, dowry death, attempt to murder, robbery, dacoity, rape and attempt to rape and only certain exceptional cases police have not taken immediate action. Therefore, this Court cannot brush aside the undisputed fact that even in certain other offences, namely, abetment to commit suicide, forgery, cheating involving land grabbing and other offences of cheating involving huge amounts, misappropriation, kidnapping for ransom and kidnapping minor girls, etc., the police investigation is just and essential to fix and arrest the culprits and thereafter, to recover the articles and to collect the other evidence to prove the case before the Court of law, otherwise it would result in grave miscarriage of justice to the de- facto complainants.
9. When a Magistrate receives a complaint under Section 190(1) (a) Cr.P.C, which constitute a cognizable offence in the instant case, forgery and cheating, he shall not return it as there is no provision for such return, but shall forward the same for police investigation under Section 156(3) of Cr.P.C as the investigation is essential. If he finds that it does constitute a cognizable offence, he shall pass suitable orders either to direct or to reject stating the reason.
10. In the instant case, the complainant had alleged forgery and cheating and other allegation. Though the other allegations relates to the dispute relates to properties, it cannot be said that the entire dispute involves purely of civil nature.
11. Therefore, under these circumstances, this Court is empowered under Section 482 of Cr.P.C., to to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
12. In the light of the above well-settled principle as laid down by the Hon'ble Apex Court and this Court, this petition is allowed directing the petitioner to re-present the complaint before the learned Judicial Magistrate No.II, Sattur and in the event of such re-presentation, the learned Magistrate is directed to initiate the proceedings as contemplated under Section 190(1)(a) of Cr.P.C., and to deal with the complaint in accordance with law.
pm To
1.The Judicial Magistrate No.II, Sattur.
2.The Inspector of Police, Vembakkottai Police Station, Virudhunagar District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.