Madras High Court
E.Alex vs State Of Tamil Nadu Rep. By on 18 December, 2015
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 18.12.2015
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Crl.RC.(MD).No.611 of 2015
E.Alex .. Petitioner/Defacto-complainant
Vs.
1.State of Tamil Nadu rep. by
The Inspector of Police,
Manavalakurichi Police Station,
Kalkulam Taluk,
Kanyakumari District.
2.The Deputy Superintendent of Police,
Colachel (Division)
Colachel,
Kanyakumari District. ... Respondents
Prayer
Criminal Revision filed under Section 397 r/w 401 of Crpc against the
order passed by the Learned Principal District Munsif cum Judicial
Magistrate, Eraniel, Kanyakumari District in Crl.M.P.No.5114 of 2015 in
Cr.No.248 of 2015 of Manavalakurichi Police Station, dated 17.11.2015.
!For Petitioner : Mr.S.Titus
^For Respondents :Mr.P.Kandasamy
Govt. Advocate (Crl.Side)
:ORDER
The petitioner/de facto complainant has filed the present Criminal Revision Petition before this Court, as against the order dated 17.11.2015 in Crl.M.P.No.5114 of 2015, passed by the Learned Principal District Munsif cum Judicial Magistrate, Eraniel.
2. The Learned Principal District Munsif cum Judicial Magistrate, Eraniel, while passing the impugned order in Crl.M.P.No.5114 of 2015 on 17.11.2015, had among other things observed that ' ... the petitioner had given a complaint before the Police Station and as per the order of this Court dated 26.06.2015, an F.I.R was registered and that it was not to be seen as to when the complainant's complaint was given and further, the date was also not mentioned and in the complaint, it was not mentioned that there was suspicion against an accused, but in the complaint, it was merely mentioned that it was lost and further, the petitioner had not produced any evidence to show except his petition, wherein, he had mentioned that 8 + sovereigns of jewels in accused Rejee's house and since there was no prima facie material, the court cannot order for a search in respect of a residence of an individual and since there was no documentary evidence or evidences through deposition of a witness and also based on the averments made in the petition and in the statement of the petitioner, except that no other material was found on the side of the petitioner' and under these circumstances, the petition was not to be allowed and resultantly, dismissed the petition.
3. According to the Learned counsel for the Petitioner/de facto complainant, on 19.02.2015 at 03.30 p.m, when the petitioner/defacto complainant, while coming in his two wheeler at a place called ' Parapattu' , he fell down from the two wheeler due to giddiness and at that time, one driver viz., ' Rejee' and others came to the rescue and took him in a Tata Sumo Car bearing Regn.No.TN-75H9713, driven by the said Rejee. It is also represented that when the Petitioner/defacto complainant reaching the hospital, a gold chain weighing 8+ sovereigns worn on his neck was found missing and when the Petitioner caused an enquiry with the said Rejee, he answered that the known persons have removed it, at the time of lifting and also he promised that he would get return of the chain from the person. However, he had not got return of the said gold chain from the said Rejee.
4. The grievance of the petitioner mainly centers around on a very vital fact that after discharging from the hospital on 24.02.2015, he gave a complaint to the first respondent/police. But the first respondent had not registered any case and investigated the same. Thereafter, he sent a complaint on 16.03.2015, addressed to the Superintendent of Police, Kanyakumari District and to the second respondent/Deputy Superintendent of Police, Colachel Division, Colachel, Kanyakumari District and other higher police officials. Even then, the Police had not cared to register a case.
5. At this stage, the Learned counsel for the Petitioner/ defacto complainant brings it to the notice of this Court that the petitioner filed Crl.O.P.(MD).No.5634 of 2015 before this Court and on 30.03.2015, this Court passed an order by directing the respondents therein to register a criminal case against the accused, based on the complaint, dated 24.02.2015, filed by the petitioner etc.,. Further, this Court, had issued a direction to follow the mandate laid down in the decision of Honourable Supreme court in Lalithakumari V. Government of Uttar Pradesh reported in (2013 (4) Crimes Pg.No.243 (SC)) etc.,
6. Apart from the above, the Learned counsel for the petitioner/defacto complainant proceeds to take a stand that the petitioner/defacto complainant, on 19.06.2015 filed Crl.O.P.(MD).No.11439 of 2015 before this Court, seeking to transfer the investigation from the hands of the respondent/Police to CBCID Police or to the District Crime Branch Police, Kanyakumari District or to any other Police officials of reputation to register the case and recover his gold chain. Only with much hesitation, after receipt of notice in Crl.O.P.(MD).No.11439 of 2015, an FIR in Cr.No.248 of 2015 under Section 379 of IPC, dated 26.06.2015 was registered formally, but the Police had not taken any steps to recover the gold chain weighing 8+ sovereigns.
7. Yet another submission made on the side of the Petitioner/defacto complainant is that till date, the accused was not arrested and that the investigation is not proceeded in a proper manner.
8. It is to be borne in mind that before issuing a search warrant under Section 94 of Cr.P.C, the Learned Magistrate should have a genuine, reasonable and a legitimate belief that the place sought to be searched is one, where the stolen property is kept. Indeed, the power conferred under Section 94 of Cr.P.C under the caption 'Search of place suspected to contain stolen property, forged document etc.,' is an harsh one. In fact, the Learned Judicial Magistrate must be quite guarded and must exercise the said power with great care, caution and circumspection. If any act is performed, contrary to the tenor and spirit of the ingredients of Section 94 of Cr.P.C, there is every possibility to produce unjust and harmful results, in the considered opinion of this Court. It cannot be gainsaid that the order passed without any inquiry and without application of mind is an illegal one, as per decision Gangadharan V. Kochappi Chellapan reported in 1985 CrLJ Pg 1517 (Kerala) . Even the pendency of a criminal case is not an established fact for the exercise of the power under Section 94 of Cr.P.C, as per decision Shaikh Raheman V. State of Maharashtra reported in 1991 (1) Crimes Page 228 (Bom).
9. In the upshot of quantitative and qualitative discussions and also this Court, bearing in mind a prime fact that the Petitioner/Defacto Complainant in the undated complaint addressed to the Sub-Inspector of Police, Manavalakurichi Police Station, had only among other things mentioned that '... the Tata sumo was driven by Rejee and later, when he went to the police Station and found that his 8 + sovereigns gold chain was missing and subsequently, he informed his relatives and also went to occurrence place and searched there, in spite of the same, the said chain was missing and made a request to find out the gold chain and except the ipsi dixit statement of the petitioner, admittedly no other documentary evidence was produced on his behalf and under these circumstances, the view taken by the Learned Principal District Munsif cum Judicial Magistrate, Eraniel in dismissing the Crl.M.P.No. 5114 of 2015, filed by the petitioner cannot be found fault with, inasmuch as the same does not suffer from any material irregularity or patent illegality in the eye of Law. Per contra, the same is in order. Consequently, the Revision fails.
10. In the result, the Criminal Revision Petition is dismissed. The order passed by the Learned District Munsif cum Judicial Magistrate, Eraniel in Crl.M.P.No. 5114 of 2015 dated 14.11.2015 is confirmed by this Court, for the reasons assigned in this Revision.
To
1.The Principal District Munsif cum Judicial Magistrate, Eraniel, Kanyakumari District.
2.The Inspector of Police, Manavalakurichi Police Station, Kalkulam Taluk, Kanyakumari District.
3.The Deputy Superintendent of Police, Colachel (Division) Colachel, Kanyakumari District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..