Madras High Court
V.N.Pachaimuthu vs The Superintendent Of Police on 9 March, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.19361 of 2011 & M.P.No.1 of 2011 V.N.Pachaimuthu .. Petitioner -vs- 1. The Superintendent Of Police Villupuram District, Villupuram. 2. The Deputy Superintendent of Police, District Crime Branch, Salem Main Road, Kallakurichi. 3. The Inspector of Police District Crime Branch, Villupuram. 4. C.Muthammal 5. P.Chitrambalam 6. P.Sengoda Gounder 7. P.Ayyamperumal .. Respondents. Prayer: Writ petitions are filed under Article 226 of Constitution of India for the issuance of writ of certiorarified mandamus, forbearing the respondents 1 to 3 from proceeding with any enquiry against the petitioner in relation to the property situate in Survey Nos.89/1 & 89/3 Kattananthal Village Kallakurichi Taluk Villupuram District in the guise of conducting enquiry without resorting to due process of law. For Petitioner : Mr.P.Valliappan For R1 to R3 : Mr.R.Ravichandran, Addl.Govt. Pleader O R D E R
The petitioner prays for issuance of writ, in the nature of prohibition, restraining the respondents 1 to 3 from proceeding with any enquiry against the petitioner in relation to the property falling in Survey Nos. 89/1 & 89/3, Kattananthal Village, Kallakurichi Taluk, Villupuram District, without following due process of law.
2. This writ petition is prima facie not competent, as this Court cannot prohibit the Police authorities to proceed with the matter in accordance with law, in case of complaint, showing cognizable offence.
3. The respondent no.4 lodged a complaint with the Inspector of Police, District Crime Branch, Villupuram, alleging fraud in dispossession of petitioner from the property, owned by him.
4. The submission of petitioner is that the Inspector of Police, instead of holding preliminary enquiry to find out the truth of allegations and thereafter proceed with the complaint in accordance with law under Section 154 r/w Section 157 of the Code of Criminal Procedure, issued notice to the petitioner u/s. 160 of the Code of Criminal procedure.
5. The respondent no.4 filed a complaint alleging therein that she was owner of the property, on the basis of sale deed dated 06.02.990 and alleged that the petitioner was guilty of land grabbing.
6. The submission of petitioner is that the complaint made by respondent no.4 is patently false, as the matter is purely of civil in nature. It is also submission of petitioner that respondent nos.1 to 3 under the guise of enquiry, were harassing and threatening the petitioner without any basis. It is also stated in the affidavit that respondents are compelling the petitioner to consent to their demand by unconditionally vacating the land. The submission made hereinabove can only be seen in exercise of jurisdiction under Section 482 of Code of Criminal Procedure, and not in exercise of writ jurisdiction. However, learned counsel for the petitioner points out that no case has been registered, but petitioner has been summoned under Section 160 of Cr.P.C.
7. The petitioner is, therefore, right in contending that the Police has no jurisdiction to harass a citizen, as the duty of the Police in case of receipt of complaint, showing cognizable offence, is to register an FIR, and thereafter proceed with the investigation under Section 157 of the Code of Criminal Procedure. This can entitle the aggrieved party to work out the remedy in accordance with law, including invoking of Section 482 of Cr.P.C. for quashing of FIR.
8. The respondents also have no right or jurisdiction to direct a party to produce evidence, which may be going against them, as an accused cannot be directed to furnish necessary documents, as it will be for the police to collect evidence, if any offence is made out, from the complaint.
9. The petitioner has placed on record the notice, issued under Section 160 of Cr.P.C., calling petitioner for enquiry. This notice on the face of it is without jurisdiction and unwarranted in law, as notice under Section 160 Cr.P.C., can be issued to witness in pending FIR, but cannot be issued to a person, who is an accused in a complaint or before registration of the case.
10. This writ petition is, therefore, allowed to a limited extent and the notice issued by second respondent under Section 160 of Cr.P.C., calling petitioner for enquiry, is ordered to be quashed.
11. As already observed above, respondents can only proceed under the provisions of Cr.P.C., in case complaint discloses any cognizable offences. A citizen cannot be called for enquiry under Section 160 of Cr.P.C., in absence of any FIR. The power under Section 160 of Cr.P.C., can be exercised to call a witness, after FIR is registered.
12. No costs. Connected miscellaneous petition is closed.
ar/kpr To
1. The Superintendent Of Police Villupuram District, Villupuram.
2. The Deputy Superintendent of Police, District Crime Branch, Salem Main Road, Kallakurichi.
3. The Inspector of Police District Crime Branch, Villupuram