Madras High Court
Vennila vs Deputy Superintendent Of Police on 27 January, 2023
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
Crl.O.P..No.30147 of 20224.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.12.2022
PRONOUNCED ON : 27.01.2023
CORAM
THE HON'BLE MR.JUSTICE G.CHANDRASEKHARAN
Crl.O.P.No.30147 of 2022
1.Vennila
2.Selvarasu ... Petitioners
Vs.
1.Deputy Superintendent of Police,
Perur, Coimbatore.
2.State Represented by
The Inspector of Police,
Karunya Nagar Police Station,
Alandurai, Coimbatore. ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C. praying
to call for the records relating to summon dated 23.11.2022,
C.No.P1/E3424913-1903/chiefoffice/2022 issued by the 2nd respondent and
quash the same.
For Petitioner : Mr. J.Ranjith Kumar
For Respondents : Mr.S.Santhosh
Government Advocate (Crl. Side)
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Crl.O.P..No.30147 of 20224.
ORDER
This Criminal Original Petition has been filed to call for the records relating to summon dated 23.11.2022, C.No.P1/E3424913- 1903/chiefoffice/2022 issued by the second respondent and quash the same.
2.The learned counsel for the petitioners submitted that the petitioners were issued a summons under Sections 91 & 160 Cr.P.C. by the second respondent, dated 23.11.2022 in C.No.P1/E3424913-1903/chiefoffice/2022 dated 28.10.2022, to appear before the second respondent on 26.11.2022 regarding the complaint lodged by Arunpriyan. Arunpriyan is the husband of the first petitioner. They were married on 08.03.2017 and have one male child. Arunpriyan harassed the first petitioner by demanding dowry and forcibly aborted two times and criminally intimidated the petitioner. On the basis of the complaint made by the first petitioner before the All Women Police Station – Dharapuram, a case in crime No.13 of 2022, for the offences under Sections 498 (A) & 506 (i) IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act, 2002 was registered. After investigation, final report was filed and the case was taken on file in C.C.No.253 of 2022, on the file of the Judicial Magistrate, Dharapuram, 2/9 https://www.mhc.tn.gov.in/judis Crl.O.P..No.30147 of 20224.
Tiruppur. In the said circumstances, summons issued by the second respondent is without any justification and against law. In the case of Benjamin Vs. The Superintendent of Police, Sivagangai District and Ors. reported in (2019) 2 LW Crl 628, this Court held that summons under Section 160 Cr.P.C. cannot be issued without registration of FIR under Section 154 Cr.P.C. Therefore this petition.
3.In support of his submissions, the learned counsel for the petitioners produced the following orders:
(1) Prakash Transports Vs. The Inspector of Police in Crl.O.P.No.7018 of 2002, dated 22.10.2003.
(2) Soundara Rajan Vs. Deputy Superintending Police and Another reported in 2021 SCC Online Mad 7307.
(3) S.Anand Nataraj Vs. State, Rep by the Inspector of Police and Another reported in 2021 SCC Online Mad 14683.
(4) Madhusudhanan Vs. Deputy Superintendent of Police and Another reported in 2021 SCC Online Mad 9564.
(5) V.N.Pachaimuthu Vs. The Superintendent of Police, Villupuram District, Villupuram and Ors. in W.P.No.19361 of 2011 dated 3/9 https://www.mhc.tn.gov.in/judis Crl.O.P..No.30147 of 20224.
09.03.2012.
4.The learned Government Advocate (Crl.Side) submitted that after the judgment of the Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1, when preliminary enquiry is conducted in certain cases, police can issue summons for the appearance of the accused and the witnesses for conducting the preliminary enquiry and that cannot be faulted with. In support of his submissions, he produced the order passed in Crl.O.P.No.28049 of 2022 dated 07.12.2022 (S.Karthikeyan Vs. State Rep by The Superintendent of Police, District Police Office, Thiruvarur, Thiruvarur District – 610 004 and two ors).
5.Considered the rival submissions and perused the records.
6.Section 91 Cr.P.C. comes under Chapter VII. This Chapter deals with processes to compel the production of things. Section 160 Cr.P.C. comes under Chapter XII. This Chapter deals with Information to the police and their powers to investigate.
Section 91 reads as follows:
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91. Summons to produce document or other thing (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed—
(a) to affect, sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or
(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.
Section 160 reads as follows:
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“160. Police Officer's power to require attendance of witnesses.
(1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-
section (1) at any place other than his residence.
7.From the orders produced by the learned counsel for the petitioners, it is seen that this Court had consistently taken a view that summons under Section 160 Cr.P.C. cannot be issued without registration of FIR under Section 154 Cr.P.C. However, Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1 when considering whether the 6/9 https://www.mhc.tn.gov.in/judis Crl.O.P..No.30147 of 20224.
registration of FIR is mandatory under Section 154 Cr.P.C. observed that preliminary enquiry has to be conducted in cases falling under the following categories:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases were there is abnormal delay/laches in initiating criminal prosecution.
These categories are only illustrative and not exhaustive as to the conditions which may warrant preliminary enquiry.
8.In the case before hand, the dispute between the parties appears to be matrimonial dispute. As held by the Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1, preliminary enquiry is necessary before registration of FIR. Without the appearance of the parties and witnesses, preliminary enquiry cannot be conducted effectively. May be that summons issued under Section 160 Cr.P.C. may not be correct for the reason that the FIR is not registered. Summons has also reference about 7/9 https://www.mhc.tn.gov.in/judis Crl.O.P..No.30147 of 20224.
Section 91 Cr.P.C. Even otherwise, as per the judgment of the Hon'ble Supreme Court in Lalita Kumari Vs. Govt. of UP & Ors. reported in (2014) 2 SCC 1, police is entitled to conduct preliminary enquiry and for that purpose, can summon the parties and witnesses.
9.In this view of the matter, this Criminal Original Petition is dismissed. The petitioners are directed to appear for the enquiry before the respondent police.
27.01.2023 sli Internet:Yes Index:Yes/No Speaking/Non speaking order To:
1.Deputy Superintendent of Police, Perur, Coimbatore.
2.State Represented by The Inspector of Police, Karunya Nagar Police Station, Alandurai, Coimbatore.
3.The Public Prosecutor, High Court of Madras.8/9
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G.CHANDRASEKHARAN, J.
sli Pre-delivery Order in Crl.O.P.No.30147 of 2022 27.01.2023 9/9 https://www.mhc.tn.gov.in/judis