Madras High Court
D.Srinivas vs S.Zakker Hussain on 16 September, 2014
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2014 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.Nos.32232 of 2013 and 33097 of 2013 D.Srinivas .. Petitioner in Crl.O.P.33097/2013 S.Zahir Hussain .. Petitioner in Crl.O.P.32232/2013 Vs 1.S.Zakker Hussain 2.State rep. By The Sub Inspector of Police B.1 North Beach Police Station (Crime) Chennai .. Respondents in Crl.O.P.33097/2013 1.The Inspector of Police B.1 North Beach Police Station Chennai 2.Deputy Commissioner of Police Flower Bazaar Range Chennai .. Respondents in Crl.O.P.32232/2013 PRAYER in Crl.O.P.33097/2013: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to cancel the bail order dated 05.12.2013 granted by the VII Metropolitan Magistrate, George Town, Chennai in M.P.No.295 of 2013 in Cr.No.955 of 2013 on the file of Inspector of Police, (Crime) B1 North Beach Police Station, Chennai. PRAYER in Crl.O.P.32232/2013: Criminal Original Petition filed under section 482 of Criminal Procedure Code praying to issue direction to the respondents to take action against the persons who have attacked the petitioner herein and also register the complaint lodged by the petitioner herein on 6.12.2013 before the 2nd respondent. For Petitioner in Crl.O.P.32232/2013 : Mr.G.Mohanakrishnan For Petitioner in Crl.O.P.33097/2013 : Mr.N.P.Kumar For Respondent-State : Mr.M.Mohamed Riyaz Government Advocate(Crl.Side) COMMON ORDER
Insofar as Crl.O.P.No.33097 of 2013 is concerned, the petition is for cancellation of the bail granted on 05.12.2013 by the VII Metropolitan Magistrate, George Town, Chennai in M.P.No.295 of 2013 in Cr.No.955 of 2013 on the file of Inspector of Police, (Crime) B1 North Beach Police Station, Chennai. Though learned counsel for the defacto complainant/D.Srinivas submits that in considering the petition for bail moved by Zakker Hussain in Crl.M.P.No.295 of 2013 in Crime No.955 of 2013 on the file of Inspector of Police, (Crime) B1 North Beach Police Station, Chennai and order dated 5.12.2013, no reasons are informed, we find that as against an occurrence of 05.12.2013, the final report has been filed in the case leading to C.C.No.1863 of 2014 pending trial on the file of VII Metropolitan Magistrate, George Town, Chennai. Such proceedings have been stayed by this Court under order dated 11.8.2014 in Crl.M.P.No.1 of 2014 in Crl.O.P.No.20933 of 2014. In the circumstances, where the investigation stands completed, this petition (Crl.O.P.No.33097/2013) does not survive consideration and hence, the same shall stands dismissed.
4. Insofar as Crl.O.P.No.32232 of 2013 is concerned, the petition is filed for a direction to the respondents/Police to take action against the persons who have attacked the petitioner/S.Zahir Hussain and also register the complaint lodged by the petitioner/S.Zahir Hussain on 6.12.2013 before the 2nd respondent-Deputy Commissioner of Police, Flower Bazaar Range, Chennai.
5. The persons accused therein are the Superintendent of Customs and other officials working at the Customs House. The Superintendent of Customs is the defacto complainant in Cr.No.955 of 2013 on the file of Inspector of Police, B-1 North Beach Police Station, Chennai. The occurrence alleged is of the same time as in Crime No.955/2013. In other words, the petitioner/S.Zahir Hussain seeks action on a complaint which informs a case counter to the one registered in Crime No.955/2013. This Court, on the order dated 08.01.2014 has passed an interim order to the following effect:-
By way of an interim order, this Court directs the respondent police to peruse the complaint preferred by the petitioner herein and register cases if the same informs commission of cognizable offence. In particular instances, the respondent police may resort to a petition enquiry which again shall not extend beyond a period of one week. This order is made towards effecting and ensuring compliance with the decision of the Apex Court in Lalita Kumari Vs Govt. of U.P. & others [2013 (4) Crimes 243 (SC)]. It is expected that the respondent police will follow the dictate of the Apex Court in the aforesaid judgment in letter and spirit and not give room for any further action at the hands of this Court. In the event of respondent police not being in receipt of complaint allegedly preferred before them by the petitioner, it would always be open for respondent police to inform such position at the next hearing date. Post on 23.01.2014.
6. The counter filed by the respondent-police at paragraph 9 informs thus:-
9. It is submitted that during the course of the investigation in Cr.No.955 of 2013 conducted by Tr.Dhanraj, Inspector of Police, the following came to light:-
a) On 01.11.2013, a consignment mostly of cosmetic items, which was imported by M/s.ALM Enterprises from Singapore in the guise of Room Air Fresheners was detained by the Customs, since it amounted to smuggling. The value of the consignment is estimated at Rs.1 Crore in Singapore and Rs.3 Crores in the international market.
b) One Maheshkumar Singh who is doing some petty job had imported the above consignment by misusing the identity of the real Import Export Code (IEC) Holder.
c) Summons were issued to the said Maheshkumar Singh and his associate Ibrahim under Section 108 of Customs Act to appear on 05.12.2013 and the said Maheshkumar appeared at about 11.00 a.m., and the said Ibrahim appeared at about 2.30 p.m., for enquiry. During enquiry, the said Ibrahim stated that he is the Power of Attorney Holder of the said Maheshkumar Singh. Further enquiry revealed that both Maheshkumar Singh and Ibrahim do not have any knowledge about import and export, other persons are behind them and only at their instance, the petitioner who is an Advocate is messing up with the Complainant to withdraw the case and release the consignment.
d) The Petitioner Zahir Hussain threatened the Complainant on several occasions with regard to the consignment issue and on the date of occurrence, assaulted the complainant, due to which the complainant got admitted in the Government Stanley Hospital and Wound Certificate is yet to be issued.
e) The petitioner who is no way connected with the consignment issue is wantonly interfering with the complainant by threatening to eliminate him and kidnap his children from school in order to safeguard the real culprits behind the case and also to drag on the case.
f) At the time of remand, the petitioner did not complain anything about the assault made by the complainant before the learned Magistrate, but in para 7 of his petition, he has stated that the complainant assaulted him, due to which he got admitted in the hospital; subsequently, lodged a complaint against the Complainant before B-1, North Beach Police Station on 06.12.2013 and prayed for a direction to register an FIR on his complaint. The fact remains that no such complaint dated 06.12.2013 was received from the petitioner at B-1, North Beach Police Station. However, upon getting a copy of the above Criminal Original Petition filed by the petitioner from the Public Prosecutor Office, I called both parties i.e., the Complainant as well as the petitioner for enquiry, but the defacto complainant alone appeared for enquiry and the petitioner failed to appear.
7. Learned counsel for the petitioner/S.Zahir Hussain submits that upon the petitioner being produced before the VII Metropolitan Magistrate, George Town, Chennai, in connection with Crime No.955/2013 at about 11 p.m., on 05.12.2013, the petitioner/S.Zahir Hussain had complained against the staff members of the Customs and Excise and such position stood recorded by the Magistrate, while remanding him till 19.12.2013. The Magistrate had also recorded that the petitioner had not complained against the police. The O.P.Chit, issued by the Government Hospital, Royapettah on 06.12.2013 informs of the petitioner having suffered tenderness and swelling near scapula region. He would submit that in view of the decision of the Apex Court in Lalita Kumari Vs Govt. of U.P. & others [2013 (4) Crimes 243 (SC)], the police had no option and where the complaint informed cognizable offences, they would have to register the case.
8. Heard the learned Government Advocate (Criminal Side), on the above submissions.
9. The learned Government Advocate (Criminal Side) submits that no complaint has been received by the police from the petitioner/S.Zahir Hussain on 06.12.2013.
10. Giving the attendant facts informed and the particular circumstances of the case, this Court would dispose of the Crl.O.P.No.32232 of 2013 with a direction to the first respondent - The Inspector of Police, B.1 North Beach Police Station, Chennai to furnish a copy of the enquiry report to the petitioner/S.Zahir Hussain. It would be open to the petitioner to take recourse to such remedy as available in law.
nvsri 16.09.2014
To
1.The Sub Inspector of Police
B.1 North Beach Police Station (Crime)
Chennai
1.The Inspector of Police
B.1 North Beach Police Station
Chennai
2.Deputy Commissioner of Police
Flower Bazaar Range
Chennai
C.T.SELVAM, J.,
nvsri
Crl.O.P.Nos.32232 of 2013
and 33097 of 2013
16.09.2014