Madras High Court
S. Subramaniam vs R. Natarajan on 14 February, 2003
Author: V. Kanagaraj
Bench: V. Kanagaraj
ORDER V. Kanagaraj, J.
1. Petitioner has filed the above Criminal Original Petition praying to call for the records relating to C.C. No. 200 of 2002 pending on the file of the Judicial Magistrate No. I, Poonamallee and quash the same.
2. In the affidavit filed in support of the petition, the petitioner would submit that he executed a General Power of Attorney in favour of one R. Natarajan on 27.1.1995 at Madras in respect of his property at Plot No. 100 part in S. No. 99/2, in Ullagaram Village, Saidapet Taluk, measuring about 1250 sq. feet, specifically agreeing thereto that the Power of Attorney Agent shall inform the petitioner before entering into any agreement of sale in respect of the property; that without informing him he had sold his property to a third party namely Rajeswari by a registered sale deed dated 27.3.1995.
3. Petitioner would further submit that the purchaser Rajeswari has constructed a building in the property and has let it out for housing the police station which he was not informed of; that he did not receive the sale consideration from the said Natarajan, the third respondent herein; that he cancelled the power of attorney on 22.2.2000 and the sale deed on 3.4.2000; that he preferred a complaint to the Superintendent of Police, to pay the rent for the building to him; that in response to the said complaint, the Superintendent of Police sent a memo to the petitioner on 7.8.2002; that as per the direction of the Superintendent of Police since then he was receiving the rent, but he received a memo. dated 22.2.2002 stating that payment of the rent would be temporarily stopped; that in the mean time his complaint to the Superintendent of Police, Chengalpattu East dated 18.3.2000 was referred as 'mistake of fact' on 16.4.2002 and the District Crime Branch Police registered a case against him under Section 182 of I.P.C. in Crime No. 36/2002.
4. Stating that the initiation of the proceeding against the petitioner is illegal, improper and malicious the petitioner would pray to the relief extracted supra.
5. During arguments the learned counsel appearing on behalf of the petitioner would question the validity of the complaint initiated by the Inspector of Police. The learned counsel would submit that such initiation of the complaint is not only inequitable to be permitted but also illegal and therefore, the case cannot be permitted to get on with the trial since it is patently illegal; that the wrong officer has prosecuted the case under Section 185 of Cr.P.C. and Section 182 of I.P.C.; that no Court could take cognizance of the offence which itself is bad in law; that the Inspector is incompetent to register the case and investigate into; that since it is a complaint given to the Superintendent of Police, either the Superintendent of Police or the any officer higher in rank than himself is competent to deal with; that at any costs the Inspector is not competent to file the complaint.
6. The learned counsel would also cite a decision (STATE v. BALA PRASAD) wherein it is held:
"A complaint under section 182 of the Penal Code has to be made either by the public servant to whom information has been given, or by some other public servant to whom he is subordinate. The public servant concerned under Sec. 195(1)(a) of the Code of Criminal Procedure is the public servant to whom the information is given. Hence where the false information was given to the Deputy Inspector General of Police, he would be the 'public servant concerned' within the meaning of Section 195(1)(a) and should file the complaint under Section 182, Penal Code. he fact that he sent the application to the Station Officer of a particular Police station for investigation would not make the Station Officer the public servant concerned to whom information was given."
7. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, the only legal point that could be considered, at this juncture, by this Court, is that the charge being under Section 182 I.P.C that is furnishing false information with intent to cause a public servant to use his lawful power to the injury of another person, which should have been prosecuted under the relevant provisions established by law for investigating into the said charge under Section 195 Cr.P.C., wherein either the public servant concerned, who receives the complaint in writing, or some other public servant to whom he is administratively subordinate, could only deal with the said case and unless the said procedure contemplated under Section 195 Cr.P.C. is adopted, no Court shall take cognizance of the said offence committed under Section 182 I.P.C.
8. In the case in hand, the agreed facts are that it is the Superintendent of Police, who received the written complaint from the complainant and the Investigating Officer should be either himself or someone higher in rank than that of the Superintendent of Police who received the complaint, but on the contrary, it is the Inspector of Police to whom the said complaint was referred and investigated into, and therefore, taking cognizance of the said charge laid by the Inspector of Police for an offence punishable under Section 182 I.P.C. is nothing but erroneous and illegal and hence the prayer of the petitioner has to be answered in the affirmative quashing the proceedings in C.C. No. 200 of 2002 pending on the file of the Court of Judicial Magistrate No. I, Poonamallee and the same is ordered accordingly.