Madras High Court
J.R.Suresh vs State Rep. By on 8 December, 2015
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 08.12.2015
CORAM
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Crl.O.P.(md).No.17353 of 2015
J.R.Suresh ...Petitioner
Vs.
State rep. by
The Director,
Vigilance and Anti Corruption,
Greenways Road,
Chennai-28. ...Respondent
Prayer
Criminal Revision filed under Section 482 of Crpc to direct the
respondent to register a First Information Report on the basis of the
petitioner's complaint dated 01.08.2015 on the file of the respondent.
!For Petitioner : Mr.J.Selvin Rajesh
For respondent : Mr.P.Kandasamy
Government Advocate (Crl.Side)
:ORDER
The petitioner has projected the present Criminal Original Petition under Section 482 of Cr.P.C praying for passing of an order by this Court to register the First Information Report on the basis of his complaint dated 01.08.2015 on the file of the respondent.
2.According to the petitioner, he was running a Aavin Milk Booth inside the District Court Campus, after obtaining necessary permission from the Public Works Department, during the period 06.02.2006 to 06.02.2009.
3.It is the stand of the petitioner that during the aforesaid period, the Learned District Judge, Madurai asked the petitioner to remove the shop to maintain a rain water harvesting work and that the Executive Engineer gave permission to one Mrs.Valarmathi, (against whom the petitioner had lodged a complaint), after obtaining bribe. As regards this, the petitioner has filed a Writ Petition in W.P.(MD).No.1754 of 2009 before this Court and the same was dismissed by this Court on 02.04.2009. In the Criminal Original Petition, the petitioner at paragraph No.3, had averred that he approached Mr.Kumarasamy, the Executive Engineer (proposed accused) and he replied to the petitioner that one Mrs.Valarmathi was granted permission to run the Milk Booth and that he had stated that one Valarmathi gave Rs.40,000/- and further, he demanded Rs.1,00,000/- from the petitioner for cancelling the permission granted to Mrs.Valarmathi.
4.It is further averred in the present Criminal Original Petition that thereafter, the proposed Accused/Executive Engineer gave a copy of temporary cancellation letter to the petitioner and again, demanded Rs.1 lakh from him. On his refusal, the said Engineer again granted permission to Mrs.Valarmathi. It is also represented on behalf of the petitioner that he gave a letter to the Superintending Engineer of Public Works Department, Madurai and also the Honourable Chief Minister's Cell on 17.09.2014. In regard to the petition, the petitioner reportedly met the Superintending Engineer, Public Works Department and handed over the photo proof of documents on 13.01.2015.
5.The stand of the petitioner is that the Superintending Engineer asked him to come again on 21.02.2015 and enquired the matter and during the enquiry, the petitioner again submitted the proof of documents.
6.The grievance of the petitioner is that there is no progress in regard to the complaint given by him to the Superintending Engineer and also gave a complaint to the Chief Engineer of Public Works Department. However, on 16.07.2015, the Superintending Engineer disposed of the petitioner's complaint as false and sent a letter to him on 01.09.2015. The petitioner sent a complaint to the respondent on 01.08.2015 and the same is pending till date without any consideration. Therefore, he has filed the present Criminal Original Petition.
7.Per contra, the Learned Government Advocate (Crl.Side) appearing for the respondent submits that the highest bidder in the auction was one Mrs.Valarmathi, who had bid for a sum of Rs.32,400/- in regard to the vacant portion of 2.4 meters in length into 2.22 meter breath for running the Milk Parlour inside the District Court campus, Madurai and from the successful bidder Rs.37,400/- was collected as auction amount and a further sum of Rs.1870/- was collected towards other taxes and after deducting a sum of Rs.100/-, only a sum of Rs.39,170/- was collected and in all, Rs.39,270/- was remitted into the State Bank of India at CTO Branch, Madurai.
8.Continuing further, the Learned Government Advocate (Crl.Side) appearing for the respondent proceeds to project an argument that the petitioner filed Crl.O.P.(MD)No.17353 of 2015 to register a case and that a preliminary enquiry was registered in Madurai Vigilance and Anti-Corruption Detachment in PE 326/2015/PWD/MU, dated 08.09.2015 and the said conduct of preliminary enquiry reveal the following facts:
?1) It is submitted that as per Official Memorandum of the Registrar (Administration), High Court, Madras in Roc.No.3387/04/D4, dated 20.12.2004 and the Proceedings Order in ROC.No.9173/2004 of the Principal District Judge, Madurai, the Aavin authorities were permitted to running a milk booth in the premises of Madurai District Court since February 2005, with conditions. The permission was accorded only one year, further it may be renewed by Aavin authorities every year. Further, with proper permission obtained from District Principal Judge, the Aavin authorities nominated this petitioner Tr.J.R.Suresh as a agent and permitted to run the same shop in Court premises since January 2006.
2) It is further submitted that on 09.01.2009, the Principal District Judge cancelled the permission granted to Aavin authorities and ordered to vacate the court premises and hand over the possession to the District Court.
Hence, this petitioner filed a writ petition before the Hon'ble Madurai Bench of Madras High Court in W.P.No.1754/2009, was dismissed on 02.04.2009. The Writ Appeal (MD) No.264/2009 was dismissed on 29.06.2009. The Review Application (MD) No.39/2013 in W.P.No.1754/2009, was also dismissed on 22.08.2014.
3) It is respectfully submitted that on the request of Principal District Judge, dated 27.09.2013 the alleged officer conducted a public auction for the Aavin milk booth in the premises of District Court and selected one Tmt.Valarmathy on merits. During January 2014 the alleged officer issued permission to Tmt.Valarmathy, but she did not open the shop due to her health condition. Hence, the alleged officer cancelled the permission during March 2014, further on the request of Tmt.Valarmathy the A.O. revoked his cancellation order on 12.03.2014 and she opened the shop on 30.04.2014.
4) It is submitted that in this connection, the petitioner gave a representation, dated 21.05.2014 to alleged officer and objected the permission granted to Tmt.Valarmathy while his Review Application is pending in High Court. After verification report of AEE Tr.Sugumaran, dated 26.5.2014 the A.O. cancelled the permission granted to Tmt.Valarmathy on 27.05.2014.
5) It is respectfully submitted that at this juncture, the petitioner alleged that during his meeting on 21.05.2014, the alleged officer told that Tmt.Valarmathy gave Rs.40,000/- for getting the permission and alleged that he demanded Rs. One Lakh from the petitioner for cancel the permission granted to Valarmathy and to issue the permission to this petitioner. Further, the petitioner alleged that A.O. cancelled the permission on 27.05.2014 and called the petitioner over phone, gave the copy of the cancelled order and reiterated his earlier demand. During the course of enquiry the petitioner stated that nobody came along with him at the time of alleged demand and he forgot the time of meeting either in the morning or afternoon. It is further submitted that Tmt.Valarmathy denied the allegation that she did not give any bribe amount to the Executive Engineer for getting the permission for running the Aavin milk shop in the District Court premises and she had paid only the Government fees fixed by concerned official.
6) It is submitted that the alleged officer stated that he temporarily cancelled his earlier order of Tmt.Valarmathy on 27.05.2014, only on the representation of this petitioner, dated 21.5.2014, by misunderstood that the Hon'ble High Court may be stayed the matter. After verification, it is cleared that there is no bar or stay were passed by the Hon'ble High Court to conduct the public auction and giving permission to someone. Hence, the alleged officer revoked his cancellation order and again granted permission in Proceedings Letter No. Tha 2/08/2014, dated 03.06.2014 of EE, PWD, Madurai. The alleged officer explained that he conducted public auction only on the orders issued in Official Memorandum in ROC.No.3945/2013/D4, dated 23.09.2013 of the Registrar, High Court, Madras and the Letter in D.No.16228, dated 27.09.2013 of the Principal District Judge, Madurai. He denied all the allegations levelled against him by the petitioner.
7) It is further submitted that in connection with said allegations, this petitioner neither lodged any complaint immediately against the alleged officer in DVAC nor Madurai detachment since May 2014, from the period of demand alleged by him. As well as he did not inform to this Hon'ble Madurai Bench of Madras High Court, even in his pending Review Petition No.39/2013 before the High Court. Hence it was dismissed only on 22.08.2014.
8) It is respectfully submitted that in connection with this dispute the petitioner sent a petition, dated 12.11.2014 to the Chief Minister Cell, Secretariat, Chennai and it was forwarded to the Superintending Engineer, PWD, Madurai through proper channel, in Chief Minister Special Cell Letter No.P/269480/MU/2014, dated 13.11.2014. In this connection, concerned officer sent call letter to the petitioner to attend the enquiry on 23.01.2015. A reply received from the petitioner on 13.01.2015, in support of his petition. Further, the enquiry officer sent call letters to the petitioner on 21.02.2015 and 06.03.2015 to verify the genuineness of the petition and reply of the petitioner, dated 13.01.2015. But, this petitioner did not appear before the enquiry officer and hence the petition was treated as anonymous petition and a reply was sent to the petitioner in Letter No.Aa.A/52C/2014-1, dated 23.04.2015.
9) It is submitted that for the reason of above said reply given by the Superintending Engineer, PWD, Madurai this petitioner alleged that concerned official also involved in the bribery allegation with alleged Executive Engineer Tr.P.Kumarasamy. It is humbly suggested that if the petitioner did not satisfied with the reply of concerned official, he may bring his grievances to the Head of Department and may find the remedy. On contrary, the petitioner alleged bribery allegations against concerned officials without any documentary evidences."
9.In effect, the stand of the respondent is that the preliminary enquiry conducted by the Inspector of Police V & AC Police, Madurai, dated 15.09.2015 revealed that there were no material evidence or corroborated witnesses to substantiate the bribery allegations levelled against one Mr.Kumarasamy, the Executive Engineer, Public Works Department Building, C & M Division, Madurai. Consequently, it was recommended to drop further action against the petition of the petitioner.
10.In regard to the present case, it is to be relevantly pointed out that by means of official Memorandum of the Registrar (Administration) of High Court, Madras in ROC.No.3387/04/D4, dated 20.12.2004 and by way of proceedings of the Principal District Judge, Madurai in ROC.No.9173/2004, the permission was granted to Madurai Aavin Authority to run a Aavin Booth in the premises of Madurai District Court. The said Aavin Booth was inaugurated in the Court campus on 25.02.2006.
11.Further, on 04.01.2006, the Aavin Authority, obtained permission from the Principal District Judge, Madurai and nominated the petitioner (J.R.Suresh) to run the Aavin Milk Stall as per the order issued in C.No.70/Marketing-1/05, dated 04.01.2006. In respect of the period from 01.01.2006 to 31.12.2007 an agreement between the petitioner (J.R.Suresh) and the Executive Engineer, Public Works Department, Madurai to run the Aavin Mill Booth, for a period of two years, was entered into. Also, for the period from 01.01.2008 to 31.12.2010, an agreement between the petitioner (Suresh) and Executive Engineer, PWD, Madurai to run the Aavin Milk Both was entered into. By means of a communication dated 28.03.2008 in ROC.No.1402-C/2007/04 of the Registrar (Management) of Madras High Court, directions were issued to all the Principal District Judges of the Districts to inform that the P.W.D. Authorities in the respective Districts are to conduct Public auction in future for running Tea shops, Canteen, Job Typing, Xerox shops, STD Booth, coin box or any other shops within the Court campus for each of the item for every year.
12.It comes to be known that on 09.01.2009, in ROC.No.1/2009/RK, the Principal District Judge, Madurai had cancelled the license granted to the Madurai District Co-operative Milk Producers Limited to run Aavin Parlour in the premises of the District Court, Madurai. On 02.04.2009, the petitioner (J.R.Suresh) filed W.P.(MD)No.1754 of 2009 to call for the records relating to the impugned order of Principal District Judge, Madurai in ROC.No.1/2009/RK, dated 09.01.2009 and to quash the same. The said Writ Petition was dismissed by this Court on 02.04.2009. Thereafter, the petitioner filed W.A.(MD)No.264 of 2009 to set aside the order dated 02.04.2009 passed in W.P.(MD)No.1754 of 2009 and the same was dismissed as withdrawn with a liberty to file a Review Petition within thirty days from that date. The petitioner filed Review Application (MD)No.39 of 2013 against the order dated 02.04.2009 passed in W.P.(MD)No.1754 of 2009.
13.Apart from that, it transpires that on 23.09.2013, the Registrar (Management) of Madras High Court granted permission to the Principal District Judge, Madurai to conduct a Public Auction through P.W.D. for running the Aavin Milk Stall in the existing place within the District Court premises at Madurai for the year 2013-14 as per Official Memorandum in ROC.No.3945/2013/D4. On 27.09.2013, the Principal District Judge, Madurai requested the Executive Engineer, P.W.D., Madurai to take necessary action with regard to the conduct of Public Auction for running the Aavin Milk Stall for the year 2013-14. On 10.12.2013, the Assistant Engineer, Buildings (C&M), PWD, Vadipatty published Auction Notice in Letter No.19/2013/AE/V.
14.As a matter of fact, on 20.12.2013, a Public Auction was conducted and among the four participants, one Tmt.Valarmathi was selected on merits and on 02.01.2014, necessary orders were issued to the said Valarmathi for running the stall in Court premises for a period of one year. However, on 28.02.2014, a notice was issued by General Manager, Aavin to the petitioner to hand over the Properties of Aavin. On 12.03.2014, the Executive Engineer, PWD, Buildings (C&M), Madurai, issued an Erratum Proceedings in Letter No.Tha 2/08/2014 by invoking his previous order and permitted to run the shop from 01.04.2014 to 31.03.2015. On 21.05.2014, the petitioner submitted his objection to the Executive Engineer, PWD, Buildings (C&M), Madurai in regard to the permission granted to the said Valarmathi while his Review Application is pending before this Court.
15.On 26.05.2014, the Assistant Executive Engineer gave a report to the Executive Engineer, PWD, Buildings (C&M), Madurai and confirmed that the Review Application was still pending. On 27.05.2014, the Executive Engineer, PWD, Buildings (C&M), Madurai, in his Letter No.Tha 2/08/2014, has temporarily cancelled the permission granted to Tmt.Valarmathi. The said Valarmathi sent a legal notice to the Executive Engineer, PWD, Buildings (C&M), Madurai on 28.05.2014. On 30.05.2014, the said Valarmathi sent a representation to the Executive Engineer, PWD, Buildings (C&M), Madurai.
16.In fact on 03.06.2014, the Executive Engineer, PWD, Buildings (C&M), Madurai, revoked the temporary cancellation order and permitted to run the stall by Tmt.Valarmathi in Proceedings Letter No.Tha 2/08/2014. Moreover, 09.06.2014 the Executive Engineer, PWD, Buildings (C&M), Madurai, gave a reply to the petitioner (J.R.Suresh) in Letter No.179/VaPa/EVA/KO/2014 that on the outcome of Review Application No.39 of 2013, further action may be taken on his representation, dated 21.05.2014.
17.The petitioner sent a petition on 11.06.2014, under Right To Information Act, for which, the Executive Engineer, PWD, Buildings (C&M), Madurai sent a reply on 09.07.2014. On 22.08.2014, the Review Application No.39 of 2013 was dismissed. On 12.11.2014, the petitioner sent a petition to the Chief Minister of Tamil Nadu making allegations against one P.Kumarasamy, Executive Engineer, PWD, Buildings (C&M), Madurai. On 23.01.2015, the petitioner had not appeared before the Enquiry Officer, one Muthukumar, Superintending Engineer, PWD, Buildings (C&M), Madurai. Even on 21.02.2015, the petitioner had not turned up for enquiry. Also, on 06.03.2015 the petitioner had not turned up for enquiry. Since the petitioner had not turned up for further enquiry, on 23.04.2015, the petition was closed.
18.On 01.08.2015, the petitioner (J.R.Suresh) addressed a petition to the Director, DVAC, Chennai to take action against P.Kumarasamy, Executive Engineer, PWD, Buildings (C&M), Madurai. On 08.09.2015, he filed a petition before this Court in Crl.O.P.(MD)No.17353 of 2015 seeking to register a case and on the same day, a preliminary enquiry was registered in PE 326/2015/PWD/MU. Further, the Preliminary Enquiry dated 15.09.2015 states that there are no material evidences or corroborated witnesses to substantiate the bribery allegations leveled against P.Kumarasamy, Executive Engineer, PWD, Buildings (C&M), Madurai and recommended to drop further action in the subject matter in issue.
19.At this stage, this Court significantly points out in the decision in JOHN C.V. ALIAS JOHN PERUVANTHANAM v. STATE OF KERALA AND OTHERS, 2008 Crl.L.J. 1305 at special page 1312, wherein at paragraph No.27, it is inter alia observed as under:-
?.... The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his F.I.R. Has not been registered by the police, or after being registered, proper investigation has not been done by the police, or this grievance, the remedy lies under Sections 36 and 154(3) before the concerned police officers, and if that is of no avail under Section 156(3) Cr.P.C. Before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section 482 Cr.P.C.?
20.It is to be borne in mind that the answer to question whether the registration of a criminal case under Section 154(1) of Cr.P.C. ipso facto warrants the setting in motion of an investigation under Chapter XII of Cr.P.C. is provided by Section 157 (1) proviso of Cr.P.C. Indeed Section 156(3) of Cr.P.C. does not empower a Magistrate to stop an investigation undertaken by the Police, as per the decision of PARKASH SINGH BADAL v. STATE OF PUNJAB reported in AIR 2007 SC 1274.
21.It cannot be gain said that in a perfect system of prevention and deduction of crimes, undeniably, the prime duty of a police officer to whom the commission of a cognizable offence is reported to register a case without causing any delay and promptly commence the investigation without perverting or subverting the law. However, before a public servant is publicly charged with acts of dishonesty and corruption and an First Information Report is lodged against him, there should be some preliminary enquiry into the allegations by a responsible officer as per decision of Hon'ble Supreme Court in SATE OF HARYANA v. BHAJANLAL reported in AIR 1992 SC 604.
22.Furthermore, the Hon'ble Supreme Court in the case of LALITHA KUMARI v. STATE OF U.P. AND OTHERS reported in 2013 (4) Crimes 243 (SC), had issued necessary directions in regard to the registration of the First Information Report under Section 154 of Cr.P.C. etc.
23.On a careful consideration of respective contentions and in view of the draft final report of Madurai Vigilance and Anti-Corruption Detachment in PE No. PE 326/2015/PWD/MU, dated 15.09.2015 in and by which, it was stated that there were no material witnesses or corroborated witnesses to substantiate the bribery allegations against the Executive Engineer, PWD, Buildings (C&M), Madurai and ultimately a recommendation was made to drop further action against the petition projected by the petitioner and also this Court taking note of the entire attendant facts and circumstances of the present case, which float on the surface, this Court inevitably comes to a resultant conclusion that the relief sought for by the petitioner in the present Criminal Original Petition to issue direction to the respondent to register a First Information Report on the basis of his complaint, dated 01.08.2015, cannot be acceded to. Consequently, the Criminal Original Petition fails.
24.In fine, the Criminal Original Petition is dismissed. Further, it is made clear that it is open to the petitioner to seek appropriate remedy in the subject matter in issue before the competent forum, in the manner known to Law and in accordance with Law, if he so desires/advised.
To
1.The Director, Vigilance and Anti Corruption, Greenways Road, Chennai-28.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..