Ponnumony v. Sreekumaran and Others — 1996 DIGILAW 374 (MAD)

Judgment :- M. KARPAGAVINAYAGAM, J. melancholic episode of the death of young man suspected to be at the hands of police personnel with whom the investigation was entrusted by this Court and who referred the said case as 'mistake of fact' which gave rise to the filing of the private complaint before the learned Chief Judicial Magistrate, Nagercoil, for the offence of murder, which was also thrown out at the threshold, has been laid before me for redressal in this revision 2. The petitioner Ponnumony is the complainant. On 14-7-1992, his son Sivalingam died under a suspicious circumstance. When he came to know that the death of his son was at the brutal hands of the local policemen, he presented a petition to the District Superintendent of Police Nagercoil. On the direction of the Superintendent of Police, the case was registered in Cr. No. 727 of 1992 under Section 174, Cr.P.C. on the file of Thuckalay Police Station, by the Sub-Inspector one of the accused in this case. As expected, there was no proper investigation, since they themselves were involved in the offence of murder. Therefore, the petitioner filed a petition under Section 482, Cr.P.C. before this Court in Crl.O.P. No. 12679 of 1992, for transfer of the investigation in this case from the file of Sub-Inspector of Police, Thuckalay to some other agency, by narrating the various circumstances. On 11-11-1992, this Court after hearing the parties and considering the case records, directed the Deputy Superintendent of Police, Thuckalai, to investigate this case with an open mind, since the earlier investigation by the Sub-Inspector of Police was not found to be bonafide 3. The petitioner along with the order of this Court dt. 11-11-1992, made in Crl.O.P. No. 12679 of 1992 approached the Deputy Superintendent of Police, Thuckalay, on 19-12-1992 and presented a petition requesting of investigation as per the orders of this Court dated 11-11-1992. Despite the same, no action was taken and so he submitted another petition on 15-1-1993. Even then no further action was taken. After having waited for more than four months, on 16-3-1993, the petitioner filed a private complaint before the learned Chief Judicial Magistrate, Nagercoil, requesting him to take the case on file against the respondent/accused for the offence of murder, by mentioning the entire events and the earlier happenings which led to the filing of the complaint. After having waited for more than four months, on 16-3-1993, the petitioner filed a private complaint before the learned Chief Judicial Magistrate, Nagercoil, requesting him to take the case on file against the respondent/accused for the offence of murder, by mentioning the entire events and the earlier happenings which led to the filing of the complaint. The said complaint was numbered as Crl. M.P. No. 781 of 1993 and on the same day i.e. on 16-3-1993, the learned Chief Judicial Magistrate, referred the case under Section 156(3) Cr.P.C. directing the Deputy Superintendent of Police, Thuckalay, to investigate the case through some other police officer, other than Thuckalay police and to send a report before 16-4-1993, giving one month's time 4. Again on 16-4-1993, since no report has come from the police, learned Chief Judicial Magistrate, sent a reminder to the Deputy Superintendent of Police, to finish the investigation soon by giving another month's time and posted the matter on 18-5-1993 for report. Even on 18-5-1993, there was no reply or any report from the police. The learned Chief Judicial Magistrate, Nagercoil, as a silent spectator to the lethargic attitude of the police, simply adjourned the matter from 18-5-1993 to 18-6-1993 for want of report. At that stage, the petitioner received a registered cover, which contained a notice informing the petitioner that his complaint in Cr. No. 285 of 1993 under Ss. 147, 299, 300, 302, 364, 365 and 34, I.P.C. has been referred as 'mistake of fact'. The said registered cover did not contain the sender's address. However, on 18-6-1993, to which date the case was posted by the learned Chief Judicial Magistrate, the petitioner presented a protest petition, against the report of the police referring his complaint as 'mistake of fact' and requested the Court to reject the said report and take cognizance of his private complaint and call him to adduce evidence to prove the charges against the police personnel and others. It was, at this stage, the learned Chief Judicial Magistrate, Nagercoil, passed an order dated 18-6-1993, as follows :- This order is under challenge before me, in this revision 5. At the outset, I must say that the learned Chief Judicial Magistrate, Nagercoil is also responsible for the considerable delay in redressing the grievance of the petitioner. It was, at this stage, the learned Chief Judicial Magistrate, Nagercoil, passed an order dated 18-6-1993, as follows :- This order is under challenge before me, in this revision 5. At the outset, I must say that the learned Chief Judicial Magistrate, Nagercoil is also responsible for the considerable delay in redressing the grievance of the petitioner. Before probing the validity of the order of the learned Chief Judicial Magistrate, dated 18-6-1993, I am constrained to refer about the serious lapses on the part of the police 6. This Court in Crl.O.P. No. 12679 of 1992, by order dated 11-11-1992, has meticulously considered the various circumstances and found that the investigation entrusted to the Sub-Inspector of Police (the 1st accused in this case) was mala fide and so directed the Deputy Superintendent of Police, Thuckalay, to investigate the case with an open mind. The observations made in the above order rendering by Justice Padmini Jesudurai, reveal that the transfer of investigation was ordered with a great anguish, hoping that at least the Deputy Superintendent of Police, Thuckalay would properly investigate the case, uninfluenced by the fact that the accused are his subordinate officers. But the subsequent happenings disclose that the confidence which this Court had reposed on the said Deputy Superintendent of Police had been thrown into the winds. As per the particulars furnished in the present petition it is seen that the Deputy Superintendent of Police did not care to give any respect or regard to the order of this Court dated 11-11-1992, even in spite of the petitions presented by the petitioner dated 19-12-1992 and 15-1-1993, requesting him to comply with the orders of this Court. After having waited for about four months, the petitioner filed a private complaint before the learned Chief Judicial Magistrate, Nagercoil on 16-3-1993. In the above background of the case, the learned Chief Judicial Magistrate, at least could have taken the case on file after conducting an enquiry under S. 203, Cr.P.C. and then he could have called for the report from the Deputy Superintendent of Police, regarding the result of the earlier registration of the case in Cr. No. 727 of 1992 under S. 174, Cr.P.C. on the file of S.I. of Police, Thuckalay Police Station. No. 727 of 1992 under S. 174, Cr.P.C. on the file of S.I. of Police, Thuckalay Police Station. But the learned Chief Judicial Magistrate, instead of taking that responsibility, passed an order on the same day, referring the said complaint filed in Crl.M.P. No. 781 of 1993, for investigation under S. 166(3), Cr.P.C. and to send a report before 16-3-1993. I could only sympathize with the Chief Judicial Magistrate, Nagercoil, who passed such an order directing the Deputy Superintendent of Police, to investigate further, despite the fact, that the very same officer had not cared to give any respect to the orders of this court dated 11-11-1992. Even then there was no responseThen the learned Chief Judicial Magistrate, without stressing the need for a prompt report was periodically adjourning the case for report on 16-4-1993 and 18-5-1993. Thereafter, as stated above, on receipt of the cover without the address of the sender, informing the petitioner that his complaint registered in Cr.No. 727 of 1992, has been referred as 'mistake of fact', the petitioner was constrained to file the protest petition on 18-6-1993, requesting the Chief Judicial Magistrate to take his case on file and to reject the police report 7. At least, on the protest, petition filed by the petitioner itself, the learned Chief Judicial Magistrate could have woken up from his long slumber, by taking the complaint on file. But, unfortunately, on the very same date, learned Chief Judicial Magistrate passed an order, dropping the proceedings in Crl.M.P. No. 781 of 1993, on the ground that the police in respect of the same case sent a report on 18-5-1993 referring it as 'mistake of fact'. It is to be noted, though the report of the police is dated 18-5-1993, the same has not been received by the Court on that date, which is clear from the fact that when the case came up for hearing on 18-5-1993 before the Chief Judicial Magistrate, it was adjourned to 18-6-1993 for want of report 8. There may be some motive for adopting delaying tactics by the police officers, especially, when the police personnel were implicated as accused in this case. There may be some motive for adopting delaying tactics by the police officers, especially, when the police personnel were implicated as accused in this case. But it really shocks the conscience of the Court to notice the act of the Chief Judicial Magistrate, in referring the matter for investigation by the Deputy Superintendent of Police and in periodically adjourning the case for want of police report and ultimately dropping the proceedings without understanding the basic principles of criminal jurisprudence. Virtually, the petitioner has been driven from pillar to post. That is why, the present revision has been filed by the petitioner, who is aged about 79 years, after loosing his son at the cruel hands of the police officers 9. Now, let me discuss about the legality of the order passed on 18-6-1993 by the learned Chief Judicial Magistrate, Nagercoil. This Court as well as the Apex Court, have elaborately laid down the procedures to be followed, upon receipt of a police report under S. 73(2), Cr.P.C. From the provisions of Chapters XII, XIV, XV and XVI of the Code, relating to the required conditions for initiation of the proceedings, the filing of the complaints and the commencement of the proceedings, it may be seen that on receipt of a complaint, several courses are open to the Magistrate. The Magistrate can record the statement of the complaint and the other witnesses and if in the opinion of the Magistrate, there is no sufficient ground for proceeding further he may dismiss the complaint under S. 203, Cr.P.C. But, on the other hand, if he is of the opinion, that there is sufficient ground, he can take cognizance and issue process under S. 204, Cr.P.C. Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedures laid down under S. 200, Cr.P.C., or under S. 203, Cr.P.C., he may order investigation to be made by the police under S. 156(3), Cr.P.C. When such an order is made, the police will have to investigate the matter and submit the report under S. 173(2), Cr.P.C. On receiving the police report, the Magistrate may take cognizance of the offences under S. 190(1)(b), Cr.P.C., and issue process straightway to the accused. The Magistrate may exercise this power, irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Magistrate may exercise this power, irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under S. 173(2), Cr.P.C., will contain the facts discovered or unearthed by the police therefrom. If the Magistrate is satisfied that upon the facts discovered by the police, there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the investigating officer, because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately, the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under S. 200, Cr.P.C. on the basis of the complaint originally submitted to him and process to record the statement upon oath of the complainant and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued. In other words, the Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerged from the investigation and take cognizance of the offence, if he thinks fit 10. Another course open to the Magistrate is that the Magistrate on receipt of the police report, could call upon the informant/complaint to find out whether he is challenging the police report, and if so, ask him to make a sworn statement and also examine other witnesses and proceed further. Since the learned Chief Judicial Magistrate is not bound by the conclusion of the police report, he can take cognizance of the offence, even if the police report is to the effect that no case was made out and it refers the case as 'mistake of fact'. It is all the more reason for the learned Chief Judicial Magistrate, to hear the complainant on his protest petition and decide about the action to be taken. In this case, no such procedure has been followed. The learned Chief Judicial Magistrate was in deep slumper up to 18-5-1993 and he had also no hesitation to become blind on the date of rejection of the protest petition on 18-6-1993 11. In this case, no such procedure has been followed. The learned Chief Judicial Magistrate was in deep slumper up to 18-5-1993 and he had also no hesitation to become blind on the date of rejection of the protest petition on 18-6-1993 11. In Ram Lubhaya v. State of Rajasthan, 1984 CrLJ 792, S. S. Byas, J., of Rajasthan High Court has held as hereunder (at p. 794 of Cri LJ) :- "However, it is not necessary for the Magistrate to agree with the police opinion in all cases. There are cases where the Magistrate may not agree with the police opinion. In such cases, where he disagrees he is not bound to accept the negative final report. If the Magistrate is of opinion that an offence has been committed, he has ample jurisdiction to take cognizance of the offence under S. 190(1)(b), Cr.P.C. However, before he takes cognizance on negative final report, there must be material on record to disclose the commission of an offence." 12. The Supreme Court in H. S. Bains v. The State, while dealing with similar case has observed as follows (para 6) :- "A Magistrate who on receipt of a complaint, orders an investigation under S. 156(3) and receives a police report under S. 173(1), may thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under S. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative, he may hold or direct an inquiry under S. 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be." * It has been held by the High Court of Kerala, in Madhavan Nambiar v. Govindan, 1982 Ker LT 81 : 1982 CrLJ 683 at p. 686), as below :- "There is no merger of the complaint with the investigation and therefore, there is no question of revival of the complaint. Since the investigation by the police and trial by the Magistrate are mutually exclusive, there is nothing standing in the way of the Magistrate in ignoring the police report under S. 156(3) and proceeding with the complaint. It must be borne in mind that the Magistrate cannot compel the police to submit a charge-sheet on a final report being submitted by the police. If that be so, to hold that the Magistrate has no power to take cognizance of a case once the police files a refer report, will be to leave the disposal of the case exclusively to the hands of the police. To hold that the Magistrate should accept the police report and drop further action would be to defeat the purpose of the private complaint. The more reasonable course will be to hold that while it is open to the Magistrate to drop proceedings and decline to take cognizance of an offence on the basis of a refer report by the police, in appropriate cases it is perfectly within his competence to ignore the police report and decide to take cognizance of the offence mentioned in the complaint. If he decides to take cognizance he may examine the complaint, and then proceed further as provided in Chapters XV and XVI of the Code." 13. In Bhagwant Singh v. Commissioner of Police the Supreme Court has stated as follows: "The report may state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses : (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process of (3) he may direct further investigation to be made by police under sub-section (3) of Section 156". 14. From the foregoing analysis of the various provisions and interpretation of the Sections as laid down by this Court and other High Courts as well as the Apex Court, it is clear that the order passed by the Chief Judicial Magistrate is illegal and deserves to be set aside. 14. From the foregoing analysis of the various provisions and interpretation of the Sections as laid down by this Court and other High Courts as well as the Apex Court, it is clear that the order passed by the Chief Judicial Magistrate is illegal and deserves to be set aside. While setting aside the order of the Chief Judicial Magistrate, Nagercoil, in Crl.M.P. No. 781 of 1993, dated 18-6-1993, I direct him to take statements from the complainant and other witnesses under Sections 200 & 202, Cr.P.C. after considering the protest petition dated 18-6-1993 of the petitioner and take the case on file by adopting the procedure contemplated in the Code as discussed in the earlier paragraphs and commit the case to Court of Session as this involves the murder of the son of petitioner. The revision is allowed accordingly. The Director General of Police is directed to take departmental action against the concerned Deputy Superintendent of Police, Thuckalay, for his lethargic and disrespectful attitude in this matter, as referred to in the above order. Mark a copy of this order to the public Prosecutor to enable him to write a letter in this regard to Director General of Police.