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2009 DIGILAW 435 (MAD)

Sahabudeen v. State rep. by The Inspector of Police

2009-02-04

P.R.SHIVAKUMAR

body2009
Judgment Aggrieved by the non-registration of a case based on the complaint of the petitioner herein dated 03.01.2009, the petitioner has come forward with this petition under Section 482 Cr.P.C., seeking a direction to the respondent to register a case based on the complaint of the petitioner dated 03.01.2009. 2. This Court heard the submissions made by Mr.B.Jameelarasu, learned counsel appearing for the petitioner and by Mr.Siva Ayyappan, learned Government Advocate (Criminal side) appearing for the respondent. 3. The grievance of the petitioner is that despite the fact that the complaint lodged with the respondent police disclosed the commission of a cognizable offence, they have not chosen to register a case and investigate the same, even though, as per the law it is mandatory on their part to do so. 4. In two judgments of the Hon'ble Supreme Court, one of a two Judge Bench and the other of a three Judge Bench, the modalities available to such a complainant for seeking redressal of his grievance have been dealt with. They are:-(i) Sakiri Vasu v. State of U.P., reported in 2008(1) MLJ (Crl) 1393 (SC); and (ii) Aleque Padamsee v. Union of India reported in 2008(1) MLJ (Crl) 490 (SC). 5. In Sakiri Vasu's case, the Hon'ble Supreme Court has held that the remedy, in such cases, for the complainant was to approach the Superintendent of Police under Section 154(3) Cr.P.C. and in case of inaction on his part also, the complainant would approach the Judicial Magistrate by way of an application under Section 156(3) Cr.P.C., for a direction to investigate the matter. In Aleque Padamsee's case, it was held that in case of refusal on the part of the police officials to register the case, even though the complaint disclosed a cognizable offence, the modalities to be adopted by the complainant were as set out in Section 190 r/w Section 200 Cr.P.C. Those two judgments of the Hon'ble Supreme Court came to be considered by a learned Single Judge of this Court sitting in the Principal Bench (JUSTICE M.JEYAPAUL) in G.Arokiya Marie v. Superintendent of Police reported in 2008(2) MLJ (Crl) 796 and it was held therein that the prohibition for entertaining a writ petition or a petition under Section 482 Cr.P.C. seeking a direction to register a case was not absolute and that in appropriate cases, namely cases of serious nature requiring immediate action so as to prevent the evidence getting erased, such directions would be issued. In all those cases, it was held in clear and unambiguous terms that the power under Section 482 Cr.P.C. should be sparingly used. The above said learned Single Judge of this Court has given some illustrations of the cases (murder, attempt to murder wherein grievous injuries have been caused, robbery, dacoity, rape and attempt to rape) in which, the inherent power of the High Court under Section 482 Cr.P.C. can be invoked for directing the Station House Officer to register the complaint. 6. When the ratio decidendi found in the above said judgments of the Supreme Court, as interpreted by the learned Single Judge of this Court in G.Arokiya Marie's case, is applied to the facts of the case, this Court has to necessarily come to the conclusion that the offences alleged are not offences of heinous nature listed out in the above said judgment of the learned Single Judge of this Court, which require immediate action without any loss of time to prevent the evidence getting erased and thus, making the case an exceptional one, so that the power under Section 482 Cr.P.C. can be invoked. In the case on hand, the offences alleged are trespassing into the property, causing damage to the compound wall, intimidating the petitioner and attempting to murder with deadly weapons. It is true that the petitioner alleged that the accused (proposed) attempted to murder him. But the petitioner sustained no injury. In the case on hand, the offences alleged are trespassing into the property, causing damage to the compound wall, intimidating the petitioner and attempting to murder with deadly weapons. It is true that the petitioner alleged that the accused (proposed) attempted to murder him. But the petitioner sustained no injury. There is not even an averment as to how the attempt was made and how he managed to escape unhurt. Further more, it is only cases wherein attempt to murder resulting in grievous hurt, the exemption will apply, as per the judgment of the learned Judge of this Court in G.Arokiya Marie's case. A person with grievous hurt may succumb to the injuries and in such an event, if the police did not act swiftly, the statement of the injured which shall be the best piece of evidence may never be brought on record. The same is the reason why cases of attempt to murder resulting in grievous hurt are included in the extra-ordinary category. Therefore, even if the offences listed by the Hon'ble Single Judge of this Court in G.Arokiya Marie's case can be held illustrative and not exhaustive and in appropriate cases, depending upon the peculiar facts of the case, the same can be extended to other offences also, this Court is of the considered view that it is not one such case wherein the power under Section 482 Cr.P.C. should be exercised in favour of the petitioner as an exceptional one. 7. For all the reasons stated above, this Court comes to the conclusion that the petition deserves to be dismissed. Accordingly, this petition is dismissed.