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Madras High Court · body

2013 DIGILAW 4224 (MAD)

K. Arasu v. K. N. Murali

2013-12-18

P.R.SHIVAKUMAR

body2013
Judgment 1. The Contempt Petition has been filed to punish the respondents for non-compliance with the order of this Court dated 05.08.2009 made in Crl.O.P.No.12854 of 2009. 2. The first and second respondents are present in person. They are represented by counsel. They have also filed separate affidavits stating that the order of this Court dated 05.08.2009 made in Crl.O.P.No.12854 of 2009 came to be complied with, of course belatedly, by registering a case against one Periyakuppan and five others in Cr.No.1659 of 2013 for alleged offences under Sections 147, 384, 294(b), 406 and 506(i) IPC read with Section 4 of Protection of Civil Rights Act, 1955, and that the said case is being investigated upon by the present Inspector of Police, Neelangarai Police Station. 3. The above said Crl.O.P.No.12854 of 2009 came to be filed by the petitioner aggrieved by the inaction on the part of the police to take action on the complaint lodged by him on 12.06.2009. This Court, after hearing, passed an order incorporating a direction to the Assistant Commissioner of Police (Law and Order), Thuraippakkam, to cause the registration of a case if he was convinced that the complaint disclosed commission of a cognizable offence and to either investigate the same or direct the Inspector of Police, Neelangarai police station or any other police officer subordinate to the Assistant Commissioner of Police to investigate the case. A further observation was also made in the order to the effect that in case the Assistant Commissioner would form a view that the complaint disclosed only a non-cognizable offence, he should inform the complainant and refer him to the Judicial Magistrate after recording the said information in the book kept for that purpose. Such an exercise was directed to be completed within a period of 15 days from the date of receipt of the said order. 4. It is very unfortunate that, though such a clear direction came to be issued on 05.08.2009 itself, the respondents allowed passage of more than four years before complying with the said direction. Such an exercise was directed to be completed within a period of 15 days from the date of receipt of the said order. 4. It is very unfortunate that, though such a clear direction came to be issued on 05.08.2009 itself, the respondents allowed passage of more than four years before complying with the said direction. Time and again, this Court held that the police officer receiving the complaint should go through the contents of the complaint and the documents, if any, produced along with the complaint to find out whether the allegations made in the complaint would make out a case of commission of cognizable offence or the commission of no offence or commission of offences which are non-cognizable. In the case of the former, the police officer does not have the power to postpone the registration of the case and to conduct a preliminary enquiry as to the genuineness or otherwise of the allegations made in the complaint. Such an enquiry is called in the legal parlance 'investigation'. No investigation can be launched by the police without registering a case for a non-cognizable offence. In case, the police officer receiving the complaint comes to the conclusion that no offence, either cognizable or non-cognizable, is made out, that is the end of the matter and he can simply close the case, without further enquiry, as no offence has been made out. In case the police officer comes to the conclusion that the allegations reveal commission of one or more offences and all those offences are non-cognizable, then the police officer shall not have the power to investigate upon the matter, without an order from the Magistrate. In the guise of conducting a preliminary enquiry, the police cannot poke their nose in such matters and the duty cast upon the police officer receiving such a complaint is to inform the complainant that the offences made out by the averments therein are non-cognizable and hence he has to approach the Magistrate for taking cognizance of the same or for issuing a direction to the police to investigate the same. While doing so, the police officer (Station House Officer) should make an entry in the book kept for that purpose and then refer the complaint to the Magistrate. 5. While doing so, the police officer (Station House Officer) should make an entry in the book kept for that purpose and then refer the complaint to the Magistrate. 5. Despite the fact that this position has been clarified time and again and it has also been clarified recently by the Hon'ble Apex Court, a pitiable condition prevails wherein majority of the police officers do not have the knowledge of the existence of such a book in which the entry regarding a complaint disclosing non-cognizable offences are to be made and the fact that the complaint was referred to the Magistrate also should be made. It has become a fashion for the police officers and they are entertaining a passion for conducting an investigation without registering a case and without following the above said procedure in the guise of conducting a preliminary enquiry, which practice is to be deprecated. The respondents herein have landed in trouble facing the contempt proceedings only because of such a procedure adopted by them. The absence of proper education to the police officers in this regard may also be a contributing factor for the same. In addition, the mind set of the police officers should also be changed and they must realise the scope of their powers in respect of complaints disclosing cognizable offences and complaints disclosing non-cognizable offences and the procedure to be followed in such cases. 6. In this case also, this Court gave the very same direction directing the higher official in the hierarchy of Police Department in the cadre of Assistant Commissioner of Police to consider the complaint and form an opinion as to whether the allegations made therein would make out a case of commission of a cognizable offence in which case, he should cause a First Information Report to be registered. It was also made clear that in case he would form an opinion that the offences made out by the allegations made in the complaint were only non-cognizable, then after making necessary entry in the book kept for that purpose, the complainant should be referred to the Magistrate. Despite such a clear direction, the Assistant Commissioner seems to have misinterpreted and misapplied the order as well as the provision of law to mean that he had to conduct an enquiry for forming an opinion in either way as indicated above. Despite such a clear direction, the Assistant Commissioner seems to have misinterpreted and misapplied the order as well as the provision of law to mean that he had to conduct an enquiry for forming an opinion in either way as indicated above. The same is the reason why this Court made an observation in the foregoing discussions that there is lack of education and sensitisation of the police officials and the mind set of the police officials also should be changed. Because of such a misinterpretation in a Criminal Case, four long years have been allowed to pass without any progress in the investigation. While deprecating the above said practice of the police officers in general, this Court is inclined to accept the unconditional apology tendered by the respondents in their affidavits for the delay caused in complying with the order due to their misinterpretation and misunderstanding of the order. The explanation offered by them that there was no deliberate disobedience is accepted and the same leads to the acceptance of the unconditional apology for the non-compliance with the order of this Court within the time stipulated in the order. Accordingly, the unconditional apology is accepted. 7. In the result, the Contempt Petition is closed. The respondents shall stand discharged of the Contempt Proceedings. However, the present Investigating Officer is directed to complete the investigation within a short span of time and submit a final report not later than three months from today.