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2017 DIGILAW 1929 (MAD)

K. Raghupathy v. Commissioner of Police, Chennai

2017-07-10

M.S.RAMESH

body2017
ORDER : 1. The Registry has raised a doubt with regard to maintainability of the present petition in view of an order passed by a Learned Single Judge of this Court in Crl. OP Nos. 19197, 19198, 19343 and 19359 to 19363 of 2016 [Sugesan Transport Pvt. Ltd. Rep. by its Director Rajendra Sheth, No. 7c, Second Canal Cross Road, Gandhi Nagar, Adyar, Chennai (Petitioner in Crl. O.P. No. 19197 of 2016)] dated 27.09.2016 reported in 2016 (5) CTC 577 . 2. In the order dated 27.09.2016 referred above, the learned Judge was of the view that a petition under Section 482 Cr.PC seeking for a direction to the police to register an FIR without exhausting the alternate remedies provided in the Code of Criminal Procedure. 3. While holding so, the learned Judge had issued various directions setting forth the procedures to be adopted from the presentation of the complaint before the police officer, till the registration of an FIR. Such decision has been taken on the basis of various judgments of the Hon'ble Supreme Court as well as the High Courts. 4. With utmost and due respect to the views expressed by my Learned Brother Judge, I am constrained to hold that the petition under Section 482 of Cr.PC, seeking for registration of a complaint is maintainable in view of the following reasonings. 5. For the sake of brevity, Section 482 of the Criminal Code of Procedure, 1973 is extracted: “482. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” 6. The Section begins with a non-obstante clause and in view of the inherent powers conferred therein, there cannot be a total ban on the High Courts interminable jurisdiction. In other words, the availability of an alternate remedy under the Code of Criminal Procedure cannot be an embargo for the High Court to exercise its inherent powers to secure the ends of justice in view of the non-obstante clause. This Court is conscious of the fact that the powers under Section 482 of Cr.P.C. must be exercised very sparingly and in the rarest of rare cases and the limitation to exercise this power is self restrained. This Court is conscious of the fact that the powers under Section 482 of Cr.P.C. must be exercised very sparingly and in the rarest of rare cases and the limitation to exercise this power is self restrained. 7. At the outset, I would like to reiterate the views expressed by my learned Brother Judge in the judgment reported in 2016 (5) CTC 577 that there can be no circumvention of the time table prescribed by the Hon'ble Supreme Court in Lalita Kumari's Case (supra) and I am in agreement with the proposition. But, in my considered view, the judgments of the Hon'ble Supreme Court in the case of Ramesh Kumari vs. State (NCT of Delhi) and Others, 2006 (1) CTC 666 and Prabhu Chawla vs. State of Rajasthan and Another, CDJ 2016 SC 810 are binding on me. In Ramesh Kumari's Case the Hon'ble Supreme Court has held as follows: “3. We are not convinced by this submission because the sole grievance of the Appellant is that no case has been registered in terms of the mandatory provisions of Section 154 (1) of the Criminal Procedure Code. Genuineness or otherwise of the information can only be considered after registration of the case. Genuineness or credibility of the information is not a condition precedent for registration of a case. We are also clearly of the view that the High Court erred in law in dismissing the petition solely on the ground that the contempt petition was pending and the Appellant had an alternative remedy. The ground of alternative remedy nor pending of the contempt petition would be no substitute in law not to register a case when a citizen makes a complaint of a cognizance offence against the Police Officer.” 8. From the aforesaid judgment, it is comprehensible that the amount of alternate remedy cannot be a bar for issuance of a direction under Section 482 Cr.P.C. to register a case when cognizable offence is made out before the police officer. The aforesaid judgment came to be considered by my learned Brother Judge and was distinguished holding that the dictum laid down therein arose from the peculiar facts of that case and hence, the proposition laid down therein cannot be made applicable to the facts of the subject cases. 9. The aforesaid judgment came to be considered by my learned Brother Judge and was distinguished holding that the dictum laid down therein arose from the peculiar facts of that case and hence, the proposition laid down therein cannot be made applicable to the facts of the subject cases. 9. On a reading of the facts in the case of Ramesh Kumari (supra), I am of the view that the above finding was based on the legal proposition on the inaction of the Station House Officer from registering a complaint when an information of a cognizable offence was filed before him. The Hon'ble Supreme Court, while narrating the facts, made it clear that they were not entering into the merits of that case. The following is the relevant portion substantiating the same: “1. The challenge in this appeal is to the order dated 24.01.2002 passed by the Division Bench of the Delhi High Court. The controversy in this appeal is confined to the non-registration of the case by the police pursuant to a complaint dated 09.09.1997 and 13.09.1997 filed by the Appellant. It is stated that the Appellant was in possession of the land. The stay order was granted by the High Court protecting the possession of the Appellant on 14.08.1997 and it was extended by another order dated 10.09.1997, in the presence of the other side. However, the Respondent Nos. 4 to 9 broke open the lock and removed various articles on 9.9.1997 and 10.09.1997. We make it clear that we are not entering into the merits of the case. 2. The grievance of the Appellant is that an information of a cognizable offence has been filed by the Appellant before the Station House Officer (SHO), Kapashera on 9.9.1997 and 13.09.1997. However, no case was registered by the concerned SHO. Thereafter, the matter was brought to the notice of the Police Commissioner, without any result. This has led the Appellant to approach the High Court by filing Criminal Writ Petition No. 108 of 1998.” (Emphasis added) 10. In other words, the dictum laid down in Ramesh Kumari's case is a judgment in rem and not a judgment in personam. Thereafter, the matter was brought to the notice of the Police Commissioner, without any result. This has led the Appellant to approach the High Court by filing Criminal Writ Petition No. 108 of 1998.” (Emphasis added) 10. In other words, the dictum laid down in Ramesh Kumari's case is a judgment in rem and not a judgment in personam. If that be so, the dictum laid down therein is binding on this Court and therefore the ground of alternate remedy would be no substitute in law to refrain from registering a case when a complaint of a cognizable offence is reported to a police officer. 11. In the latest judgment of the Hon'ble Supreme Court in Prabhu Chawla's case (Supra), a Three Judges Bench of the Hon'ble Supreme Court had held that there is no total bar on the exercise of inherent power where abuse of process of the Court or other extra-ordinary situation excites the Court's jurisdiction. In my view, this finding cannot mean or be restricted to exercise the revisional powers under Section 397 Cr.P.C. alone. Non registration of a complaint of a cognizable offence can be termed to be exercise of inherent powers of the High Court to secure the ends of justice. 12. Since the Hon'ble Supreme Court has held in the aforesaid two judgments that the ground of alternate remedy is not a bar to invoke Section 482 Cr.P.C. and when an extra-ordinary situation excites the High Court's jurisdiction, there cannot be a total ban on the exercise of its inherent powers. These propositions are binding on this Court to the extent that the petition for a direction to register a police complaint under Section 482 Cr.P.C. is maintainable before the High Court. 13. It is made clear though Section 482 Cr.P.C. can be invoked for a direction to the police to register a complaint, such direction cannot circumvent the time table prescribed by the Hon'ble Supreme Court of India in the case of Lalita Kumari vs. Government of Uttar Pradesh and Others, 2013 (6) CTC 353. 14. Accordingly, in view of my aforesaid findings, the present petition seeking for a direction to the police to register a complaint under Section 482 Cr.P.C. is maintainable. Registry is directed to number the petition and list the case on 12.07.2017.