Elephant G. Rajendran v. Superintendent of Police, Trichy
2019-08-30
V.BHARATHIDASAN
body2019
DigiLaw.ai
ORDER : V. Bharathidasan, J. 1. The matter has been listed before this Court under the caption "for maintainability". 2. The petitioner in person, who is a practising advocate of this Court, has filed the present petition under Section 482 of the Code of Criminal Procedure, seeking a direction to the respondents herein, to register the First Information Report on the complaint filed by the petitioner dated 16.07.2018. 3. The Registry has raised the question of maintainability of the above petition, in view of the judgment of a Division Bench of this Court in G. Prabakaran Vs. The Superintendent of Police, Thanjavur District and another reported in 2018 (2) LW (Crl.) 489, wherein, the Division Bench has held that a petition filed under Section 482 of the Code of Criminal Procedure, seeking a direction to register the First Information Report, is not maintainable, and before tiling such petition the petitioner should approach the authority concerned under Section 154(3) of the Code of Criminal Procedure and thereafter, file a necessary application under Section 156(3) of the Code of Criminal Procedure. Without availing those alternative remedies available under the Code of Criminal Procedure, a petition under Section 482 of the Code of Criminal Procedure seeking such direction is not maintainable. 4. Mr. Elephant, G. Rajendran, the petitioner, who appeared as party-in-person, would contend that he has given a complaint before the first respondent alleging that, one Prabhakaran Pillai, promoted a layout at Trichy and sought regularization under G.O.(Ms) No. 78, dated 04.05.2016, which provides for regularization of unapproved layout or plots. A part of the land, for which, regularization sought for, is not entitled for such regularization. But the above said Prabhakaran Pillai, with the connivance of the Member Secretary/Assistant Director, of the Town and Country Planning, Trichy, got the approval. Subsequently, the order of approval has been cancelled by the Member Secretary, himself, on 23.05.2018, without giving any notice to the promoter, namely, Prabhakaran Pillai. Challenging that order, the above promoter filed a Writ Petition before this Court in W.P.(MD) No. 11616 of 2018. Now, based on the approval) which was obtained by fraud, innocent people have invested hard-earned money and lost. Hence, the petitioner filed a complaint to take necessary action against, the said promoter Prabhakaran Pillai, the Member Secretary/Assistant Director of the Town and Country Planning, Trichy and other officials involved in it. 5.
Now, based on the approval) which was obtained by fraud, innocent people have invested hard-earned money and lost. Hence, the petitioner filed a complaint to take necessary action against, the said promoter Prabhakaran Pillai, the Member Secretary/Assistant Director of the Town and Country Planning, Trichy and other officials involved in it. 5. According to the petitioner, after receipt of the complaint, the second respondent conducted an enquiry on the complaint on 10.11.2018 calling for the petitioner as well as the promoter Prabhakaran Pillai and the Member Secretary/Assistant Director of the Town and Country Planning, Trichy, and recorded their statement. Thereafter, quoting the pendency of the Writ Petition filed by the promoter Prabhakaran Pillai in W.P.(MD) No. 11616 of 2018, he did not proceed with the enquiry. Subsequently, the above; Writ Petition was fallowed by this Court on 12.02.2019, and the order was also communicated to the first respondent. Despite the same, so far, no action has been taken by the respondents. Hence, he has filed the present petition, which is maintainable. 6. The second respondent filed a status report stating that, based on the complaint given by the petitioner, an enquiry was conducted, the petitioner was also summoned, to appear in person. In the meantime, title Local Planning Authority cancelled the approval. Challenging the Order of cancellation, the promoter filed a Writ Petition in W.P.(MD) No. 11616 of 2018 before this Court and got interim orders. Even though the petitioner herein filed an application to implead himself as a party in the above Writ Petition, subsequently, he has withdrawn the, same. Thereafter, one C. Joy filed Public Interest Litigations hi W.P.(MD) Nos. 3458 and 2202 of 2019 and obtained an interim Order. Subsequently, the same was also vacated. Later, the Writ Petition filed by the promoter in W.P.(MD) No. 11616 of 2018 was allowed by this Court. Now, challenging that order, one Kumaresan, filed a Writ Appeal in W.A.(MD) No. 332 of 2019 and the same is pending. In this regard, an enquiry is also pending before the Trichy Local Planning Authority. Until the Writ Appeal as well as the enquiry by the Local Planning Authority are over, the Investigating Officer is not in a position to proceed with the enquiry on the petitioner's complaint.
In this regard, an enquiry is also pending before the Trichy Local Planning Authority. Until the Writ Appeal as well as the enquiry by the Local Planning Authority are over, the Investigating Officer is not in a position to proceed with the enquiry on the petitioner's complaint. After disposal of the Writ Appeal and the enquiry by the Local Planning Authority, the Investigating Officer will act upon the complaint of the petitioner, 7. The learned Additional Public Prosecutor appearing for the respondents would submit that, enquiry on the petitioner's complaint has already been initiated, and only in; view of the pendency of the Writ Appeal and another enquiry by the Trichy Local Planning Authority, the respondents are not in a position to proceed with the enquiry any further. 8. Be that as it may, now, the present petition has been filed seeking to register; a First Information Report. The Division Bench of this Court in G. Prabakaran's case cited supra, has categorically held that such a petition is not maintainable under Section 482 of the Code of Criminal Procedure. The relevant portion of the judgment reads as follows: "35. Accordingly, we answer the references in the following manner, while giving certain, directions: (i) Section 482 Cr.P.C. cannot be invoked in all circumstances. (ii) It is not an alternative remedy to Section 156(3) Cr.P.C. but a repository of inherent power. (iii) The normal course of remedy on a failure or refusal to record the information is Section 156(3) of the Code of Criminal Procedure after due compliance of Section 154(3) Cr.P.C. (iv) A petition can be filed invoking the inherent jurisdiction of this Court only after the completion of 15 days from the date of receipt of the information by the Station House Officer. The Registry shall not receive any petition before the expiry of 15 days aforesaid. (v) No petition shall be entertained without exhausting the remedy under Section 154(3) Cr.P.C. (vi) An informant can send substance of the information to the Superintendent of Police on knowing the decision of the Station House Officer in not registering the case and proceeding with the preliminary enquiry. After conducting the preliminary enquiry, the Station House Officer's decision in either registering the complaint or closing it will have to be intimated to the informant immediately and in any case not later than 7 days.
After conducting the preliminary enquiry, the Station House Officer's decision in either registering the complaint or closing it will have to be intimated to the informant immediately and in any case not later than 7 days. Once such a decision is made, the informant cannot invoke Section 482 Cr.P.C. as the remedy lies elsewhere. (vii) The directions issued by the Director General of Police in the circulars referred are to be strictly complied with by all the Station House Officers. (viii) The affidavit to be filed shall contain particulars regarding the date of complaint, receipt and the date of sending substances of the information to the superintendent of Police under Section 154(3) Cr.P.C. and its receipt. The Registry shall not number any petition without due compliance. (ix) This Court is not bound to direct the police to register the complaint in all cases not withstanding the breach of time table furnished in Lalitha Kumari's [2014-1-L.W. (Crl.) 1 : 2014-2-L.W. 5 SN] case. (x) The judicial Magistrates, while dealing the petitions under Sections 156(3) Cr.P.C. are directed to keep in mind the narratives in Lalitha Kumari's [2014-1-L.W. (Crl.) 1 : 2014-2-L.W. 5 SN] case with specific reference to the cases, which might require a preliminary enquiry before issuing a direction to investigate and after careful perusal of the complaint. The other directions issued by the learned Single Judge in Sugesan Transport's case are upheld. (xi) Eschewing Section 156(3) Cr.P.C. is only on exceptional and rarest of rare cases. Monstrosity of the offence, extreme official apathy and indifference, need to answer the judicial conscience, and existence of hostile environment are few of the factors to be borne in mind to bring a case under the rarest of rare one." 9. In view of the judgment of the Division Bench of this Court in G. Prabakaran's case cited supra, the petitioner cannot maintain this petition before this Court, without exhausting the other alternative remedies. The Registry has rightly raised the question of maintainability of the present petition. In the above circumstances, I am of the view that the present petition is not at all maintainable before this Court and the objection raised by the Registry is sustained. Hence, the Criminal Original Petition stands rejected at the SR stage.