Gayathri Nadakumar v. State of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933** **CRL.MC.NO. 1226 OF 2011()** **---------------------------------------** **PETITIONER(S):** **-----------------------** **GAYATHRI NADAKUMAR, C/O. S.SIVARAMAKRISHNAN, FLAT.NO.5, NO.50(NEW), MOOSA STREET, T.NAGAR, CHENNAI-600017.** **BY ADVOCATE SHRI DEENADAYALAN BY ADV. SMT.M.M.JASMIN** **RESPONDENT(S):** **------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR.** **2. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY.** ## **3. STATION HOUSE OFFICER, KARAMANA POLICE STATION, THIRUVANANTHAPURAM.** **BY PUBLIC PROSECUTOR SHRI K.J. MOHAMMED ANZAR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== Crl. M.C. No.1226 of 2011 ==================================== Dated this the 08[th] day of June, 2011** ## **O R D E R** This Petition is filed under Section 482 of the Code of Criminal Procedure (for short, “the Code”) seeking a direction to the third respondent-Station House Officer, Karamana Police Station to register a case on a compliant dated February 24, 2011 preferred to the Commissioner of Police (second respondent) and forwarded to the third respondent in accordance with law and thus render justice. 2. Case in short is that petitioner had filed a complaint against one Latha for offence punishable under Section 138 of the Negotiable Instruments Act. Her husband, Salim threatened petitioner not to give evidence against her in the said case. The trial court convicted the said Letha. Petitioner had availed a loan from one Durgai on the security of two signed blank cheques and a signed blank demand promissory note. Petitioner repaid the said amount and demanded return of the security documents which was not complied. Petitioner learned that the said Salim collected the security documents from Durgai, forged the same and filed two suits against petitioner. It is the case of petitioner that the said **CRL.M.C. No.1226 of 2011** ## -: 2 :- Salim and Durgai conspired together, committed forgery and cheating. Petitioner complained to the second respondent against Salim and Durgai. Since no case was registered, petitioner preferred Annexure-3, complaint to the second respondent, Commissioner of Police Thiruvananthapuram which according to the petitioner was forwarded to the third respondent for action. But without enquiring into the matter the third respondent returned the papers to the second respondent. Hence this petition under Sec.482 of the Code seeking relief as aforesaid. I have heard learned counsel, Shri Deenadayalan appearing for petitioner and the learned Public Prosecutor, Shri K.J. Mohammed Anzar appearing for respondents. 3. Learned counsel for petitioner, placing heavy reliance on the decision of a learned Judge of the Madras High Court in ## **A.Sowfila v. The Commissioner of Police, Madurai** (2008 [2] L.W. [Crl.] 483) contended that it is within the power of this Court to direct the police to register a case in case it is revealed that a cognizable offence is committed. Learned counsel submitted that the decisions of the Apex Court in **Aleque** **Padamasee v. Union of India** ([2007] 6 SCC 171), **CRL.M.C. No.1226 of 2011** ## -: 3 :- ## **Sakiri Vasu v. State of U.P. (2008 [1] KLT 724)** and ## **Lalitha Kumari v. Government of U.P. (2008[4]** **KLT 130 (SC)** do not take away or abridge the power of this Court under Sec.482 of the Code to issue necessary direction for the ends of justice including to register a case in case it is satisfied that a cognizable offence is involved. Learned Public Prosecutor contends that in the light of the decision in **Sakiri Vasu v. State of U.P. (supra)** the proper course available to the petitioner in case the police did not register a case is to approach the jurisdictional Magistrate under Sec.190 or 200 of the Code. It is within the power of the Magistrate either to direct investigation under Sec.156(3) of the Code or take cognizance of the offence under Sec.200 the Code. It is pointed out that if the allegations are such that it requires investigation by the police it is within the power of learned Magistrate, under Sec.202(1) of the Code to direct such an investigation and call for report in the matter. When such remedies are available it is not necessary for this Court to interfere under Sec.482 of the Code, it is contended by the learned Public Prosecutor. 4. I shall refer to the decisions cited at the Bar by both sides. In **Sakiri Vasu v. State of U.P.** (supra) it was held in **CRL.M.C. No.1226 of 2011** ## -: 4 :- paragraph 11 that if a person has a grievance that the police is not registering his FIR under Sec.154 of the Code such person can approach the Superintendent of Police under Sec.154(3) of the Code by an application in writing and if that does not yield satisfactory result in that either the FIR is still not registered or that even after registering it no proper investigation is held it is open to the aggrieved person to file an application under Sec.156 (3) of the Code before the Magistrate concerned. If such application is filed the Magistrate can direct the police to register a case and also direct proper investigation to be made in a case where according to the aggrieved person no proper investigation is made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation. In paragraph 26 it is held that if a person has a grievance that his FIR has not been registered by the police, his first remedy is to approach the Superintendent of Police under Sec.154(3) of the Code or other police officer referred to in Sec.36 of the Code and if despite approaching such officials his grievance still persisted, then he can approach the Magistrate under Sec.156(3) of the Code. In paragraph 27 it is stated that the High Court should discourage the practice of filing Writ Petitions or petitions under **CRL.M.C. No.1226 of 2011** ## -: 5 :- Sec.482 of the Code simply because a person has a grievance that his FIR has not been registered by the police or after being registered, proper investigation has not been done by the police. In **Lalitha Kumari v. Government of U.P.** (supra) the Apex Court again held that in case the FIR is not registered within the time prescribed and necessary steps are not taken by the police the Magistrate would be justified in initiating contempt proceeding against such delinquent officers and punish them for violation of its orders if no sufficient cause is shown and awarding stringent punishment like sentence of imprisonment against them. It is further held that if steps are not taken for registration of the FIR immediately and copies thereof are not given to the complainant, he may move the Magistrate concerned by filing a compliant to give direction to the police to register a case immediately upon production of a copy of the order. 5. In **Aleque Padamsee v. Union of India** (supra) the Supreme Court has held in paragraph 7 that when any information is received by the police about commission of an offence which is cognizable in nature, there is a duty to register the FIR and there could be no dispute on that score. The Supreme Court in that case considered the question whether a Writ can be ## **CRL.M.C. No.1226 of 2011** ## -: 6 :- issued to the police authority to register the case. The basic question was to what course is to be adopted if the police does not (register a case). After referring to the various decisions on the point the Supreme Court held: “The course available, when the police does not carry out the statutory requirements under Sec.154 was directly in issue in All India Institute of Medical Sciences case, Gangadhar Case, Hari Sngh case and Minu Kumari case. The correct position in law, therefore is that the police officials ought to have registered the FIR whenever facts brought to their notice show that cognizable offence has been made out. In case the police officials fails to do so, the modalities to be adopted are as set out in Sec.190 read with ” Sec.200 of the Code. (emphasis supplied) The Writ Petitions were disposed of with the following directions: 1. If any person is aggrieved by the **CRL.M.C. No.1226 of 2011** ## -: 7 :- inaction of the police officials in registering the FIR the modalities contained in Section 190 read with Section 200 of the Code are to be adopted and observed. 2. It is open to any person aggrieved by the inaction of the police officials to adopt the remedy in terms of the aforesaid provisions. 3. ........... 4. ............” ## 6. Again in **Kunga Nima Lepcha v. State of** **Sikkim** (2010 [2] KLT SN 23 (C.No.28) the Supreme Court referred to the power under Section 226 of the Constitution of India and held that it is not proper for the court to give direction for initiating investigation under the writ jurisdiction. No doubt in the present case what is sought to be invoked is not writ jurisdiction of this Court but the extraordinary power under Sec.482 of the Code which says that nothing contained in the Code shall be deemed to limit the inherent power of the High Court to pass appropriate orders in the ends of justice. But I must bear in mind that when Code contained provisions which **CRL.M.C. No.1226 of 2011** -: 8 :- applied to the facts of the case and which could be invoked, it is not as if the High Court should invoke the extraordinary power under Sec.482 of the Code. 7. Now I shall refer to the provisions contained in the Code which applied to the facts situation in this case. Section 154 of the Code enjoins that every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction and be read over to the informant. Under subsec.(2), a copy of the information recorded under sub-sec.(1) shall be given forthwith free of cost to the informant. Sub-sec.(3) says that any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information (referred to in sub-sec.(1)) may send the substance of such information in writing and by post to the Superintendent of Police concerned who, if satisfied that such information discloses commission of a cognizable offence shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him. Section 157 of the Code deals with procedure for investigation and sub-sec.(1) says that if from information received or otherwise an officer in charge of a police **CRL.M.C. No.1226 of 2011** ## -: 9 :- station “has reason to suspect the common of an offence” which he is empowered under Sec.156 to investigate he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and investigate the matter. Section 156 of the Code deals with police officer's power to investigate cognizable offence and what is relevant here is sub-sec.(3) which says that and “any Magistrate empowered under Sec.190 may order such an investigation as above mentioned.” 8. Though there is some dispute as to whether on getting information regarding commission of cognizable offence the police officer is bound to forthwith register a case or he is entitled to conduct some preliminary enquiry to ascertain whether “he has reason to suspect” that such offence has been committed and that matter is referred to a Larger Bench of the Supreme Court for a decision (See _**Lalitha Kumari v. Govt. of U.P. and Others**_ [2009] 2 SCC [Crl.] 812), the position as it stands is not disputed that when a Magistrate directs investigation of an offence under Sec.156(3) of the Code the police is bound to register a case and investigate. 9. Now I shall refer to the allegations made in the **CRL.M.C. No.1226 of 2011** ## -: 10 :- present case. According to the petitioner, Durgai and Salim conspiring together committed forgery and cheating which of course are offences cognizable in nature and if information is given to the officer in charge of the police station regarding that, he had to act under Sec.154(1) and (2) of the Code and if he refused to do so, it was open to the petitioner to move the Superintendent of Police (here, the Commissioner of Police) under Sub-sec.(3) 154 of the Code. Assuming that the police does not act in accordance with Sec.154 of the Code, it is within the right of petitioner to move a complaint before the jurisdictional Magistrate under Sec.190 of the Code. That provision empowers the Magistrate to take cognizance of any offence, upon receiving a complaint of fact which constituted such an offence upon a police report on such facts and upon information received from any person other than a police Officer or upon his own knowledge that such offence has been committed. When a complaint in writing is received by the Magistrate it is within the power of the Magistrate to act either under Sec.156(3) of the Code if the Magistrate thinks that such a course is necessary and particularly in cases where an investigation by the police is required or to, proceed under Sec.200 of the Code. Section 202(1) of the Code ## **CRL.M.C. No.1226 of 2011** ## -: 11 :- states that the Magistrate may postpone the issue of process and either enquire himself or direct an investigation by a police officer or such person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. A learned Judge of this Court, interpreting the expression “either, or” occurring in Sec.202 of the Code has held in **Biju Purushothaman v. State of Kerala** (2008 [3] KLT 85) that the said words do not mean that one alone of the two alternatives can be resorted to by the Magistrate. It is open to the Magistrate to direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding even while conducting an inquiry under Sec.202 of the Code. I referred to the above provisions to say it is not as if, if on the complaint preferred by the petitioner before the police no case is registered, he is without any remedy; he can file file a complaint before the jurisdictional Magistrate who can either direct an investigation under Sec.156(3) or proceed under Sec.200 of the Code and any such inquiry, even direct an investigation by a police officer or other person as the Magistrate deems fit and submit a report. ## **CRL.M.C. No.1226 of 2011** ## -: 12 :- _10._ I shall refer to the decision relied on by the learned counsel for petitioner - **A.Sowfila v. The Commissioner** **of Police, Madurai** . In that decision, learned Judge of the Madras High Court after referring to the decisions of the Supreme Court in **Lalitha Kumari v. Government of U.P.** , **Sakiri Vasu v. State of U.P.** and **Aleque Padamasee** **v. Union of India** has taken the view that these decisions do not foreclose power of the High Court under Sec.482 of the Code to direct the police to register a case. Learned counsel has invited my attention to paragraph 42 of the decision where, referring to the observations in paragraph 15 of the decision in **Sakiri Vasu's case** learned Judge has held: “therefore it is crystal clear that investigation by the police is absolutely necessary in respect of a certain offences and as such if the attempts made by the aggrieved persons by resorting to provision under Section 154(3) Cr.P.C. by making representation to the Superintendent of Police and approaching the **CRL.M.C. No.1226 of 2011** ## -: 13 :- learned Magistrate under Section 156(3) Cr.P.C failed, then they are left with no other alternative except to approach this Court invoking the provision under Section 482 Cr.P.C. to seek the relief. Therefore let me now find out the solution and remedy for the aggrieved persons in the light of the latest decision of the Hon'ble Apex Court in _**Sakiri Vasu v. State of U.P**_ . reported in 2008 AIR SCW 309.” 11. In paragraph 44 the learned Judge has observed that fact remained the the Hon'ble Apex Court in _**Sakiri Vasu v. State of U.P.,**_ has not altogether excluded the High Courts from exercising power under Section 482 of the Code to secure the ends of justice. Reference was made to paragraphs 25, 26 ad 27 of the decision in **Sakiri Vasu's case** . In paragraph 47 it is held that from the above it is clear that the Apex Court in **Sakiri Vasu's case** has not closed the doors once for all to the affected and aggrieved persons to knock the doors of the High Court invoking Sec.482 of the Code in the event of police officials not complying with the mandatory requirements contemplated under ## **CRL.M.C. No.1226 of 2011** ## -: 14 :- Sec.154 Cr.P.C. Learned Judge has also made reference to the decision of the Delhi High Court in **Kuldip Singh v. State** in paragraph 49 of his decision. In paragraph 57 learned Judge concluded that in the light of the above well settled principles of law laid down by the Supreme court and the findings of the Madras High Court reliefs could be granted in respect of certain cases while in the light of the findings and reasons stated by the learned Judge certain petitions were dismissed making it clear that it was open to the petitioners to adopt modalities of resorting to alternative remedies as indicated by the Supreme Court in **Sakiri Vasu's case** by either approaching the Superintendent of Police under Section 154(3) of the Code or by invoking provisions under Sec.156(3) of the Code or by filing private complaint under Sec.200 of the Code. 12. Even from the decision of the Madras High Court which learned counsel has placed heavy reliance it is not that in all cases the High Court shall interfere under Sec.482 of the Code and direct the police to register a case. Instead, in cases where parties could approach the Superintendent of Police under Sec.154(3) when their complaints alleging commission of cognizable offence did not result in registration of case or move **CRL.M.C. No.1226 of 2011** ## -: 15 :- the Magistrate under Sec.156(3) or by filing a complaint under Sec.200 of the Code, learned Judge also did not think it necessary to interfere under Sec.482 of the Code. 13. Having gone through the decisions of the Supreme Court and the relevant provisions of the Code referred above, I am not inclined to think that this court is required to interfere under Sec.482 of the Code when the modalities pointed out by the Apex Court in case there is non-registration of a case relating to commission of a cognizable offence are available to the petitioner. The decisions of the Apex Court - **Lalitha Kumari v. Government of U.P., Sakiri Vasu v. State of U.P.** and **Aleque Padamasee v. Union of India** are clear that when the police has refused to register a case which involved cognizable offence the aggrieved party has to adopt the modalities prescribed under Sec.154(3) of the Code by approaching the superior police officer or by approaching the Magistrate under Sec.156(3) or by requesting the learned Magistrate to take cognizance under Sec.200 of the Code. I therefore reject the contention of learned counsel that in the present case this Court exercising its extraordinary jurisdiction under Sec.482 of the Code should direct respondents 2 and 3 to register a case. ## **CRL.M.C. No.1226 of 2011** ## -: 16 :- 14. But if Annexure-III, complaint has been presented to the Commissioner of Police (second respondent), and if no decision has been taken on that petition he has to take appropriate action on that petition as provided under law. Second respondent is therefore directed to pass appropriate decision on Annexure-III, petition if it is received by him and no action has been taken on that petition as provided law. Petitioner shall make available a copy of this order to the second respondent and the second respondent shall act as above stated within a month from the date of this order. Resultantly, Criminal Miscellaneous Case is disposed of with the above directions and without prejudice to the right of petitioner to approach the jurisdictional Magistrate as provided under law. ## **THOMAS P. JOSEPH, JUDGE.** vsv