T. GOPALAKRISHNA PILLAI v. District Superintendent of Police, Kollam and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 -------------------------- PETITIONER: ------------ T.GOPALAKRISHNA PILLAI, SREE KRISHNA CASHEW INDUSTRIES, MIYYANNUR, KOLLAM. BY ADV. SRI.ANOOP MATHEW ABRAHAM RESPONDENTS: ------------- 1. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 2. SUB INSPECTOR OF POLICE, CHATHANOOR POLICE STATION, KOLLAM DISTRICT. 3. S.SUMA, D/O.SUMANGALA, MIYYANNUR, POYAPPILLY, KOLLAM. 4. S.LALU, HOUSE NO.64, PUTHUVEETU VAYALIL, KAVADIPURAM NAGAR, ASRAM, KOLLAM. BY GOVERNMENT PLEADER C.M.KAMAPPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT, J.** ## **----------------------** W.P.C.No.17368 of 2008 ---------------------------------------Dated this the 11[th] day of June 2008 ## **J U D G M E N T** 1. Can a court refuse to receive a petition filed by a party or counsel? Under what law and on what justification can such a course be followed? What is the remedy that is available to a party or counsel in that unfortunate situation? Is not such a party or counsel entitled to know and have a reasoned order as to why his application is not being received, entertained and disposed of on merits? 2. These questions appear to me to be preposterous and puerile as answers for the basic questions are virtually impossible. But I am forced to consider and answer them as I note, sitting in this jurisdiction under Section 482 Cr.P.C, that such complaints are increasing. Time has come, I do feel, for this court to send the message loud and clear that such a situation cannot occur. A fearless Bar has to assert itself if such a malady prevails in any part of the system. W.P.C.No.17368/08 2 3. To the facts first: A complaint filed by the petitioner has been referred to the police by the learned Magistrate under Section 156(3) Cr.P.C. Crime has been registered alleging offences punishable inter alia under Section 420 I.P.C. Investigation has commenced. There is no proper investigation. The petitioner/the de facto complainant is aggrieved by the conduct of the police of not conducting proper investigation. The petitioner has come to this court complaining about such inadequate/improper/insufficient investigation by the police. 4. After the decision in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309] which is followed in the decision in Vasanthi Devi v. Sub Inspector of Police [2008(1) KLT 945] it is for the petitioner to approach the learned Magistrate and seek appropriate directions under Section 156(3) Cr.P.C. The learned counsel for the petitioner submits that though the petitioner approached the learned Magistrate with an application, the learned Magistrate is W.P.C.No.17368/08 3 not entertaining the said application. It is the submission of the petitioner that in spite of the fact that the decisions in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309], Vasanthi Devi v. Sub Inspector of Police [2008(1) KLT 945] and Sajina v. State of Kerala [2008(2) KLT SN 35 (C.N.42)] were brought to the notice of the learned Magistrate, the learned Magistrate is refusing to entertain the application and is simply returning the application to the petitioner. Not even the petition which was allegedly sought to be filed before the learned Magistrate is produced before me. I shall refuse to believe that any Magistrate before whom an application is filed is “refusing to receive or not receiving such application”. Orderly procedure that the courts must follow and the Code of Criminal Procedure as also the Kerala Criminal Rules of Practice do not certainly permit, tolerate or authorise a Magistrate not to receive an application. Such a refusal without entertainment of the application is unknown to law. I am shocked to hear the W.P.C.No.17368/08 4 submission that such an unhealthy practice prevails in many courts. I assume, wish and would like to believe that the said assertion is incorrect. In the absence of better data that is the only course open to me. Even an affidavit by party or counsel is not made available. 5. When an application is filed before the Court, the Court has got to follow one of the courses noted below, that is: i) Return the application to cure defects specifying the defects. ii) Reject the application in limine on the ground that it is not maintainable giving reasons. iii) Allow or dismiss the application on merits giving reasons. 6. I am unable to contemplate any procedure by which a Magistrate does not receive a petition filed in court. May be, in the course of discussions a learned Magistrate expresses the opinion that the application is not W.P.C.No.17368/08 5 maintainable and the counsel chooses not to press the same and takes back the petition which he proposed to file. If the counsel would still choose to press the application, I am emphatic that no Magistrate should ever refuse to receive such an application. I cannot believe that such a course will be followed by the learned Magistrate. I assert and state emphatically that no such course is legally possible or permissible and no Magistrate can hence follow such procedure. 7. Nor would I expect the members of the Bar to be so meek and not assertive in such a case to take back such a petition and go home. Corrective dimension of Advocacy and the role of the Bar in that cause of correction cannot be lost sight of. Many a mistake of the Bench is and must be corrected by alert and courteous intervention and assertion by the sublime Bar. The practice has unfortunately come to exist of all petitions - even non emergent ones before the criminal court, being filed before the Magistrate in open W.P.C.No.17368/08 6 court without filing the same formally in the office. If such a petition is not received and is returned by the court, without formally receiving the same, the Bar must insist that such petition, if the member of the Bar feels the same to be serious and worthy of prosecution, be received and considered on merits. Then the Judge/Magistrate must receive the same, pass orders thereon, returning the same, rejecting the same or dismissing the same showing reasons, if the same does not deserve to be allowed. Any deviation must be brought to the notice of superior courts on the judicial and administrative sides and appropriate, prompt and deterrent action must be taken by superior courts. Orderly functioning and the Rule of Law will be in jeopardy if such a weird course were permitted to be followed by courts. I do not expect the Bar to accept such a course and make a pedestrian grievance incidentally as made in the instant case - without even producing the petition which was so returned or a copy of the same and without even an W.P.C.No.17368/08 7 affidavit of the party or counsel. 8. This writ petition is in these circumstances dismissed; but I make it clear that the dismissal of this petition will not fetter the rights of the petitioner to move an appropriate application seeking the issue of directions under Section 156(3) Cr.P.C as permitted and authorised by the decisions in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309], Vasanthi Devi v. Sub Inspector of Police [2008(1) KLT 945] and Sajina v. State of Kerala [2008(2) KLT SN 35 (C.N.42)] above. ## **(R.BASANT, JUDGE)** jsr W.P.C.No.17368/08 8 W.P.C.No.17368/08 9 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007