Madras High Court
Jaganathan vs State By Inspector Of Police on 9 April, 2021
1 Crl.O.P.No.1318 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2021
CORAM:
THE HONOURABLE MR. JUSTICE M. DHANDAPANI
Crl.O.P.No.1318 of 2018
and
Crl.M.P.Nos.481 and 482 of 2018
Jaganathan ...Petitioner
Vs.
State by Inspector of Police,
D1, Thiruttani Police Station,
Thiruvallur District. ...Respondent
PRAYER: Criminal Original Petition filed under Section 482 Cr.P.C., to
call for the records in S.T.C.No.27 of 2016 on the file of the Judicial
Magistrate, Thiruttani, Thiruvallur District and quash the same.
For Petitioner : Mr.R.Vivekananthan
For Respondent : Mr.Shanmuga Rajeswaran, GA (Crl. Side)
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1/11
https://www.mhc.tn.gov.in/judis/
2 Crl.O.P.No.1318 of 2018
ORDER
It is the case of the prosecution that on 05.04.2014 around 11.00
p.m. when Mr.K.V.Vanamalitharan, who was appointed as Magistrate of
the Flying Squads Team during the general election to the Lok Sabha in
2014 for Thiruttani Constituency was patrolling the area within his
jurisdiction to ensure compliance with the model code of conduct and
maintenance of law and order situation. At that time, the Ashok Leyland
Mini Van bearing Registration No.TN-20-CC-3719 was moving from
Thiruttani towards R.K.Pattai and the Flying Squad Team stopped the
vehicle and conducted a vehicle check. On searching the petitioner's
vehicle, it was found carrying A4 notice papers for the elections
campaigning along with Toor Dal (50 kg) and Urad Dal (50 kg). The
Flying Squad Team headed by Mr.K.V.Vanamalitharan requested the
petitioner to produce the documents and the same was not produced by the
petitioner. Based on the above said incident, an FIR was registered
against the petitioner/accused for the offences under Section 171(h), 188
of IPC r/w Sec. 127(a) of the Representation of Peoples Act. Based on the
complaint given by Mr.K.V.Vanamalitharan, Flying Squads Team, the
respondent police filed a final report. Hence, the petitioner has come
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forward before this Court to quash the complaint in S.T.C.No.27 of 2016
on the file of the Judicial Magistrate Court, Thiruttani.
2. Learned counsel appearing for the petitioner submits that the
provision prescribed u/s 195 Cr.P.C. Clearly prescribes that where an
offence is alleged to be committed u/s 188 IPC, it is obligatory on the part
of the complainant to make a complaint before the Magistrate and it is not
within the jurisdiction of the police authorities to register the complaint
and, therefore, non-following of the said provision vitiates the prosecution
and, therefore, the aforesaid complaint deserves to be quashed.
3. On the above contentions, this Court heard the learned
Government Advocate (Crl. Side) appearing for the respondent who
submitted that based on the complaint the law enforcing agency has
registered the complaint and it is based on the complaint of the Flying
Squad Team in the course of election patrol and, therefore, the police are
well within their power to register the complaint.
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4. This Court paid its careful consideration to the submissions
advanced by the learned counsel on either side and perused the materials
available on record.
5. The sum and substance of the case of the petitioner is that for
invoking the provision u/s 195 Cr.P.C., insofar as an offence alleged to be
committed u/s 188 IPC, it is mandatory that the complaint ought to be
filed before the jurisdictional Magistrate either orally or in writing and it is
not within the domain of the police to register a case for the same offence.
In an nutshell, it is the case of the petitioner that the complaince of the
provisions u/s 195 Cr.P.C. is mandatory and not obligatory.
6. In Jeevanandam – Vs – State (2018 (2) LW (Crl.) 606)
learned single Judge of this Court, vide order dated 20.09.2018, after
exhaustively dealing with the provisions u/s 195 Cr.P.C. and Section 188
IPC and whether the said provisions of law are mandatory or obligatory,
held as under :-
“15. From the above judgments, it is clear that in
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order to prosecute an accused for an offence punishable
under Section 188 of IPC, it is mandatory to follow the
procedure prescribed under Section 195 of the Code,
else, such action is rendered void ab initio. The object of
the provision is to provide for a particular procedure,
which gives authority only to the public servant. The
legislative intent is to prevent an individual or a group
of persons from facing criminal prosecution instituted
upon insufficient grounds by persons actuated by
malice, ill will, or frivolity of disposition and to save the
time of Criminal Courts from being vexed by endless
prosecution. Section 195 of Cr.P.C is an expansion to
the general rule contained under Section 190 of Cr.P.C,
wherein, any person can set the law in motion by
making a complaint.
16.Therefore, it is very clear from the above
judgments that there must be a complaint by a public
servant, who is lawfully empowered, whose lawful order
has not been complied with. The provisions of Section
195 of Cr.P.C are mandatory and non-compliance, with
it, will make the entire process void ab initio, being
without jurisdiction.
17.The submission of the learned Additional Public
Prosecutor to the effect that Section 188 of IPC is a
cognizable offence, and therefore, the Police Officer is
entitled to proceed under Section 154, 156 and 157 of
Cr.P.C, is not sustainable. The offence being cognizable
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by itself, does not enable the Police Officer to register
an FIR for an offence under Section 188 of IPC. The
reason being, such registration of an FIR has to
necessarily end with a Police Report under Section
173(2) of Cr.P.C, which is specifically barred under
Section 195 of Cr.P.C. The definition of a complaint
under Section 2(d) of Cr.P.C itself makes it clear that a
complaint does not include a Police Report. The
Hon'ble Supreme Court has gone to the extent of saying
that such a Final Report, which is taken cognizance will
make the entire proceedings void ab initio which would
necessarily mean that the registration of the FIR for an
offence under Section 188 of IPC will also become void.
18.There is one more analogy, which can be used
here. Section 195(1)(b) of Cr.P.C prohibits any
complaint for an offence that is committed during Court
proceedings. Such offence committed during Court
proceedings like forgery, impersonation, perjury etc., by
itself may be cognizable in nature, but that does not
empower the Police Officer to register an FIR and
complaint in such cases can be given only by the Court
concerned. Therefore, the nature of the offence does not
give a right to the Police Officer to register an FIR and
investigate and file a Final Report, when those offences
fall within the category enumerated under Section 195
of Cr.P.C. Therefore, the arguments of the learned
Additional Public Prosecutor in this regard is not
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sustainable.
19.The next argument of the learned Additional
Public Prosecutor to the effect that since a Police
Officer is also a public servant under Section 21 of IPC,
his Final Report filed before the Court under Section
173(2) of Cr.P.C must be construed as a complaint
under Section 195(1)(a)(i), is also not sustainable. The
word used under Section 188 of IPC is "public servant
lawfully empowered" and the word used in Section
195(1)(a)(i) is "public servant concerned". The very
terminology that has been used in the provision makes it
clear that not all public servants falling under Section
21 of IPC can give a complaint in writing, it is only the
public servant who has been specifically authorised, by
a specific order in this regard, who can file a written
complaint before the concerned Judicial Magistrate
Court.
20.It is true that a Police Officer by virtue of the
power given under Section 41 of Cr.P.C., will have the
authority to arrest a person, without any warrant or
order from a Magistrate, when a cognizable offence is
committed in his presence or in order to prevent the
committing of a cognizable offence. This power by itself
will not vest the Police Officer to register an FIR for an
offence under Section 188 of IPC. After the arrest, the
concerned Police Officer is duty bound to inform the
public servant authorised about the offence committed
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under Section 188 of IPC and the public servant
thereafter, has to proceed in accordance with the
procedure under Section 195(1)(a)(i) of Cr.P.C. In other
words, the power of the Police Officer to arrest a person
committing a cognizable offence, is only a preventive
action and thereafter the procedure to be followed is
guided by Section 195(1)(a)(i) of Cr.P.C.
21.The last submission made by the learned
Additional Public Prosecutor to the effect that, where
other offences are also committed along with the offence
under Section 188 of IPC, the authority of the Police
Officer to register an FIR and to investigate and file a
Final Report for the other offences, is in no way
affected, is perfectly correct. The judgments cited by the
learned Additional Public Prosecutor in this regard,
supports the submission made by the learned Additional
Public Prosecutor and this Court is in agreement with
the said submission.
22.In some of the cases, it is also seen that the same
Officer has registered the FIR, conducted the
investigation and also filed the Final Report. Such a
procedure goes against the very fundamental principle
of fair investigation, wherein, the informant and the
investigator must not be the same person. Such a
procedure, in fact is violative of Article 21 of the
Constitution.”
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7. The facts in the present case are squarely covered by the
decision of this Court in Jeevanandam's case (supra). As stated therein,
the complaint laid by the Flying Squad before the police had been taken
on file by the respondent leading to the filing of the charge sheet, which is
not the intent and purport of the provision u/s 195 Cr.P.C. The above
decision is squarely applicable to the case on hand and this Court is of the
considered view that the present petition deserves to be allowed.
8. For the reasons aforesaid, following the decision in
Jeevanandam's case (supra), this criminal original petition is allowed and
S.T.C.No.27 of 2016 on the file of the Judicial Magistrate, Thiruttani,
Thiruvallur District is accordingly quashed. Consequently, connected
miscellaneous petitions are also closed.
09.04.2021
Index : Yes / No
Internet : Yes / No
msm/GLN
https://www.mhc.tn.gov.in/judis/
To
1. The Judicial Magistrate
Tiruttani, Tiruvallur District.
2. The Inspector of Police,
D1, Thiruttani Police Station,
Thiruvallur District
3. The Public Prosecutor,
High Court of Madras,
Madras.
https://www.mhc.tn.gov.in/judis/
M.DHANDAPANI, J.
msm/GLN
Crl.O.P.No.1318 of 2018
09.04.2021
https://www.mhc.tn.gov.in/judis/
