Madras High Court
Sivamani vs The District Collector on 3 February, 2021
WP(MD)No.1738 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.02.2021
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
WP(MD)No.1738 of 2021
Sivamani ... Petitioner
vs.
1.The District Collector,
Thanjavur District,
Thanjavur.
2.The Superintendent of Police,
District Police Office,
Thanjavur.
3.The Zonal Tahsildar,
Orathanadu,
Thanjavur District.
4.The Revenue Inspector,
Kavarlipatti,
Orathanadu Taluk,
Thanjavur District.
5.The Village Administrative Officer,
Neiveli Vadapathi Village,
Orathanadu Taluk,
Thanjavur District.
6.Thangappan ... Respondents
1/8
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WP(MD)No.1738 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue Writ of Mandamus directing the 1st and 2nd respondents to
take necessary action against the respondents 3 to 6.
For Petitioner : Mr.Ramu.S
For Respondents 1 & 2 : Mr.A.Robinson
Government Advocate (Criminal Side)
ORDER
The present petition has been filed seeking for a direction to the
respondents 1 and 2 to take necessary action against the respondents 3 to
6 based on the petitioner's representations dated 26.12.2020 and
28.12.2020.
2.The main grievance of the petitioner is that the second
respondent while registering the First Information Report on the basis of
the complaint lodged by the Village Administrative Officer against the
present petitioner, did not consider the representations filed by the
petitioner.
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WP(MD)No.1738 of 2021
3.Mr.A.Robinson, learned Government Advocate (Criminal
Side), who accepts notice on behalf of the first and second respondents
drew the attention of this Court to the decision of the Hon'ble Supreme
Court in M.Subramaniam and Another Vs. S.Janaki and Another
reported in 2020 2 Crimes(SC) 261 and submitted that the present writ
petition is not maintainable and that the Hon'ble Supreme Court had
clearly held that if these kind of writ petitions are entertained by the High
Courts, then they would be flooded with such writ petitions and would
not be able to do any other work except dealing with such writ petitions
merely for direction to the police to register First Information Report and
investigate the matter. The paragraphs 6 and 8 of the said judgment reads
as under,
“The said ratio has been followed in Sudhir
Bhaskarrao Tambe v. Hemant Yashwant Dhage and
Others, in which it is observed.
2. This Court has held in Sakiri Vasu v. State of
U.P., that if a person has a grievance that his FIR
has not been registered by the police, or having
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WP(MD)No.1738 of 2021
been registered, proper investigation is not being
done, then the remedy of the aggrieved person is
not to go to the High Court under Article 226 of
the Constitution of India, but to approach the
Magistrate concerned under Section 156(3) CrPC.
If such an application under Section 156(3) CrPC
is made and the Magistrate is, prima facie,
satisfied, he can direct the FIR to be registered, or
if it has already been registered, he can direct
proper investigation to be done which includes in
his discretion, if he deems it necessary,
recommending change of the investigating officer,
so that a proper investigation is done in the
matter. We have said this in Sakiri Vasu case
because what we have found in this country is that
the High Courts have been flooded with writ
petitions praying for registration of the first
information report or praying for a proper
investigation.
3. We are of the opinion that if the High Courts
entertain such writ petitions, then they will be
flooded with such writ petitions and will not be
able to do any other work except dealing with such
writ petitions. Hence, we have held that the
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WP(MD)No.1738 of 2021
complainant must avail of his alternate remedy to
approach the Magistrate concerned under Section
156(3) CrPC and if he does so, the Magistrate will
ensure, if prima facie he is satisfied, registration of
the first information report and also ensure a
proper investigation in the matter, and he can also
monitor the investigation.
4. In view of the settled position in Sakiri Vasu
case, the impugned judgment of the High Court
cannot be sustained and is hereby set aside. The
Magistrate concerned is directed to ensure proper
investigation into the alleged offence under
Section 156(3) CrPC and if he deems it necessary,
he can also recommend to the SSP/SP concerned a
change of the investigating (2016) 6 SCC 277
officer, so that a proper investigation is done. The
Magistrate can also monitor the investigation,
though he cannot himself investigate (as
investigation is the job of the police). Parties may
produce any material they wish before the
Magistrate concerned. The learned Magistrate
shall be uninfluenced by any observation in the
impugned order of the High Court.
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WP(MD)No.1738 of 2021
8. In these circumstances, we would allow the present
appeal and set aside the direction of the High Court for
registration of the FIR and investigation into the matter by
the police. At the same time, our order would not be an
impediment in the way of the first respondent filing
documents and papers with the police pursuant to the
complaint dated 18.09.2008 and the police on being
satisfied that a criminal offence is made out would have
liberty to register an FIR. It is also open to the first
respondent to approach the court of the metropolitan
magistrate if deemed appropriate and necessary. Equally,
it will be open to the appellants and others to take steps to
protect their interest.”
4.The present petition has been filed seeking for a direction to
take appropriate action against the respondents 3 to 6 by the first and
second respondents and in fact, the petitioner wants the first and second
respondents to register First Information Report against the respondents 3
to 6 and investigate the matter. If the petitioner is aggrieved that his
complaint has not been properly dealt with by the police, he can file a
petition under 156(3) of the Code of Criminal Procedure before the
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WP(MD)No.1738 of 2021
concerned Magistrate or file a private complaint under Section 200 of the
Code of Criminal Procedure before the concerned Magistrate. The
judgment clearly spells out the jurisdiction of the Magistrate under
Section 156(3) of the Code of Criminal Procedure and that entertainment
of writ petition for a direction to the police to register First Information
Report and investigate the matter is not maintainable.
5.In these circumstances, the writ petition stands dismissed. No
costs.
03.02.2021
ias
Index : Yes/No
Internet: Yes
Speaking/Non-Speaking order
Note: (i) In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
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WP(MD)No.1738 of 2021
R.HEMALATHA, J.
ias
To
1.The Superintendant of Police,
Trichy District, Trichy.
2.The Inspector of Police,
Thiruvarambur Police Station,
Thiruvarambur,
Trichy District.
WP(MD)No.1738 of 2021
03.02.2021
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