Madras High Court
S.Diwakar vs The Commissioner Of Police on 27 April, 2022
W.A.No.526 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.04.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
W.A.No.526 of 2018
S.Diwakar .. Appellant
-vs-
The Commissioner of Police
Office of the Commissioner of Police
Vepery, Chennai 600 007 .. Respondent
Appeal filed under Clause 15 of the Letters Patent against the order
dated 03.10.2016 made in W.P.No.9646 of 2016.
For Appellant :: Mr.S.Diwakar
Party-in-Person
For Respondent :: Mr.K.V.Sajeevkumar
Special Government Pleader
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.)
The appellant, Mr.S.Diwakar is an Advocate by profession enrolled in
the State Bar Council and has been practicing in the High Court and also in
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W.A.No.526 of 2018
the Subordinate Courts. It is his claim that after purchasing the house
property situated at No.13/14, Tharachand Nagar Third Street,
Virugambakkam, Chennai from his erstwhile owner, he has been living
there from the year 2001. But the adjacent owners living in Plot No.44 have
been causing public nuisance vitiating air pollution and spoiling the
atmosphere. Therefore, they were called upon to refrain from doing so. As
the neighbouring house owners continuously kept on indulging in public
nuisance and disturbing the atmosphere on the instigation of one
Mr.S.M.Vidyapathy, an Advocate, the appellant lodged a complaint against
them for their acts of public nuisance. But it is claimed that the said
Mr.Vidyapathy aided the persons living in Plot No.44 to lodge a complaint
against the appellant before the Bar Council of Tamil Nadu and finally it is
stated that the said complaint and the proceedings initiated by the Bar
Council were quashed by an order passed by the writ Court. While so, the
party in person gave a complaint against one Judicial Officer N.Rajalakshmi
while she was serving as the XVII Metropolitan Magistrate, Saidapet,
Chennai before the Vigilance Cell of the High Court. From the date of
giving a complaint against the said Judicial Officer, the party in person
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W.A.No.526 of 2018
started witnessing improper conduct from his clients and he was also in a
way indirectly pressurized to withdraw the complaint made against the said
Judicial Officer. One Police Inspector Mr.Saravanan, who appeared to be a
close friend of the said Judicial Officer, also started indulging in threatening
the appellant and as a result, the party in person claims that he has been
disturbed by all the aforementioned persons. Therefore, he was constrained
to lodge a complaint before the local police, visiting the office of the
Deputy Commissioner of Police in T.Nagar, Chennai, who advised the party
in person to approach the Joint Commissioner of Police in St.Thomas
Mount, as the Assistant Commissioner of Police, Vadapalani was not even
listening to his grievance. Therefore, the party in person pleaded that when
he has been not allowed to lead a peaceful and conducive living in his house
property, as several persons have caused multiple nuisance spoiling the
atmosphere by smoking and indulging in spoiling the public peace, left with
no other choice, he has come to this Court with the writ petition seeking for
a direction against the respondent to perform his duty by taking action on
his complaint cum representation dated 28.12.2015 in accordance with law
and also to provide him security cover, as there prevails a grave threat to his
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W.A.No.526 of 2018
life at the hands of the persons named in the complaint, and to pass
appropriate orders. The party in person further submitted that when the writ
petition was taken up, the learned single Judge, without touching on the
merits of the matter, has wrongly held that the party in person addressed the
Court unabated without a pause for half an hour with sound and fury minus
substance and he has been undergoing miseries and sufferings internally and
his external aggression is nothing but a manifestation of his internal
disturbance, therefore, he requires counselling by an expert and not harsh
treatment. Observing so, the learned single Judge dismissed the writ
petition, as a result the party in person stands remediless, he pleaded.
Moreover, the party in person argued that the complaint made against his
neighbours, Judicial Officer and one Advocate Mr.S.M.Vidyapathy also
ended in vain.
2. We have heard Mr.S.Diwakar appearing in person before us. When
the appellant expresses a grievance that his neighbours are disturbing the
environment by causing air pollution and creating public nuisance, nowhere
he has mentioned when such air pollution and public nuisance have been
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W.A.No.526 of 2018
caused to him. Secondly, when he made an allegation against the then
Judicial Officer of XVII Metropolitan Magistrate Court. Saidapet, Chennai,
what was the allegation and the complaint made against the said Judicial
Officer also have not been disclosed. Moreover, when the party in person
claims that his neighbours are disturbing him by creating public nuisance
and the complaint given by him under Section 154 Cr.P.C., before the
jurisdictional police concerned has not been registered, as per the ratio laid
down by the Apex Court in the case of Sakiri Vasu v. State of U.P. and
others, (2008) 2 SCC 409, he should have approached the Superintendent of
Police under Section 154(3) Cr.P.C., by an application in writing. Even if
that does not yield any satisfactory result in the sense 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 Section
156(3) Cr.P.C., before the learned Magistrate concerned. If such an
application under Section 156(3) is filed before the Magistrate, the
Magistrate can direct the FIR to be registered and also can direct a proper
investigation to be made, in a case where, according to the aggrieved
person, no proper investigation was made. The Magistrate can also under
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the same provision monitor the investigation to ensure a proper
investigation. The Apex Court, in the aforementioned judgment, further
observed as follows:-
“26. If a person has a grievance that his FIR has
not been registered by the police station his first
remedy is to approach the Superintendent of Police
under Section 154(3) Cr.P.C. or other police officer
referred to in Section 36 Cr.P.C. If despite
approaching the Superintendent of Police or the
officer referred to in Section 36 his grievance still
persists, then he can approach a Magistrate under
Section 156(3) Cr.P.C. instead of rushing to the
High Court by way of a writ petition or a petition
under Section 482 Cr.P.C. Moreover he has a
further remedy of filing a criminal complaint under
Section 200 Cr.P.C. Why then should writ petitions
or Section 482 petitions be entertained when there
are so many alternative remedies?
27. As we have already observed above, the
Magistrate has very wide powers to direct
registration of an FIR and to ensure a proper
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W.A.No.526 of 2018
investigation, and for this purpose he can monitor
the investigation to ensure that the investigation is
done properly (though he cannot investigate
himself). The High Court should discourage the
practice of filing a writ petition or petition under
Section 482 Cr.P.C., 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. For
this grievance, the remedy lies under Sections 36
and 154(3) before the concerned police officers,
and if that is of no avail, under Section 156(3)
Cr.P.C. before the Magistrate or by filing a
criminal complaint under Section 200 Cr.P.C. and
not by filing a writ petition or a petition under
Section 482 Cr.P.C.
28. It is true that alternative remedy is not an
absolute bar to a writ petition, but it is equally well
settled that if there is an alternative remedy the
High Court should not ordinarily interfere.”
3. Again in the judgment in Sudhir Bhaskarrao Tambe v. Hemant
Yaswant Dhage and others, (2016) 6 SCC 277, the Apex Court, relying
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W.A.No.526 of 2018
upon the judgment in Sakiri Basu case (supra), has held as follows:-
“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
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) Cr.P.C.
If such an application under Section 156(3) Cr.P.C.,
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
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W.A.No.526 of 2018
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
complainant must avail of his alternate remedy to
approach the Magistrate concerned under Section
156(3) Cr.P.C., 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.”
The aforementioned judgments have also been quoted with approval by the
Apex Court in the recent judgment in M.Subramaniam and another v.
S.Janaki and another, (2020) SCC Online SC 341.
4. In the light of the settled ratio laid down by the Apex Court in the
judgments cited supra, in the case on hand, we are of the considered view
that no steps have been shown to be taken by the appellant/party in person
to ventilate his grievance before the authorities concerned and without
exhausting the alternative remedy available under the law, he has come to
this Court by filing the writ petition under Article 226 of the Constitution of
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W.A.No.526 of 2018
India, which is certainly not maintainable. Besides, we do not find any
merit on the submissions made by the party in person to call for interference
with the order passed by the learned single Judge and we also do not find
any error or illegality in the order of the learned single Judge. Therefore, for
the reasons stated above, the writ appeal stands dismissed. No costs.
Speaking/Non speaking order (T.R.,J.) (S.S.,J.)
Index : yes/no 27.04.2022
Issue today (28.04.2022)
ss
To
1. The Commissioner of Police
Office of the Commissioner of Police
Vepery
Chennai 600 007
https://www.mhc.tn.gov.in/judis
W.A.No.526 of 2018
T.RAJA, J.
and
S.SOUNTHAR, J.
ss
W.A.No.526 of 2018
27.04.2022
https://www.mhc.tn.gov.in/judis
