Madras High Court
R.Usha vs The Commissioner Of Police on 27 October, 2022
W.P No.23585 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.10.2022
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
W.P No.23585 of 2021
R.Usha ... Petitioner
Vs.
1. The Commissioner of Police
Salem.
2. The Assistant Commissioner of Police
Suramangalam, Salem.
3. The Sub Inspector of Police
Fairlands Police Station
Salem.
4. Ramesh ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Mandamus directing the 1st respondent to
transfer the investigation to such other officer on the complaint lodged by
the petitioner on 22.02.20221 and registered in CSR No.133 of 2021.
For Petitioner : Mr.V.Raghavachari
For Respondents : Mr.A.Damodaran for R1 to R3
Additional Public Prosecutor
1/8
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W.P No.23585 of 2021
ORDER
This Writ Petition has been preferred, seeking a Writ of Mandamus
directing the 1st respondent to transfer the investigation on the complaint
lodged by the petitioner on 22.02.2021 which was registered in CSR No.133
of 2021 to some other officer.
2. Heard the learned counsel for the petitioner and the learned
Additional Public Prosecutor for the respondents 1 to 3.
3. The learned counsel for the petitioner submitted that the petitioner
has given a complaint against the 4th respondent as early as on 22.02.2021
on the allegation of cheating by making assurance of securing a job; but, so
far no action has been taken.
4. The learned Additional Public Prosecutor, on instructions
submitted that there is a counter complaint given by the 4th respondent and
for which CSR No.132 of 2022 has been given and both the petitions are
pending for enquiry.
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W.P No.23585 of 2021
5. The records would show that on the complaint given by the
petitioner on 22.02.2021, CSR No.133 of 2021 has been given. The prayer
sought for by the petitioner is to transfer the complaint to some other agency
for investigation. In this regard, the learned Additional Public Prosecutor
vehemently objected that unless an FIR has been registered, the petitioner is
not entitled to seek a remedy for transfer. It is not the contention of the
petitioner that the respondents 1 to 3 do not have jurisdiction to receive the
complaint and hence the complaint should be transferred to any other police
station. The petitioner's contention is that the respondent police did not take
appropriate action so far and hence, the complaint has to be transferred to
some other agency.
6. In this regard, it is relevant to refer the judgment of the Division
Bench of this Court held in the case of G.Prabhakaran v. The
Superintendent of Police, Thanjavur reported in (2018) 2 LW Crl
489. In the said case, it is held that when there is an alternate efficacious
remedy available under Section 156 (3) of Cr.P.C., the power of the Court
under Section 482 of Cr.P.C., cannot be invoked. In the said judgment, it is
held as under :
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W.P No.23585 of 2021
“35. Accordingly, we answer the references in the
following manner, while giving certain directions:
(i) Section 482 Cr.P.C. cannot be invoked in all
circumstances.
(ii) It is not an alternative remedy to Section 156(3) Cr.P.C.
but a repository of inherent power.
(iii) The normal course of remedy on a failure or refusal to
record the information is Section 156(3) of the Code of
Criminal Procedure after due compliance of Section 154(3)
Cr.P.C.
(iv) A petition can be filed invoking the inherent jurisdiction
of this Court only after the completion of 15 days from the
date of receipt of the information by the Station House
Officer. The Registry shall not receive any petition before
the expiry of 15 days aforesaid.
(v) No petition shall be entertained without exhausting the
remedy under Section 154(3) Cr.P.C.
(vi) An informant can send substance of the information to
the Superintendent of Police on knowing the decision of the
Station House Officer in not registering the case and
proceeding with the preliminary enquiry. After conducting
the preliminary enquiry, the Station House Officer's
decision in either registering the compliant or closing it will
have to be intimated to the informant immediately and in
any case not later than 7 days. Once such a decision is
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W.P No.23585 of 2021
made, the informant cannot invoke Section 482 Cr.P.C. as
the remedy lies elsewhere.
(vii) The directions issued by the Director General of Police
in the circulars referred are to be strictly complied with by
all the Station House Officers.
(viii) The affidavit to be filed shall contain particulars
regarding the date of complaint, receipt and the date of
sending substances of the information to the superintendent
of Police under Section 154(3) Cr.P.C. and its receipt. The
Registry shall not number any petition without due
compliance.
(ix) This Court is not bound to direct the police to register
the complaint in all cases not withstanding the breach of
time table furnished in Lalitha Kumari's case.
(x) The judicial Magistrates, while dealing the petitions
under Sections 156(3) Cr.P.C. are directed to keep in mind
the narratives in Lalitha Kumari's case with specific
reference to the cases, which might require a preliminary
enquiry before issuing a direction to investigate and after
careful perusal of the complaint. The other directions
issued by the learned Single Judge in Sugesan Transport's
case are upheld.
(xi) Eschewing Section 156(3) Cr.P.C. is only on
exceptional and rarest of rare cases. Monstrosity of the
offence, extreme official apathy and indifference, need to
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W.P No.23585 of 2021
answer the judicial conscience, and existence of hostile
environment are few of the factors to be borne in mind to
bring a case under the rarest of rare one.
The references stands ordered accordingly.”
7. In case no action has been taken on the complaint given by the
police, the petitioner is entitled to exhaust the remedies as laid down in the
above judgment. So, the petitioner is at liberty to invoke the remedy
available to him under Section 154(3), 156(3) or 200 of Cr.P.C., as and
how the situation demands.
8. With the above observation, this Writ Petition stands dismissed.
No costs.
27.10.2022
Index : Yes/No
Speaking Order : Yes / No
uma
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W.P No.23585 of 2021
To
1. The Commissioner of Police
Salem.
2. The Assistant Commissioner of Police
Suramangalam, Salem.
3. The Sub Inspector of Police
Fairlands Police Station
Salem.
4. The Public Prosecutor
High Court of Madras.
R.N.MANJULA, J.,
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W.P No.23585 of 2021
uma
W.P No.23585 of 2021
27.10.2022
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