Madras High Court
Bavani vs State Rep By on 25 September, 2024
Crl.O.P.(MD)No.9405 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 03.09.2024
Pronounced on : 25.09.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.O.P.(MD)No.9405 of 2024
Bavani ... Petitioner
Vs.
State rep by
The Inspector of Police,
Pavoorchatram Police Station,
Tenkasi District. ... Respondent
Prayer : This Criminal Original Petition filed under Section 482 Cr.P.C.,
to call for the records pertaining to the impugned closure report dated
20.11.2023 filed by the respondent police and set aside the same and
consequently direct the respondent police to register the FIR in the light of
the order in Crl.M.P.No.8236 of 2023 dated 17.10.2023 passed by the
Judicial Magistrate, Tenkasi.
For Petitioner : Mr.G.Karuppasamy Pandian
for Mr.P.Edin Brough
For Respondent : Mr.P.Kottai Chamy
Government Advocate (Crl. Side)
1/20
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Crl.O.P.(MD)No.9405 of 2024
ORDER
The Criminal Original Petition is directed against the closure report
filed by the respondent police and for direction to the respondent police to
register an FIR in pursuance of the order passed in Crl.M.P.No.8236 of
2023 dated 17.10.2023 by the Judicial Magistrate, Tenkasi.
2. The case of the petitioner/complainant is that the proposed
accused had encroached the petitioner's land, compound wall on south
side of the petitioner's house and constructed a balcony and for removal of
that encroachment, the petitioner had filed a suit in O.S.No.368 of 2023 on
the file of the Principal Subordinate Court, Tenkasi and is pending, that
after receipt of the summons in the said suit, the proposed accused had
quarreled with the construction workers in the petitioner's building on site
on 24.06.2023, that on 13.08.2023 at about 11.00 a.m., after coming to
know that the petitioner had visited the building site, the proposed accused
had trespassed into the petitioner's land and started wordy quarrel and
threatened them and also tried to record the same with her mobile phone
hidden under the back of her child, that though the petitioner preferred a
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complaint through online on 13.08.2023, there was no response and that
even after submitting video taken by the petitioner's husband with regard
to the occurrence, the respondent police has not taken any action.
3. It is the further case of the petitioner that the proposed accused is
working in Madras City Civil Court and her father, a local business man
influenced the respondent police and made the police to threaten the
petitioner's husband to withdraw the civil case, that since the respondent
police has not taken any action, the petitioner was constrained to file a
petition under Section 156(3) Cr.P.C. before the jurisdictional Magistrate
Court, that the learned Magistrate has passed an order dated 17.10.2023
directing the respondent police to conduct a preliminary enquiry as per the
dictum laid down by the Hon'ble Supreme Court in Lalita Kumari's case
and to take necessary action, that the respondent police despite the
instructions of the learned Magistrate has refused to register an FIR, but
on the other hand, sent a closure report on 20.11.2023 to the concerned
Court and that therefore the petitioner was constrained to file the present
petition invoking Section 482 Cr.P.C. for setting aside the closure report
filed by the respondent police.
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4. The learned counsel appearing for the petitioner would mainly
contend that the Hon'ble Supreme Court in cantena of decisions has
reiterated the settled legal position that if the Magistrate forwards any
petition filed under Section 156(3) Cr.P.C., the concerned police is duty
bound to register the FIR and that whether the Magistrate has directed for
registration of FIR or for any enquiry that does not make any difference
and the police has no other option but to register an FIR.
5. The learned counsel appearing for the petitioner would rely on a
decision of this Court in the case of M.Veluthai Vs. Superintendent of
Police, Thoothukudi and another reported in 2024 (1) MWN (Cr.) 13,
wherein, a learned Magistrate has passed an order under Section 156(3)
Cr.P.C. in Crl.M.P.No.5511 of 2023 directing the respondent police therein
to register an FIR and for conducting investigation but the respondent
police has conducted an enquiry and finally filed a closure report and in
that fact situation, a learned Judge of this Court has held,
“14. In the case on hand, the petitioner filed a
complaint under Section 156(3) of Cr.P.C. and the same
was referred to police. The police instead of registering
FIR has closed the same stating that there is no cognizable
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offence made out. The procedure followed by police is
incorrect.
15. Considering the discussions above, filing of a
closure report by the respondent police after the complaint
referred to by learned Magistrate under Section 156(3) of
Cr.P.C. is illegally not permissible. Once the Magistrate
refers the complaint to the police under Section 156(3) of
Cr.P.C. the police have no option except to register FIR
and investigate the case. Once the complaint has been
referred by learned Magistrate to police under 156(3) of
Cr.P.C. it means that the learned Magistrate has prima
facie satisfied that the cognizance has already been
committed. Therefore, the police should have registered the
FIR and started investigation.”
6. In the case on hand, the learned Magistrate has not passed any
order directing the respondent police to register an FIR and conduct
investigation but on the other hand, directed the respondent police to
conduct preliminary enquiry by following the dictum laid down by the
Hon'ble Supreme Court in Lalita Kumari's case and take necessary action.
7. I had an occasion to deal with the similar fact situation in the case
of D.Vinoth Vs. Superintendent of Police, Virudhunagar District and
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another passed in Crl.O.P.(MD)No.22627 of 2022 dated 20.01.2023 and
the relevant passages are extracted hereunder:-
“8. At the outset, it is pertinent to note that the
learned Judicial Magistrate, in the case on hand, has not
passed any order, directing the Station House Officer to
register the FIR and the contention of the learned counsel
for the petitioner in this regard is patently incorrect. The
learned Judicial Magistrate, as already pointed out, has
specifically directed the Station House Officer to peruse
the complaint and other documents and to conduct an
enquiry and in case, if the compliant disclose any
cognizable offence, he has to register the FIR and then to
submit a report. Since the learned Judicial Magistrate has
not specifically directed the second respondent to register
the FIR, the procedure adopted by the second respondent
in conducting enquiry and submitting the report, cannot
be found fault with.
9. Now turning to the other submission of the
learned counsel for the petitioner, even though the learned
Magistrate has forwarded the complaint under Section
156(3) Cr.P.C., to conduct enquiry/ investigation, the
Station House Officer has no other go, but to register the
FIR and then to proceed with the investigation.
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10. No doubt, such was the position prevailing prior
to the judgment of the Constitution Bench in Lalita
Kumari Vs. Government of Uttar Pradesh and Others
reported in (2014) 2 SCC 1.
11. As rightly pointed out by the learned counsel for
the petitioner, the Hon'ble Supreme Court, in the case of
Madhu Bala Vs. Suresh Kumar and others reported in
(1997) 8 SCC 476, has specifically observed that even in
the absence of a direction to register the case by the
Magistrate, the Police is bound to formally register a case
and then investigate into the same and the relevant
passage is extracted hereunder :
“10.From the foregoing discussion, it is evident
that whenever a magistrate directs an
investigation on a 'complaint', the police has to
register a cognizable case on that complaint
treating the same as the FIR and comply with the
requirements of the above rules. It, therefore,
passes our comprehension as to how the
direction of a magistrate asking the police to
'register a case' makes an order of investigation
under section 156(3) legally unsustainable.
Indeed, even if a magistrate does not pass a
direction to register a case, still in view of the
provisions of section 156(1) of the Code which
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empowers the police to investigate into a
cognizable 'case' and the rules framed under the
Indian Police Act, 1861, it (the police) is duty
bound to formally register a case and then
investigate into the same. The provisions of the
Code, therefore, do not in any way stand in the
way of a magistrate to direct the police to
register a case at the police station and then
investigate into the same. In our opinion, when
an order for investigation under section 156(3)
of the Code is to be made, the proper direction
to the police would be to register a case at the
police station treating the complaint as the First
Information Report and investigate into the
same.”
12. Section 154 (1) Cr.P.C, contemplates that any
information relating to the commission of a cognizable
offence, is given orally, such information is to be reduced
in writing and after getting the signature of that person,
the matter shall be entered in a book to be kept by that
Officer. If a person is aggrieved by refusal on filing a
complaint by the Officer in charge of the Station, then in
such a case, the said person has to send such information
in writing to the Superintendent of Police concerned. If
still no action is taken, then the said person can approach
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the Magistrate under Section 156(3) Cr.P.C. If a complaint
is received by the Police Officer from the complainant
directly or from the Court under Section 156(3) Cr.P.C,
attracting any cognizable offence the concerned Police
Officer, is duty bound to register an FIR and then to
investigate the same. But the Constitution Bench of the
Hon'ble Apex Court in Lalita Kumari's case, has
conferred some extra rights on the Police, which is not
contemplated by Cr.P.C, for conducing primary enquiry in
cases where the police is not able to find out whether the
complaint discloses any cognizable offence or not.
13. No doubt, the Hon'ble Supreme Court has
specifically clarified that the registration of FIR is
mandatory under Section 154 Cr.P.C, if the information
discloses commission of a cognizable offence and in that
situation, no preliminary enquiry is permissible.
14. The Hon'ble Apex Court has held that if the
information received does not disclose a cognizable
offence, but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain
whether cognizable offence is disclosed or not. It is
necessary to refer the directions issued by the Hon'ble
Supreme Court in Lalita Kumari's case, hereunder for
better appreciation :
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120. In view of the aforesaid discussion,
we hold:
120.1. Registration of FIR is mandatory
under Section 154 of the Code, if the
information discloses commission of a
cognizable offence and no preliminary inquiry is
permissible in such a situation.
120.2. If the information received does not
disclose a cognizable offence but indicates the
necessity for an inquiry, a preliminary inquiry
may be conducted only to ascertain whether
cognizable offence is disclosed or not.
120.3. If the inquiry discloses the
commission of a cognizable offence, the FIR
must be registered. In cases where preliminary
inquiry ends in closing the complaint, a copy of
the entry of such closure must be supplied to the
first informant forthwith and not later than one
week. It must disclose reasons in brief for
closing the complaint and not proceeding
further.
120.4.The police officer cannot avoid his
duty of registering offence if cognizable offence
is disclosed. Action must be taken against erring
officers who do not register the FIR if
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information received by him discloses a
cognizable offence.
120.5. The scope of preliminary inquiry is
not to verify the veracity or otherwise of the
information received but only to ascertain
whether the information reveals any cognizable
offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of each
case. The category of cases in which preliminary
inquiry may be made are as under:
(a) Matrimonial disputes/ family
disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations
and not exhaustive of all conditions which
may warrant preliminary inquiry.
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120.7.While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made time bound
and in any case it should not exceed 7 days. The
fact of such delay and the causes of it must be
reflected in the General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all
information received in a police station, we
direct that all information relating to cognizable
offences, whether resulting in registration of FIR
or leading to an inquiry, must be mandatorily
and meticulously reflected in the said Diary and
the decision to conduct a preliminary inquiry
must also be reflected, as mentioned above.
15. The learned counsel for the petitioner would
contend that the above directions issued by the Hon'ble
Supreme Court are applicable only in the cases of
complaint received by the Police under Section 154 Cr.P.C
and not when the complaint is forwarded by the Judicial
Magistrate under Section 156(3) Cr.P.C.
16. Section 156(3) Cr.P.C says that any Magistrate
empowered under Section 190 Cr.P.C, may order such
enquiry as above mentioned.
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17. No doubt, the above provision is very briefly
worded. But the Hon'ble Apex Court in catena of decisions
has specifically observed that Section 156(3) Cr.P.C., is
wide enough to include all such powers in a Magistrate
which are necessary for ensuring a proper investigation,
and it includes the power to order registration of an F.I.R.
and of ordering a proper investigation. To put it in short,
Section 156(3) Cr.P.C is very wide and it would include all
such incidental powers as are necessary for ensuring a
proper investigation.
18. As already pointed out, in the case on hand, the
learned Magistrate has not given a finding/observation
that the complaint of the petitioner discloses commission
of a cognizable offence. But, on the other hand, the
learned Magistrate directed the Station House Officer to
conduct an enquiry and to register an FIR, if the complaint
and enquiry discloses commission of a cognizable offence.
Since the learned Magistrate has not taken a decision as to
whether any cognizable offence is disclosed or not and the
complaint was forwarded directing the Police Official to
find out whether any cognizable offence is disclosed or
not, after conducting enquiry, it can easily be
inferred/observed that the Station House Officer has to act
under Section 154 r/w 156(i) Cr.P.C.
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19. The learned counsel for the petitioner has relied
on another judgment of the Hon'ble Supreme Court in
Hemant Ashwant Dhage Vs. State of Maharashtra and
others reported in (2016) 6 Supreme Court Cases 273,
wherein the Division Bench of the Hon'ble Apex Court has
referred its earlier decision in Mohamed Yousuf Vs. Afaq
Jahan reported in 2006 (1) SCC 627, wherein the Hon'ble
Apex Court has pointed out that to enable the police to
start investigation, it is open to the Magistrate to direct the
police to register an F.I.R. and even where a Magistrate
does not do so in explicit words but directs for
investigation under Section 156(3) of the Code, the police
should register an F.I.R.
20. As already pointed out, the Mohamed Yousuf's
case was decided prior to the judgment in Lalita Kumari's
Case.
21. In view of the above, the procedure adopted by
the second respondent cannot be found fault with and
hence, this court concludes that the above Criminal
Original Petition is devoid of merits and the same is liable
to be dismissed.”
8. Considering the above, since the learned Magistrate has not
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directed the respondent police to register an FIR but only directed to
conduct a preliminary enquiry, filing of the impugned closure report by the
respondent police cannot be found fault with.
9. Now turning to the next contention, what is the course open to the
petitioner/complainant in case of filing of such a closure report in
pursuance of the directions of the learned Magistrate and without
registration of FIR. No doubt, the closure report came to be filed by the
respondent police after conducting preliminary enquiry in the petition filed
by the petitioner and in pursuance of the direction given by the learned
Magistrate under Section 156(3) Cr.P.C. and hence, the petitioner is
entitled to know about the result of the enquiry conducted by the
concerned police and on that basis, the petitioner is certainly entitled to
get the copy of the closure report. After filing of the closure report before
the jurisdictional Court, the petitioner is also entitled to raise her
objections by filing a memo of objections (called as protest petition in the
legal parlance) and on such filing of a protest petition, the learned
Magistrate is duty bound to conduct a summary enquiry and on
considering the closure report and the objections raised by the
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complainant, if the Magistrate finds that there are materials which
discloses cognizable offence, then he can direct the concerned police to
register an FIR and proceed with the investigation or if the Magistrate
finds that the way in which enquiry conducted is not proper, he can direct
the concerned police to conduct a fresh enquiry and to submit a report or if
the Magistrate finds that enquiry came to be conducted properly and that
the materials does not disclose any cognizable offence, can very well
accept the closure report and direct the complainant to file a private
complaint, if so advised.
10. No doubt, there is a confusion that the protest petition can be
filed by the complainant only in case of filing of the negative final report
by the concerned police after conducting investigation in pursuance of the
registration of the FIR and there is no practise of filing any protest petition
for the closure report filed in pursuance of the enquiry conducted under
Section 156(3) Cr.P.C. But the fact remains that since the petitioner has
lodged a complaint raising some averments and alleging some occurrences
against the proposed accused and the respondent police, after conducting
an enquiry, comes to a decision that there was no scope for registering FIR
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and for proceeding further and in that scenario, the complainant is
certainly entitled to know about the nature of the enquiry and the result of
the enquiry. After receiving the copy of the closure report, she can very
well agitate the way in which enquiry is conducted is not proper or that the
materials gathered by the concerned police during the enquiry discloses
cognizable offence and as such, the filing of the closure report is not
proper. There is absolutely no legal bar or prohibition for filing protest
petition objecting to the closure report filed by the concerned police in
pursuance to their preliminary enquiry conducted in pursuance of the order
of the learned Magistrate passed under Section 156(3) Cr.P.C. Admittedly,
the petitioner has not challenged the order of the learned Magistrate
passed in the petition filed under Section 156(3) Cr.P.C., wherein, the
learned Magistrate has directed for preliminary enquiry.
11. From the above discussion, this Court concludes that the petition
is devoid of merits and the same is liable to be dismissed.
12. In the result, the Criminal Original Petition is dismissed. The
petitioner is at liberty to file a protest petition before the jurisdictional
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Magistrate Court and if such a petition is filed, the learned Magistrate is
directed to conduct enquiry and pass orders in the manner known to law.
25.09.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1.The Judicial Magistrate,
Tenkasi.
2.The Inspector of Police,
Pavoorchatram Police Station,
Tenkasi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
Dated : 25.09.2024
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