1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.03.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.2594 of 2011 Vasantha ... Petitioner Vs. State represented by The Inspector of Police, Sivakasi East Police Station, Virudhunagar District. ... Respondent PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records and set aside the order passed by the Judicial Magistrate, Sivakasi in Cr.M.P.No.12316 of 2010 on 10.12.2010 and direct the respondent to register a case and investigate the petitioner complaint, dated 15.11.2010. For Petitioner : M/s. P.T.Ramesh Raja For Respondent : Mr.L.Murugan Govt. Advocate (Crl.side) O R D E R This petition has been filed by the petitioner seeking to set aside the order passed by the Judicial Magistrate, Sivakasi in Cr.M.P.No.12316 of 2010 dated 10.12.2010 and to direct the respondent to register a case and investigate the petitioner's complaint, dated 15.11.2010. 2. Heard Mr.P.T.Ramesh Raja, learned counsel for the petitioner and Mr.L.Murugan, learned Government Advocate (Crl.side) appearing for the State. 3. The learned counsel for the petitioner would submit in his argument that the petitioner has filed a complaint before the learned Judicial Magistrate, Sivakasi under Sections 120(B), 294(b), 341, 379, 406, 423, 420 and 506(ii) I.P.C. He would further submit in his argument that the lower Court has instead of referring the complaint under Section 156(3) Cr.P.C., directed the respondent police to verify the truthfulness of the allegations made in the complaint and thereafter to register the complaint and to submit a report and the same was ordered on 10.12.2010 and the said order is not valid in law. He would further submit that the Honourable Apex Court has come down https://hcservices.ecourts.gov.in/hcservices/ 2 heavily in its judgment reported in 2009(3) SCC (Crl) 76 that the power of the Magistrate to refer under Section 156(3) Cr.P.C. is limited and he cannot recall the said order. He would request the Court that the Magistrate has to direct registration of the complaint and to order investigation and the Magistrate could not order an enquiry and thereafter to register the complaint. 4. The learned Government Advocate (Crl.side) would submit in his argument that the judgment of the Honourable Apex Court may be gone into and suitable orders may be passed. 5. Considering the submissions made by both sides, this Court could see that a complaint was filed by the petitioner before the learned Judicial Magistrate, Sivakasi under various provisions of law and the same was referred to the respondent police under Section 156(3) Cr.P.C. While passing an order of reference for registration of the complaint, the learned Magistrate has directed the police to go over the truthfulness of the allegations made therein and thereafter to register the complaint. According to the judgment of the Honourable Apex Court reported in (2009) 3 SCC (Cri) 76 in Dharmeshbhai Vasudevbhai and others vs. State of Gujarat and others, it has been categorically laid down as follows: "11. The learned Magistrate directed carrying out of an investigation by the investigating officer and submit a report to it. If an investigation was to be carried out in terms of Section 156(3) of the Code, the same could not have been equated with an enquiry as the two expressions have differently been defined in Sections 3 (h) and 3(i) of the Code. In any event, the learned Magistrate did not have any jurisdiction to recall the said order. The High Court, therefore, in our opinion was not correct in refusing to consider the contention raised on behalf of the appellants that the Magistrate had no jurisdiction in that behalf." 6. It has been laid down in the said judgment that the learned Magistrate has no authority to recall his order passed under Section 156(3) Cr.P.C. The enquiry directed to be done by the Magistrate is not at all found sustainable under Section 156 (3) Cr.P.C. The Magistrate can direct the registration of the complaint and the investigation to be done and to submit a report. Instead of the learned Magistrate, Sivakasi has directed the police to enquire and to register the complaint which is not sustainable in law. Therefore, this Court is of the view that the learned Magistrate cannot direct the respondent police to enquire into the complaint and thereafter to register the complaint. The learned Judicial Magistrate ought to have directed the police simply to register the complaint and to do the investigation and report and therefore there is no question of discretion for the Magistrate to pass such an order which is not afforded under Section 156(3) Cr.P.C. Therefore, the order https://hcservices.ecourts.gov.in/hcservices/ 3 passed by the learned Judicial Magistrate, Sivakasi in Crl.M.P.No.12316 of 2010, dated 10.12.2010 is set aside and the learned Magistrate is directed to pass a correct order directing the police to register the complaint and to submit a report. With the aforesaid direction, this petition is ordered. Sd/- Assistant Registrar(P&A) /True Copy/ Sub-Assistant Registrar To 1.The Judicial Magistrate, Sivakasi 2.The Inspector of Police, Sivakasi East Police Station, Virudhunagar District. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +One CC to Mr.P.T.Rameshraja, Advocate, SR.No.11200 akv rl/5c – 24.3.2011 Crl.O.P.(MD)No.2594 of 2011 01.03.2011 https://hcservices.ecourts.gov.in/hcservices/