IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.09.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.O.P.No.1649 of 2009 K.Kannan .. Petitioner Vs. State 1. The Superintendent of Police Villupuram Villupuram District 2. The Inspector of Police Thirunavalur Police Station Uludurpet Taluk Villupuram District .. Respondents This Criminal Original Petition has been filed under Section 482 Cr.P.C to direct the second respondent to register FIR on the complaint dated 14.11.2008 and investigate into the complaint as expeditiously as possible. For Petitioner : Mr.T.Gandhi For Respondents : Mr.I.Paul Nobel Devakumar Govt Advocate (Crl.Side) O R D E R The petitioner herein having seen the inaction on the part of the police after receiving a complaint given by the petitioner herein dated 14.11.2008 addressed to the Inspector of Police, Thirunavalur Police Station, Villupuram District, has come forward with the present petition under Section 482 Cr.P.C seeking a direction to the respondents herein to register a first information report based on the above said complaint and investigate the same as expeditiously as possible. 2. The contents of the petition are as follows:- a) An extent of 0.17.0 hectares of land comprised in Survey No.500/19 in Ayan Vellore Village, Ulundurpet Taluk, Villupuram District belongs to one Periyayi. She was in possession and enjoyment of the said land. She belongs to Korava community, which is included in the list of a Scheduled Tribe. As Sundaram, Thambusamy, Thiruvengadam, Kolanjiappan and Subramani, who are non- https://hcservices.ecourts.gov.in/hcservices/ members of a scheduled caste or a scheduled tribe, tried to interfere with the peaceful possession and enjoyment of the said Periyayi. The petitioner is the son-in-law of the above said Periyayi. Regarding the said land, she filed a suit in O.S.No.19/2001 on the file of the Principal District Munsif, Ulundurpet. She was also granted an injunction in her favour and the learned Principal District Munsif had also directed the police to give protection by an order dated 12.04.2006 made in E.A.No.165/2006. The case between the said Periyayi and the above said persons has reached the stage of a second appeal, which is now pending on the file of this court as S.A.No.592/2007. This court (High Court, Chennai) also granted interim injunction in favour of the said Periyayi and made it absolute till the disposal of the second appeal by its order dated 07.12.2007 in M.P.No.1/2007 in S.A.No.592/2007. b) On 14.11.2008 at about 9.00 a.m the petitioner and his father-in-law were engaged in strengthening the bunds of the said land for paddy plantation. Sundaram, Thambusamy and Subramani along with their henchmen Koothan, Palani and Elumalai formed an unlawful assembly with deadly weapons, trespassed into the said lands and abused the petitioner and his father-in-law in filthy language. They also threatened the petitioner and his father-in- law with dire consequences, if they failed to vacate the land. When the petitioner and his father-in-law raised protest, the said persons severely bet the father-in-law of the petitioner using a spade and the petitioner using the handle of the spade. The assailants also humiliated them using the name of the caste of the petitioner and his father-in-law in public view. The assailants also obliterated the bunds of the land. They had also caused intimidation with dire consequences if the petitioner and his father-in-law would again enter the said land. c) After having admitted his father-in-law and he himself having been treated at the government hospital, Ulundurpet, the petitioner went to Thirunavalur police station and lodged a complaint in writing on 14.11.2008 itself. But the Inspector of Police, Thirunavalur police station, who is arrayed as the second respondent herein, after receiving the complaint failed and neglected to register a first information report and investigate the matter. Therefore, the petitioner herein had to send a complaint to the second respondent herein by registered post. The second respondent herein, even after receiving the complaint, refused to register a case based on the complaint of the petitioner. Therefore, the petitioner had to send the complaint in writing to the Superintendent of Police, Villupuram District (first respondent herein). The first respondent herein also failed to do his duty. Therefore, the petitioner left with no other option, has filed the present petition under Section 482 Cr.P.C for a direction against the respondents to register a case based on the complaint of the petitioner dated 14.11.2008 and investigate the same. 3. The Superintendent of Police, Villupuram District and the Inspector of Police, Thirunavalur, Villupuram District have been https://hcservices.ecourts.gov.in/hcservices/ arrayed as the first and second respondents respectively. The learned Government Advocate (Crl. Side) has taken notice and entered appearance on behalf of the respondents 1 and 2. 4. The submissions made by Mr.T.Gandhi, learned counsel for the petitioner and by Mr.I.Paul Nobel Devakumar, learned Government Advocate (Crl. Side) representing the respondents were heard. The petition and the documents produced along with the petition were also perused. 5. The learned Government Advocate (Crl.Side), representing the respondent police, has chosen to make his submissions without even filing a counter affidavit. He has stated that an order can be passed after hearing the submissions made on the side of the petitioner and on the side of the respondents, even without filing a formal counter affidavit. 6. It is the contention of the learned counsel for the petitioner that though the complaint disclosed the commission of cognizable offences including one under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the second respondent failed to register a case. It is the further contention of the learned counsel for the petitioner that the second respondent, being the station house officer of the Thirunavalur Police station, was duty bound to register a case based on the complaint of the petitioner, as the same disclosed not only cognizable offences but also an offence punishable under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, which is triable exclusively by a special court (Sessions Court). 7. It is the contention of the learned counsel for the petitioner that the first respondent has also failed to perform his duties by his failure to either investigate or cause an investigation to be made, even after the contents of the complaint were sent to him in writing and by registered post as contemplated under Section 154(3) Cr.P.C. 8. Per contra, the learned Government Advocate (Crl.Side), argued that the dispute between the petitioner and the alleged assailants was civil in nature in the perception of the respondents and that hence there was justification on the part of the respondents in omitting and refusing to register a case based on the complaint of the petitioner as there was no truth in the averments made in the complaint. The learned Government Advocate (Crl.Side) also contended that the property in dispute was a poramboke land belonging to the government and that the complaint of the petitioner was an attempt to squat on the property. It is also the contention of the learned Government Advocate (Crl.Side) that in the light of the recent pronouncements made by the Hon'ble Supreme Court in Aleque Padamsee v. Union of India reported in 2008 (1) MLJ (Crl) 490 (SC) and Sakiri Vasu v. State of U.P., reported in 2008(1) MLJ (Crl) 1393 (SC), the remedy available to the person aggrieved by the inaction on the part of the police to register a https://hcservices.ecourts.gov.in/hcservices/ case is to approach the concerned magistrate and such person cannot be granted a relief either under Section 482 Cr.P.C or under Article 226 of the Constitution of India. 9. The petitioner along with his petition has produced copies of six documents in the form of typed set of papers. Document No.1 is a letter dated 01.09.2008 addressed by the Principal District Munsif, Ulundurpet to the Inspector of Police, Thirunavalur police station referring to an order dated 12.04.2006 made in E.A.No.165/2006 for the grant of police protection and directing the Inspector of Police to give police protection to Periyayee to ensure non-interference with her peaceful possession and enjoyment of the property comprised in Survey No.500/19 in Ayan Vellore village, Ulundurpet Taluk, Villupuram District. The second document is a copy of an order dated 07.12.2007 passed by this court in M.P.No.1 of 2007 in S.A.No.592/2007 making the interim injunction granted in the said miscellaneous petition absolute till the disposal of the second appeal. From the said documents, it is obvious that there was a dispute between Periyayee, the mother-in- law of the petitioner herein and Sundaram, Thambusamy, Thiruvengadam, Kolanjiappan and Subramani regarding the enjoyment of the above said property pursuant to which she filed a suit in O.S.No.19/2001 on the file of the Principal District Munsif, Ulundurpet. After the disposal of the suit and the first appeal arising therefrom, the matter is now pending before the High Court (this court) as S.A.No.592/2007. In the second appeal this court has granted an order of injunction restraining the above said persons from interfering with the peaceful possession and enjoyment of the Periyayee till the disposal of the second appeal. 10. Under such circumstances, the petitioner who is the son- in-law of the above said Periyayee lodged a complaint with the second respondent herein on 14.11.2008 alleging that Sundaram, Subramanian, Koothan, Thambusamy and Palani trespassed into the said land, intimidated the petitioner and his father-in-law not to do any agricultural operation in the disputed land, attacked the petitioner and his father-in-law with the handle of spade and spade respectively and again intimidated with dire consequences and humiliated them by uttering the name of their caste in public view when they protested against their high handed act. The complaint also contains an allegation that the petitioner and his father-in- law got treatment in Government Hospital, Ulundurpet, whereupon the petitioner alone went to the police station to lodge the complaint, as his father-in-law was admitted as an in-patient in the said hospital. A meek attempt was made on behalf of the respondents to show that no such complaint was received by the second respondent. 11. The second respondent has not come forward with a counter affidavit denying the petition averments regarding lodging of the said complaint dated 14.11.2008. There cannot be any substance in such a denial on the part of the second respondent. As the second respondent has not chosen to take any action based on the complaint in writing lodged in person by the petitioner herein on 14.11.2008, he had to send the same by registered post with acknowledgment due https://hcservices.ecourts.gov.in/hcservices/ to the second respondent (Inspector of Police) as well as the first respondent (Superintendent of Police, Villupuram district). A copy of the communication received from the postal department on 01.12.2008 by the petitioner has been included as document No.4 in the typed set of papers. From the said communication, it is obvious that the registered letters were sent on 17.11.2008 itself. The copies of the complaints sent by registered post to the second respondent and the first respondent are produced as document Nos.3 and 5 in the typed set of papers. The said complaint copies sent by post were received by the addressees as evidenced by the copies of the postal acknowledgment cards produced as document No.7 in the typed set of papers. Therefore, the respondents cannot deny having received such a written complaint from the petitioner. 12. So far as the contention of the learned Government Advocate (Crl.Side) that the police chose to refrain from registering a case because, according to their perception, the dispute was civil in nature is concerned, this court is not in a position to countenance the same. Of course the land dispute between Periyayee and Sundaram and others was civil in nature, which is now pending on the file of this court in S.A.No.592/2007. The police were not asked by the petitioner to enquire into and settle the civil dispute between mother-in-law of the petitioner and the persons against whom she had filed the suit. She is pursuing civil proceedings in an appropriate court for the said relief. In fact, she has also been granted an order of injunction against the defendants in the suit not to interfere with her possession and enjoyment of the property till the disposal of the second appeal. On the other hand, the petitioner wanted the police to take action against the persons shown to be the assailants in the complaint for their acts which amounted to criminal offences, which are cognizable. Therefore, the refusal on the part of the police to register a case on the ground that there was a civil dispute between the mother-in-law of the petitioner and the alleged assailants regarding the enjoyment of property in dispute, cannot be justified. 13. The further contention on behalf of the respondents that the complaint was lodged with an ulterior motive making false allegations citing an imaginary incident also cannot be countenanced. Whether the allegations made in the complaint are true or not, cannot be prompted by the police before registering a case, to make a decision as to whether a case has to be registered or not. The police officer has to consider the allegations made in the complaint and the documents, if any, produced along with the complaint without trying to adjudicate upon the genuineness of such allegations. In the complaint lodged by the petitioner on 14.11.2008, clear allegations have been made disclosing commission of offences punishable under Sections 447, 323 and 506(ii) and an offence punishable under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Clear averments have been made to the effect that the petitioner and his father-in-law belonged to Korava community included in the list of Scheduled Tribes and that the assailants were non-members of a https://hcservices.ecourts.gov.in/hcservices/ Scheduled Caste or a Scheduled Tribe. Therefore, this court is of the firm view that the police could not have refused to register a case on the ground that the complaint did not disclose any cognizable offence. 15. As per Section 154(1) Cr.P.C. the police officer in-charge of the station, on receipt of information regarding the commission of a cognizable offence is duty bound to register a case and give a copy of the first information report, free of cost, to the person furnishing the information under sub-clause (ii) of Section 154. Time and again it has been indicated in a number of judgments of the Hon'ble Supreme Court that registration of a case is mandatory and the police do not have any discretion either to register a case or not to register a case, if the complaint discloses the commission of a cognizable offence. Even in the judgments of the Hon'ble Supreme Court, relied on by the learned Government Advocate (Crl.Side), viz. Aleque Padamsee v. Union of India reported in 2008 (1) MLJ (Crl) 490 (SC) and Sakiri Vasu v. State of U.P., reported in 2008(1) MLJ (Crl) 1393 (SC), the said point has been reiterated. However, the Hon'ble Supreme Court observed that the violation of the mandatory duty should not be confused with the relief available for the said violation. The said view expressed by the Hon'ble Supreme Court is enough to hold that the second respondent has failed to perform his duty and violated the mandatory provision found in Section 154(1) Cr.P.C. 16. The remedy available to a person aggrieved by the inaction on the part of the Station House Officer, as per Section 154(3) is to send the substance of the information in writing and by post to the Superintendent of Police, who can either investigate the case or direct an investigation to be made, if he is satisfied that the information disclosed the commission of a cognizable offence. In this case, we have already seen that the complaint clearly disclosed the commission of more than one cognizable offence. The petitioner, after the failure on the part of the second respondent to register a case based on the complaint of the petitioner, has rightly sent the substance of the information in writing and by post to the first respondent, namely the Superintendent of Police, Villupuram district. The first respondent, after receiving the same has also failed to investigate or direct an investigation to be made. Under such circumstances alone, the petitioner has come forward with the present petition seeking a direction to the respondents to register a case and investigate the same. From the foregoing discussions, it is abundantly clear that the first respondent has also failed in his duty to act in consonance with section 154(3) Cr.P.C. 17. However, the learned Government Advocate (Crl.Side) has relied on the observations made by the Hon'ble Supreme Court in the above said judgments cited on behalf of the respondents that the petitioner cannot be granted the relief sought for, despite there being failure on the part of the respondents to perform their mandatory duty under Section 154 Cr.P.C. Of course, it is true that the Hon'ble Supreme Court, in the said case in Sakiri Vasu's https://hcservices.ecourts.gov.in/hcservices/ case, held that the remedy, in such cases, for the complainant was to approach the Superintendent of Police under Section 154(3) Cr.P.C. and in case of inaction on his part also, the complainant could approach the Judicial Magistrate by way of an application under Section 156(3) Cr.P.C., for a direction to investigate the matter. A three judge bench of the Hon'ble Supreme Court in Aleque Padamsee's case, held that in case of refusal on the part of the police officials to register a case, even though the complaint disclosed a cognizable offence, the modalities to be adopted by the complainant were, as set out in Section 190 r/w Section 200 Cr.P.C. But when the said observations came to be considered by a single judge of this court in G.Arokiya Marie v. Superintendent of Police reported in 2008(2) MLJ (Crl) 796, it has been observed that the Supreme Court had not ruled out in totality the exercise of the inherent power under Section 482 Cr.P.C to register a case and investigate the same in appropriate cases. In fact in G.Arokiya Marie's case, the Hon'ble Justice M.Jeyapal has observed that in appropriate cases, namely wherein commission of grave offences like murder, attempt to murder wherein grievous injuries have been caused, robbery, dacoity, rape and attempt to rape are reported, in order to see that the evidence does not get erased by passage of time, swift action is needed and hence such cases can be taken as exceptional cases in which the High Court can issue directions under Section 482 Cr.P.C to register a case and investigate the same. Of course, none of the offences alleged in the complaint of the petitioner herein is found in the list of grave offences enumerated in the said judgment of the learned single judge. But the said list provided in the judgment cannot be construed to be exhaustive and on the other hand, it can be taken only as illustrative. 18. The learned counsel for the petitioner also contended that, in addition to the offences listed in the said judgment of this court in G.Arokiya Marie's case, offences exclusively triable by a court of Sessions should also be added to the said list. According to his submissions, if the aggrieved person (de-facto complainant) is left with no other option except to approach the Judicial Magistrate by way of a private complaint under Section 200 Cr.P.C, there is the danger of the Magistrate taking cognizance of the offence without forwarding the complaint as an information to the police for registration of a case in which event the case has to be inquired into by the Magistrate himself. Under such circumstances, the de-facto complainant shall be denied the benefit of having the resources of the government investigating missionaries to collect evidence. As rightly said by the learned counsel for the petitioner, a Magistrate receiving a complaint under Section 200 Cr.P.C. cannot order an investigation by a police officer after taking cognizance of an offence, if the same is exclusively triable by a court of Session. It shall not be obligatory on the part of the Magistrate to refer the complaint to the police without taking cognizance of the offence. Therefore, the above said contention raised by the learned counsel for the petitioner that the de-facto complainant in such cases shall be with a handicap to prove the case, as he is denied the opportunity https://hcservices.ecourts.gov.in/hcservices/ of having the case investigated by the State investigating agency, has got to be countenanced. Therefore, this court comes to the conclusion that in cases wherein the complaint discloses the commission of an offence exclusively triable by a court of Session, the alternative remedy available should be considered to be not fully effective and efficacious and that hence in such cases, the High Court exercising its inherent power preserved under Section 482 Cr.P.C can issue directions to the police to register a case and investigate the same. Therefore, this court comes to the conclusion that it is a fit case in which a direction sought for has to be issued. 19. Yet another aspect should also be taken note of in this case. The offences alleged in the complaint are not only punishable under the provisions of the Indian Penal Code but also attracting Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Provisions similar to Section 154 Cr.P.C have been made under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 which reads as follows:- Investigating Officer.— (1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time. (2) The investigating officer so appointed under sub- rule(1) shall complete the investigation on top priority basis within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director General of Police to the State Government. (3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer. 20. Considering the gravity of the offence and importance of such cases, the parliament itself has enacted the special law under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The rules framed thereunder are intended to have speedy investigation of the case by a police officer of a higher rank with certain qualities. It has also been mandated therein that the investigation of the case should be completed within a month from the date of registration of the case. Rule 6 of the Scheduled Castes and Scheduled Tribes (Prevention of https://hcservices.ecourts.gov.in/hcservices/ Atrocities) Rules, 1995 also mandates the Superintendent of Police to visit the place of occurrence and appoint an investigating officer immediately to investigate the case. Such importance given by the legislature to have the investigation of the atrocities committed, which are punishable under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, cannot be diluted by driving the aggrieved party to approach the Magistrate by way of a private complaint, whereupon he shall not have the privilege of having the case investigated by such a high official of the police department. Therefore, this court comes to the conclusion that it is a fit case in which the direction sought for has to be granted in the interest of justice and to avoid miscarriage of justice. 21. In the result, this petition is allowed and the second respondent herein is directed to register a case based on the complaint of the petitioner dated 14.11.2008 and place the papers before the first respondent for appointment of an investigating