IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No.21048 of 2008 and M.P.Nos.1 & 2 of 2008 NEPC India Ltd., 36, Wallaja Road, Madras – 600 002. Rep. by its Chairman, Mr.Ravi Prakash Khemka .. Petitioner. Vs. 1. The State of Tamil Nadu, Rep. by the Secretary to Government Home Department, Fort St.George, Madras-600 009. 2. The Director General of Police Madras-600 004. 3. The Commissioner of Police Madras-600 008. 4. The Joint Commissioner of Police, Central Zone, Madras – 600 008. .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for the records in Rc.No.407/Camp/JC/(CZ)/08 dated 21.07.2008 / 01.08.2008 on the file of the 4th respondent herein and quash the same as ultra vires, unconstitutional, against the rule of law and against the principles of natural justice and consequently, direct the respondent police, viz. the Director General of Police to reinvestigate the entire episode, by entrusting the same to a special team of CBCID in the light of the directions issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Shanmugam For R1 to R4 : Mr.B.Vijay Govt. Advocate O R D E R M/s. NEPC India Limited, a company registered under companies Act, has invoked the writ jurisdiction of this Court with the prayer for issuance of a writ in the nature of Certiorari for quashing the order dated 21.07.2008, passed by the Joint Commissioner of Police, Central Zone, rejecting the representation of the petitioner dated 31.10.2007. 2. The impugned order reads as under: "This has reference to your complaint dated 31.10.2007, alleging police officials have done mistake in investigating your complaint dated 25.07.2007. Based on your representation dated 31.10.2007, an enquiry was conducted. The enquiry revealed that the officials had dealt with your complaint dated 25.07.2007 in a proper manner and in accordance with procedures. Consequently, no further action was required. This is for your information. sd../- Joint Commissioner of Police Central Zone, Chennai-8" 3. The petitioner also prayed for a writ in the nature of Mandamus to direct the respondent police, i.e. the Director General of Police to reinvestigate the entire episode by entrusting it to to a special team of CBCID in the light of the directions, issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008. 4. The writ petition filed, on the face of it, is misconceived, as it has been filed by the company, registered under Companies Act, which has its own independent legal entity from that of its Chairman or Director, the possibility of alleged threat cannot be to a company. 5. The facts show that, in fact, complaint was filed by company by Thiru Ravi Prakash Khemka, its Chairman qua alleged wrong to him. https://hcservices.ecourts.gov.in/hcservices/ 6. The facts leading to filing of the present writ petition, as disclosed in the affidavit in support of the writ petition, reads as under: i) Mr.Ravi Prakash Khemka, filed a complaint against 19 accused on 14.12.2006, alleging therein that he had received two threatening calls on his mobile where somebody over the telephone talked in English in filthy language and threatened that Mr.Rajkumar and his family has been spotted in Mumbai and threatened to wipe out the full family at Mumbai itself. ii) It was also stated on the mobile that city of Mumbai belongs to Dons and Dubai and Karchi people and in case, complaint against Mr.Rao, Mr.Amitabh, Mr.Khandelwal and others, was not withdrawn, then the family will not see the second day and filthy language was also used. iii)Telephone number, from which, threatening calls were received, was also mentioned in the complaint. It was mentioned in the complaint that on the same day, his second son Mr.Tirupathi Kumar Khemka also received threatening call from the Mobile No.9312004441 in Hindi and English with lot of filthy languages. iv) He was also threatened that in case his brother Mr.Rajkumar Khemka was not withdrawing the complaint against Mr.Rao, Mr.Amitah and Mr.Khandelwal, he would face dire consequences. v) Request was made by the petitioner to investigate the matter and register an FIR and further prayer was also made for giving list of recognized security agencies, so that, their security could be protected. In addition, prayer was also made for necessary protection. 7. The reading of complaint would show that it is full of vague allegations. The said alleged crime was in Mumbai. But, for the reasons best known to the petitioner, complaint was filed at Chennai. Though in the heading, complaint was said to be on behalf of Mr.Ravi Prakash Khemka, but it was signed on behalf of the petitioner company. Along with complaint, the petitioner also placed on record transcription of the threatening calls. The petitioner also attached with the complaint certain threats, received from Aligarh and Deobund, Uttar Pradesh. 8. The complaint was followed by another complaint dated 25.07.2007d, alleging therein that at about 3:00 p.m., six goondas entered into the office of the petitioner company. Names disclosed of the persons were Raja, Rajesh, Arun and Jay. But it was mentioned that real names of the accused were not known. These people were said to have threatened the company in Tamil. 9. The case of the petitioner set out in the second complaint was that on the complaint, Police reached the spot, but https://hcservices.ecourts.gov.in/hcservices/ before that, six goondas ran away and that their statements were recorded by the Police. 10. Surprisingly, in the complaint, name of the complainant was not mentioned and it was signed on behalf of the petitioner company by some Director. 11. The case of the petitioner is that on the complaint, made on 25.07.2007, an FIR No. 2085 of 2007 was registered after two months, that too, after directions were issued by this Court in Crl.O.P.No.26530 of 2007. Allegations of the petitioner are that incorrect FIR was registered by leaving principal and prime accused, named in the complaint. 12. As observed above, in the complaint dated 25.07.2007, no names were disclosed rather it was mentioned that even disclosed names did not reflect correct name of the accused persons. 13. As already mentioned above, the petitioner had approached this Court by filing Crl.O.P.No.26530 of 2007, wherein, specific stand was taken that no complaint had been received by Police. The petitioner, in support of complaint, produced a copy of the receipt, showing despatch of complaint. This Court, without going into controversy, directed the petitioner to give a copy of the complaint dated 25.07.2007 to the respondent police and on receipt of the same, the respondent police was directed to register a case, as the complaint disclosed cognizable offences. 14. FIR registered on the basis of complaint has been enclosed in the typeset, which shows that it is the verbatim copy of complaint dated 25.07.2007. 15. The petitioner made another complaint of misconduct against Sub-Inspector of Police, D-1, Police Station, alleging therein that the Police had omitted to include prime accused M/s. Southern Wind Farms Limited. It is not understood, how a legal entity can be guilty of alleged offence. 16. Allegation in the complaint, on the face of it, was misconceived, as no criminal offence could be registered against M/s.Southern Wind Farms Limited being a legal entity, not committing crime, like the one alleged. 17. The petitioner, thereafter, being dissatisfied by the action of the Police, filed Crl.O.P.No.34549 of 2007 for directing the Police to re-investigate the case by including name of prime accused M/s. Southern Winds Farms Limited along with other accused persons named in the complaint dated 25.07.2007 and also to correct the relevant column in the first page of FIR in Crime No.2085 of https://hcservices.ecourts.gov.in/hcservices/ 2007. 18. Criminal Original Petition, filed by the petitioner, was disposed of by this Court on 06.12.2007, by passing the following order: "Heard the learned counsel on either side. 2. Learned Government Advocate (Crl.Side) submitted that after completing the investigation in Crime No.2085 of 2007, final report has been filed referring it as mistake of fact and R.C.S.No.14 of 2007 has also been filed before the XIII Metropolitan Magistrate, Chennai, on 28.11.2007 and the said R.C.S. Notice was also sent to the defacto complainant / the petitioner herein on 30.11.2007 but the same has been returned with the postal endorsement 'refused to receive'. He further submitted that the said R.C.S. notice has been again sent to the petitioner on 30.11.2007. 3. Hence, on receipt of the R.C.S. notice, the defacto complainant / the petitioner herein is at liberty to file a protest petition before the XIII Metropolitan Magistrate Court, Chennai, if so desires, and if such a petition is filed, the same shall be enquired into by the learned Magistrate in accordance with law. 4. With the above direction, the Criminal Original Petition is closed." 19. For the reasons best known to the petitioner, it took no steps to file protest petition before learned XIII Metropolitan Magistrate Court, Chennai, but chose to file another W.P.No1332 of 2008, which was decided on 04.02.2008. It is interesting to note that the petitioner did not choose to implead the alleged accused in Crl.O.P.No.26530 of 2007 or in Crl.O.P.No.34549 of 2007. In the writ petition filed in this Court also the accused persons were not impleaded. The writ petition filed by the petitioner was disposed of on 04.02.2008. The operative part of the order reads as under: 4. Having regard to the averments contained in the affidavit filed in support of the writ petition and the nature of complaint made by the petitioner against the Inspector of Police, D-1, Police Station, Triplicane, Chennai, it is imperative that the respondents bestow their attention to the said complaint and take appropriate action if the allegations contained in the complaint dated 31.10.2007 turns out to be true. Since the third respondent is the authority under whose control https://hcservices.ecourts.gov.in/hcservices/ the Inspector of Police, D1 Police Station, Triplicane, Chennai, is functioning, the third respondent is directed to consider the complaint dated 31.10.2007 in accordance with law, if necessary by giving an opportunity of hearing to the petitioner and pass appropriate orders expeditiously, preferably within four weeks from the date of receipt of this order copy. 5. With the above direction, the writ petition is allowed. No Costs." 20. The reading of order, passed by this Court, shows that the petitioner had chosen not to disclose the order, passed by this Court in Crl.O.P.No.34549 of 2007, decided on 06.12.2007. 21. The case of the petitioner, set up in the writ petition, is that he has not received Refer Charge Sheet from the Court of competent jurisdiction, therefore, the petitioner has been denied valuable opportunities to contest the matter before Competent Court having jurisdiction in the matter. 22. Nothing has been shown in the affidavit with regard to steps taken by the petitioner in approaching learned XIII Metropolitan Magistrate Court, Chennai. 23. It is disclosed in the affidavit that the petitioner moved this Court by filing W.P.No.12354 of 2007, praying for issuance of writ in the nature of Mandamus, directing the respondents 2 and 3 to communicate the final order, passed on the petitioner's complaint dated 31.10.2007. The writ petition filed by the petitioner was disposed of on the statement of learned Government Advocate that the respondents would pass final order within a period of one week from 18.07.2008. The petitioner complains that this order was also not complied with by the respondent police in letter and spirit. 24. The case of the petitioner is that impugned order has been passed without giving opportunity to the petitioner and without disclosing any reasons. 25. The order impugned has been challenged on the following grounds: i) the order has been passed without giving opportunity of hearing ii) that in the complaint dated 25.07.2007, principal and prime accused was named, but wrong and incorrect FIR was recorded by suppressing truth, state of affairs, by protecting and shielding the principal and prime accused, https://hcservices.ecourts.gov.in/hcservices/ iii) that Police have committed serious misconduct in investigating the petitioner's complaint dated 25.07.2007. On the grounds referred to above, relief as prayed for be passed in favour of the petitioner and against police. 26. Before adverting to merit of the case, it would be appropriate to note that in exercise of powers, conferred under Article 225 of the Constitution of India, the Hon'ble High Court of Madras, has framed rules, regulating proceedings under Article 226 of the Constitution of India. In rules framed, it is provided that every petition is required to set out the provisions of law, under which. it is made. 27. The petitioner is also required to name and describe the accused and respondents, which is to be accompanied by an affidavit. The first part of rules has been complied with. The rules, however, provide that the affidavit, accompanying the writ, is to contain facts and grounds of relief sought. It has to be specifically disclosed whether other remedy is available to the petitioner and if not availed of, reasons thereof. 28. In the present writ petition, the petitioner has not disclosed the remedy available to the petitioner under provisions of Criminal Procedure Code, though he has chosen to mention that for want of notice, he has chosen not to approach learned XIII Metropolitan Magistrate in spite of direction by this Court. 29. The writ petition is opposed by the learned Government Advocate, appearing on behalf of respondents by contending that the order passed by this Court stands complied with. In support thereof, learned Government Advocate has placed on record a copy of the order dated 24.03.2008, which reads as under: "Confidential / Most immediate Office of the Commissioner of Police, Chennai Police, Egmore, Chennai-600 008. No.218/S.B.XII/08 Dated: 24-3-2008 Memorandum A copy of representation dated 31.10.2007 of Tr.Ravi Prakash Khemka, NEPC India Ltd., is enclosed herewith. https://hcservices.ecourts.gov.in/hcservices/ 2. In this connection, the Commissioner of Police has issued the following instructions: As the petitioner alleges that the Inspector wantonly failed to include the main accused in the FIR and then closed the case immediately when he filed a case in the High Court, the allegation may be verified, the correctness or not of the investigation be scrutinised and if required corrective measures taken. The petitioner should also be heard. Details of action taken may be reported within a fortnight. 2. Please take necessary action and report within a fortnight. Encl: For Commissioner of Police" 30. In pursuance to the order passed, a detailed enquiry was conducted by the Inspector of Police and translated copy of the report submitted, reads as under: "On a complaint dated 31.10.2007 sent by Tr.Raviprakash Khemka of NEPC Limited to the Secretary to Government, Home Department, it is mentioned that on 23.07.2007 afternoon at about 15:00 hrs, henchmen engaged by Southern Wind Farm, came to the office of Tr.Raviprakash Khemka and threatened, on 25.07.2007 a complaint was given at D-1, Triplicane Police Station in this regard, there was no immediate action on the complaint, then received order to register a case on a complaint dated 25.07.2007 by the Madras High Court through Crl.O.P.No.26530 of 2007 dated 13.09.2007 dated 13.09.2007, then the case was registered belatedly on 20.10.2007 in D-1, Triplicane Police Station, in the FIR, names of persons belonging to Southern Wind Farm, prime accused in the case were not included, then without taking proper action the case was treated as 'mistake of facts', hence requests action against the Police. As mentioned above by the petitioner in the petition no complaint was given at D-1, Triplicane Police Station on 25.07.2007 stating that henchmen belonging to Southern Wind Farm came to the office of the NEPC Limited situated at No.36, Walajah Road and threatened the petitioner and walked away. To take belated action, the petition Tr.Rajkumar Khemka sent the complaint through Registered Post on 13.09.2007 and based on this complaint, Sub- https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police of D-1, Triplicane Police Station registered a CSR No.137 of 2007 and conducted enquiry. But NEPC did not cooperate for enquiry. On the same day, the petitioner approached the Madras High Court and got a direction vide Crl.O.P.No.26530 of 2007 to register a case on a complaint sent by Registered Post to D-1, Triplicane Police Station. Tr.Radhakrishnan, Sub- Inspector of Plice, D-1, Triplicane Police Station received the above mentioned High Court order on 20.10.2007 and registered a case in D-1, Triplicane Police Station in Crime No. 2085 of 2007 under Section 147, 148, 452 and 506(ii) IPC and was enquiring the witnesses. The investigation carried on after registering the case could not enlighten any such occurrence as alleged by the petitioner and the complaint being untrue, the case referred as Mistake of Fact and the R.C.Notice was refused by petitioner thereby causing it through Registered Post. The final report was sent to Court and the petitioner being directed to be present informing him of the referring of the case, the petitioner did not respond. The final report was filed before the Hon'ble XIII Metropolitan Magistrate Court on 05.12.2007. The Court also sent a notice to the complainant on 27.12.2007 in this regard. The complainant did not attend the Court and was absent. But the petitioner filed Crl.O.P.No.34549 of 2007 for re-investigation which was closed by an order dated 06.12.2007 observing that a protest application to be filed before the Magistrate Court on the referred notice. The MF case file has been submitted to the High Court in a proper way. As mentioned by the petitioner that six goondas barged in and threatened and since the names of four accused namely Raja, Rajesh, Arun and J were clearly mentioned in the complaint, their names were registered in the 7th column of the FIR and on the back side of the FIR all the details given in the complaint without any omission have been registered. It is submitted that no names are omitted in the FIR as alleged by the petitioner. In June 2007, the petitioner entered into Slum Sale Agreement with Southern Wind Farm to sell Wind Energy Division, a division of NEPC for Rs.400 crores. Southern Wind Farm paid Rs.250 crores to the NEPC and without paying the remaining Rs.150 crores the Southern Wind Farm has been cheating. In this regard, the petitioner lodged a complaint in CCB and based on the direction received from the High Court a case was registered on 07.02.2007 https://hcservices.ecourts.gov.in/hcservices/ in CCB Crime No.59 of 2007 under Sections 406, 384 and 506(ii) IPC and the case was closed on the grounds of MF. Further, on 03.09.2007, on an order received from the High Court for the above incident, a case was registered in D-1 Triplicane Police Station in Crime No. 1877 of 2007 under Sections 406, 384 and 506(ii) IPC and the case was transferred to CCB. It is submitted that on enquiry, it is found that since the Southern Wind Farm has not paid the remaining Rs.150 crores to the NEPC, the petitioner has given a false complaint stating that on 23.07.2007 at about 3.00 p.m. hencemen of Kalanidhi Maran, engaged by the Southern Wind Farm barged into NEPC office and threatened. Further, it is submitted that Tr.T.Radhakrishnan, Sub-Inspector of Police, D-1 Triplicane Police Station enquired the case properly not as mentioned by the petitioner, and filed the final report before the Hon'ble Court." 31. The maintainability of the writ was also challenged on the ground of suppression of material facts. In support of this contention, learned Government Advocate wanted to produce affidavit filed by the petitioner. The request was opposed by the petitioner on the plea that no documents can be handed over to the Court, in absence of affidavit filed, in support of the said documents. 32. This contention was upheld for the reason that writ rules, framed by this Court, stipulate filing of affidavit in support of the relief claimed in the writ petition, it would invariably mean that the documents sought to be produced in support of the case should also be included in the pleading to overcome objection, that the Court cannot look into the documents and evidence, which is beyond pleading. 33. This objection of the learned counsel for the petitioner was upheld and affidavit not taken on record. 34. Learned Government Advocate, however, submitted that reading of the order, passed by this Court in W.P.No.1332 of 2008, shows that factum of the petition, filed before this Court i.e. Crl.O.P.34549 of 2007, was not disclosed, vide which, this Court had directed the petitioner to avail its remedy under the provisions of Criminal Procedure Code. 35. On question asked, learned counsel for the petitioner vehemently contended that petitioner, in the present case, is only seeking relief for directing the respondents to take action against Police officials for dereliction of their duty. https://hcservices.ecourts.gov.in/hcservices/ 36. However, this contention, on the face of it, is incorrect, as the prayer in the writ petition is as under: "For the reasons stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may be pleased to issue a writ of Certiorarified Mandamus to call for the records in Rc.No.407/Camp/JC/(CZ)/08 dated 21.07.2008 / 01.08.2008 on the file of the 4th respondent herein and quash the same as ultra vires, unconstitutional, against the rule of law and against the principles of natural justice and consequently, direct the respondent police, viz. the Director General of Police to reinvestigate the entire episode, by entrusting the same to a special team of CBCID in the light of the directions issued by the Allahabad High Court, Uttar Pradesh in Crl.Mis.W.P.No.3251 of 2008 dated 23.05.2008 and thus render justice. Date at Madras, this the 19th day of August, 2008." 37. Learned counsel for the petitioner contended that in spite of order, having been passed by this Court, directing the petitioner to avail his remedy before learned XIII Metropolitan Magistrate, Chennai, this writ petition would be competent. 38. In support of this contention, learned counsel for the petitioner has placed reliance on a judgment of the Hon'ble Allahabad High Court in Crl.M.W.P.No.3251 of 2008 (Ravi Prakash Khemka vs. State of U.P. and others) wherein, while deciding the question as to whether offence under Section 506 IPC is a cognizable offence or not. The objection of alternative remedy was rejected by recording as under: "In such a view of the matter, the Full Bench judgment has to be followed and, therefore, we are of the opinion that once an FIR under Section 506 IPC, has been registered, which is a cognizable and non bailable offence than the Police has to investigate the said FIR under Section 156(1) Cr.P.C., unless it decides otherwise under Section 157(1) Cr.P.C. It was also argued before us that the petitioner has an alternative remedy of approaching the Magistrate concerned. But since all the 3 petitions arise out of different districts, therefore, we have not relegated petitioner to seek remedy before the concerned Magistrate as he had to run from pillar to post to seek same kind of https://hcservices.ecourts.gov.in/hcservices/ relief based on purely legal question. Further, alternative remedy in the present case is neither efficacious nor speedy. Over and above since the same question of law is involved and since the petitioner is seeking the same relief in respect of 3 different cases in 3 different districts, it would have been inappropriate to relegate him before the Magistrate on the question of alternative remedy to seek redressel of his grievance which are identical in nature. In such a view, all the 3 writ petitions are allowed with the direction that the Investigating officer in the respective crime numbers are directed to investigate the offences registered by them and conclude the same expeditiously and submit their report to the concerned Magistrates." 39. The reading of order of the Hon'ble Alllahabad High Court shows that reason for not relegating the petitioner, in the said writ petition to alternative remedy, was that 3 petitions arose out of 3 different Districts. The Hon'ble Allahabad High Court, nowhere, laid down