In the High Court of Judicature at Madras Dated: 01.04.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Writ Petition No.1806 of 2010 M.Chandran @ Thammu Bala ..Petitioner ..vs.. 1. Inspector of Police, (Law & Order), Uthangarai Police Station, Uthangarai, Krishnagiri District. (Ref: CSR No.241/2009) 2. Inspector of Police, (Law & Order) Jolarpet Police Station, Jolarpet, Vellore District. 3. The Superintendent of Police, Krishnagiri District, Krishnagiri. 4. The Superintendent of Police, Vellore District, Vellore. ..Respondents Writ petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Mandamus, for the reasons stated therein. For Petitioner : Mr.A.Ramesh, Senior Counsel for Mr.V.Vijayakumar For Respondents : Mr.R.Murali, G.A., ORDER This writ petition is filed for a direction to the 3rd respondent to club the complaints pending in CSR No.419/2009 and CSR No.241/2009, pending before the 2nd and 1st respondent respectively, and to transfer the same to the District Crime Branch, Krishnagiri with a direction to register and investigate the same expeditiously. https://hcservices.ecourts.gov.in/hcservices/ 2. The averments made in the writ petition are as follows: (a) The petitioner is the absolute owner of the landed property measuring about 4.99 acres at Reddypatti village, Uthangarai Taluk. The petitioner has no issues and he is residing along with his wife under the care of his younger brother Baskaran. He followed 'Bhuddhism' and he decided to develop an Ashram to the followers of 'Bhuddism'. In order to construct the same, he approached one Paramasivam, son of Ponnusamy Chettiar, for mobilizing funds, who, in turn, introduced one Velu, son of Aathimoolam, a Ward Councilor of Uthangarai Town Panchayat. Though they tried to get a loan from various financial sources, they had not succeeded in their attempt. During the year 2008, the said Velu obtained three passport size photographs and a copy of the ration card from the petitioner for getting a free gas connection under the Tamil Nadu Government Schemes, but he did not fulfil his assurance. Since the petitioner was not in a position to mobilize funds, he dropped the construction of Ashram. Hence, he gifted the land to his brother Baskaran on 24.04.2009 by way of a gift deed, registered as Document No.1718 of 2009 and his brother Baskaran had also mutated the revenue records in his name. (b) While the situation stood thus, on 07.05.2009, the petitioner came to know that the said Velu sold his landed property in favour of Nataraja Mudaliar vide Document No.1902 of 2009 registered before the Sub Registrar Uthangarai. On enquiry, he was informed that the said Velu had executed a sale deed as the power agent of the petitioner by showing the power of attorney registered on 30.10.2008, by the Sub Registrar, Jolarpet. Hence, he obtained a certified copy of the power of attorney dated 31.10.2008 and found that his photograph had been affixed on the said power of attorney document, but the thumb impression on the document was not that of him but a forged one. Then only, the petitioner realised that by getting photographs from the petitioner under the guise of getting free gas connection, the said Velu has created a false power of attorney document using the photographs of the petitioner and sold the property in favour of Nataraja Mudaliar. Therefore, the petitioner lodged one complaint before the 1st respondent, under whose jurisdiction the sale deed was registered and another complaint before the 2nd respondent, under whose jurisdiction the power of attorney document was registered. On receipt of the complaint, though the 1st respondent police had issued C.S.R.No.241 of 2009, did not proceed further. But the 2nd respondent on receipt of the complaint, did not enter his complaint into the Community Service Register maintained in his office. Hence, after issuing a legal notice to the said Velu and M.Raja, who stood as witnesses to the sale deed and also to Nataraja Mudaliar (purchaser), he filed a petition before this Court in Crl.O.P.No.10277 of 2009 for directing the 1st respondent to register the complaint dated 11.05.2009 and by order https://hcservices.ecourts.gov.in/hcservices/ dated 03.07.2009, this Court directed the 1st respondent to conduct an enquiry on the complaint of the petitioner within a period of two weeks. Similarly, in the other Crl.O.P.No.10278 of 2009, this Court directed the 2nd and 4th respondents to dispose of the case in accordance with law by its order dated 05.10.2009. In spite of that, they did not obey the said order. Hence, the petitioner has filed a contempt petition No.1021 of 2009 before this Court, wherein the 4th respondent herein apologized before this court and undertook to take necessary steps in accordance with law. Thereafter, after a lapse of two months, the 2nd respondent made an entry in his file as C.S.R.419 of 2009 based on the complaint dated 11.05.2009. Since no effective action was taken pursuant to the orders of this Court and he was forced to withdraw his complaint, and hence he has filed the present writ petition for the relief stated above. (c) The 1st respondent has filed a counter stating that he has conducted an enquiry and referred the case as closed on 25.05.2009 since the case was of civil in nature and advised the petitioner to approach the proper forum. The 2nd respondent also filed a counter stating that he complied with the direction of this Court and the document in question was sent for forensic finger print expert's opinion and they are awaiting for the opinion and as soon as the report is received, they will investigate the matter and file the final report in accordance with law. 3. Learned counsel for the appellant submitted that the complaint was lodged for the commission of cognizable offences, namely, forgery, impersonation, etc. The petitioner had to run from pillar to post for registering the complaint lodged by him. It has been stated in the counter filed by the 1st respondent that his complaint was closed as early as 25.05.2009 itself, but, till date, no communication was sent to the petitioner. Similarly, the 2nd respondent in his counter stated that the document was sent to the expert's opinion. Even without registering the complaint, the document had been sent to the expert's opinion, which would show that he was adopting delayed tactics in not registering the complaint for the reasons best known to him. Further, though the complaint was lodged on 11.05.2009, even after ten months, the complaint had not seen the light of the day. Hence, both the complaints pending before the 1st and 2nd respondents have to be clubbed together and transferred to the District Crime Branch, Krishnagiri for investigation. 4. Opposing the submissions made by the petitioner, the learned Government Advocate submitted that the writ petition for a direction to register the complaint is not maintainable under Article 226 of the Constitution of India. Moreover, already two criminal original petitions were filed by the petitioner in Crl.O.P.Nos.10227 and 10228 of 2009 for a direction to the 1st and 2nd respondents to register the complaint, in which the court has given a direction to the https://hcservices.ecourts.gov.in/hcservices/ respondents to register the complaint and proceed with the enquiry, in accordance with law. Therefore, the writ petition has to be dismissed on the ground of maintainability. Further, the learned Government Advocate, by relying upon the judgment of the Hon'ble Supreme Court reported in (2008)2 SCC 409 (SAKIRI VASU ..vs.. STATE OF U.P. AND OTHERS) submitted that the Apex Court has held that a direction to register a complaint cannot be sought by a writ petition when there are many other alternative remedies available to the petitioner and following the said dictum, this Court in (2008) 8 MLJ 485 (SUN T.V.NETWORK LTD., ..vs.. STATE OF TAMIL NADU) has held when the remedy is available by taking recourse under the Criminal Procedure Code, writ petition under Article 226 of the Constitution is not maintainable. Further, he has also relied upon another judgment of this Court reported in CDJ 2009 MHC 4300 (CRL.O.P.No(MD.) No. 8464 of 2008 delivered on 19.02.2009 (S.Uthaya Suriyan ..vs.. STATE) in support of his contention that the power under section 482 Cr.P.C. should be sparingly exercised. 5. With regard to the said arguments, the learned counsel for the petitioner submitted, by relying upon the judgment reported in (1998) 5 SCC 749 (PEPSI FOODS LTD ..vs.. SPECIAL JUDICIAL MAGISTRATE AND OTHERS) that the petition filed under Article 226 can be treated as one under Article 227 of the Constitution or section 482 Cr.P.C. Therefore, there is no bar in seeking for a direction to the respondents to register the complaint and transfer the same. Further, the learned counsel for the respondent relied on the judgment rendered in Crl.O.P.9245 of 2008, wherein this Court by relying on SAKIRI VASU's case has held that the Hon'ble Supreme Court does not come under exception and that in appropriate cases, in order to prevent the miscarriage of justice, directions can be issued. Further, the learned counsel relied on the judgment reported in 2008-2-L.W.(Crl.) 843 (A.SOWFILA ..vs.. THE COMMISSIONER OF POLICE, MADURAI AND OTHERS) and submitted that considering the facts and circumstances of that case which apply to the facts of the present case, the prayer sought for has to be allowed. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Keeping in view the submissions made by the learned counsel on either side, the question that has to be decided in this writ petition is, whether the prayer sought for by the petitioner can be allowed or not ? 8. The contention of the learned Government Advocate is that a direction to the police officials to register the complaint could be entertained only under section 482 of the Criminal Procedure Code and after exhausting the remedies by filing petitions under section 154 (3) or section 200 Cr.P.C. then only, he can move this Court under section 482 Cr.P.C. Now, it is pertinent to rely on the decision of the Apex Court reported in (2008)2 SCC 409 (cited supra), wherein it https://hcservices.ecourts.gov.in/hcservices/ has been held as follows: "26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) CrPC or other police officer referred to in Section 36 CrPC. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) CrPC instead of rushing to the High Court by way of a writ petition or a petition under Section 482 CrPC. Moreover, he has a further remedy of filing a criminal complaint under Section 200 CrPC. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies? 27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High court should discourage the practice of filing a writ petition or petition under section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Sections 36 and 154(3) before the police officers concerned, and if that is of no avail, under Section 156(3) CrPC before the Magistrate or by filing a criminal complaint under Section 200 CrPC and not by filing a writ petition or a petition under Section 482 CrPC". 9. Following the said dictum, this Court in (2008) 8 MLJ 485) has held as follows: "11. The first and foremost issue that has to be considered in the writ petition is, whether the remedy of the petitioner lies before this Court exercising its power under Article 226 of the Constitution of India or whether the remedy of the petitioner lies elsewhere as contemplated under the Criminal Procedure Code. The matter in issue came in consideration before the then Hon'ble First Bench of this Court and it has been held by the then Hon'ble First Bench that the remedy of the person in given circumstances is only by taking recourse under the Criminal Procedure Code. The same is Venu Srinivasan ..vs.. Krishnamachari and Others (2005) 4 MLJ 596: 2005-3-L.W.87. It would be useful to refer paragraphs 9 to 16 of the said judgment, which are extracted hereunder: "9. In our opinion, whenever it is alleged that a https://hcservices.ecourts.gov.in/hcservices/ criminal offence has been committed, the complainant should ordinarily first avail of his remedy of filing an F.I.R.in the police station under Section 154(1) of the Cr.P.C. 10. Under that provision information relating to the commission of cognizable offence can be given to an officer in charge of the police station. Section 154(3) of the Cr.P.C. states that if an officer in charge of the police station refuses to record the information referred to in sub-section(1) of Section 154 of the Cr.P.C., the complainant can send the substance of the information in writing by post to the Superintendent of Police concerned. Thus, if the Station House Officer of a police station refuses to register an F.I.R., the complainant has an alternative remedy by approaching the Superintendent of Police under Section 154(3) of the Cr.P.C. 11. ......." Hence, it is clear that the petitioner cannot approach this Court by filing this writ petition since the Honble Apex Court has taken the view that the remedy of the petitioner does not lie before this Court in filing the writ petition under Article 226 of the Constitution or to exercise the power of this Court under Article 227 of the Constitution or under section 482 Cr.P.C. 10. On the contrary, the learned counsel for the petitioner relied on the decision reported in AIR 2006 SC 1322 (RAMESH KUMARI .. vs.. STATE (N.C.T.OF DELHI AND OTHERS) in support of his contention that a direction can be given to the independent agency like CBI to investigate the matter if the allegations are made against the police personnel, wherein it has been held as follows: "4. That a police officer mandatorily registers a case on a complaint of a cognizable offence by the citizen under Section 154 of the Code is no more res integra. The point of law has been set at rest by this Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). This Court after examining the whole gamut and intricacies of the mandatory nature of Section 154 of the Code has arrived at the finding in paras 31 and 32 of the judgment as under: “31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the police officer concerned cannot embark upon an enquiry as to whether the information, laid by the https://hcservices.ecourts.gov.in/hcservices/ informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible. On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.) In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by sub-section (3) of Section 154 of the Code. 32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression ‘information’ without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, ‘reasonable complaint’ and ‘credible information’ are used. Evidently, the non- qualification of the word ‘information’ in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word ‘information’ without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into https://hcservices.ecourts.gov.in/hcservices/ writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence.” Finally, this Court in para 33 said: “33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” 11. In (2008) 2 MLJ (Crl.) 796 (G.AROKIYA MARIE ..vs.. SUPERINTENDENT OF POLICE), it has been held as follows: "While discouraging the invocation of inherent jurisdiction by the persons who allege commission of offence of lesser gravity which may not require immediate investigation, the Court shall entertain petitions under Section 482, Code of Criminal Procedure, 1973 involved by the victims of heinous crimes who cry for registration of a case and investigation forthwith in order to do complete justice". Since the other judgments cited by the petitioner are also on the same line, they are not dealt with. 12. On going through the decisions relied on by both sides and the submissions made, I am of the opinion that the proposition depends upon the facts and circumstances of each case. In (2008)2 MLJ (Crl.)796, this Court has held that the rule enunciated by the Hon'ble Supreme Court is not without exception and that in appropriate cases, in order to prevent miscarriage of justice, directions can be issued. Therefore, the question that has to be decided is whether it is proper for this Court to give a direction to the police to register the complaint or not ? 13. It is the case of the complainant/petitioner that he intended to put up an Ashram to the followers of 'Buddha' in his property and as such, he approached one Velu for mobilisation of https://hcservices.ecourts.gov.in/hcservices/ funds; thereafter, he dropped the idea of the construction of Ashram since he could not get the loan; hence, he gifted the property to his brother Baskaran and in recognition of the same, the revenue records were changed to his name; in the meantime, the said Velu sold the petitioner's property to one Nataraja Mudaliar by creating an alleged forged power of attorney document affixing the photographs of the petitioner, which were given by the petitioner to the said Velu in the guise of getting a free gas connection from the Government. On coming to know the said sale, immediately the petitioner gave a complaint to the 1st respondent as well as to the 2nd respondent; since the same were not registered, he approached this Court by filing Crl.O.P.Nos.10227 of and 10278 of 2009; pursuant to the orders of this Court, the complaints were registered and according to the 1st respondent, the complaint under C.S.R.No.241 of 2009 was closed on 25.05.2009 since the case was of civil in nature; according to the 2nd respondent, after enquiry, the documents were sent to the finger print expert for their opinion and they are awaiting for the report. 14. From the said facts, it is to be noted that, as contended by the learned counsel for the petitioner, even without registering the complaint, the 2nd respondent has sent the documents for expert’s opinion. The attitude of the 2nd respondent fortifies the contention of the petitioner that the 2nd respondent has not shown any interest in investigating the case of the petitioner. A perusal of the entire materials would go to show that the petitioner was made to run from pillar to post by the respondents for the registration of the complaint. 15. The Hon'ble Supreme Court in SAKIRI VASU's case, referred to above, has held that instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C., the petitioner can approach a Magistrate (Criminal court) and he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. But, in the instant case, the petitioner was constrained to wait for more than ten months in registering the complaint. Under such circumstances, it cannot be construed that the petitioner has approached this Court immediately on filing the complaint, since the investigation has not yet been done. If the petitioner is directed to avail the alternative remedies, he may not get justice at this length of time. Moreover, I am of the opinion that the prayer sought for by the petitioner is maintainable, in view of the dictum laid down in the Pepsi case (cited supra). 16. Moreover, the attitude of the 2nd respondent would show that no appropriate action has been taken in accordance with law. Under such circumstances, it is not proper to allow the 2nd respondent to conduct the investigation. Taking into consideration the facts and circumstances of the case, I am of the opinion that this is a fit case where this Court can grant the relief sought for by the https://hcservices.ecourts.gov.in/hcservices/ petitioner by exercising its inherent jurisdiction. 17. It is pertinent to point out that from the counter filed by the 1st respondent, it could be understood that the complaint pending in C.S.R.No.241 of 2009 was closed as it is civil in nature. Therefore, I am of the opinion that, there is no necessity to transfer the same to another agency. 18. For the reasons stated above, the 3rd respondent is directed to transfer C.S.R.No.419 of 2009 pending on the file of the 2nd respondent, to the District