1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.1118 of 2011 K.Uma Maheswari ... Petitioner Vs. 1.The Superintendent of Police, Madurai Rural, Madurai. 2.The Deputy Superintendent of Police, Melur,Madurai District. 3.The Inspector of Police, Melur Police Station, Melur,Madurai District. ... Respondents PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to direct the 3rd respondent police to register the case against the accused on the basis of petitioner’s complaint dated 10.12.2010 and investigate the same under the supervision of the 1s respondent and proceed as per law within a time frame fixed by this Court. For Petitioner :Mr.K.Samidurai For Respondents :Mr.L.Murugan Govt. Advocate (Crl.side) For Intervenor : Mr.T.K.Gopalan ORDER This Criminal Original Petition has been filed by the petitioner, who is the defacto complainant seeking a direction from the Court against the 3r respondent to register her complaint dated 10.12.2010 and to investigate the same under the supervision of the 1st respondent and to fix a time for investigation and to file a final report. 2. Heard Mr.K.Samidurai, learned counsel for the petitioner and Mr.L.Murugan, learned Government Advocate (Criminal side) appearing for the respondents/State and Mr.T.K.Gopalan, learned counsel for the intervenor/proposed accused. 3.The learned counsel appearing for the petitioner would submit in his argument that the petitioner’s husband is in possession and enjoyment of 4 acres 15 cents of agricultural land at Ulaganathapuram and there is a public path way lies in S.No.34/18 and only through the said path way, the husband of the petitioner used to reach the property and there was a case pending on the file of the District Munsif, Melur in O.S.No.331 of 2010 against the accused person and the petitioner’s husband was using the said public path way , but, the accused person viz., K.Ramamoorthy was trying to encroach the public path way and prevent the petitioner’s husband from using the path way to reach his property and while doing so, he had threatened the petitioner’s https://hcservices.ecourts.gov.in/hcservices/ 2 husband that if he claim any right over the path way, the accused would be put in a tomb for the petitioner’s husband on the said pathway and the said accused also filed a false case and abused the petitioner’s husband with filthy language and insulted him. The 3rd respondent police had not registered the complaint despite the receipt of the complaint was given to her. Therefore, she would request the Court to issue a direction to the 3r respondent police to register the complaint and to proceed investigation and to file charge sheet accordingly. 4.The learned Government Advocate (criminal side) would submit in his argument that the dispute is lying with the civil Court and the civil Court has to decide the right over the path way and however, the respondent police would go into the criminality of the case and if any prima facie case is made out, the case will be registered. If for any reason, there is no prima facie case is made out, it will be dropped and the petitioner cannot insist the respondent to register the complaint. 5.He would further submit that a complaint was also given by the probable accused against the petitioner’s husband and it was registered in crime No.54 of 2011 for the offence under Sections 447, 427 and 506(ii) I.P.C. and therefore the enmity had in between both the parties is being continued and the respondent police would do the necessary thing only after the enquiry and if prima facie case is made out. 6.The learned counsel appearing for the intervenor/accused would submit in his argument that he should be given an audience to object the filing of the case since the incident did not take place as stated by the petitioner He would further submit that the petitioner has come forward with false complaint in order to grab the property of intervenor by saying that the property is a path way. He would also cite a decision of the Hon’ble Apex Court reported in 1993 Supreme Court Cases (Cri) 1171 in between Union of India and Another V. W.N.Chadha towards the right of audience to the accused when it is not defeating the provisions of law even at the time of registration of complaint. Therefore, he would request the Court that the request of the petitioner need not be considered and it may be dismissed. 7.I have given anxious thoughts to the arguments advanced on either side. 8.The petitioner has filed a complaint against the intervenor before the 3rd respondent police on 10.12.2010 and a receipt was also given by the 3rd respondent police to the petitioner. According to the submission of the respondent police, the said complaint is pending enquiry. The intervenor/accused would state that the allegations made in the complaint are false. However, the learned counsel for the intervenor would state that the accused can be given audience even at the stage of registration of complaint against him. In the judgment of Hon’ble Apex Court reported in 1993 Supreme Court Cases (Cri) 1171 in between Union of India and Another V. W.N.Chadha the Aped Court, laid down the proposition as follows: “Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law https://hcservices.ecourts.gov.in/hcservices/ 3 “lifeless, absurd, stultifying situation” and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.” In the said judgment, the rule in the maxim “audi alteram partem” can be excluded when no ends of justice, be caused to the person, who is seeking for audience. As far as this case is concerned, the intervenor is the accused, who want to raise his voice even at the time of registration of a case against him in a complaint given by the petitioner. As far as the registration of the complaint is concerned, the Court cannot decide and direct to register the complaint as per various decisions of Hon’ble Apex Court. The domain of registration of complaint is the police authorities They have to make preliminary or discreet enquiry over the allegations made in the complaint and to find out the truth in the allegations so as to establish a prima facie and thereafter to register a complaint. This Court cannot decide as to the prima facie case made in any complaint much less in the complaint filed by the petitioner. 9.Similarly, this Court cannot also hear the objection of the intervenor and as to how to do investigation and it is the domain of the police and they have to go through the allegations made in the complaint and to come to a conclusion. They are at liberty either to register a case, if prima facie case is made out or to drop the case as no prima facie case is made out. Therefore, the intervenor has no say in the registration of the complaint. It is the duty of the police to examine even the accused/intervenor if necessary for ascertaining the truth of the allegations. Therefore the intervenor will not be prejudiced, if no audience is given before the Court. 10.As stated earlier, the police has to go through the allegations made in the complaint and to test the veracity of allegations and thereafter, if prima facie case is made out to register a complaint. If for any reason, the 3rd respondent police have not registered the complaint, the petitioner is not remediless. The relief sought for by the petitioner for registration of the complaint has been dealt with by the Hon'ble Apex Court in Sakiri Vasu v. State of U.P. reported in 2008(1) MLJ (Crl) 1393 (SC) equivalent to the judgment reported in 2007 (4) Crimes 338 (SC). According to the said judgment, the complainant should approach the Superintendent of Police in the event of the 3rd respondent police failed to proceed with the registration of the complaint and on the failure of the Superintendent of Police to pass any order under Section 154(3) Cr.P.C., the complainant should approach the Judicial Magistrate concerned by filing a complaint either under Section 190 Cr.P.C. or under Section 200 Cr.P.C. to pursue the complaint. It is the discretion of the learned Judicial Magistrate either to take cognizance of the case under Section 200 Cr.P.C. or to refer the complaint for being investigated by the jurisdictional police under Section 156(3) Cr.P.C. So far as this case is concerned, the petitioner is yet to seek remedy before the jurisdictional Judicial Magistrate concerned before approaching this Court. Therefore, it has become necessary for this Court to direct the petitioner to file a complaint before the Judicial Magistrate concerned if necessary, after the formalities before police, ended against the petitioner. On such filing of the complaint, the Judicial Magistrate concerned may either refer the same under Section 156(3) Cr.P.C. or to proceed under Section 200 Cr.P.C. Thereafter only the petitioner has to https://hcservices.ecourts.gov.in/hcservices/ 4 approach this Court, if necessary. Therefore, the petitioner should approach this Court only after exhausting all the process of law as contemplated. But he had approached this Court without following the procedures mentioned therein and therefore this Court has no other option to dispose the petition with the aforesaid observations. Accordingly, this Petition is disposed of. Sd/- Assistant Registrar(P&A) /TRUE COPY/ Sub Assistant Registrar To 1.The Superintendent of Police, Madurai Rural, Madurai. 2.The Deputy Superintendent of Police, Melur, Madurai District. 3.The Inspector of Police, Melur Police Station, Melur, Madurai District. 4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Crl.O.P.(MD)No.1118 of 2011 arul PA/04.03.2011/4P/5C https://hcservices.ecourts.gov.in/hcservices/