IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-08-2008 CORAM: THE HON'BLE MR.JUSTICE P.K.MISRA AND THE HON'BLE MR.JUSTICE K.KANNAN W.P.NO.34350 OF 2007 1.N.Ganapathy 2.R.Parasuraman 3.M.R.Srinivasan 4.K.Padmanabhan ...Petitioners Vs. 1.The Director General of Police, Office of the Director General of Police, Chennai-4, 2.The Commissioner of Police, Office of the Commissioner of Police, Coimbatore 640 018. 3.Mr.Srinivasulu, Inspector of Police, B-6, Peelamedu Police Station, Coimbatore 641004 4..Mrs.T. Kantharaj 5.Mr.A.Mohan 6.Mr.A.Manoharan 7.Mr.T.K.Thiagarajan 8.N.Shantha 9.Mrs.Jagamdambal ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus directing the 1st and 2nd respondents to hold and enquire into the matter and consequently take up appropriate action against the 3rd respondent for abusing official power as well as against respondents 4 to 6 and initiate action against them for holding katta panchayat in police station and forcibly obtaining cheques and other documents by traumatizing the petitioners and consequently direct the respondents 3 to 9 to return the cheques and settlement letters to the petitioners. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners; Mr.G.Rajagopal ` Senior Counsel Mr.S,A.Hafiz For Respondents 1 & 2: Mr.K.Elango For Respondents 4 to 9 : M.A.L.Somayaji for Mr.S.Kadarkarai For Respondent No.3 : Mr.Vijay Narayanan Senior Counsel for Mr.R.parthiban ------ O R D E R K.KANNAN,J Heard Mr.G.Rajagopal, learned Senior counsel appearing for the petitioners, Mr.K.Elango, Special Government Pleader for respondents 1 & 2, Mr.Vijaya Narayanan, learned Senior counsel for respondent No.3 and Mr.A.L.Somayaji, learned Senior Counsel for respondents 4 to 9. The relief claimed and controversy stated: 2. The writ petition has been filed seeking for a direction to the respondents 1 and 2 to hold an enquiry and take appropriate action against the third respondent for alleged abuse of official power as well as against respondents 4 to 6 for holding Kattapanchayat in Police station and forcibly obtaining cheques and other documents from the petitioners. The writ petition contains a further relief by way of direction to respondents 3 to 9 to return the cheques and settlement letters to the petitioners. 3. The issue in this case is as to the nature of action that could be directed against the police if it indulges in arm twisting tactics in settlement of the purely private civil dispute. Summary of facts: (i)Petitioners' version: 4. The facts narrated in the affidavit are to the effect that the petitioners were partners of the firm dealing in real estate and availed loans from respondents 4 to 6 and others. The petitioners claimed that the loans had been discharged, but the erstwhile creditors gave a complaint to the police for the alleged offences of cheating and breach of trust against the petitioners, https://hcservices.ecourts.gov.in/hcservices/ which resulted in the third respondent gaining control over the affairs and coercing the petitioner in issuing cheques to the tune of about Rs.25 lakhs and also executing settlement letters. "According to the petitioners,the cheques and other documents were executed out of mortal fear for the lives induced on them by the police at the instance of other respondents. The so called settlement was the result of Kattapancyayat and the highhanded and arbitrary action of the police, who ought to have been a guardian of law, but who indulged in gross nepotism calculated to help the money lenders who are powerfully connected. The petitioners further stated that the incident had taken place at the Police Station on 27.8.2007 when a criminal case had been threatened to be foisted against the petitioners with still further threat to publish their photographs in print media and that the documents were executed by them only under such vitiating circumstances. The petitioners issued a notice on 9.10.2007 through their lawyer to respondents 4 to 6 requiring them to return the cheques, but the respondents have failed to comply with the demands. II.Respondents' plea: 5. Respondents1 and 2 have made their submissions through special Government Pleader, but they have not filed any counter. 6. The third respondent is represented through their counsel and has refuted the contentions made against him. Respondents 4 to 9 also entered appearance through counsel and countered the allegations made in the writ affidavit. The third respondent would specifically deny that any form of threat or coercion was practised on the petitioners, but would say that when a complaint had been received from respondents 4 to 9 against the petitioners, he sought for the presence of the petitioners for enquiring into the matter. The petitioners had come with their counsel and voluntarily offered to settle the claims, further requesting not to register the complaint. There was no scope for taking up criminal action only on account of the fact that the petitioners had voluntired to settle the claims and there was no need for any further enquiry. 7. Respondents 4 to 9 have countered the allegations made by the petitioners by stating that the petitioners had been collecting money running to several lakhs from various persons for their alleged requirement of business, but they have been deliberately cheated by non-repayment. They admitted the fact that they had given a complaint before the police and the petitioners, during the course of enquiry, had come forward to settle the claim and gave cheques voluntarily for the amounts due https://hcservices.ecourts.gov.in/hcservices/ by them and had also executed a settlement letter dated 27.8.2007. After more than a month, they issued a notice on 9.10.2007 to wriggle out of their obligations. They denied the plea by the petitioners that the amounts due to them had been settled even earlier and that some claims had been barred by limitation. The issue of cheques and execution of documents were voluntary acts and no form of threat or coercion had been practised at the instance of the police. Respondents 4 to 9 are miserably aged, retired from service and they are monthly salary people. They have no need to deliberately give a false complaint, if their amounts have been settled earlier. (iii)Plea in reply: 8. The fourth petitioner has filed a reply affidavit by himself and on behalf of others reiterating the averments contained in the affidavit and also denying the fact that his advocate Mr.Rajendran has come to the police station on 27.8.2008 and that he had mooted out the idea of settlement and the cheques were made in his presence. The petitioners further states that they have no clue about the nature of complaint given by respondents 4 to 9, but the third respondent had only been stating that respondents 4 to 9 had given a complaint to the effect that the petitioners were holding out threats to kill them and by so doing, petitioners were threatened that the police would book them under various sections of Penal Code and secure their incarceration, without bail. The petitioners would further state that the details of conversations with the third respondent, on his mobile phone on various dates giving vent to his insistence of settling the dues to respondents 4 to 9 had also recorded in digital form and C,D.s and they were ready to produce the CDs and their transcriptions to vouch for the s plausibility of their contentions. Each one of the petitioners claim to be of old aged and that they feel tormented by the police action. Appraisal of rival contentions: 9. The admitted contentions leave no more than the fact that the petitioners had been originally indebted to respondents 4 to 9 and beyond that every vital narration of the averments made in the affidavit have been the bones of contentions between the parties. The petitioners would state that all the claims are barred by limitation,while respondents 4 to 9 would contend that interest was being paid periodically and all the debts were alive. The petitioners would state that they were summoned to the Police station on a complaint given by respondents 4 to 9. But they have never knew the nature of the complaint nor were they shown the copy of the complaint itself. On the other hand, respondents 4 to 9 would say, which third respondent affirms in his affidavit https://hcservices.ecourts.gov.in/hcservices/ that the complaint related to the fact of borrowing by the petitioners, the subsistence of liability and the failure of the petitioners to honour the commitments, despite the promise. Again. the petitioners would say that their advocate Mr.Rajendran had not gone to the police station and did not prevail on them to settle the claims or prepared any form of settlement letters or documents,while the third respondent would state that the complaint itself had not been registered only on account of the assurance before the police in the presence of their advocate to settle their claims voluntarily. 10. The question whether there existed a subsisting liability of the petitioners to respondents 4 to 9 or whether they came forward to settle their alleged outstanding voluntarily by executing the cheques and settlement deeds cannot be obviously a subject of adjudication before us in the writ jurisdiction when vital particular are disputed. We are afraid that we cannot also give any direction in a manner which is purely a matter of private dispute, although the petitioners have made a vague averment in the affidavit that the case was being filed in public interest. The only element of public interest, when we get lynx-eyed and examine the welter of allegations and counter allegations is that the action of the third respondent police took the shape of Kattapanchayat. How to rein in Kattapanchayats by police? Treading the beaten path: 11. The Division Bench of this Court in K.Gopal Vs. The State of Tamil Nadu rep. by Chief Secretary, Fort St.George, Chennai and others reported in 2005(4) CTC 241 deprecated the practice of police attempting to force settlement of parties by using all threats which were akin to Kattapanchayat. In that particular case, the Division Bench had also directed that it would constantly monitor instances where the settlements were proffered through such means. 12. The petitioners relied on the decision of the Supreme Court in Indian Oil Corporation Vs. M/s NEPC India Limited reported in AIR 2006 Supreme Court 2780 where the Supreme Court had lamented about the tendency in business circles to convert purely civil disputes into criminal cases on presumption that civil law remedies were time consuming and did not adequately protect the interests of lenders/creditors. Noticing the proclivity of persons using the police machinery with threats of criminal prosecution, as a potent weapon to secure settlement in the way they wanted, the Supreme Court had given a directive that https://hcservices.ecourts.gov.in/hcservices/ one positive step that could be taken by the Courts to curb unnecessarily prosecutions and harassment of innocent parties is to exercise their power under Section 250 Cr.P.C. more frequently where they discern malice or frivolousness or ulterior motives on the part of the complainant. 13. There cannot be any two opinions about the need for deprecating the emerging practice of arm twisting tactics of trying to settle the civil disputes through police intervention. At the other end of the spectrum, this Court has frowned upon the apathy shown by the police in instances when there are genuine complaints to be redressed, but when they spurn the grievances by specious reasoning that they involved some civil rights and that they could make have no intervention through a criminal proceeding. In a recent decision of this Court Mr.Justice R.Regupathi, while disposing off a petition for anticipatory bail in Crl.O.P.No.12170 of 2008 by an order dated 11.6.2008 has given a guidelines on the nature of approach that the police should make when complaints are made before them regarding commission of cognizable offence. He has denounced the practice of 'petition enquiry' as a phenomenon unknown to criminal law and we have no hesitation to affirm the said view. Indeed, we are concerned with a situation whether the police could have undertaken any form of enquiry when there had been a complaint of the commission of cognizable offence without registering the complaint. The Supreme Court has clearly laid down in the decision in Mohamed Yousuf Vs. Mrs.Afaq Jahan reported in AIR 2006 SC 705 : 2006(1) SCC 627 that registration of FIR involves only the process of entering the subsisting information relating to commission of cognizance offence in a book kept by the officer in charge of the police station. Even in the given case, if the Magistrate does not direct the registration of FIR, it would be the duty of the officer in charge to register the FIR. In yet another decision in Ramesh Kumari Vs. State (NCD of Delhi) and others reported in AIR 2006 SC 1322: 2006 (2) SCC 677 the Court has said that the genuineness or credibility of information is not a condition precedent for registration of a case and the police is bound to register the case on the mandatory provision of 154(1) of Cr.P.C. We asked the counsel for the third respondent as to how the third respondent could have undertaken any form of enquriy without registering a complaint. He responded with the decision of the Supreme Court in State of Uttar Pradeh Vs. Bhagwant Kishore Joshi reported in AIR 1964 (SC) 221 :(1964) 3 SCR 71 drawing our attention to their observations: "8. The first question is whether the enquiry made by him before he obtained the permission of the Magistrate was ‘investigation’ within the meaning of the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Code of Criminal Procedure. Section 154 of the Code prescribes the mode of recording the information received orally or in writing by an officer in charge of a police station in respect of the commission of a cognizable offence. Section 156 thereof authorizes such an officer to investigate any cognizable offence prescribed therein. Though ordinarily investigation is undertaken on information received by a police officer, the receipt of information is not a condition precedent for investigation. Section 157 which prescribes the procedure in the matter of such an investigation can be initiated either on information or otherwise. It is clear from the said provisions that an officer in charge of a police station can start investigation either on information or otherwise. Under Section 4(1) of the Code of Criminal Procedure, “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.” This Court in H.N. Rishbud and Inder Singh v. State of Delhi described the procedure prescribed for investigation under Chapter XIV of the Code of Criminal Procedure thus: “Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so https://hcservices.ecourts.gov.in/hcservices/ taking the necessary steps for the same by filing of a charge-sheet under Section 173.” Did Mathur, the Sub-Inspector, make such an investigation before he obtained the permission of the Magistrate under Section 5- A of the Act? Ex. P-113 shows that Khanna, the Railway Sectional Officer, received through a source information that the accused was in the habit of misappropriating government money by not accounting for the sale proceeds of blank paper and other tickets; it also indicates that the information received by the said officer was not vague, but contained precise particulars of the acts of misappropriation committed by the accused. On April 26, 1956 he sent a report of the information received to the Superintendent of Police, Special Police Establishment, Lucknow, indicating to him that if a proper investigation was made many more cases of misappropriation would come to light. On the receipt of the said report, matter was entrusted to the said Mathur, a Sub-Inspector of Police of the Special Police Establishment, Lucknow. As PW 20 he describes the steps he had taken pursuant to the information given in the said report. He verified the allegations contained in the information given by Khanna, saw the relevant railway records after taking the permission of the Station Master and found the information given to be correct. On the basis of the information collected, he submitted a report. But the full details of the enquiry were not mentioned therein. He also did not prepare any case diary in respect of the said enquiry. The said report is not in the record. We may assume that the Sub-Inspector did nothing more than what he states he did in his evidence. Even so the said police officer received a detailed information of the offences alleged to have been committed by the accused with necessary particulars, proceeded to the spot of the offence, ascertained the relevant facts by going through the railway records and submitted a report of the said acts. The said acts https://hcservices.ecourts.gov.in/hcservices/ constituted an investigation within the meaning of the definition of “investigation” under Section 4(1) of the Code of Criminal Procedure as explained by this Court. The decisions cited by the learned counsel for the State in support of his contention that there was no investigation in the present case are rather wide off the mark. In In re Nanumuri Anandayya a Division Bench of the Madras High Court held that an informal enquiry on the basis of a vague telegram was not an investigation within the meaning of Section 157 of the Code of Criminal Procedure. In In re Rangarujulu, Ramaswami, J. of the Madras High Court described the following three stages a policeman has to pass in a conspiracy case; “...hears something of interest affecting the public security and which puts him on the alert; makes discreet enquiries, takes soundings and sets up informants and is in the second stage of qui vive or lookout; and finally gathers sufficient information enabling him to bite upon something definite and that is the stage when first information is recorded and when investigation starts.” This graphic description of the stages is only a restatement of the principle that a vague information or an irresponsible rumour would not in itself constitute information within the meaning of Section 154 of the Code or the basis for an investigation under Section 157 thereof. In State of Kerala v. M.J. Samuel a Full Bench of the Kerala High Court ruled that, “it can be stated as a general principle that it is not every piece of information however vague, indefinite and unauthenticated it may be that should be recorded as the first information for the sole reason that such information was the first, in point of time, to be received by the police regarding the commission of an offence”. The Full Bench also took care to make it clear that whether or not a statement would constitute the first information report in a case is a question of fact and would https://hcservices.ecourts.gov.in/hcservices/ depend upon the circumstances of that case. These and such other decisions were given in the context of the question whether an information given was the first information within the meaning of Section 154 of the Code: they are not of much relevance in considering the question whether in a particular case a police officer has made an investigation of a cognizable offence within the meaning of Section l57 of the Code; that would depend upon the nature of the information received by the police officer, and the steps taken by him for ascertaining the truth of the information and for detecting the crime. 9. In this case, the information received was clear and precise and the Sub- Inspector, on the basis of the said information, went to the spot to investigate into the truth of the allegations and indeed took some of the crucial steps to detect the crime. We, therefore, hold that the Sub- Inspector of the Police made investigation of the offence before obtaining the requisite permission of the Magistrate." 14. This decision found favour with a recent decision of the Supreme Court in SHASIKANTH VS. CENTRAL BUREAU OF INVESTIGATION AND OTHERS reported in 2007(1) SCC 360 at 630. These two decisions mark out exceptions to situation that it may not be at all times necessary to register a complaint and to be well within the powers of the police to summon for a preliminary enquiry on the basis of complaint received by them. These two decisions do not, in our view, represent a different strand of judicial approach, for the decisions could seem to be confined to the particular fact situations in the respective cases. In the decision of AIR 1964 SC 221 the Court was concerned about an anonymus telegram and the subsequent decision in 2007 (1) SCC 630, was a case of complaint with vague averment of commission of offence. These two decisions do not detract from legal proposition that firmly establishes that when there is a complaint of commission of cognizable offence, it shall be the duty of the police to register the complaint for investigation. The third respondent would add a second string to his bow for justifying the non-registration of complaint referring to a memorandum issued by the office of the Inspector General, Western zone, Coimbatore dated 31.1.2003 to all the subordinates containing general https://hcservices.ecourts.gov.in/hcservices/ instructions about how they should approach the complaints of commission of white collar crimes. It has been suggested therein that no case shall be registered without the approval of the concerned of DCs./SPs. We do not want to detain ourselves to examine the memorandum for its tenability or otherwise in the teeth of clear provisions of Cr.P.C. and pronouncements of Courts. We have little doubt that it could serve no more than mere instructions for streamlining their own flow of administrative authority and cannot operate to supplant the requirement of law. We have given loud expressions to the concern by reference to the decisions of Supreme Court and this Court only to emphasise that if Kattapanchayat were to be weeded out there is duty to register the complaint whenever the complaint on commission of cognizable offence is made . That alone will ensure the abatment of arm twisting tactics of settling civil disputes through police intervention. Factors weighing against judicial intervention: 15. Having said so, we are still unable to persuade ourselves to give any relief to the petitioners, since the other vital aspect that could have prompted us for any intervention on their behalf is stone-walled by inherent susceptibility found in the petitioner's case itself. The petitioners cannot have the relief through this Court by exercising the jurisdiction under Article 226 of the constitution of India on matters which are essentially disputed questions of fact. There are atleast three instances viz., (1)the questions whether handing over of cheques and execution of settlement dues were voluntarily done or not ii) whether the advocate of the petitioners was present at the police station and the documents were executed only with his assistance or not (iii) whether there exists subsisting liability of the petitioners to pay respondents 4 to 9 by virtue of their earlier borrowings. Our doubts get strengthened by the fact that the petitioners do not the complain about alleged threats and coercion attributed the police by immediate action after the alleged incident. The issue of notice after more than a the month later after the incident is not at all explained by the petitioner. We suspect the bonafides of the petitioners and view that as a possible ploy to create evidence to defeat the holders of the cheques from enforcing their claims by presenting them or enforcing the settlement letters executed by the petitioners. The relief claimed by them for return of the