K. Paulraj vs The Superintendent of Police and State

G.M. Akbar Ali, J.—The petition is filed u/s 482 Cr.P.C. to call for the records in C.C. No. 117 of 2009 on the file of the learned Judicial Magistrate No. I, Thoothukudi and set aside the order dated 03.04.2009 and direct the 2nd respondent to register F.I.R.

The brief facts of the case is as follows:

The petitioner filed a complaint before the 2nd respondent, which was neither enquired nor looked into and therefore, he was constrained to approach the learned Magistrate No. I, Thoothukudi u/s 156(3) Cr.P.C. seeking a direction to the respondents to register F.I.R. based on the complaint given by him. The petitioner had alleged that the proposed accused had forged a ''will'' and executed a sale deed and also registered the same and thereby committed offence under Sections 419, 420, 465, 467, 468, 469, 471 and 474 I.P.C. However, the learned Judicial Magistrate No. I, Thoothukudi has held that the dispute is civil in nature and directed the petitioner to proceed u/s 200 Cr.P.C. as a private complaint. Aggrieved by the same, the petitioner has come before this Court for quashing the proceedings in C.C. No. 117 of 2009 and also the order dated 03.04.2009 on the following grounds that:

(i) the learned Judicial Magistrate ought to have forwarded the complaint to the 2nd respondent which requires investigation.

(ii) the learned Judicial Magistrate ought to have followed the mandatory provisions u/s 156(3) of Cr.P.C..

Initially, on 13.03.2009 the petitioner had filed a complaint before the 2nd respondent/Superintendent of Police, Thoothukudi alleging offence punishable u/s 419, 420, 465, 467, 468, 469, 471 and 474 I.P.C. Since, no action has been taken, on 02.04.2009 he filed a petition u/s 156(3) Cr.P.C. before the learned Judicial Magistrate No. I, Thoothukudi for forwarding the complaint to the District Crime Branch for registering a case alleged on the said offences. The learned Judicial Magistrate passed an order dated 03.04.2009 in C.C. No. 117 of 2009. Aggrieved by such order, the petitioner has come forward with the present petition for the relief as stated supra.

The learned Counsel for the petitioner would submit that the petitioner has filed an application u/s 156(3) Cr.P.C. to forward the complaint to the District Crime Branch for registration of a case and investigation but the learned Judicial Magistrate No. I, Thoothukudi has passed an order stating that "on perusal of the complaint it is seen that civil dispute is pending between the parties to the facts of this case that to know what are all the offences made out and against whom, the examination of the petitioner u/s 200 Cr.P.C. is necessary. For examination of the complaint dated 13.04.2009."

The learned Counsel for the petitioner also pointed out that instead of taking the petition u/s 156(3) Cr.P.C. on file, the learned Judicial Magistrate No. I, Thoothukudi has assigned a number as C.C. No. 117 of 2009 and passed an erroneous order.

Heard the learned Counsel for the petitioner and the learned Government Advocate (Crl. side) and perused the material available on record.

Section 156(3) reads as follows:

(3) Any Magistrate empowered u/s 190 may order such an investigation as above-mentioned.

Section 190(1) contemplates a Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence.

The complaint prima facie reveals an offence and on such case, the Magistrate may order such an investigation u/s 156(3).

Therefore, the learned Judicial Magistrate ought to have taken the petition on file and assigned number in Cr.M.P. and peruse the complaint, if the allegation constitute a cognizable offence, he ought to have forwarded the same to the concerned police for registration of a case and for further investigation. It is for the investigating agency to investigate the same.

But the learned Judicial Magistrate had proceeded as if the complaint has been filed u/s 200 Cr.P.C. Which is wrong and he has also assigned a number as C.C. No. 117 of 2009 which is erroneous. Therefore, the order dated 03.04.2009 is liable to be set aside .

In view of the above, the petition is allowed and the order dated 03.04.2009 is set aside and the learned Judicial Magistrate No. I, Thoothukudi is hereby directed to take the petition on file u/s 156(3) Cr.P.C. and assign number as Crl.M.P. and proceed as contemplated u/s 156(3) Cr.P.C.