N. Manickkammal vs The Assistant Director, Rural Development (Audit) Usilampatti, Madurai District., The Block Development Officer, (Panchayats), Sedapatti Panchayat Union, Sedapatti, Madurai District, The District Collector, Madurai Collectorate Complex, Madurai and The Superintendent of Police (Rural), Madurai.

Honourable Mr. Justice K. Chandru

The Writ Petition is filed by the former President of Melathirumanickam Village. In this Writ Petition, the petitioner challenges an order dated 15.06.2001 passed by the Assistant Director, Rural Development (Audit), Usilampatti, Madurai District as well as a communication dated 29.10.2008 sent by the second respondent, the Block Development Officer (Panchayats), Sedapatti Panchayat Union, Sedapatti, Madurai District.

When the matter came up for admission on 12.11.2008, the learned Government Advocate was directed to take notice. Subsequently, it was admitted on 18.03.2009. Pending the notice, an order of interim stay was granted. On notice from this Court, the second respondent has filed a counter-affidavit dated 21.11.2008, together with the typed-set of papers in support of the averments made in the counter-affidavit.

First of all, the petitioner has not made clear as to why she has now come forward to challenge the proceedings dated 15.06.2001, which was issued seven years before the filing of the Writ Petition. In fact, the communication dated 15.06.2001 is the surcharge notification issued against the petitioner seeking for recovery of a sum of Rs.52,071/- from the petitioner with reference to the audit objection raised for various amounts spent by the Panchayat during the Presidentship of the petitioner.

As against the said proceedings, it transpired that the petitioner filed a representation in terms of Rule 5, wherein appeal is provided against the surcharge proceedings under the Tamil Nadu Panchayats (Surcharge, Disallowance and Charge) Rules, 2000 framed by the State Government in terms of Section 242(2) of the Tamil Nadu Panchayats Act, 1994, vide G.O.Ms.No.32, Rural Development (C-4), dated 11.02.2000. No orders have been passed on the representation sent by the petitioner, though the petitioner made several representations to the District Collector, on the grievance day. However, it is the stand of the petitioner that the said representation was forwarded to the Assistant Director of Rural Development (Audit), Usilampatti and he has re-opened the proceedings even before any such surcharge certificate is issued, which has been confirmed by the appellate authority.

The second respondent, without any justification, had sent a letter to the Superintendent of Police (Rural), Madurai, vide her communication dated 29.10.2008. In that representation, she had told the Superintendent of Police that the petitioner had committed a loss to the Panchayat to the extent of Rs.52,071/- and, therefore, she wanted the Superintendent of Police to advise the concerned Station House Officer at T.Ramanathapuram to register an F.I.R., considering the fact that the matter was urgent and she was bound to send a report to the State Government. She requested expeditious action. A copy of the Surcharge Certificate was also enclosed along with the said letter. It is not clear as to why the petitioner has chosen to challenge an inter office communication. Pursuant to the request made by the second respondent, no action or no orders are passed by the fourth respondent. If at all the fourth respondent advises any Station House Officer to register an F.I.R., the said F.I.R. must disclose an offence and it has to be forwarded to the jurisdictional Magistrate and if any further investigation is done, a final report may be placed before the Magistrate concerned and it is open to the Magistrate to accept the said report and take cognizance of the proceedings or reject the same. At every stage of such proceedings, a person, who is an accused, has ample protection under law.

The Supreme Court, vide its judgment in Sakiri Vasu Vs. State of U.P. and Others, , has held that the Court should not normally entertain such Writ Petitions filed under Article 226 of the Constitution of India or a petition filed u/s 482 of the Code of Criminal Procedure, on the stage even before non- registration of an F.I.R. and in paragraph Nos.25 to 27, it was observed as follows:

We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition u/s 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters and relegate the petitioner to his alternating remedy, first u/s 154(3) and Section 36 Cr.P.C. before the police officers concerned, and if that is of no avail, by approaching the Magistrate concerned u/s 156(3).

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 u/s 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.c. 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 u/s 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition u/s 482 Cr.P.C. Moreover, he has a further remedy of filing a criminal complaint u/s 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?

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 u/s 482 Cr.P.C. 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, u/s 156(3) Cr.P.C. before the Magistrate or by filing a criminal complaint u/s 200 Cr.P.C. and not by filing a writ petition or a petition u/s 482 Cr.P.C.

In the present case, Mr.V.Sitharanjan Das, learned counsel for the petitioner states that since the communication directly affects the petitioner, she is bound to challenge the same. This Court is unable to agree with the said statement. In normal circumstances, no inter office communication, with which the petitioner was not directly concerned with, can be challenged. In the present case, since the second respondent obviously under pressure to send a report to the State Government, had sent such a communication, nothing prevented the second respondent to file directly a complaint with the local police and she does not need any advice of the fourth respondent. It is only in cases where a Station House Officer refuses to take the complaint on record, the question of approaching the higher authorities may arise, in terms of the Code of Criminal Procedure. Under the said circumstances, the challenge made to the inter office communication dated 29.10.2008 is misconceived.

With reference to the challenge made to the Surcharge Certificate dated 15.06.2001, even the petitioner''s own stand was that the order has not been given effect to, subsequent to her statutory representation made under Rule 5 of the Tamil Nadu Panchayats (Surcharge, Disallowance and Charge) Rules, 2000 and the matter has been remitted back to the Audit Department and the petitioner has already complied with the audit objection. Therefore, unless and until a fresh surcharge certificate is issued, which is adverse to the petitioner and the petitioner has got a right of appeal and exhaust the said appellate right, the question of the petitioner impugning an earlier certificate, which will not be made final, does not arise. Under the said circumstances, not only on merits even on the ground of delay, the Writ Petition is liable to be rejected. Hence, the Writ Petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs.