S. Inbaraj vs The Home Secretary, Home Department and Others

M.M. Sundresh, J—The writ petition has been filed seeking for the issuance of Writ of Mandamus, directing the Respondents 1 to 4 to order change of investigation of the complaint dated 01.12.2014 sent by the petitioner to the 6th Respondent, from 6th Respondent to 7th Respondent and consequently to direct the Respondents 1 to 4 to take appropriate departmental disciplinary action against the 6th Respondent for his illegal act done in filing the false closure report dated 07.12.2014 based on the representation sent by the petitioner dated 23.12.2014.

The Criminal Original Petition has been filed seeking to call for the Closure Report dated 12.01.2015 on the file of the 2nd Respondent and set aside the same and consequently to direct the 4th Respondent to register the case and investigate the complaint dated 06.12.2014 made by the Petitioner in accordance with law and file a Final Report before the concerned Judicial Magistrate within a time frame.

Heard the learned Senior counsel appearing for the petitioner, the learned Additional Advocate General for the official respondents and the learned counsel for the private respondent.

The petitioner is a teacher. He filed a petition for divorce in H.M.O.P. No. 356 of 2012 on the file of Principal District Court, Thoothukudi. The divorce was granted on 09.04.2014 on the ground that the marriage has broken down irrevocably. In the divorce petition, the petitioner has not made any allegations against the third party. The petitioner gave complaint dated 01.12.2014, for the alleged occurrence said to have happened on 09.11.2014, on the ground that the proposed accused persons threatened him with dire consequences, if he does not give away his share in the house, which stands in his name and his wife name, in her favour. The allegation is that if the petitioner does not comply with that, he will be done away with. As the complaint of the petitioner has not been registered, the petitioner filed Crl. O.P.(MD) No. 22281 of 2014 before this Court. One of the proposed accused is a Member of the State Cabinet. When the matter came up for hearing on 08.12.2014, a closure report dated 07.12.2014 was submitted before this Court. Based upon which it was disposed of. It was subsequently found that a summon was issued on 06.12.2014, requiring the petitioner to appear for enquiry on 09.12.2014. Based on that M.P.(MD) No. 1 of 2014 has been filed seeking to recall the order passed by this Court. This Court in and by order dated 19.12.2014 directed the Inspector of Police, Sathankulam Police Station to complete the enquiry within a period of 30 days. Before receipt of the copy of the order, the petitioner was asked to appear for enquiry. The petitioner without appearing for the enquiry made a representation dated 23.12.2014 to the higher officials stating that the Investigation Officer is biased and he intimated that the case would be closed. Thereafter, he filed the Writ Petition in W.P.(MD) No. 21388 of 2014 seeking transfer of investigation. During the pendency of the Writ Petition, the case was closed as ''Mistake of Fact''. Challenging the same Crl.O.P.(MD) No. 4691 of 2015 has been filed seeking a further direction to register the case and investigate the complaint.

Learned Senior Counsel appearing for the petitioner submitted that the action taken by the Investigation Officer smacks of bias and mala fides. Even on the earlier occasion, he did not act properly. Transfer of investigation has not been sought earlier in view of the subsequent development. As the complaint discloses cognizable offences, as held by the Hon''ble Apex Court in Lalitha Kumar v. Government of U.P. Reported in 2013 (4) MLJ (Crl.) 579 sc, the investigation officer is bound to register the complaint. Therefore, the learned Senior Counsel submitted that at least the closure report should be set aside and investigation may be transferred to some other agency.

Learned Additional Advocate General appearing for the official respondents submitted that a perusal of the allegations would show that they lack substance. There is no material to substantiate the allegations made. The petitioner has got an alternative remedy and therefore, he cannot invoke the jurisdiction of this Court either under Article 226 of the Constitution of India or Section 482 Cr.P.C. A preliminary enquiry has been duly done as ordered by this Court and the petitioner has not cooperated for the enquiry. Therefore, no interference is required.

Learned counsel for the Inspector of Police, Sathankulam Police Station by filing counter affidavit submitted that the procedure has been duly followed and no interference is required.

By the order of this Court dated 19.12.2014, this Court has permitted the Investigation Officer to conduct preliminary enquiry. Therefore, the preliminary enquiry was permitted by this Court. The decision rendered by this Court was not challenged by the parties. Hence, it cannot be stated that the Investigation Officer is bound to register the complaint. Consequently, the Investigation Officer is not bound to wait till the completion of 30 days as there was no stay. A mere pendency of the Writ Petition for transfer of the Investigation cannot be a sole ground to make the investigation officer not to comply with the order of this Court in Crl. O.P.(MD) No. 22281 of 2014 which has been passed after hearing the parties. This Court is of the view that the decision rendered in Lalitha Kumar v. Government of U.P. Reported in 2013 (4) ML] (Crl.) 579 sc also does not have any application on the case on hand. The power under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure are discretionary in nature apart from being extraordinary. Therefore, when there is an alternative remedy, the parties will have to seek the relief thereunder instead of approaching this Court. The petitioner is given a copy of the closure report. Therefore, the petitioner would be well advised to challenge the same in the manner known to law before jurisdiction Magistrate. This Court is not willing to go into the factual allegations as stated in the complaint.

In so far as the Writ Petition filed is concerned, the same has become infructuous since the complaint has been closed. There is no available record to substantiate that there is bias or mala fide, particularly in the light of denial made by the investigation officer. In any case, as discussed above, there is no bar in law for the petitioner to seek the statutory remedy. Accordingly, the Writ Petition stands dismissed. No costs. Consequently, connected M.P.(MD) No. 1 of 2014 is also dismissed.

As the petitioner has got an alternative remedy, the Criminal Original Petition is also stands dismissed. However, it is made clear that this Court has not expressed anything on the merits of the case and liberty is given to the petitioner to approach the Magistrate concerned, if he is so advised. As and when the petitioner approaches the jurisdictional Magistrate with appropriate application, the Jurisdictional Magistrate is directed to decide the same in accordance with law without being influenced by any of the observations made by this Court.