Smt. Vijayalakshmi vs The State

P.R. Shivakumar, J.—This petition has been filed u/s 482 Cr.P.C seeking a direction to the learned Judicial Magistrate, Dharapuram to take

the private complaint preferred by the petitioner on 11.05.2009 u/s 190(1)(a) Cr.P.C r/w Section 200 Cr.P.C on file and proceed in accordance

with law.

The submissions made by Mr. J. Manikkam, learned Counsel for the petitioner and by Mr. I. Paul Nobel Devakumar, learned Government

Advocate (Crl.Side) representing the respondent police were heard. The documents produced in the form of typed set of papers were also

perused.

The petitioner, at the first instance, lodged a complaint with the police alleging commission of forgery and other offences. The gist of such

complaint is that a suit was pending in the civil court (District Munsif Court, Dharapuram as O.S. No. 562/2004) between the petitioner and one

Nataraja Gounder in respect of a house site measuring 3730 sq.ft. comprised in T.S. No. 492/1A2 in Dharapuram Town; that the said Nataraja

Gounder died on 01.01.2008; that after his death his legal heirs applied for electricity connection to the said property in the name of Nataraja

Gounder forging his signature in the application and obtained electricity connection; that when the same was brought to the notice of the Electricity

Board authorities, the service was disconnected and that by the said act, the legal heirs of deceased Nataraja Gounder had committed offences of

forgery, cheating etc.

However the police officials, after obtaining a legal opinion from Additional Government Pleader cum Additional Public Prosecutor to the effect

that the dispute was of civil nature, refrained from registering a case. Therefore, petitioner had to approach the learned Judicial Magistrate,

Dharapuram having jurisdiction over the place of occurrence by way of a private complaint. The learned Judicial Magistrate has not chosen either

to proceed with the complaint as per the procedure prescribed in Chapter XV of Cr.P.C or to refer the complaint to the police u/s 156(3) of

Cr.P.C for investigation. On the other hand, the learned Judicial Magistrate has simply returned the complaint stating that the same shall be

presented before the concerned police for further action, by an order dated 12.05.2009. The reason stated therein was that no complaint to the

concerned police was given before filing the private complaint. The complaint was represented on 02.06.2009 stating that since the police officer in

charge of the police station did not respond after receiving the complaint and he refused even to issue a receipt, the petitioner had to send the gist

of the complaint in writing to the superior authority.

It is obvious that the gist of the complaint in writing was sent tot he Superintendent of Police in accordance with Section 154(3) Cr.P.C.

Thereafter only the legal opinion of the Additional Government Pleader cum Additional Public Prosecutor was obtained and the police refrained

from registering a case. Therefore the reason assigned in the order dated 12.05.2009 retiring the complaint is factually incorrect. Even after the

complaint was represented, the learned Judicial Magistrate chose to return it for the second time on 05.06.2009 by a short order stating that the

complainant had not approached proper police concerned and that the complaint could be produced before the concerned police authority.

It is not the observation of the learned Judicial Magistrate that the complaint does not disclose commission of any offence or that there is a bar

for taking cognizance of the offence disclosed in the complaint. A perusal of the complaint shows that averments have been made to the effect that

the persons named in the complaint have committed offences punishable under Sections 465, 468, 471 and 120B IPC. As rightly pointed out by

the learned Counsel for the petitioner, the learned Judicial Magistrate ought to have adopted either of the two courses available, viz. i) to forward

the complaint to the police with a direction to investigate u/s 156(3) Cr.P.C. or ii) to proceed with the examination of the complainant and the

witnesses produced, if any, u/s 200 Cr.P.C and follow the procedure prescribed in Chapter XV of Cr.P.C. Without doing it, the learned Judicial

Magistrate proceeded on an erroneous assumption that before ever a private complaint is filed the complainant should have approached the police.

There is no provision in the Cr.P.C which requires that a complaint should have been lodged with the police before a private complaint is preferred

on the file of the Magistrate. It is not a condition precedent for preferring a private complaint u/s 200 Cr.P.C. that the police should have been

approached at the first instance with an information u/s 154 Cr.P.C The legal position shall be clear from the fact that a private complaint

forwarded by the Magistrate with a direction to the police u/s 156(3) Cr.P.C is to be construed as an information to the police based on which

FIR has to be registered.

Viewed from any angle, the order of the learned Judicial Magistrate returning the complaint is not legally sustainable. There is no other effective

and efficacious remedy available to the petitioner. Hence the invocation of the inherent powers of this Court u/s 482 Cr.P.C is proper and

appropriate. It is a fit case in which this Court shall exercise its inherent power in favour of the petitioner. However, a specific direction to take

cognizance of the offences by taking the complaint on file cannot be issued since the same shall have the effect of denying the discretion available to

the Magistrate either to take the complaint on file under Chapter XV of Cr.P.C or to forward the same without taking cognizance to the police u/s

156(3) Cr.P.C for registration of a case and investigation.

In the result, this petition is partly allowed and it is ordered and directed as follows:

The petitioner shall represent the complaint within 15 days from the date of receipt of a copy of this order. On such representation, the learned

Judicial Magistrate, Dharapuram shall either take it on file and proceed in accordance with the procedure prescribed in Sections 200 - 203

(Chapter XV) of Cr.P.C or forward the same u/s 156(3) Cr.P.C to the police with a direction for investigation.