the Writ Petitions Writ Petition (MD) Nos.4435 and 4436 of 2009 filed under Article 226 of the Constitution of India to issue a Writ of Certiorari to call for the entire records pertaining to the charge memo issued by the 1st respondent vide his proceedings in j.g.vz;.17/2009 and j.g.vz;.16/2009 respectively dated 28.1.2009 and to quash the same.
!For petitioners ... Mr.R.Anand ^For respondents ... Mr.M.Rajarajan, Government Advocate :COMMON ORDER The petitioner in W.P.(MD)No.4435 of 2009 is a Head Constable and the petitioner in W.P.(MD)No.4436 of 2009 is a Sub-Inspector of Police.
2. During the year 2008, they were working at Thiruchendur Police Station in Thoothukudi District. A complaint preferred by one Karukkuvelrajan, son of Murugan Pillai of Therikudiyiruppu Village before the learned Judicial Magistrate, Thiruchendur was referred to the Sub-Inspector of Police, Thiruchendur Police Station under
Section 156(3) of the Criminal Procedure Code with a direction to register a case on the said complaint and to investigate. Based on the said order of the learned Judicial Magistrate dated 27.5.2008, the petitioner, Mr. C.Kumaraselvam, who was the then a Head Constable, registered a case in Crime No.235 of 2008 under
Section 294(b),323 and
506(ii) of the IPC on 27.5.2008. Thereafter, Mr.Murugesan, the Sub-Inspector of Police, took up the investigation and filed a final report before the said Court.
3. The petitioner, Mr. Kumaraselvam, is stated to have assisted Mr. Murugesan in the matter of investigation and for laying the charge sheet. The learned Judicial Magistrate has taken cognizance on the said final report and it appears that the trial is pending.
4. In the mean while, curiously and shockingly, the first respondent issued a charge memorandum in j.g.vz;.16/2009 dated 28.1.2009 under Rule 3(b) of the Tamil Nadu Police Subordinates (Discipline and Appeal) Rules against the petitioner, Murugesan levelling as many as two charges. The first charge is that the petitioner Mr.Murugesan, as the Sub-Inspector of Police of Thiruchendur Police Station, without properly investigating the case, laid charge sheet on 10.6.2008. The second charge is that without getting approval from the Superintendent of Police, he submitted a final report to the Court with ulterior motives and met the staff of the Court of the Judicial Magistrate and managed to get the same taken on file. Seeking to quash the said charge memorandum, he has come forward With Writ Petition (MD)No.4436 of 2009.
5. Similarly, the first respondent issued a charge memorandum in j.g.vz;.17/2009 dated 28.1.2009 under Rule 3(b) of the Tamil Nadu Police Subordinates (Discipline and Appeal) Rules against the petitioner Mr. Kumaraselvam, levelling two charges. The first charge is that the petitioner registered the case without placing the papers before the superior officers for their approval with corrupt motive. The second charge is that he joined along with the petitioner Mr. Murugesan in meeting the staff of the Judicial Magistrate's Court to see that the case is taken on file. Seeking to quash the said charge memorandum, he has come forward with Writ Petition (MD) No.4435 of 2009.
6. Learned counsel for the petitioners would submit that both the charge memorandums are liable to be quashed since the case was registered in pursuance of a direction issued by the learned Judicial Magistrate, Thiruchendur under
Section 156(3) of the Criminal Procedure Code. When the petitioners have simply obeyed the direction of the judicial order passed by the learned Judicial Magistrate, according to the learned counsel for the petitioners, such registration of the case cannot be found fault with in any manner so as to form the basis for the charge memorandums issued. Further, he submitted that the case was properly investigated, materials were properly collected and placed before the Court along with the final report. It was only on considering all those materials, the learned Judicial Magistrate took cognizance on the said report. He would further submit that subsequently, a petition was filed by some other police officer on the instruction of the higher police officers before the Judicial Magistrate seeking permission to reinvestigate the case. But the learned Judicial Magistrate dismissed the same. He would further submit that when there are such judicial orders passed by the Judicial Magistrate, it is not at all legal on the part of the first respondent to issue such charge memorandums. Thus, the charge memorandums are liable to be quashed.
7. In the counter affidavit filed on behalf of the respondents, it is stated that the writ Petitions are not maintainable inasmuch as the petitioners have got alternative remedy of submitting their explanations and to face the enquiry so as to establish their contentions. It is further contended in paragraph 6 of the counter affidavit that, though it is true that a direction had been issued by the learned Judicial Magistrate to register the case, the petitioner, Mr.Kumaraselvam, without any intimation to the higher authorities has registered the case. It is further stated that whenever any such direction is received from the Court, the petitioners are expected to intimate the order of the Judicial Magistrate to the higher officials. Since the petitioners have not obeyed the same, the said conduct amounts to misconduct and that is the foundation for the first charge. It is further stated that the second respondent had directed the Inspector of Police, District Crime Branch to further investigate the case and an order to that effect was issued on 1.7.2008. But, knowing the same fully well, the petitioners filed the final report, in the mean while, before the Court, and got the case taken on file by the learned Judicial Magistrate. Thus, according to the respondents, this conduct also amounts to misconduct.
8. I have heard Mr. R.Anand, learned counsel appearing for the petitioners and Mr.M.Rajarajan, learned Government Advocate appearing for the respondents.
9. At the outset, I have to state that it is the settled law that as soon as any direction is issued by a Judicial Magistrate under
Section 156(3) of the Criminal Procedure Code, it is the bounden duty of the Station House Officer to register a case and to investigate the same. In the case on hand, admittedly, such direction was issued by the learned Judicial Magistrate, Thiruchendur on 27.5.2008 and the same was received by the Thiruchendur Police Station at 7.00 p.m.,. In pursuance of the said direction, the petitioner, Mr. Kumaraselvam, had duly registered the case.
10. In this regard, I have to state that, after all, the petitioner, Mr. Kumaraselvam had acted swiftly to obey the order of the Court in which, no fault can be found. For having obeyed the order of the Court, one cannot expect him to undergo the ordeal of facing the charge. Thus, the first charge against the petitioner, Mr. Kumaraslevam, is not only baseless but also misconceived.
11. After the case was registered by Mr. Kumaraselvam, the Head Constable, it was duly taken up for investigation by the Sub-Inspector of Police, Mr. Murugesan and he investigated the same. Time and again, the Courts have been insisting upon the police officials to expedite the investigation and to lay final reports before the Courts of law without any unnecessary delay. The petitioner, Mr.Murugesan had done the same by filing a final report on 10.6.2008 itself. On going through the final report and other documents submitted along with the same, the learned Judicial Magistrate, having satisfied that there was a case to be tried, took cognizance of the offences and that is why, he assigned the number.
12. The second charge against both the petitioners states that they have managed to get the case taken on file by the Court by influencing staff of the Court. In this regard, I have to state that it only reflects the non- application of mind of the first respondent as to what is the process of taking cognizance by a Magistrate. Probably, he is under the mistaken impression that taking cognizance is a mechanical act that too, by the staff of the Court. It is needless to say that taking cognizance is a serious judicial act to be performed by the Judicial Magistrate under
Section 190 of the Criminal Procedure Code. On receipt of the police report, the Judicial Magistrate is required to look into the final report including all the papers submitted along with it to see whether there is any offence to be taken cognizance of and if only he is so satisfied, he will take cognizance and decide to issue summons under
Section 204 of the Criminal Procedure Code to the accused. Thus, the entire process of taking cognizance is performed by the Judicial Magistrate judicially in which the staff of the Court have got no role to play except placing the records before the learned Judicial Magistrate. When that be so, without properly understanding the said legal process, the second charge has been levelled against both the petitioners as though they have managed to get the case taken cognizance of, with the help of the staff of the Court. Thus, the second charge against both the petitioners is again baseless.
13. Insofar as the first charge against the petitioner, Mr. Murugesan is concerned, it alleges that the petitioner without making proper investigation had filed a final report before the Court. But, now curiously, in the counter, a new theory is coined by saying that when there was transfer order by the second respondent transferring the investigation to the Inspector of Police, District Crime Branch, the petitioner, Mr. Murugesan hurriedly concluded the investigation and laid charge sheet knowing fully well about the transfer of investigation. But, the learned counsel for the petitioners would point out that the charge sheet had already been laid on 10.6.2008 itself where as, according to the counter, the order transferring the investigation was made only on 1.7.2008. Thus, the said allegation is incorrect.
14. It is further stated in the said charge that the petitioner, Mr.Murugesan, did not do the investigation properly. If that is so, one would expect the statement appended to the charges to contain as to what are all the lapses said to have been committed by the petitioner, but, no such allegation is found any where in the records. On the contrary, as pointed out by the learned counsel for the petitioners, a petition was filed by the Inspector of Police, District Crime Branch, before the learned Judicial Magistrate seeking permission under
Section 173(8) of the Criminal Procedure Code for reinvestigation/further investigation. But, the learned Judicial Magistrate was pleased to dismiss the same, which means, he was not satisfied that the allegations made in the petition warranted either reinvestigation or further investigation. This would also go to show that, apparently, there appears to be no lapses committed by the petitioner, Mr.Murugesan, in the matter of investigation.
15. Above all, if really, any such lapse had been committed, the same would be found out by the trial Court and it would be exposed. Even before that exercise is completed, I do not know how the first respondent can come to the conclusion that the petitioner, Mr. Murugesan has not investigated the case properly. Thus, the first charge is also totally baseless.
16. Now, coming to the preliminary objection raised by the learned Government Advocate that the Writ Petition is not maintainable inasmuch as the petitioners have got an alternative remedy of making their explanations before the enquiry officer, I am of the view that in general, in matters of charge memo, this Court would be very slow in interfering. But, there are certain exceptions to the said general proposition. In a case where the Court is of the view that the charges are totally baseless, it is settled law that the Courts should rise upto the occasion to exercise its power under
Article 226 of the Constitution of India to extend its long arm to rescue the person, who is unnecessarily made to toil to face the charge memorandum. The case on hand, is such a classic example where, as I have stated at the outset, charges are not only baseless but also highly mischievous. Under these circumstances, this is the fittest occasion for this Court to interfere with the charge memorandums issued against the petitioners. Hence, this Court is inclined to quash the impugned charge memorandums.
17. In the result, both the Writ Petitions are allowed and the impugned charge memorandums are quashed. Connected Miscellaneous Petitions are closed. No costs.
asvm To
1.The Deputy Inspector of General of Police, Tirunelveli Zone, Tirunelveli.
2.The Superintendent of Police, Thoothukudi District, Thoothukudi.
3.The Deputy Superintendent of Police, Vilathikulam Sub-Division, Thoothukudi District.